Chapter 8

ACCOMPLICE LIABILITY AND SOLICITATION

Introductory note: This chapter examines two ways in which one person can become criminally liable for exhorting another to commit a criminal act. If one encourages or aids another to perform a criminal act, and the latter does so, the former will be liable for the latter’s substantive crime; he is said to be, in modern terms, an “accomplice.” If, on the other hand, one encourages another to do a criminal act, and the latter declines, the former is guilty of the crime of “solicitation.” We also consider the circumstances under which a corporation may be convicted of a crime based on acts by the corporation’s employees.

I. PARTIES TO CRIME

A. Various parties: The common law developed a fairly complex scheme for labeling parties according to their relationship to a criminal act. The labels were “principal in the first degree,” “principal in the second degree,” “accessory before the fact” and “accessory after the fact.” Although the first three of these categories are no longer of great significance, it is worthwhile to understand how they have been used, so that one may comprehend older cases.

1. “Principal in first degree”: The person who personally performed the actus reus of the completed substantive crime was called, in the common-law scheme, a “principal in the first degree.” Thus if A and B plan to shoot C to death, and A is the one who actually pulls the trigger, A is the principal in the first degree. Every completed substantive crime must have at least one first-degree principal. It is possible for a crime to have more than one, if two or more people each commit an act forming a part of the actus reus (e.g., A shoots C in the leg for the purpose of immobilizing him, so that B can then shoot to kill).

2. Principal in second degree: A principal in the second degree is one who is present at the crime’s commission, and aids and abets its commission, but does not personally perform any acts that constitute the actus reus. Thus if A and B decide to murder C, and B is present when A does the shooting, B is a second-degree principal.

a. Constructive presence: Although the second-degree principal must be “present” at the commission of the crime, this requirement may be satisfied by what is sometimes called “constructive” presence. For instance, if B, acting as look-out, stays outside the building within which A is murdering C, B is probably “constructively present” at the crime, and is therefore a second-degree principal. See L, p. 616.

3. Accessory before the fact: An accessory before the fact, like a principal in the second degree, aids and abets the crime rather than committing the actus reus himself. He differs from the second-degree principal, however, in that he is not present when the crime is carried out. The accessory before the fact may either be the “brains” who organizes the whole operation, or merely one who furnishes slight assistance. L, pp. 616-17.

4. Accessory after the fact: An accessory after the fact is one who does not participate in the crime itself, but who furnishes post-crime assistance to the perpetrator, in order to prevent him from being arrested. See the fuller discussion infra, p. 230.