Accomplices - Common Law Classifications

Earlier in the course, we discussed the mental and physical elements that lay at the foundation of all common law crimes. As we said, in order to convict a defendant of a crime, the prosecution must prove both that the defendant committed an actus reus and that he had the requisite mens rea when he committed the actus reus. Now that we have an understanding of the fundamental elements required to demonstrate criminal liability, we will focus in this chapter on the scope of criminal liability. As we will see, liability for criminal offenses is not limited to the person who actually commits the crime. Rather, anyone who has encouraged or assisted in the execution of the crime, and anyone who has interfered with the apprehension of the criminal after the crime has been committed, can be convicted as well.

At common law the different parties to a crime were carefully classified. The classifications were broken down in two ways; first, according to the severity of the crime, so that there were differences between parties to a felony and parties to a misdemeanor, and, second, according to what stage in the commission of the crime that the party helped the criminal. Thus, there were differences between people who encouraged the commission of the crime, people who actually assisted with the commission of the crime, and people who assisted the criminal after he had completed the crime.

Parties to a Felony

The parties to a felony are classified both according to their role in the execution of the crime, and whether or not they were present when the crime was actually committed. At common law, a party to a felony can fall into one of four different classifications:

1. principal in the first degree,
2. principal in the second degree,
3. accessory before the fact, and
4. accessory after the fact.

A principal in the first degree is the person who actually commits the crime himself or causes an innocent person to commit the crime for him. For example:

EXAMPLE (1): Homer buys a gun and uses it to rob the Quickie Mart. Homer is a principal in the first degree because he has actually committed the crime himself.

EXAMPLE (2): Homer takes his son, Bart, to the Quickie Mart. Homer sends Bart into the store with a counterfeit twenty dollar bill and instructs him to buy two six-packs of beer and a pack of cigarettes. Bart has no idea that the money is counterfeit. Since passing counterfeit notes is a felony, Homer is a principal in the first degree because he has caused an innocent person, Bart, to commit the crime for him.

A principal in the second degree is someone who either encourages the commission, or assists in the commission, of a crime and who is actually at the scene of the crime when the crime is being committed. See Commonwealth v. Lowrey, 32 N.E. 940 (Mass. 1893). For example:

Homer and Marge put together a plan to rob the First National Bank of Springfield. Homer and Marge drive up to the front of the bank. Marge sits in the car waiting to drive away when Homer runs out with the money. Homer goes inside and actually commits the robbery. In this case, Homer is a principal in the first degree because he has actually committed the crime. Marge is a principal in the second degree because she has assisted in the commission of the crime by helping to plan the robbery and by driving the getaway car, and she is present at the bank at the time the crime is being committed. Had Marge stayed home while Homer was robbing the bank, she would not be considered a principal in the second degree, because she would not have been at the scene of the crime when the crime took place.

Please note that even if a person is not actually present at the scene of the crime when the crime is being committed, they will nevertheless be considered a principal in the second degree if they are constructively present at the time the crime is being committed. A person is constructively present if he assists the principal in the first degree at the time the crime is being committed, but he does so from a distance, even though he is not actually physically present at the scene of the crime. See State v. Hamilton, 13 Nev. 386 (1878). For example:

Homer and Marge put together a plan to rob the First National Bank of Springfield. While Homer goes inside to rob the bank, Marge takes up a position a thousand yards away from the bank’s entrance. She has a walkie-talkie and a pair of binoculars and, with them, she will be able to notify Homer in case any police approach the bank. In this situation, Marge is considered a principal in the second degree because, even though she is not physically present at the scene of the crime, she is constructively present at the time and place that the crime is being committed.

An accessory before the fact is a person who encourages or aids in the commission of a felony but is not actually or constructively present at the scene of the crime at the time that the crime is being committed. In other words, an accessory before the fact provides pre-crime assistance, and only pre-crime assistance, to the criminal. For example:

Homer and Marge put together a plan to rob the First National Bank of Springfield. A week before Homer is set to commit the crime, Marge stakes the bank out and draws him detailed maps of the bank’s floor plan. However, when the date of the crime arrives, Homer goes by himself and Marge remains at home. In this case, because Marge was neither actually or constructively present at the scene of the crime when it was being committed, she is not a principal in the commission of the crime. However, because she provided Homer with pre-crime assistance, she is an accessory before the fact.

An accessory after the fact is someone who gives post-crime assistance to the criminal. In order to be convicted as an accessory after the fact, the defendant must have known that the person he was helping had committed a felony and he must have given the help with the intent of interfering with the criminal’s capture, prosecution or conviction. See Whorley v. State, 45 Fla. 123 (1903). For example:

Homer has successfully robbed the First National Bank of Springfield and he goes to hide out at his friend Barney’s house. Barney hides Homer in his basement and, when the police knock on Barney’s door and ask if he has seen Homer, Barney tells the police that Homer had mentioned something about taking a vacation in Florida. He then gives the police a phony flight itinerary that he says Homer accidentally left at Barney’s house when he came for a visit the other day. In this situation, because Barney is giving Homer assistance after he has   committed a crime, knowing that Homer has committed the crime and with the intent of preventing the police from catching Homer, Barney is now an accessory after the fact.

As far as the procedural consequences of the different categorizations are concerned, at common law an accessory could not be convicted unless the principal himself was convicted of the crime. Also, an accessory could not be convicted of a higher offense than the principal was convicted of. However, these rules did not apply to the principals of the crime. A principal in the second degree could be convicted even if the principal in the first degree was acquitted. Additionally, the principal in the second degree could be convicted of a higher offense than the principal in the first degree was convicted of.

As far as misdemeanors are concerned, at common law there was no distinction made between principals and accessories or between degrees of principals. Further, at common law, there was no such thing as criminal liability for being an accessory after the fact in a situation where only a misdemeanor was committed. Finally, at common law, the parties to both a felony and a misdemeanor were typically convicted of the crime itself. In other words, if a defendant had been an accessory to a murder, he would not have been convicted for being an accessory to the murder. Rather, he would have been convicted of the actual murder.

Modern statutes treat the classifications of principal and accessory differently. The rule that parties to crimes under the common law can be convicted of the crime itself has, for the most part, remained the same. However, the technical distinctions between principals and accessories have basically been eliminated. For example, people who qualify under the common law as either principals or accessories before the fact are all considered principals under modern statutes and can be convicted of the actual crime itself. However, a common law accessory after the fact cannot be convicted of the crime itself under modern statutes. Rather, he can be convicted of a separate offense of being an accessory after the fact that carries a lower penalty than the actual crime.

The procedural difference that resulted from the changes made by the modern statutes is seen most clearly in the fact that an accessory can now be convicted even if the principal is acquitted. In other words, it is no longer necessary for the principal in the first degree to be convicted of a crime in order for principals in the second degree and/or accessories to be convicted. According to modern statutes, anyone can be convicted, regardless of what happens to the principal in the first degree. See State v. Spillman, 468 P.2d 376 (Ariz. 1970).