incompetent to commit the particular crime as principal in the first degree.92

Illustrations.-One of the best illustrations of this rule is in the case of rape. A boy under fourteen years of age (at common law), or a woman, cannot commit rape themselves, but either may be guilty of rape as accessary before the fact or as a principal in the second degree, according to the circumstances, by counseling, aiding, or abetting in the commission of the crime by another.93 In like manner a husband, though he cannot himself com

that the defendant had requested him to enter a house in the nighttime, and steal therefrom a sum of money which he knew to be concealed there. the money to be divided between them. By advice of the sheriff, P. agreed to do so, for the purpose of entrapping the defendant, and accordingly entered the house, secured the money, marked it so that it could be identified, and, after delivering it to the defendant gave a signal, and the sheriff arrested the defendant with the money in his pos session. It was held that, inasmuch as P. alone entered the building, and did so without felonious intent, there was no burglary committed, and therefore the defendant could not have been privy to a burglary. People v. Collins, 53 Cal. 185.

92 U. S. v. Snyder, 14 Fed. 554.

93 Reg. v. Philips, 8 Car. & P. 736; State v.

mit rape upon his wife, may counsel, aid, or assist another to do so, and thus be guilty as principal in the second degree or accessary.

94

The same is true of other offenses. Thus, a person may be guilty as a principal in the second degree by aiding and abetting a bankrupt to violate the bankruptcy laws,95 or a postmaster to make a false return.96 An un

married man may be guilty of aiding and abetting a married man in the commission of bigamy.97 A man may be guilty of aiding and abetting a woman in concealing the death of her bastard child, though, under the statute, no one could be guilty as principal in the first degree except the mother.98 And a woman has been held guilty for aiding and

Jones, 83 N. C. 605, 35 Am. Rep. 586. And see Law v. Com., 75 Va. 885, 40 Am. Rep. 750.

94 Lord Audley's Case, 3 How. St. Tr. 401, 12 Mod. 384, 1 Strange, 633; State v. Comstock, 46 Iowa, 265. And see Com. v. Fogerty, 8 Gray (Mass.) 489, 491, 69 Am. Dec. 264; Com. v. Murphy, 2 Allen (Mass.) 163, 165.

95 U. S. v. Bayer, 4 Dill. 407, Fed. Cas. No. 15,547. 96 U. S. v. Snyder, 14 Fed. 554.

97 Boggus v. State, 34 Ga. 275.

98 State v. Sprague, 4 R. I. 257. v. Com., 83 Ky. 190.

But see Frey

abetting a man who falsely personated a sailor who was entitled to an allowance of money.

VIII. COUNTERMAND OR WITHDRAWAL.

192. In General. A person is not guilty of a crime as accessary or principal in the second degree because of counseling or consenting, if he repented and countermanded the other party, or withdrew, to the knowledge of the other, before the crime was committed.100

This rule as applied to accessaries before the fact is thus stated by Sir Matthew Hale: "If A. commands B. to kill C., but before the execution thereof A. repents, and countermands B., and yet B. proceeds in the execution thereof, A. is not accessary, for his consent continues not, and he gave timely countermand to B. But if A. had repented, yet if B. had not been actually countermanded before the fact committed, A. had been accessary. If several prisoners conspire to escape from prison, and to kill any watchman who may oppose them, and in making

99101

99 Rex v. Potts, Russ. & R. 353.

100 1 Hale, P. C. 617, 618; Rex v. Richardson, 1 Leach, C. C. 387, Beale's Cas. 166; State v. Allen, 47 Conn. 121, Beale's Cas. 394; Pinkard v. State, 30 Ga. 757.

101 1 Hale, P. C. 617, 618.

the attempt one of them kills a watchman, all are guilty of murder. One of them is none the less guilty because he abandons the attempt and returns to his cell before the killing, if he does nothing by word or deed to inform his confederates of his change of purpose.102 If his act of withdrawal is known to his confederates, however, and is such as should naturally inform them of his intention to abandon the attempt, he is not responsible merely because they misconstrue his act, and suppose that he is still acting with them.103

IX. PRINCIPAL AND AGENT AND MASTER AND SERVANT.

193. In General.—A principal or master is criminally responsible for criminal acts of his agent or servant expressly or impliedly authorized by him. But, unless made so by statute, as is sometimes the case, he is not responsible for unauthorized acts. Mere ratification of an authorized act does not relate back so as to render him responsible.

An agent or servant is himself responsible for criminal acts committed in the course of his employment, though directed or commanded by his principal or master.

194. Responsibility of Principal or Master.

(a) Acts Directed or Authorized.-If a

102 State v. Allen, supra. 108 State v. Allen, supra.

principal or master directs or authorizes the commission of a felony by his agent or servant, and the latter is not an innocent agent, the principal or master is an accessary before the fact, if absent when the act is committed, or, if present, as a principal in the second degree, in accordance with the rules stated in preceding sections.104 If the agent or servant is innocent by reason of youth, insanity, or ignorance of fact, the principal or master is guilty as principal in the first degree, whether present or absent.105 If the offense is a misdemeanor, and the agent or servant is a guilty agent, the principal or master is liable as a principal in the second degree, whether present or absent.106 And he is the principal in the first degree if the agent or servant is innocent.107

104 Ante, §§ 170 et seq., 176 et seq.; Hately v. State, 15 Ga. 346.

105 Ante, § 168.

106 Ante, § 164; Rex v. Almon, 5 Burrows, 2686; Com. v. Nichols, 10 Metc. (Mass.) 259; Stevens v. People, 67 Ill. 587 (keeping gaming house); Mulvey v. State, 43 Ala. 316, 94 Am. Dec. 684 (selling liquor); Atkins v. State, 95 Tenn. 474 (operating a gaming device).

107 Ante, § 168.

If a husband directs his wife to sell intoxicating