committed a felony, the receivers become accessories.48 ** * But a feme covert, however, can not become an accessory by concealing her husband, for she is presumed to act under his coercion, and therefore she is not bound neither ought she, to discover her lord."49

§ 186. Distinction between principals and accessories before the fact abolished.-In some states, among them Illinois, the distinction which existed at common law between principals and accessories before the fact has been abolished by statute. Thus, the Criminal Code of Illinois provides: "An accessory is he who stands by, and aids, abets or assists, or who, not being present, aiding, abetting or assisting, hath advised, encouraged, aided or abetted the perpetration of the crime. He who thus aids, abets, assists, advises or encourages, shall be considered as principal, and punished accordingly."50

§ 187. Mode of indictment of accessories before the fact. -At common law, a principal must be indicted as such, and an accessory as such. "If the participant is a principal, though of the second degree, he can not be charged in an indictment as accessory; if he is an accessory, he can not be held as principal."51

It is to be observed, however, that it is possible for a person to be both a principal and an accessory to the same felony:52 or an accessory before the fact and an accessory after the fact to the same felony.5

53

48 4 Bl. Comm. 38. See also 1 Hale P. C. 621; 2 Hawk. P. C. 320; People v. Dunn, 53 Hun (N. Y.) 381, 6 N. Y. S. 805, 7 N. Y. Cr. 173, 25 N. Y. St. 460.

49 4 Bl. Comm. 39. See also 1 Hale P. C. 621.

50 Illinois: Hurd's Rev. Stat. (1916), ch. 38, § 274. See also State v. Burns, 82 Conn. 213, 72 Atl. 1083, 16 Ann. Cas. 465; State v.

Where the distinction between principals and accessories before the fact has been abolished by statute, as in Illinois and several other states, accessories before the fact are indicted as principals. In Illinois it is held that they must be so indicted.54 Thus, where an indictment charges that three persons, named, with a stick of wood which each severally had and held in their several right hands, inflicted a mortal wound, causing death, proof that either one of them struck the fatal blow with the weapon described, and that the others were accessory to the fact, will be sufficient to sustain a conviction of all three as principals. There is no variance in such case between the allegations in the indictment and the proof.55

§ 188. Order of trial of accessory before the fact-Rule at common law-Rule by statute.-At common law, an accessory before the fact can not be put upon trial, without his consent, until after the conviction of the principal. This is owing to the fact that were the rule otherwise, as declared by Blackstone, "it might so happen that the accessory should be convicted one day, and the principal acquitted the next, which would be absurd."56 Where, however, the accessory is indicted with the principal he may waive his right to have the principal tried first and be tried jointly with him.57

In England, as well as in some of the states of this country, the common-law rule relating to this matter has been changed by statute. The English statute provides that persons who shall counsel, procure or command any other person to commit a felony shall be deemed guilty of a felony, and may be indicted and convicted, either as accessory before the fact to the principal felony, together with the principal felon, or may be indicted and convicted of a substantive

54 Coates v. People, 72 Ill. 303. See also Baxter v. People, 3 Gilm. (Ill.) 368; Usselton v. People, 149 Ill. 612, 36 N. E. 952; Fixmer v. People, 153 Ill. 123, 38 N. E. 667.

55 Coates v. People, 72 I11. 303. 56 2 Bl. Comm. 323.

57 Usselton v. People, 149 III. 612, 36 N. E. 952.

felony, whether the principal felon shall have been convicted or not. 58

§ 189. Accomplices-Definition-Criminal liability.—An accomplice is a person who participates in the commission of a crime, either as a principal or as an accessory, with criminal intent.

The participation requisite, however, must be something more than mere passive consent. As heretofore stated, consent which amounts only to mere mental approval is not sufficient.59 On the other hand, an accomplice is criminally liable for all criminal acts in which he actively participates; and where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance or in prosecution of the common design for which they combine.60 When several persons conspire together to invade a man's home, and go there armed with deadly weapons for the purpose of attacking and beating him, and, in the furtherance of this common design, one of them gets into a difficulty with him and kills him, the others being present, or near at hand, they also are guilty of murder, although they did not intend to kill. And if a third party espouses the cause of one of two parties to a fight, into which he enters to help whip the other party, he is criminally liable for the death of such party, whether caused by a blow given by himself, or by one given by the surviving party, or from both combined; and the criminal intent of such volunteer may be inferred from his conduct.62

587 Geo. IV, ch. 64, §9. See also 11 and 12 Vic., ch. 46, §1; Usselton v. People, 149 Ill. 612, 36 N. E. 952.

59 White v. People, 139 Ill. 143, 28 N. E. 1083, 32 Am. St. 196. See also Lamb v. People, 96 Ill. 73; State v. Maloy, 44 Iowa 104; State v. Duff, 144 Iowa 142, 122 N.

W. 829, 24 L. R. A. (N. S.) 625n, 138 Am. St. 269 and note on who is an accomplice.

60 Williams v. State, 81 Ala. 1,

1 So. 179, 60 Am. Rep. 133.

61 Williams v. State, 81 Ala. 1,

1 So. 179, 60 Am. Rep. 133.

62 People v. Carter, 96 Mich. 583, 56 N. W. 79.

But, where one party, in an altercation with another party, knocks the former down, whereupon a mere bystander kicks the person knocked down, and the latter dies as a result of the kick, the party who knocks the victim down is not criminally liable for his death. The reason is he does not volunteer, in such case, in another's cause, while on the other hand, the bystander volunteers in his own behalf without request. or expectation.63

§ 190. Accomplices-Act done must be the natural and probable consequence of the conspiracy.-If two persons conspire to commit a felony, and while they are engaged in prosecuting that common design one of them commits murder, the other also is guilty of murder. Thus, where a wife conspires with her husband to commit a robbery, and while both are so engaged he commits murder, the wife also is guilty of murder.64

The act done, however, must grow out of the conspiracy. In other words, it must be the natural consequence of it. Moreover, it must occur before the conspiracy is abandoned.65 It is not necessary, however, that it be intended as a part of the original design if it be the ordinary and probable result of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates, outside of, or foreign to, the common design.66 But a charge which requires proof of an express agreement to do an unlawful act before the defendants would be guilty of a conspiracy, ignoring the evidence which tended to prove that they were all present, or near at hand, when

63 People v. Elder, 100 Mich. 515, 59 N. W. 237.

64 Miller v. State, 25 Wis. 384. See also State v. Barrett, 40 Minn. 77, 41 N. W. 463, Derby's Cases 302; People v. Friedman, 205 N.

Y. 161, 98 N. E. 471, 45 L. R. A. (N. S.) 55n.

65 State v. Allen, 47 Conn. 121, Derby's Cases 307.

66 Williams v. State, 81 Ala. 1, 1 So. 179, 60 Am. Rep. 133.

the homicide was committed, encouraging its perpetration, is misleading if not erroneous, and is properly refused.67 Where several persons join in the commission of a crime, and, in attempting to escape, one of them commits a homicide, those who do not consent to the act, and who are not privy in fact, can not be held criminally liable by reason of the original combination. There can be no criminal liability on the part of one who is not himself engaged in the act of his associates, unless it is within the scope of the combination to which he was a party, and thus authorized as his joint act. The principle is analogous to that of agency where the liability is measured by the express or implied authority.68 So where two steal property and are trying to dispose of it after carrying it away some distance, and an officer attempts to arrest them because they had stolen property in their possession, and one, in resisting arrest, shoots the officer, his companion can not be held for the shooting.69 And where several men combine for the purpose of inducing a girl to go to a shop for the purpose of prostitution, and they induce her to go there, and all have sexual intercourse with her there, and, in order to avoid arrest or exposure, one of the conspirators, against the consent of the others, throws the girl out of a window, without any intention of killing her, but which causes injuries of which she dies, the others are not criminally liable for her death.70

§ 191. Principal and agent.-A principal is criminally liable for the criminal acts of his agent committed within the scope of the agency. In other words, a principal is criminally liable for criminal acts of his agent which the former ex

67 Williams v. State, 81 Ala. 1, 1 So. 179, 60 Am. Rep. 133.

68 People v. Knapp, 26 Mich. 112.

69 White v. People, 139 Ill. 143, 28 N. E. 1083, 32 Am. St. 196, Derby's Cases 304.

70 People v. Knapp, 26 Mich. 112.