Accessory, properly, with reference to a felony, one who takes part in the act, but not such part as to be a principal. The law recognizes no accessory in treason, the highest of crimes, nor in misdemeanors, the lowest class of offences; in the former case, because the crime is so great that it will hold all participants equally guilty; and in the latter case, because the crime is comparatively so small that it will not trouble itself to distinguish between the degrees of guilt. In offences of these degrees all are principals. Accessories are familiarly designated as those before the fact and those after the fact. An accessory before the fact is one who participates in the very criminal act of the principal; but an accessory after the fact is guilty of a crime of his own, which is independent of that of the principal, and in which the latter properly has no share. To call him an accessory, therefore, is not quite accurate; at least the word has not the same propriety of meaning that it has when applied to the accessory before the fact.
But the description is fixed in the law and cannot be disturbed. - When a crime is committed, he who actually does the specified act is the principal, and, as it is said sometimes, he is the principal in the first degree; and he who is present, and aids and abets the principal in doing the act, is called the principal in the second degree. But he who, though not present at the commission of the act of the principal, yet commands, counsels, or procures it to be done by him, is an accessory before the fact, Here absence is essential; for the same act of instigation and procurement, if done in the presence of the actual offender, and at his perpetration of the offence, would make the participant a principal. Thus in the case of a murder, those who are present, and intelligently aid and abet the killing, are all principals. But if two men meet in the presence of others and fall to blows, and either have a deliberate, malicious intent to kill the other, but the by-standers, being ignorant of this, aid and abet the lighting merely, they are not guilty of murder if one be killed.
But again, as to presence, there may be a constructive presence as well as an actual presence; so that mere physical ab-sence from the scene of the offence will not ne-cessarily save the participant from the guilt of a principal and make him a mere accessory. Thus he is a principal who conspires with a murderer for the doing of the act, but stands at a distance and is absent from it in order to ' watch against surprise or discovery, or to prevent the escape of the victim. But if A simply command B to beat C, and he does beat him so that he dies, B is the principal in the murder and A is the accessory before the fact. If A, however, command B to commit a cer-tain crime, and B, of his own will and design, commit a different one, A is not an accessory to the offence committed, because he is not guilty of setting in motion the criminal intent which executed the act. But it will be otherwise if B, in attempting to execute A's design, execute it on the wrong person; for in that case A is guilty of setting in motion the very criminal intent which resulted in the crime actually committed. - In an old phrase of the law the accessory is said to attend and follow the principal, as the shadow does the sub-stance; and at common law, and where no statutes have intervened to change the rules on this subject, the accessory cannot be guilty of any other, and at all events of no higher offence than his principal; nor is he guilty at all if his principal is not guilty; if the principal is acquitted, so is the accessory; he cannot be convicted, except jointly with the principal, or after his conviction; and formerly, and until a remedial statute to the contrary, if after conviction of the principal sentence upon him was stayed for any reason, the accessory could not be held.
But recent statutes in England and in almost all of the United States have very materially changed the law in these respects. For example, the statutes of Massachusetts and New York provide that any person who, by counselling, hiring, or otherwise procuring the commission of a felony, becomes an accessory before the fact, shall be punished in the same manner as the principal felon. In New York it is also provided that the accessory before or after the fact may be indicted, tried, convicted, and punished, notwithstanding that the principal felon has been pardoned or otherwise discharged before conviction; and in Massachusetts, if for any reason the principal is not amenable to justice. In that state, too, the aider and abettor, who at common law would have been but a mere accessory, may be indicted and convicted of a substantive felony, without any regard to the indictment or conviction of the principal. There are similar statutory provisions in Pennsylvania; and, indeed, probably all the states have statutes of the same character. - An accessory after the fact is one who, knowing the guilt of the felon, whether principal or accessory before the fact, receives or assists him, but, it should probably be added, with intent to hinder his trial, conviction, or punishment; as, for example, by concealing him or shutting out the officers of the law, or resisting them, or attempting to take him or rescuing him from their custody, or providing him with money or other means of flight, or bribing a jailer to permit his escape from prison.
But merely suffering the felon to escape, or simply ministering to his physical necessities, will not make one an accessory after the fact. At common law the guilt of assisting the felon in these unlawful ways was not excused even to those of his own family, so that a father might not thus protect his son, nor the son his father, nor a brother his brother, nor a husband his wife. The single exception was in favor of the wife who sought thus to save her husband, and probably this was on the ground, in part at least, that she was supposed to be under the control of her husband, and to have no choice to do otherwise. But in this respect the modern statutory law has interposed benignantly. In Massachusetts, for example, it exempts those who stand in the relation of parent or grandparent, child or grandchild, brother or sister to the offender; and there are similar statutes in other states.