or more combine to commit an assault merely, and one of them commits a robbery,48 or an assault with intent to rob,49 or where several conspire to steal money from a building, and one of them commits a murder in no way connected with the object of the conspiracy,50 or where several combine for purpose of self defense only, with the understanding that they are not to be the aggressors or attack a party of men opposing them, and one of their number commits a homicide not in self defense.51 Nor are the parties to a conspiracy. or combination responsible for an act committed by their intended victim while he is opposing them in the accomplishment of their common design.52 According to some courts if the purpose of the combination or conspiracy is to commit a trespass or misdemeanor, purpose of making him leave a saloon where he is or as a joke, and two of them afterwards set fire to his clothes and he is burned to death, the third is not responsible for the murder, where he did not concur, advise or aid in the burning. Renner v. State, 43 Tex. Cr. 347, 65 S. W. 1102. The rule is otherwise where the killing was contemplated, or was the natural or probable consequence of the assault. See § 260, supra. 48 People v. McKeighan, 205 Mich. 367, 171 N. W. 500; People v. Foley, 59 Mich. 553, 26 N. W. 699. Where poachers set upon a game keeper and beat him until he was senseless and afterwards one of them robbed him, the others were not guilty of the robbery. Rex v. Hawkins, 3 Car. & P. 392. See Reg. v. Barnett, 3 Cox C. C. 432. 49 People v. Belton, 160 Mich. 416, 125 N. W. 386. 50 A conspiracy to steal money from a barn is not such a conspiracy as would naturally and probably result in the murder of the owner of the money at a place entirely remote from the barn and under circumstances in no way connected with obtaining the money from the barn, and a party to the conspiracy not present at such a killing is not responsible therefor. State v. Keleher, 74 Kan. 631, 87 Pac. 738. 51 The others are not responsible for the homicide under such circumstances. Goins v. State, 46 Ohio St. 457, 21 N. E. 476. 52 Persons participating in a riot cannot be convicted of manslaughter for the accidental killing of an innocent bystander by soldiers engaged in resisting an attack by the rioters. Com. v. Campbell, 7 Allen (89 Mass.) 541, 83 Am. Dec. 705. Where two persons conspire to rob another, and the victim accidentally kills an innocent bystander while shooting at them in self defense, they are not criminally responsible for the homicide. Com. v. Moore, 121 Ky. 97, 88 S. W. 1085, 2 L. R. A. (N. S.) 719, 123 Am. St. Rep. 189, 11 Ann. Cas. 1024. Where several persons assault a marshal who is endeavoring to arrest one of their number, and the mar shal, in defending himself, attempts to shoot one of them, but accidentally hits and kills an innocent bystander, they are not responsible for the homicide. Butler v. People, 125 Ill. 641, 18 N. E. 338, 1 L. R. A. 211, 8 Am. St. Rep. 423. and one of the conspirators goes beyond the common intent and commits a felony, his coconspirators are not responsible for the felony unless they participated in the felonious design.53 But other courts hold that the grade of the crime involved in the conspiracy is immaterial, where its object is unlawful.54 55 § 263. Homicide or assault in order to escape. Where several persons combine to commit an offense, and a homicide or assault is committed by one of them in order to effect his escape, the others cannot be held responsible for the homicide or assault unless they consented and were privy in fact thereto; or had the common purpose of resisting with extreme violence any person who might attempt to apprehend them.56 But if the parties contemplate and intend the doing of everything necessary to effect an escape,—and this may be inferred from the fact that all of them arm themselves, etc., all will be responsible for a homicide or assault committed by one, either in effecting his own escape or in rescuing a comrade.57 § 264. Acts not criminal on part of person committing them. When a person aids or abets in the commission of an act by another, or counsels or commands an act, he cannot be punished as an aider or abettor, or as a principal in the second degree or accessary before the fact if the other, because of the absence of a criminal intent, or for any other reason, is not guilty of any crime. And it can make 53 People v. Koharski, 177 Mich. 194, 142 N. W. 1097; People v. Foley, 59 Mich. 553, 26 N. W. 699. And see State v. Powell, 168 N. C. 134, 83 S. E. 310. 54 So it has been held that a homicide perpetrated in furtherance of a conspiracy is not reduced to manslaughter because the purpose of the conspiracy was to commit a misdemeanor. People v. Ford, 25 Cal. App. 388, 143 Pac. 1075. 55 People v. Knapp, 26 Mich. 112; Mercersmith v. State, 8 Tax. App. 211. Where one uses violence in an attempt to prevent recapture after the other has escaped, the other is not guilty of the violence. Reg. v. Harvey, 1 Cox C. C. 21. 56 People v. Marwig, 227 N. Y. 382, 125 N. E. 535; Rex v. Collison, 4 Car. & P. 565. 57 California. People v. Kauffman, 152 Cal. 331, 92 Pac. 861; People v. Pool, 27 Cal. 572. And see People v. Woods, 147 Cal. 265, 81 Pac. 652, 109 Am. St. Rep. 151. Illinois. Hamilton v. People, 113 Пl. 34, 55 Am. Rep. 396. New York. People v. Marwig, 227 N. Y. 382, 125 N. E. 535; Ruloff v. People, 45 N. Y. 213. Ohio. Conrad v. State, 75 Ohio St. 52, 78 N. E. 957, 6 L. R. A. (N. S.) 1154, 8 Ann. Cas. 966. South Carolina. State v. Lesesne, 112 S. C. 250, 100 S. E. 62. no difference that he thought the other was committing a crime,58 for as we have seen, the law does not punish a mere criminal intent.59 So one cannot be convicted as accessary if the person charged as principal was not criminally responsible for his acts because of his lack of mental capacity,60 or his extreme youth.61 And if a homicide is committed in self defense, one aiding and assisting the slayer is entitled to the defense, though he wrongfully participated.62 Nor can a person be convicted as principal in the second degree or aider and abettor, where the actual perpetrator commits the act solely for the purpose of entrapping the defendant, and is guilty of no offense because of the absence of criminal intent on his part, or because the intended victim consents to what is done.63 And where it is not arson for a person to burn his own dwelling house, he cannot be convicted as an accessary before the fact to the crime of arson for procuring another person to burn it.64 This rule has been held not to apply, however, where the distinction between principals and accessaries has been abolished and the acts of the principal are deemed to be the acts of the accessary, and under such circumstances it has been held that one who persuades and procures another to 58 Arkansas. Ray v. State, 102 Ark. 594, 145 S. W. 881. And see Hunter v. State, 60 Ark. 312, 30 S. W. 42. Indiana. Cruthers v. State, 161 Ind. 139, 67 N. E. 930. Kansas. State v. Douglass, 44 Kan. 618, 26 Pac. 476. Mississippi. Strait v. State, 77 Miss. 693, 27 So. 617. Missouri. State v. Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. Rep. 360. Ohio. State v. Lynch, 81 Ohio St. 336, 90 N. E. 935, 28 L. R. A. (N. S.) 334. Oklahoma. Williams v. State, 5 Okla. Cr. 206, 114 Pac. 624. Wisconsin. See Ogden v. State, 12 Wis. 532, 78 Am. Dec. 754. A person cannot be convicted of aiding and abetting the commission of a crime in another state if the acts of the principal are not an offense under the laws of the state where they are committed, although they would have been an offense in the state of the forum. See § 294, infra. 50 See § 6, supra. 60 McMahan v. State, 168 Ala. 70, 53 So. 89. 61 Edwards v. State, 80 Ga. 127, 4 S. E. 268. 62 State v. Phillips & Ross, 24 Mo. 475; Gerard v. State, 78 Tex. Cr. 294, 181 S. W. 737; McMahon v. State, 46 Tex. Cr. 540, 81 S. W. 296. 63 People v. Collins, 53 Cal. 185; State v. Douglass, 44 Kan. 618, 26 Pac. 476; Strait v. State, 77 Miss. 693, 27 So. 617; State v. Hayes, 105 Mo. 76, 16 S. W. 514, 24 Am. St. Rep. 360. And see § 235, supra. As to entrapment generally, see § 187, supra. 64 Com. v. Makely, 131 Mass. 421; State v. Sarvis, 45 S. C. 668, 24 S. E. 53, 32 L. R. A. 647, 55 Am. St. Rep. 806. commit suicide is guilty of murder though suicide is not a crime.65 Nor will the fact that the principal is not subject to punishment for an offense because it is a corporation and the statute provides for punishment by imprisonment only, prevent the punishment of persons aiding and abetting in its commission.66 VII. RESPONSIBILITY AS RESULT OF PARTICULAR RELATIONSHIPS A. Principal and Agent, Master and Servant § 265. Responsibility of principal or master-Acts directed or authorized. A master or principal is criminally responsible for an act of his servant or agent done by his direction or with his acqui escence or consent.67 If he knows that his agent or servant intends 65 Burnett v. People, 204 Ill. 208, 68 N. E. 505, 66 L. R. A. 304, 98 Am. St. Rep. 206. And see § 686, infra. 66 United States v. Young & Holland Co., 170 Fed. 110; United States v. Van Schaick, 134 Fed. 592. As to the criminal responsibility of corporations, see § 139, supra. 67 United States. Richardson V. United States, 181 Fed. 1. Arizona. Grant Bros. Const. Co. v. United States, 13 Ariz. 388, 114 Pac. 955, aff'd 232 U. S. 647, 58 L. Ed. 776, 34 Sup. Ct. 452. California. People v. Green, 22 Cal. App. 45, 133 Pac. 334. Connecticut. State v. Grady, 34 Conn. 118. District of Columbia. Maxey v. United States, 30 App. Cas. 63. Georgia. Hately v. State, 15 Ga. 346. Idaho. State v. Cramer, 20 Idaho 639, 119 Pac. 30. Kansas. State v. Pigg, 78 Kan. 618, 97 Pac. 859, 19 L. R. A. (N. S.) 848, 130 Am. St. Rep. 387. Massachusetts. Com. v. Stevens, 155 Mass. 291, 29 N. E. 508. Michigan. People v. Kowalski, 179 Mich. 368, 146 N. W. 177. Missouri. City of Liberty v. Mo ran, 121 Mo. App. 682, 97 S. W. 948. Montana. State V. Geddes, 22 Mont. 68, 55 Pac. 919. New Hampshire. State v. Bonney, 39 N. H. 206; State v. Wiggin, 20 N. H. 449. New Jersey. State v. Pennsylvania R. Co., 84 N. J. L. 550, 87 Atl. 86. New York. People v. Adams, 3 Den. 190, 45 Am. Dec. 468, aff'd 1 N. Y. 173, 4 How. Pr. 295. North Carolina. State v. Stroud, 95 N. C. 626. Ohio. Anderson v. State, 22 Ohio St. 305. Oklahoma. Cox v. State, 3 Okla. Cr. 129, 104 Pac. 1074, 105 Pac. 369. Oregon. State v. Steeves, 29 Ore. 85, 43 Pac. 947. Pennsylvania. Com. v. Gillespie, 7 Serg. & R. 469, 10 Am. Dec. 475. South Carolina. Town of Hartsville v. McCall, 101 S. C. 277, 85 S. E. 599. to commit an offense, or is committing an offense, in the course of his employment, and acquiesces, or fails to make any effort to prevent it, he is criminally responsible for the offense to the same extent as if he had expressly commanded or authorized it.68 Thus, a person is criminally responsible if he knowingly permits his servant or agent to violate a statute prohibiting and punishing any person who shall keep for sale or sell intoxicating liquors, or who shall sell to minors or drunkards, or who shall keep a bawdy house, or a gaming house, or permit gaming,69 or making it an offense for a banker to accept or receive deposits with knowledge that the bank is insolvent,70 or if he knowingly permits his agent or servant to sell libelous or obscene publications," or authorizes or directs him to publish a libel or knows of and acquiesces in such publication.72 may be shown though knowledge of the particular act charged cannot be proved. State v. Crawford, 151 Mo. App. 402, 132 S. W. 43. 68 Alabama. Carr v. State, 104 Ala. 4, 16 So. 150. Arizona. Grant Bros. Const. Co. v. United States, 13 Ariz. 388, 114 Pac. 955, aff'd 232 U. S. 647, 58 La Ed. 776, 34 Sup. Ct. 452. Idaho. State v. Cramer, 20 Idaho 639, 119 Pac. 30. Massachusetts. Com. V. Stevens, 155 Mass. 291, 29 N. E. 508; Com. v. Nichols, 10 Metc. 259. Minnesota. State v. Mueller, 38 Minn. 497, 38 N. W. 691. Missouri. State v. Crawford, 151 Mo. App. 402, 132 S. W. 43. England. Rex v. Almon, 5 Burrow 2686. Mere knowledge that the agent or servant is committing or is about to commit the offense will not make the principal or master guilty, but he must consent. But knowledge with acquiescence is tantamount to consent. State v. Crawford, 151 Mo. App. 402, 132 S. W. 43. In Britain v. State, 3 Humph. (Tenn.) 203, it was held that a master who caused or permitted his slave to go about in public indecently naked was guilty of lewdness, and 69 United States. United States v. Kinnebrew v. State, 80 Ga. 232, 5 S. E. 56. Massachusetts. Com. v. Stevens, 155 Mass. 291, 29 N. E. 508; Com. v. Nichols, 10 Metc. 259. Missouri. State v. Crawford, 151 Mo. App. 402, 132 S. W. 43. New Hampshire. State v. Wiggin, 20 N. H. 449. Texas. Holland v. State (Tex. Cr.), 101 S. W. 1001. An employer engaged in the unlawful business of selling intoxicating liquor is criminally liable for a sale made by his employee in the course of the employer's business, whether such employer be present and consenting to the particular sale or not. Stack v. State, 4 Okla. Cr. 1, 109 Pac. 126. 70 See § 1292, infra. 71 Rex v. Almon, 5 Burrow 2686. 72 State v. Armstrong, 106 Mo. 395, 16 S. W. 604, 13 L. R. A. 419, 27 Am. St. Rep. 361. |