58 ACCESSORY of injury is in their favor, and the burden of proof is on .him to overset it. The mere fact that the drawer had no funds in the hands of the drawee is probably not sufficient excuse for failure to give him notice of the dishonor of the paper. Perhaps he ought to have had funds if the drawee had kept his account prop- erly, or at all events he may be prejudiced in some way by want of notice, and it is not safe to assume anything against his right to have it, in case of non-acceptance. Foreign bills should be protested in full form. It is cus- tomary to protest as to inland bills also, but it is not necessary, unless positive statutes re- quire it. Indeed, where they do not require or authorize it, protest of inland bills is an empty form, of no use whatever. 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 rec- ognizes 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 partici- pants equally guilty; and in the latter case, because the crime is comparatively so small that it will not trouble itself to distinguish be- tween 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 ac- cessory 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 hhn 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 com- mitted, 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 ho who is present, and aids and abets the princi- pal 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 pro- cures it to be done by him, is an accessory before the fact. Here absence is essential; for the same act of instigation and procure- ment, if done in the presence of the actual offender^ and at his perpetration of the of- fence, 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 ell 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 fight- ing 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 pre- vent the escape of the victim. But if A sim- ply 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 other- wise 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 of- fence than his principal ; nor is he guilty at all if his principal is not guilty ; if the prin- cipal is acquitted, so is the accessory ; he can- not be convicted, except jointly with the prin- cipal, 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 Massa- chusetts and New York provide that any per- son 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 in- dicted, tried, convicted, and punished, not- withstanding that the principal felon has been pardoned or otherwise discharged before con- viction ; and in Massachusetts, if for any rea- son 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 Penn- sylvania; and, indeed, probably all the states have statutes of the same character. An ac- cessory after the fact is one who, knowing the guilt of the felon, whether principal or acces- sory before the fact, receives or assists him, but, it should probably be added, with intent to hinder his trial, conviction, or punishment ;
