§ 294. Accessaries, aiders and abettors-Different states. Some courts hold that person who, in one state, becomes accessary, either before or after the fact, to a felony committed by the principal in another state, is guilty of a crime in the state in which he becomes accessary, and may be punished there, but that he is not guilty as an accessary, and cannot be punished as such, unless by express statutory provision, in the state in which the felony is committed.16 And the same has been held to be true of a person aiding and abetting in the commission of an offense.17 Other courts, however, hold that a person may be punished as an accessary in the state where the felony is committed, if he can be apprehended there.18 And in some states this is the rule by express provision of the statute.19 It has also been held to be true in states where the statute provides that an accessary before the fact shall or may be indicted, tried and punished as a principal.20 And it is sometimes provided by statute that persons who while in the state aid in and abet the perpetration, or attempt to perpetrate an offense in another state which by the laws of the first state is a felony, shall be deemed guilty of a felony.21 But a statute making persons who, while without the state, commit or consummate an offense by an agent or means within the state liable to

New Jersey. State v. Wyckoff, 31 N. J. L. 65, Beale's Cas. 399.

As the principal is a guilty agent, the doctrine in relation to crimes committed by means of an innocent agent does not apply. See § 315, infra.

17 A person in Minnesota who assists in making a sale of candy colored with coal-tar dye in New York cannot be prosecuted as an aider and abettor in Minnesota under a Minnesota statute making the sale of candy so colored an offense, particularly when such sale is not an offense under the laws of New York. State v. Gruber, 116 Minn. 221, 133

N. W. 571, 45 L. R. A. (N. S.) 591.

18 State v. Grady, 34 Conn. 118. See also State v. Ayers, 8 Baxt. (Tenn.) 96.

19 Elliott v. State, 77 Fla. 611, 82 So. 139; Com. v. Chiovaro, 129 Mass. 489.

The South Carolina statute contains such a provision as to accessaries before the fact, but not as to accessaries after the fact. State v. Burbage, 51 S. C. 284, 28 S. E. 937.

20 State v. Chapman, 6 Nev. 320; Weil v. Black, 76 W. Va. 685, 86 S. E. 666.

21 But before a person can be punished under such a provision, it must be shown that the acts done in the other state, the commission of which the defendant is charged to have aided and abetted, amounted to an offense under the laws of such other state. Cruthers v. State, 161 Ind. 139, 67 N. E. 930.

punishment under its laws in the same manner as if they had been present and had consummated the offense within the state, has been held not to apply to accessaries.22 And where the statute provides that the offense of an accessary is cognizable in any court having jurisdiction of the crime of the principal felon, it has been held that an accessary cannot be tried in the state where his acts of accessaryship took place if the principal felon could not be tried there.23

§ 295. - Different counties. At the early common law, when a felony was committed in one county and a person was accessary before or after the fact in another county, it was uncertain whether he could be punished in either county.24 The question was finally set at rest in England by a statute making accessaries liable to indictment in the county in which they should become accessary.25 And this statute is old enough to have become a part of our common law.26 The matter is also governed by statute in many of the states, some of which provide that the prosecution must be in the county in which the accused became accessary,27 and others that he may be prosecuted either in the county in which he became accessary or in the county in which the principal felon might be indicted and tried.28 And it

22 Johns v. State, 19 Ind. 421, 81 Am. Dec. 408.

23 Edge v. State, 117 Tenn. 405, 99 S. W. 1098, 10 Ann. Cas. 876.

24 Tully v. Com., 13 Bush (76 Ky.) 142; State v. Moore, 26 N. H. 448, 59 Am. Dec. 354.

Sir Matthew Hale held that he could not be because a grand jury of one county could not take cognizance of the acts in the other. 1 Hale P. C. 623; s. c., 2 Hale P. C. 163.

But other writers were of opinion that the accessary might be punished where the felony was committed. East P. C. 360.

1

25 Stat. 2 & 3 Edw. VI, c. 24, § 4. See 1 Hale P. C. 623; Tully v. Com., 13 Bush (76 Ky.) 142; State v. Moore, 26 N. H. 448, 59 Am. Dec. 354.

26 Tully v. Com., 13 Bush (76 Ky.) 142; State v. Kinchen, 126 La. 39, 52 So. 185.

27 See the statutes of the various

states and the following cases:

California. People v. Stakem, 40 Cal. 599; People v. Hodges, 27 Cal. 340.

Kentucky. Tully v. Com., 13 Bush (Ky.) 142.

Nevada. State v. Hamilton, 13' Nev. 386; State v. Chapman, 6 Nev. 320.

New Jersey. State v. Wyckoff, 31 N. J. L. 65.

New York. Baron v. People, 1 Park. Cr. (N. Y.) 246.

28 See the statutes of the various states and the following cases:

Florida. Elliott v. State, 77 Fla. 611, 82 So. 139.

Massachusetts. Com. v. Chiovaro, 129 Mass. 489; Com. v. Pettes, 114 Mass. 307.

New Hampshire. State v. Moore, 26 N. H. 448, 59 Am. Dec. 354. South Carolina. 51 S. C. 284, 28 S. West Virginia.

State v. Burbage, E. 937.

Weil v. Black, 76

is generally held that an accessary before the fact may be tried in the county in which the principal felony was committed where the statute makes accessaries before the fact principals,29 or provides that they may be prosecuted for a substantive felony in any court having jurisdiction of the crime of the principal felon,30 or that they shall be liable to the same punishment as principals, and may be prosecuted jointly with principals, or severally, though the principal be not taken or tried,31 or that if an offense be committed partly in one county and partly in another, or if acts and their effects constituting an offense occur in different counties, the jurisdiction is in either.32 And in Texas it is held that an accessary before the fact may be prosecuted in the county in which the principal felony is committed, under a statute merely providing that the proper county for the prosecution of offenses is that in which the offense was committed.33 An accessary after the fact who acts through an innocent agent may be prosecuted in the county where the accessarial acts are committed by such agent.34

§ 296. Parties concerned in misdemeanors. In misdemeanors, all who are concerned are principals, whether present or absent,35 and therefore one who, while in one jurisdiction, commits a misdemeanor by means of an agent in another jurisdiction, even when the agent is not an innocent agent, is guilty of the offense in the latter jurisdiction, and may be punished there if he can be apprehended. In contemplation of law, he is present where the offense is committed.36

S. W. 484; State v. Ellison, 49 W.
Va. 70, 38 S. E. 574.

As to such statutes generally, see § 288, supra.

33 Fondren v. State, 74 Tex. Cr. 552, 169 S. W. 411; Carlisle v. State, 31 Tex. Cr. 537, 21 S. W. 358.

34 A person who, through an innocent agent, procures the release of a prisoner from the penitentiary, may be prosecuted as an accessary after the fact to the crime of which such prisoner was convicted in the county where the penitentiary is located. Dent v. State, 43 Tex. Cr. 126, 146, 65 S. W. 627.

35 See § 219, supra.
36 Com.

V. Blanding, 3 Pick.

This is true, for example, when a person procures the publication of a libel in another jurisdiction,37 or induces another to commit perjury 38 or to sell lottery tickets 39 in another jurisdiction, where the offense in question is a misdemeanor. On the same principle, an employee of a seller of intoxicating liquors in one state, who there receives an order for such liquors from a person in another state, in which the sale of intoxicating liquors is a misdemeanor, having authority from his employer to receive or reject orders, and who accepts the order, and sends the liquors by another employee to the buyer, may be indicted in the state into which the liquors are thus sent.40 And where conspiracy is a misdemeanor, and a conspiracy is entered into in one state to commit a felony or a misdemeanor in another, all the conspirators may be indicted for the conspiracy in the latter state, if an overt act is done by any one of them in that state.41

§ 297. Offenses committed by means of the mail. The locality of a crime committed by means of the mail is the place where the crime was consummated.42 It has been held that the offenses of offering or tendering a contract for the payment of money to a federal officer to induce him to violate his official duty,48 or of attempting to procure a person to register illegally as a voter, when committed by means of letters sent through the mail, are committed in the jurisdiction where the letter is received. But the offense of mailing a letter for the purpose of executing a scheme to defraud,45 or of depositing

(Mass.) 304, 15 Am. Dec. 214; Com. v. Gillespie, 7 Serg. & R. (Pa.) 469; Rex v. Brisac, 4 East 164. And see State v. Grady, 34 Conn. 118.

37 Com. V. Blanding, 3 Pick. (Mass.) 304, 15 Am. Dec. 214.

38 See Com. v. Smith, 11 Allen (Mass.) 243.

39 Com. v. Gillespie, 7 Serg. & R. (Pa.) 469.

U. S. 257, 34 L. Ed. 514, 10 Sup. Ct. 1034.

44 One who by mail solicits a person in another state to register illegally in the state where the letter is mailed cannot be convicted in the last named state for an attempt to procure such illegal registration. State v. Stow, 83 N. J. L. 14, 84 Atl. 1063.

45 This was held under an earlier statute which did not make it an offense to cause delivery of the matter, as the present statute does. The holding was based on the ground that the statute did not make the transmitting or delivery of the matter an offense. United States v. Sauer, 88 Fed. 249.

obscene matter in the mail,46 is committed where the letter is mailed, and must be prosecuted there. It has been held that a person who sends a bribe to a federal officer by mail may be prosecuted in the district where the letter is received by the officer,47 and also that the offense of attempting to bribe such an officer may be prosecuted in the district where the letter containing an offer of a bribe is mailed.48 The federal statute making it an offense to send or cause to be sent by mail lottery tickets, or letters, circulars, or other publications concerning lotteries and similar enterprises, provides that any person violating any of its provisions may be tried and punished either in the district in which the forbidden matter was mailed, or to which it was carried by mail for delivery according to the direction thereon, or in which it was caused to be delivered by mail to the person addressed.49 The locality of various other offenses committed by mail will be considered in the sections of this chapter dealing specifically with the locality of particular offenses.50

II. PARTICULAR OFFENSES.

§ 298. Abandonment and failure to provide. A man cannot be prosecuted in one state for abandoning his wife and children in another state.5 51 In jurisdictions where both an abandonment and a failure to provide or the leaving of the wife or children in a dependent and destitute condition or in necessitous circumstances are essential elements of the offense,52 both must occur in the state to warrant a prosecution there, and the fact that the wife or children

46 United States v. Comerford, 25 Fed. 902.

47 Benson v. Henkel, 198 U. S. 1, 49 L. Ed. 919, 25 Sup. Ct. 569.

48 United States v. Worrall, 2 Dall. 384, 1 L. Ed. 426, Fed. Cas. No. 16,766.

49 Pen. Code, § 213.

Under this provision a person charged with causing such matter to be delivered by mail is triable in the district where such delivery took place, although it was mailed in another district. Horner V. United States, 143 U. S. 207, 36 L. Ed. 126, 12 Sup. Ct. 407; United States v. Conrad, 59 Fed. 458; United States v. Horner, 44 Fed. 677.

It has been held that it is unconstitutional in so far as it authorizes a trial for depositing or causing to be deposited the forbidden matter in the mail, or for sending or causing it to be sent by mail, in a district other than that in which it is so deposited or sent. United States v. Conrad, 59 Fed. 458.

50 See § 299 et seq., infra.

51 People v. Bergen, 36 Hun (N. Y.) 241; Bayne v. People, 14 Hun (N. Y.) 181; State v. Toney, 162 N. C. 635, 78 S. E. 156. See also People v. Clairmont, 58 N. Y. Misc. 517, 111 N. Y. Supp. 613.

52 See § 1139, infra.