On indictment for burning a granary and stable, counsel for the prosecution, on the reassembling of the court after taking a recess for dinner, addressed the jury twenty or thirty minutes, and was immediately followed by one of the defendants' counsel, who had spoken some ten or fifteen minutes, when it was suggested that defendants who were in custody had not been brought into court. The argument was immediately suspended until defendants were brought in. Defendants' counsel were present at all stages of the trial: Held, that the absence of defendants under such circumstances did not prevent the court from proceeding to judgment. Paylor, 89-539.

On indictment for burning a mill, the jury delivered their verdict to the judge in his room late at night, in the presence and with the assent of defendant's counsel, but in the absence of defendant, and next day defendant moved in court for his discharge, on the ground that the verdict as given was not valid and the jury had separated: Held, that he was not entitled to his discharge, but that there was a mistrial, and that the verdict must be set aside and venire de novo awarded. Jenkins, 84-812.

VERDICT RENDERED TO CLERK IN THE ABSENCE OF DEFENDANT.-Where the verdict, on indictment for larceny, is rendered to the clerk during the recess of the court, in the absence of the defendant and without his consent, and without any instructions from the court, judgment may be arrested, or the court even, ex mero motu, may set the verdict aside. Epps, 76-55.

VERDICT RENDERED IN ABSENCE OF DEFENDANT.-A verdict of guilty rendered, in the absence of defendant and his counsel, to a judge at his chambers, and entered on the record next day in the absence of the jury and defendant, can not be sustained. Bray, 67-283.

PRESENCE OF DEFENDANT IN COURT DURING TRIAL.-On indictment for larceny, defendant was present during the trial until the jury were returning with their verdict when he fled, and, on being called, failed to answer. One of his counsel was present when the verdict was rendered, and made no objection to the taking of the verdict in defendant's absence: Held, that in indictments for felonies less than capital defendant may waive his right to be present during the progress of the trial, and that the verdict thus rendered was not void. Smith, C. J., dissenting. Kelly, 97–404.

The right of a prisoner charged with a capital felony to be present throughout the progress of the trial can not be waived even by himself, and it is the duty of the court to see that he is actually present at each and every step taken in the progress of the trial. Jenkins, 84-812.

Counsel for a defendant charged only with a misdemeanor can not waive his presence during the trial. Jenkins, 84-812.

PRESENCE OF PRISONER IN SUPREME COURT.-It is not necessary that a prisoner should be present in the supreme court when his case is argued and determined tuere, and he is not denied his constitutional right to confront his accusers and the witnesses against him because he was not so present, since no "accusers" or "witnesses" appear in the supreme court against him. Overton, 77-485.

See RAPE.

ABUSE OF FEMALE CHILDREN.

ACCESSORIES.

SEC. 8. Accessories to felonies before the fact, when, where and how tried and punished.

SEC. 9. Accessories to felonies after the fact, when, where and how tried and punished.

SEC. 10. How proceeded against when principal not attainted.

SEC. 11. Accessories before the fact, how punished.

Sec. 8 (977). Accessories to felonies before the fact, when, where and how tried and punished. R. C., c. 34, s. 53. 1797, c. 485, s. 1. 1852, c. 58.

If any person shall counsel, procure or command any other person to commit any felony, whether the same be a felony at common law or by virtue of any statute, the person so counseling, procuring or commanding, shall be guilty of felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon; or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished; and the offence of the person so counseling, procuring, or commanding, howsoever indicted, may be inquired of, tried, determined and punished by any court which shall have jurisdiction to try the principal felon, in the same manner as if such offence had been committed at the same place as the principal felony or where the principal felony is triable, although such offence may have been committed at any place within or without the limits of the state; and in case the principal felony shall have been committed within the body of any county, and the offence of counseling, procuring, or commanding shall have been committed within the body of any other county, the last-mentioned offence may be inquired of, tried, determined and punished in either of such counties: Provided, that no person who shall be once duly tried for any such offence, whether as an accessory before the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offence.

NO ACCESSORIES BEFORE THE FACT IN LARCENY.-There are no accessories before the fact in larceny, for not only those who aid and abet, but all who advise, counsel or procure the act to be done, are principals. If an indictment charges that A committed the theft, and B was present aiding and abetting, and the proof should be that B committed the theft and A was present aiding and abetting, there would be no variance, and a conviction would be sustained. Fox, 94-928.

There are no accessories before the fact in larceny. The distinction between grand and petit larceny has been abolished, and all felonious stealing is now reduced to the grade of petit larceny. Stroud, 95-626.

MEANING OF THE WORD "COMMAND."-The meaning of the word "command," as applied to principal and accessory is where a person having control over another, as a master over his servant, orders a thing to be done. Mann, 2 (1 Hay.), 4 (7).

NO ACCESSORIES IN MISDEMEANORS.-There are no accessories in minor offences, but whatever will make a man an accessory before the fact in felony will make him a principal in misdemeanors. Cheek, 35 (13 Ired.),

114.

That which in felony makes a person an accessory before the fact, in petit larceny makes him a principal. Barden, 12 (1 Dev.), 518.

Whoever procures a felony to be done, although it be by the instigation of a third person, is an accessory before the fact, and that which in felony makes a person an accessory before the fact, in petit larceny and misdemeanors makes him a principal. Barden, 12 (1 Dev.), 518.

PRINCIPAL MUST BE PRESENT AT THE TAKING IN LARCENY.-In an indictment for larceny one can not be convicted as a principal unless he were actually or constructively present at the taking and carrying away of the goods. His previous assent to or procurement of the caption and asportation will not make him a principal, nor will his subsequent reception of the thing stolen, or his aiding in concealing or disposing of it, have that effect. (This was an indictment at common law for the larceny of a slave.) Hardin, 19 (2 D. & B.), 407.

ACCESSORIES BEFORE THE FACT CAN NOT BE CONVICTED AS PRINCIPALS.— Two persons jointly indicted with others for burning a barn containing grain, can not be convicted as principals where the evidence shows that they were not present but were accessories before the fact. Dewer, 65-572.

MURDER COMMITTED TO CONCEAL ROBBERY.-If a prisoner procures C to commit a robbery, and C kills the deceased to conceal the robbery, the principal is guilty as accessory before the fact to the murder. Davis, 87-514.

INDICTMENT MUST AVER GUILT OF THE PRINCIPAL.-An indictment for being an accessory before the fact must aver the guilt of the principal. Davis, 87--514.

EVIDENCE OF PRINCIPAL'S GUILT.-The record of the conviction of the principal felon is admissible on the trial of the accessory, and is conclusive evidence of the conviction of the principal and prima facie evidence of his guilt. Chittem, 13 (2 Dev.), 49.

Where a principal and an accessory are tried separately, though on the same indictment, evidence of the conviction of the principal is not admissible on the trial of the accessory, unless judgment has been first rendered against the principal. Duncan, 28 (6 Ired.), 98.

If one person lay poison for the purpose of killing another, and a third person take it and death result, it is murder, both in the principal and accessories before the fact. Fulkerson, 61 (Phil.), 233.

ACCESSORIES--THE ACQUITTAL OF THE PRINCIPAL FELON AN ACQUITTAL OF AN ACCESSORY.-Section 8 (The Code, section 977) dispenses with the necessity of the conviction of the principal felon before an accessory before the fact can be tried and punished, but the common law rule that an acquittal of the principal is an acquittal of the accessory is still in force. Jones, 101-719.

ACCESSORY MAY PLEAD ACQUITTAL OF PRINCIPAL.-Although under section 8 (Code, section 977) it is not necessary that the principal should be convicted before an accessory can be tried and punished, still the common law rule that an acquittal of the principal is an acquittal of the accessory is yet in force, and an accessory, in order to sustain a plea of

the acquittal of his principal, must show that the principal was acquitted of the same offence with which the accessory is charged. Therefore, where an indictment for arson was changed "to charge an attempt to burn a dwelling-house," and the principal defendant pleaded guilty of "an attempt to burn a store," it was held that the attempted change of the bill and the plea of guilty were nullities, and that the accessory could not sustain a plea of former acquittal of the principal by proof of such proceedings. Smith, C. J., dissenting. Jones, 101-719.

CHARGING AS PRINCIPAL.-Under an indictment for an assault with intent to kill, charging defendant as principal, he can not be convicted as accessory. Green, 113-899.

PRINCIPAL IN SECOND DEGREE.-A principal in the second degree is not an accessory but a co-principal. Whitt, 113-716.

Sec. 9 (978). Accessories to felonies after the fact, when, where and how tried and punished. R. C., c. 34. s. 54. 1797, c. 485, s. .Í 1852, c. 58.

of

If any person shall become an accessory after the fact to any felony, whether the same be a felony at common law or by virtue any statute or statutes made, or to be made, such person shall be guilty of a misdemeanor, and may be indicted and convicted together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted for such misdemeanor, whether the principal felon shall or shall not have been previously convicted,or shall or shall not be amenable to justice, and shall be punished by imprisonment in the penitentiary or county jail, for not less than four months nor more than ten years; and may also be fined in the discretion of the court. And the offence of such person may be inquired of, tried, determined and punished by any court which shall have jurisdiction of the principal felon, in the same manner as if the act, by reason whereof such person shall have become an accessory, had been committed at the same place as the principal felony, although such act may have been committed without the limits of the state; and in case the principal felony shall have been committed within the body of any county, and the act by reason whereof any person shall have become accessory shall have been committed within the body of any other county, the offence of such person guilty of a misdemeanor as aforesaid, may be inquired of, tried, determined and punished in either of said counties: Provided, that no person, who shall be once duly tried for such misdemeanor, shall be again indicted or tried for the same offence.

Sec. 10 (979. Accessories, how proceeded against and punished where principal is not attainted. R. C, c. 34, s. 55.

In order that accessories may be convicted and punished in all cases, it is enacted, that if any principal offender shall be in any wise convicted, it shall be lawful to proceed against an accessory,

either before or after the fact, in the same manner as if the principal felon shall die or be pardoned, or otherwise delivered before or after sentence or punishment; and every such accessory shall suffer the same punishment, if he be in anywise convicted, as he should have suffered if the principal had been sentenced or punished.

Sec. 11 (980). Accessories before the fact, how punished. 1868, c. 31, s. 2. 1874-25, c. 212.

Any person who shall be convicted as an accessory, before the fact in either of the crimes of murder, arson, burglary or rape, shall be imprisoned for life in the penitentiary. An accessory before the fact to the stealing of any horse, mare, gelding or mule, on being duly convicted thereof, shall be imprisoned at hard labor in the penitentiary for not less than five nor more than twenty years, in the discretion of the court. Every accessory before the fact, in any other felony, shall be punished by imprisonment in the penitentiary or county jail, for not more than ten years, or may be fined, in the discretion of the court.

ACCOMPLICE.

CAUTION.-The usual direction not to convict upon the testimony of an accomplice, unless supported by other testimony, is only a precautionary measure to prevent improper confidence being reposed in it, and the propriety of giving this caution must be left to the discretion of the trial judge. Barber, 113-711.

UNSUPPORTED TESTIMONY.-The unsupported testimony of an accomplice, if it produces entire belief of the prisoner's guilt, is sufficient to warrant a conviction. Barber, 113-711.

ACTS AND DECLARATIONS AS EVIDENCE.-When a common design is proven, the act of one, in furtherance of that design, is evidence against his associates; but the declarations of one of the parties can be received only against himself. Poll, 8 (1 Hawks), 442.

MAY BE WITNESS FOR STATE.--An accomplice is a competent witness for the state on the trial of his associate. Wier, 12 (1 Dev.), 363.

DANGER-CAUTION.-It is dangerous to act exclusively on the evidence of an accomplice, and the court may properly caution the jury and point out the grounds for requiring confirmatory evidence. But the court can do nothing more, and if the jury really yield faith to it, it is not only legal but obligatory on their consciences to convict upon it. Hardin, 22, (2 D. & B.), 407.

CORROBORATION.-It is proper, before an accomplice offered as a witness is attacked, to prove by another witness that the accomplice related to him the facts immediately after they happened, such evidence being considered substantially in reply. Twitty, 9 (2 Hawks), 449.