or concealment of the intention of another person to commit a crime,73 nor knowledge of and silent acquiescence in a plan to commit it,74 nor mere approval of crime after the event.75 But express and guilty consent has been held to be sufficient, when accompanied by guilty knowledge and malice towards the intended victim.76

It is not necessary that the counsel, procurement or command be by words, or by both words and deeds, but any influence knowingly and intentionally exerted to induce the commission of the crime is sufficient.77 There need not even have been any direct communication between the actual perpetrator and the accessary,78 nor need they have entered into an agreement to commit the offense.79 The counsel or advice to commit the crime must have been communicated to the principal, in some way,80 but such communication may be through the agency of a third person.81

It is not essential that any specific time or mode of committing

73 2 Hawk. P. C. c. 29, § 23; Edmonson v. State, 51 Ark. 115, 10 S. W. 21; Hightower v. State, 78 Tex. Cr. 606, 182 S. W. 492; Rucker v. State, 7 Tex. App. 549.

74 State v. Wakefield, 88 Conn. 164, 90 Atl. 230; Bradley v. State, 2 Ga. App. 622, 58 S. E. 1064; Spear v. Hiles, 67 Wis. 361, 30 N. W. 511.

75 People v. Swersky, 216 N. Y. 471, 111 N. E. 212, modifying 168 N. Y. App. Div. 941, 153 N. Y. Supp. 1134. 76 Spear v. Hiles, 67 Wis. 361, 30 N.

W. 511.

77 It may be by word, act or deed. State v. Fiore, 85 N. J. L. 311, 88 Atl. 1039.

It may be by acts and motions and by doing what the principal has requested by way of preparation for the commission of the offense. State v. Wakefield, 88 Conn. 164, 90 Atl. 230.

It is not necessary that the acts or words of the accessary should directly incite or expressly command the principal to commit the offense, but it is sufficient if it appears that they were intended to secure its commission, and that they effected

that result. Sage v. State, 127 Ind. 15, 26 N. E. 667.

78 Maxey v. United States, 30 App. Cas. (D. C.) 63; Rex v. Cooper, 5 Car. & P. 535.

79 Bragg v. State, 73 Tex. Cr. 340, 166 S. W. 162.

Compare Cooper v. State, 69 Tex. Cr. 405, 154 S. W. 989.

80 State v. Fiore, 85 N. J. L. 311, 88 Atl. 1039.

81 Fost. C. L. 127; 2 Hawk. P. C. c. 29, § 11; State v. Fiore, 85 N. J. L. 311, 88 Atl. 1039; Rex v. Somerset, 2 How. St. Tr. 966, cited in McDaniel's Case, 19 How. St. Tr. 804.

It is enough if the accessary direct an intermediate agent to procure another to commit the felony, and it will be sufficient though the accessary does not name the person to be procured, but merely directs the agent to employ some person. Rex v. Cooper, 5

Car. & P. 535.

A detective who in order to get a reward induces, through an agent, an employee of a merchant to steal from his employer, is guilty of larceny. Slaughter v. State, 113 Ga. 284, 38 S. E. 854, 84 Am. St. Rep. 242.

the offense shall have been advised or commanded,82 nor that it shall have been committed in the particular way instigated, if any.88 And a person may be convicted as an accessary before the fact to a murder where he advises the killing of a person or persons belonging to a certain class, and the person killed belongs to that class.84 But it has been held that the crime must have been committed as a result of the advice given by the person charged as accessary rather than of the independent volition of the principal.85

§ 242. Intent. To render one guilty of a crime as an accessary he must have a criminal intent.86 Thus, one who joins a conspiracy to commit a robbery or burglary merely for the purpose of exposing it, and honestly carries out the plan, is not an accessary before the fact to the crime when committed by the others.87 And the same is true of one who agrees to accept a bribe offered to him, and takes the money offered him at the instigation of officers of the law, solely with a view of detecting the crime of the person offering it,88 and of a post office inspector who, believing from general information that a person is guilty of violating the law, sends him decoy letters.89 But one who himself originates a crime, or is instrumental in initiating it, may be an accessary although he is a detective or other officer.90 If a specific intent is necessary to constitute the particular offense, a person to be an accessary to that offense must entertain, or know that the principal entertains, that specific intent.91

82 Maxey v. United States, 30 App. Cas. (D. C.) 63.

One who procures or incites the commission of an offense cannot escape responsibility by leaving the time, place and manner of its execution to his associates. In order to hold one as accessary to a burglary, it is not necessary to show that he knew or supposed that the offense was to be committed in the night. Com. v. Glover, 111 Mass. 395.

83 See § 260, infra.

84 A person may be convicted as accessary before the fact to the murder of a policeman by one who has escaped from jail, where he advises such person to kill any policeman who comes towards him. State v. Kennedy, 109 S. C. 141, 95 S. E. 350.

85 Com. v. Bowen, 13 Mass. 356, 7 Am. Dec. 154.

86 Com. v. Adams, 127 Mass. 15; People v. Sweeney, 161 N. Y. App. Div. 221, 146 N. Y. Supp. 637, aff'd 213 N. Y. 37, 106 N. E. 913.

87 Com. v. Hollister, 157 Pa. St. 13, 27 Atl. 386; Holmes v. State, 70 Tex. Cr. 214, 156 S. W. 1172.

88 Savage v. State, 75 Tex. Cr. 213, 170 S. W. 730; Minter v. State, 70 Tex. Cr. 634, 159 S. W. 286.

89 Ackley v. United States, 200 Fed.

217.

90 Savage v. State, 75 Tex. Cr. 213, 170 S. W. 730.

91 As in the case of assault with intent to kill, State v. Hickan, 95 Mo. 322, 8 S. W. 252, 6 Am. St. Rep. 54; or stabbing with intent to wound,

It is now generally held that principals and accessaries may be convicted of different grades or degrees of an offense, according to their respective intents, although the rule was otherwise at common law 92

§ 243. Accessaries after the fact-In general. An accessary after the fact is one who receives, relieves, comforts, or assists another personally, with knowledge that he has committed a felony,93 or, as defined by statute in some states, a person who, after a full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime.94 One does not become an accessary after the fact by reason of any connection with the crime itself, but because of his connection with the principal,95 and an accessary after the fact is not regarded as a partaker in the guilt of the principal, but his offense is considered as separate and independent of the main crime.96 In Texas an accessary after the fact is called an accessary.97

Wagner v. State, 43 Neb. 1, 61 N. W. 85; or of burning insured property with intent to defraud the insurer. Com. v. Asherowski, 196 Mass. 342, 82 N. E. 13.

92 See § 257, infra.

93 4 Bl. Com. 37; 1 Hale P. C. 618. See also the following decisions: Alabama. Smith v. State, 8 Ala. App. 187, 62 So. 575.

Arkansas. State v. Jones, 91 Ark. 5, 120 S. W. 154, 18 Ann. Cas. 293.

Florida. Albritton v. State, 32 Fla. 358, 13 So. 955; Montague v. State, 17 Fla. 662.

Georgia. Loyd v. State, 42 Ga. 221. Illinois. Reynolds v. People, 83 Ill. 479, 25 Am. Rep. 410.

Kansas. State v. Jett, 69 Kan. 788, 77 Pac. 546; State v. Doty, 57 Kan. 835, 48 Pac. 145.

Kentucky. Levering v. Com., 132 Ky. 666, 117 S. W. 253, 136 Am. St. Rep. 192, 19 Ann. Cas. 140; Tully v. Com., 11 Bush (76 Ky.) 154.

Missouri. State v. Naughton, 221 Mo. 398, 120 S. W. 53.

Oklahoma. Pearce v. Territory, 11 Okla. 438, 68 Pac. 504; Howard v.

State, 9 Okla. Cr. 337, 131 Pac. 1100. Tennessee. Harris v. State, 7 Lea (75 Tenn.) 124.

Texas. Harrison v. State, 69 Tex. Cr. 291, 153 S. W. 139; Strong v. State, 52 Tex. Cr. 133, 105 S. W. 785. Virginia. Wren v. Com., 26 Gratt.

952.

94 State v. Jones, 91 Ark. 5, 120 S. W. 154, 18 Ann. Cas. 293; People v. Garnett, 129 Cal. 364, 61 Pac. 1114; Ex parte Goldman, 7 Cal. Unrep. 254, 88 Pac. 819; In re Overfield, 39 Nev. 30, 152 Pac. 568.

Under the Georgia statute he must both conceal it from the magistrate and harbor, assist, or protect the felon. Loyd v. State, 42 Ga. 221.

95 Hightower v. State, 78 Tex. Cr. 606, 182 S. W. 492; Figaroa v. State, 58 Tex. Cr. 611, 127 S. W. 193.

He cannot be connected with the main offense, and could not be guilty of its commission. Strong v. State, 52 Tex. Cr. 133, 105 S. W. 785.

96 Edmonson v. State, 51 Ark. 115, 10 S. W. 21.

97 See § 223, supra.

§ 244. -Who may be accessaries after the fact. "So strict is the law," says Blackstone, "that the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child the 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 may have any of them committed a felony, the receivers become accessaries.'' 98 But a feme covert cannot become an accessary by the receipt and concealment of her husband, "for she is presumed to act under his coercion, and therefore she is not bound, neither ought she, to discover her lord." 99 By statute in some states persons standing in certain relationships to the principal are expressly exempted from liability as accessaries after the fact.1

98 4 Bl. Com. 38; 3 Inst. 108; 2 Hawk. P. C. 320; 1 Hale P. C. 621; People v. Dunn, 7 N. Y. Cr. 187.

99 4 Bl. Com. 39; 1 Hale P. C. 621; People v. Dunn, 53 Hun (N. Y.) 381, 6 N. Y. Supp. 805.

1 See the statutes of the various states:

Arkansas. The statute provides that persons standing to the accused in the relation of parent, child, brother, sister, husband or wife, shall not be deemed accessaries after the fact, unless they resist the lawful arrest of such offenders. Kirby & C. Dig. 1916, § 1648; Edmonson v. State, 51 Ark. 115, 10 S. W. 21.

V.

Where the evidence of a husband's guilt is so interwoven with that of a third person that his wife cannot inform against the latter without implicating the former, she will not be an accessary because of her concealment of the crime. Edmonson State, 51 Ark. 115, 10 S. W. 21. Missouri. The statute exempts persons standing in the relation of husband or wife, parent or grandparent, child or grandchild, or brother or sister, by consanguinity or affinity. State v. Miller, 182 Mo. 370, 81 S. W. 867.

The indictment must negative the

statutory exceptions, but the burden is on the defendant to show that he comes within them. State v. Miller, 182 Mo. 370, 81 S. W. 867.

Philippines. Pen. Code, art. 16, exempts persons standing in certain relationships to the principal unless they themselves make a profit or assist the principal to profit by the effects of the crime. United States v. Duedo, 14 Philippine 515.

Rhode Island. State v. Davis, 14 R. I. 281.

Texas. The statute provides that the following persons cannot be accessaries; the husband or wife of an offender; his relations in the ascending or descending line by consanguinity or affinity; his brothers and sisters; his domestic servants. Pen. Code, art. 87; Villareal v. State, 78 Tex. Cr. 369, 182 S. W. 322; Fondren v. State, 74 Tex. Cr. 552, 169 S. W. 411; Adcock v. State, 41 Tex. Cr. 288, 53 S. W. 845; Moore v. State, 40 Tex. Cr. 389, 51 S. W. 1108; Gray v. State, 24 Tex. App. 611, 7 S. W. 339.

This provision does not exempt such persons from punishment for introducing instruments, arms, etc., into a jail with intent to facilitate the escape of a prisoner, since that is an independent statutory offense, and is

One who is a principal cannot be an accessary after the fact 2 and the fact that a person who takes part in the commission of a felony attempts to conceal or aid the escape of another person also concerned in its commission will not make him an accessary or prevent him from being convicted as a principal. But the same person may be an accessary both before and after the fact.*

§ 245. Commission of the felony. A person can never become an accessary after the fact to a felony until after the felony has been committed. Nothing done by him prior to that time can make him an accessary after the fact.5 And it is also necessary that the felony shall have been completed at the time the relief or assistance is given. There cannot be an accessary after the fact without a principal, and before a person can be convicted as an accessary the guilt of the principal must be shown. But one may be convicted as an accessary after the fact for aiding or assisting an accessary before the fact. At common law it is not necessary that an indictment or other judicial proceedings be pending against the

not dependent on the guilt of the prisoner sought to be aided. Peeler v. State, 3 Tex. App. 533.

Vermont. The statute exempts husband and wife, parent or grandparent, child or grandchild, brother or sister. State v. Butler, 17 Vt. 145. 2 People v. Chadwick, 7 Utah 134, 25 Pac. 737; Reg. v. Brannon, 14 Cox C. C. 394.

3 Howard v. State, 9 Okla. Cr. 337, 131 Pac. 1100.

4 See § 237, supra.

5 Hightower v. State, 78 Tex. Cr. 606, 182 S. W. 492; Gonzales v. State, 74 Tex. Cr. 458, 171 S. W. 1146; Figaroa v. State, 58 Tex. Cr. 611, 127 S. W. 193; Strong v. State, 52 Tex. Cr. 133, 105 S. W. 785.

Concealment of knowledge that a crime is to be committed does not make one an accessary after the fact. Hightower v. State, 78 Tex. Cr. 606, 182 S. W. 492.

64 Bl. Com. 38; 1 Hale P. C. 622; State v. Jones, 91 Ark. 5, 120 S. W. 154, 18 Ann. Cas. 293; Harrel v. State,

39 Miss. 702, 80 Am. Dec. 95; Wren v. Com., 26 Gratt. (Va.) 952.

One cannot become an accessary after the fact until the principal offense is an accomplished fact. Reynolds v. People, 83 Ill. 479, 25 Am. Rep. 410.

Thus, a person cannot be convicted as an accessary after the fact to a murder because he assisted the murderer to escape, where the assistance was rendered after the mortal wound was given, but before death ensued, as a murder is not complete until the death results. But he may be convicted as accessary after the fact to the offense of assault with intent to murder. Harrel v. State, 39 Miss. 702, 80 Am. Dec. 95.

7 People v. Dom Pedro, 19 N. Y. Misc. 300, 43 N. Y. Supp. 44. 8 See § 253, infra.

9 Whorley v. State, 45 Fla. 123, 33 So. 849; Montague v. State, 17 Fla. 662; State v. Payne, 1 Swan (31 Tenn.) 383.