structively, but he must not be the main actor in the commission of the crime. He is a person who watches to prevent his confederates from being taken by surprise; or stations himself at a convenient distance to aid them in escaping, if necessary; or is so situated as to be able readily to go to their assistance.24 Thus, where one of several confederates leads a girl's escort away in order that his companions may rape her, and they commit the crime, he is constructively present and an aider and abettor.25

§ 174. Accessory before the fact-Definition.-An accessory before the fact is a person who counsels, commands or procures the commission of a felony by another, but who is not present, either actually or constructively, when the felony is committed.26

§ 175. Essential elements of accessory before the fact.To constitute a person an accessory before the fact the following conditions are essential: (1) There must be a guilty principal in the first degree; (2) the accessory must not be present when the felony is committed, either actually or constructively; (3) the accessory must participate in the commission of the felony.

§ 176. First condition of accessory before the fact.-The felony must be committed by a guilty agent. This agent will constitute a principal in the first degree. Where a felony is committed through an innocent agent there is no accessory before the fact.27

To sustain an indictment against a person charged as an accessory before the fact to the commission of a felony, the prosecution must establish the guilt of the principal felon. This, however, can not be done by confessions of guilt of the

24 Whart. Crim. L. (11th ed.), § 257.

25 People v. Batterson, 50 Hun (N. Y.) 44, 2 N. Y. S. 376, 6 N. Y. Cr. 173, 18 N. Y. St. 845.

261 Hale P. C., ch. LV.

27 Gregory v. State, 26 Ohio St. 510, 20 Am. Rep. 774; Commonwealth v. Hill, 11 Mass. 136.

latter, since as to the accessory, such confessions are mere hearsay. Such confessions might be used, however, against the principal himself.28

§ 177. Second condition of accessory before the fact.To constitute a person an accessory before the fact he must be absent when the felony is committed. Presence on his part, either actual or constructive, renders him a principal if he participates in the crime.29 One who procures another to take and carry away gold, but has no part in the taking or carrying away, is not a principal, but an accessory before the fact.30

§ 178. Third condition of accessory before the fact.-It is also essential, to constitute a person an accessory before the fact, that he participate in the commission of the crime, by counseling, commanding, advising or procuring it to be done. Mere mental approval, or bare permission, is not sufficient. As said by Sir Mathew Hale, "And therefore, words that sound in bare permission, make not an accessory, as, if A says he will kill JS, and B says, you may do your pleasure for me, this makes not B accessory.' 9931 Nor is mere knowledge that the crime is to be attempted, sufficient.32

It is not essential, however, that the procurement be direct. It may be through the agency of another. Moreover, the person employed by the agent to commit the crime may be wholly unknown to the accessory.33 But if the accessory order or advise one crime and the principals intentionally commit another, as where he abets the robbery of a safe, but the principals rob a person, the accessory is not answerable.34

28 Ogden v. State, 12 Wis. 592, 78 Am. Dec. 754.

29 Williams v. State, 47 Ind. 568; Reg. v. Brown, 14 Cox Cr. C. 144, Derby's Cases 309.

30 Able V. Commonwealth, 5 Bush (Ky.) 698, Derby's Cases 310. 311 Hale P. C. 616.

32 Levering v. Commonwealth, 132 Ky. 666, 117 S. W. 253, 136 Am. St. 192, 19 Am. Cas. 140.

33 Rex v. Cooper, 5 Car. & P. 535.

34 State v. Lucas, 55 Iowa 321, 7 N. W. 583, Derby's Cases 312.

§ 179. Accessory after the fact-Definition.-An accessory after the fact is a person who receives, relieves, comforts or assists a felon personally, with knowledge that the latter has committed a felony.35

§ 180. Essential elements of accessory after the fact.To constitute a person an accessory after the fact the following conditions must exist: (1) A completed felony must have been committed when the felon receives relief or assistance; (2) relief or assistance must, according to some decisions, be furnished to the felon personally; (3) the person who gives relief or assistance to the felon must have knowledge at the time he does so of the felon's guilt.

§ 181. First condition of accessory after the fact.-The person who receives the relief or assistance must have committed a felony and the felony must be completed at the time the relief or assistance is rendered. Thus, a person is not an accessory to the crime of murder where the victim dies after the felon receives the relief or assistance. Until such felony has been consummated, any aid or assistance rendered to a party, in order to enable him to escape the consequences of his crime, will not make the person affording such assistance guilty as an accessory after the fact.36

§ 182. Second condition of accessory after the fact.Actual relief or assistance must be furnished, and it must be rendered to the felon personally. As a general rule, any assistance which may hinder his apprehension, trial or punishment, is sufficient. Thus, concealing him in the house, or shutting the door against his pursuers, to enable him to escape; taking money from him or supplying him with money, a horse, or other necessaries, for the same purpose; conveying to him instruments to enable him to break prison, or bribing the jailor to let him escape, is sufficient.37

35 1 Hale P. C., ch. LVI; Elmendorf v. Commonwealth, 171 Ky. 410, 188 S. W. 483.

36 Harrel v. State, 39 Miss. 702, 80 Am. Dec. 95n.

37 Wren v. Commonwealth, 67 Va. (26 Grat.) 952, Derby's Cases 313; 1 Bish. New Crim. L. (8th ed.), § 695.

On the other hand, merely suffering the principal to escape; or agreeing for money not to prosecute the felon; or having knowledge that a felony has been committed and failing to make it known, is not sufficient.38

The relief or assistance given must, as heretofore stated, be rendered to the felon personally. As said in an English case, "To substantiate the charge of harboring a felon, it most be shown that the party charged did some act to assist the felon personally."39 It has been held, however, that where a person employs another to harbor the principal felon the employer may be convicted as accessory after the fact, though he himself did no act of relieving; and furthermore, that he may be convicted on the uncorroborated tes timony of the party who actually did the harboring.40 And some recent cases hold that one who destroys the incriminating evidence of a felony may be an accessory after the fact to such a felony.41

Where a person is charged as accessory after the fact to a murder, the question for the jury is, whether such person, with knowledge of the felony, either assisted the murderer to conceal the death, or in any way enabled him to evade the pursuit of justice.42

§ 183. Third condition of accessory after the fact.Knowledge of the felony, at the time the relief or assistance is rendered is essential to constitute the aider an accessory after the fact.43 Mere knowledge alone without giving information to authorities does not make one an accessory

38 Wren v. Commonwealth, 67. 41 Rex v. Levy, L. R. (1912), 1 Va. (26 Grat.) 952, Derby's Cases K. B. 158, Ann. Cas. 1912 B, 503n. 313; Villareal v. State, 80 Tex. Cr. 42 Rex v. Greenacre, 8 Car. & P. 133, 189 S. W. 156; Garcia v. State (Tex. Cr. App.), 195 S. W. 196.

39 Reg. v. Chapple, 9 Car. & P. 355. See also Wren v. Commonwealth, 67 Va. (26 Grat.) 952, Derby's Cases 313; Arch. Crim. P1. & Ev., 78, 79n.

40 Rex v. Jarvis, 2 M. & Rob. 40.

35.

43 Wren v. Commonwealth, 67 Va. (26 Grat.) 952, Derby's Cases 313. Hale says, "There can be no accessory in receipt of a felon, unless he know him to have committed a felony. 1 Hale P. C. 622.

after the act. It seems that actual knowledge is required, and implied knowledge from general notoriety will not be imputed.

Upon an indictment against a party as an accessory after the fact in robbery, proof of the prisoner's knowledge of the felony, together with proof of his aiding the principal in disposing of the fruits of the robbery, is sufficient evidence of comforting and assisting to support the indictment.45

§ 184. Basis of criminal liability of accessory after the fact.-An accessory after the fact is held criminally liable on the ground that the assistance he renders the felon constitutes an interference with public justice, in that it tends to facilitate the escape of the felon.46

§ 185. Parties incapable of being accessories after the fact. At common law, a wife has capacity to be an accessory before the fact to her husband as principal, but not to be an accessory after the fact to her husband as principal. The husband, however, has capacity at common law, to be accessory either before or after the fact to his wife as principal. In some states, by statute, certain persons other than a wife are incapable of being accessories after the fact to certain other persons as principals. Thus in Illinois a husband, wife, parent, child, brother or sister to the offender can not be held as an accessory after the fact.47

At common law, however, as stated by Blackstone, "So strict is the law * that the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child his parent, if the brother receives the brother, the master his servant, or the servant his master, or even if the husband relieves his wife, who have any of them

44 Levering v. Commonwealth, 132 Ky. 666, 117 S. W. 253, 136 Am. St. 192, 19 Ann. Cas. 140.

45 Reg. v. Butterfield, 1 Cox Cr. C. 39.

46 Wren v. Commonwealth, 67 Va. (26 Grat.) 952, Derby's Cases 313.

47 Illinois: Hurd's Rev. Stat. (1916), ch. 38, § 276.