enabling the lunatic to shoot and kill the officer, the third party is criminally liable for the lunatic's act. § 163. Principle of constructive presence based upon necessity. The principle of constructive presence is said to be founded upon necessity. Since it is said that there could be no principal in a crime unless he is present when it is committed, in cases where the crime is committed through an innocent agent when personally absent, the presence of the agent is held to be constructive presence of the principal.' § 164. Moral innocence of agent not the test in first degree. Whether the real instigator of the crime is an accessory before the fact or a principal in the first degree, does not depend upon the moral innocence or guilt of the agent, but upon the presence or absence of criminal liability on his part. Thus, it has been held that one who procures an instrument for a woman, which he advises and directs her to use upon herself to produce a criminal abortion, may be convicted as principal, where the woman, pursuant to such advice and direction, uses the instrument for such purpose, though in the absence of the former, thereby causing her to miscarry and die.o § 165. Principal and innocent agent in different jurisdictions. The fact that the principal and the innocent agent are in different jurisdictions at the time the crime is committed is immaterial. "Personal presence, at the place where a crime is perpetrated, is not indispensable to make one a principal offender in its commission. Thus, where a gun is fired from the land which kills a man at sea, the offense must be tried by the admiralty, and not by the common-law courts; for the crime is committed where the death occurs, 6 Johnson v. State, 142 Ala. 70, 38 So. 182, 2 L. R. A. (N. S.) 897n. 7 Seifert v. State, 160 Ind. 464, 67 N. E. 100, 98 Am. St. 340; State v. Bailey, 63 W. Va. 668, 60 S. E. 785; Derby's Cases 297; 1 Bish. New Crim. L. (8th ed.), § 651. 8 Seifert v. State, 160 Ind. 464, 67 N. E. 100, 98 Am. St. 340. 9 Seifert v. State, 160 Ind. 464, 67 N. E. 100, 98 Am. St. 340. and not at the place from whence the cause of the death proceeds. And on the same principle an offense committed by firing a shot from one county which takes effect in another, must be tried in the latter, for there the crime was committed. In such cases the offender is an immediate actor, in the perpetration of the crime, although not personally present at the place where the law adjudges it to be committed. He is there, however, by the instrument used to effect his purpose, and which the law holds sufficient to make him personally responsible at that place for the act done there. But crimes may be perpetrated through the instrumentality of living agents in the absence of the principal, and our law books are full of such cases. Where poison is knowingly sent to be administered as medicine, by attendants who are ignorant that it is poison, and death ensues, the person who thus procures the poison to be taken is guilty of murder. So where a child without discretion, an idiot or a madman, is induced by a third person to do a felonious act, the instigator alone is guilty, and although not present at the perpetration of the crime, he is a principal felon." "10 § 166. Separate acts pursuant to common design as test of principal in first degree.—Where, pursuant to a common criminal design, separate acts are done by different persons in the absence of each other, all are guilty as principals.11 The basis of this rule is necessity; for if the rule were otherwise none of the parties could be convicted. If several persons conspire to commit a forgery, and in pursuance of the conspiracy they make distinct parts of the forged instrument in the absence of some of their number, the forgery being completed by one of them adding the signature in the absence of all the rest, all are guilty as principals. 12 It is to be observed, however, that at common law forgery is only 10 People v. Adams, 3 Denio (N. Y.) 190, 45 Am. Dec. 468. 111 Bish. New Crim. L., § 650. 446, Beale's Cases 381; Rex v. Dade, 1 Moody 307. See also Hammack v. State, 52 Ga. 397. a misdemeanor, and that in misdemeanors all accomplices are principals whether absent or present. By statute, however, forgery is made a felony, and the rule as stated is applicable to statutory forgery. § 167. Principal in the second degree-Definition.-A principal in the second degree is a person who is present, either actually or constructively, when a felony is committed by another, and who aids or abets in its commission. Blackstone says, "A principal, in the first degree, is he that is the actor, or absolute perpetrator, of the crime; and, in the second degree, he who is present, aiding and abetting the fact to be done. Which presence need not always be an actual and immediate standing by, within sight or hearing of the fact; but there may be also a constructive presence, as when one commits a robbery or a murder, and another keeps watch or guard at some convenient distance."13 § 168. Essential elements of principal in second degree.— To constitute a person a principal in the second degree the following conditions must exist: (1) There must be a guilty principal in the first degree; (2) the principal in the second degree must be present, either actually or constructively, when the felony is committed; (3) he must aid or abet in the commission of the felony to the knowledge of the former. § 169. The first condition of principal in second degree.— To have a principal in the second degree there must be a principal in the first degree, who actually commits the criminal act. It requires no aid from the act of the principal in the second degree to complete the guilt of the principal in the first degree; but the principal in the second degree can not be guilty of crime if the principal in the first degree fails to do his part, even though the principal in the second degree has performed his part.14 13 2 Bl. Comm. 34. 14 Mulligan v. Commonwealth, 84 Ky. 229, 232, 1 S. W. 417, 8 Ky. L. 211. § 170. The second condition of principal in second degree. To constitute a person a principal in the second degree he must be present when the felony is committed. A constructive presence, however, is sufficient; but it is essential that he be near enough to render some assistance if needed.15 It is also essential that his purpose in being present must be to render aid to the chief felon, and the latter must have knowledge of this fact. It is to be observed, however, that it is possible for a person to be constructively present and at the same time be many miles away, and in a different county. Thus, where several persons conspired to commit a stage robbery, and pursuant to the conspiracy, one of them built a fire on a mountain forty miles away and in a different county, to give the others notice of the whereabouts of the stage at that time, he was held guilty as a principal in the second degree.18 "If several unite in one common design, to do some unlawful act, and each takes the part assigned to him, though all are not actually present, yet, all are present in the eye of the law." Thus, where several persons conspire to burglarize a store, and, to facilitate the burglary and lessen the danger of detection, they agree that one of them shall entice the proprietor away from the store in which he usually sleeps, to a party about a mile distant, and detain him there while the other confederates burglarize the store, and the conspiracy is carried out, the one who thus entices the proprietor away and detains him is constructively present, and guilty as principal in the second degree.18 And where a person, pursuant to a preconcerted plan, devised by himself, remains downstairs in his own home while his confederate above. 15 Harris v. State, 19 Ga. App. 741, 92 S. E. 224; Whart. Crim. L. (11th ed.), § 256; Commonwealth v. Knapp, 9 Pick. (Mass.) 496, 20 Am. Dec. 491, Derby's Cases 299. 16 State v. Hamilton, 13 Nev. 386; 1 Whart. Crim. L. (11th ed.), § 243. 17 Hess v. State, 5 Ohio St. 5, 22 Am. Dec. 767n. 18 Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340, Beale's Cases 386. steals money from a lodger and brings it downstairs and delivers it to him, he may be convicted of the larceny as a principal. 19 § 171. The third condition of principal in second degree. -For a person to be a principal in the second degree he must aid or abet in the commission of the felony. One who by chance comes upon the commission of a crime and looks. on but does not assist is not a principal in the second degree; some overt act is necessary. The law does not reach mental operations unaccompanied by any action or language.20 Presence and mere mental approval are not sufficient to render a person guilty, as principal in the second degree.21 On the other hand, actual physical aid is not essential to constitute a person a principal in the second degree.22 It is enough that he was ready to assist if required. § 172. Practical distinction between principal in first degree and principal in second degree immaterial.-Practically speaking, there is no distinction between a principal in the first degree and a principal in the second degree; both are equally guilty. So if one be indicted as principal in the first degree, proof of his presence, aiding and abetting another in committing the offense, although not actually himself doing it will support the indictment; and if indicted as principal in the second degree, proof that he committed the crime will support the indictment.23 § 173. Aider and abettor - Definition. — Technically speaking, the term aider and abettor is applicable only to a principal in the second degree. To constitute a person an aider and abettor he must be present, either actually or con 19 Commonwealth v. Lucas, 84 Mass. 170. 201 Hale P. C. 439; Elmendorf v. Commonwealth, 171 Ky. 410, 188 S. W. 483. 21 Clem v. State, 33 Ind. 418; True v. Commonwealth, 90 Ky. 651, 654, 14 S. W. 684, 12 Ky. L. 594; State v. Cox, 65 Mo. 29. 22 Doan v. State, 26 Ind. 495. 231 Arch. Crim. Pl. & Ev., 13. See also Doan v. State, 26 Ind. 495. |