that the defendant committed the crime named in the indictment, he may be convicted upon proof that, though absent, he advised and procured its commission. The purpose and effect of the section are to abolish the distinction which heretofore existed in cases of felony between a principal and an accessary before the fact, the principal being present and either committing the act himself or aiding in its commission, and the accessary before the fact being absent but counseling and procuring its commission. The case of an accessary before the fact has now, by means of this section, been made the case of a principal, and he occupies, therefore, the same position in the case of felony as such an individual heretofore occupied in cases of treason and of misdemeanor. In treason it has always been the law that there were no accessaries either before, or, with one or two minor exceptions, after, the fact: 1 Hale P. C. 223; 1 East P. C. 93, sec. 35; 1 Bishop's Crim. Law, sec. 681; 1 Wharton's Crim. Law, sec. 131. In regard to misdemeanors, the same rule obtains, and when one sustains in misdemeanor a relation to an act which in felony would make him an accessary before the fact, he is treated as a principal, and the indictment charges him as such, and unless the pleader chooses, it does not mention that the act was committed by another: 1 Bishop's Crim. Law, secs. 685, 686. The rule, therefore, in cases of felony can scarcely be said to exist simply because of the greater gravity of the offense charged, for as it does not exist in treason, which according to the English law is the highest crime known to it, the gravity of the charge cannot be the reason for its existence in cases of felony. It is somewhat difficult to comprehend the reason for the difference in the rule between cases of treason and misdemeanor on the one hand and felony on the other. Nor can the smallness of the offense in cases of misdemeanor be the reason for the existence of the rule. For by the common law many cases which are made felony in this country by statute were but misdemeanors, the punishment, however, in many of them extending to long terms of imprisonment, and also to the infliction of corporal punishment.

As late as the case of Regina v. Greenwood, 9 Eng. L. & Eq. 535, which was a case where the prisoner was indicted for uttering counterfeit coin, the crime being a misdemeanor, the rule was applied. The indictment in that case charged the prisoner with knowingly uttering a counterfeit shilling. The proof was, that it was uttered by another person in the

absence of the prisoner; and the court held that the prisoner was properly convicted under the indictment. The conviction was held good, on the ground that the proof showed that the prisoner, although absent when the coin was uttered, was engaged in the common purpose of uttering counterfeit shillings, and the act of uttering the coin in question having been procured and aided by the prisoner, the case stood the same as if it were his own act. Five judges delivered opinions seriatim, and although they are exceedingly brief, the case shows that it was carefully examined, and must be regarded as high authority upon the question decided.

Another case is that of Regina v. Clayton, 47 Eng. Com. L. 128. The indictment charged the prisoners with an attempt to set fire to a certain malt-house, and they were jointly charged in the indictment with having made such attempt. The proof showed that Mooney was not present when the other prisoner lighted the fire, but it tended also to show that, though absent, she knew beforehand that the fire was to take place. The question was raised on the part of the prisoner Mooney that she could not be convicted under the indictment, as it charged her with the actual attempt to burn the malthouse, while the proof showed that she was absent, although privy to the act. The objection was overruled, and it was stated by the learned judge in summing up that in misdemeanors and in treason all who take part in the crime are principals, and that the prisoner Mooney might be convicted under the indictment, which alleged that she herself attempted the crime if, though absent, the jury believed that she counseled and encouraged the other prisoner to set the fire.

The same rule has been held to exist in this state. In Ward v. People, 6 Hill, 144, the indictment charged the prisoner with having stolen twenty-five pounds of butter. On the trial he gave evidence tending to prove that he did not himself steal the butter, but sent another person to steal it, and that they afterwards divided it between them, and he requested the court to charge the jury that if the butter was thus stolen, he was simply an accessary, and could not be convicted as a principal for the crime of petit larceny. The court refused, and charged that if the other person stole the butter in the prisoner's absence by his advice and procurement, he might be convicted under the indictment as a principal, as there were no accessaries in petit larceny. The supreme court held the conviction proper (Ward v. People, 8

Hill, 395), and the conviction was affirmed by the court of errors, Chancellor Walworth writing the opinion. The doctrine was there stated that those who procure, aid, or advise in the commission of the offense of petit larceny are principals, and that the same rule obtains in cases of treason.

In England, by the statute 11 and 12 Victoria, chapter 46, section 1, for the purpose, as is stated in the preamble, of relaxing the technical strictness of criminal proceedings, and to insure the punishment of the guilty without depriving the accused of any just means of defense, it was enacted that "if any person shall become an accessary before the fact to any felony, whether the same be a felony at common law or by virtue of any statute or statutes made or to be made, such person may be indicted, tried, convicted, and punished in all respects as if he were a principal felon."

The same provision is reiterated in 24 and 25 Victoria, chapter 94, section 1. It would seem that the provisions of these statutes established the same rule in cases of felony as in cases of treason and misdemeanor, and that an indictment against a person who before the statute would have been regarded as an accessary before the fact in a case of felony, would now charge the crime against him in precisely the same manner as if he were a principal felon. And a person charged with the commission of a felony would, under those statutes, be convicted on proof showing him guilty as an accessary before the fact. It has, indeed, been so decided.

In the case of Regina v. Manning, 2 Car. & K. 892, 904, 61 Eng. Com. L., it appeared that two persons, who were husband and wife, were charged as principals in the crime of murder. The recorder of London, in his charge to the grand jury with reference to the case, said: “The material question in this case is, whether this woman has taken such a share in the transaction as to make her an accessary before the fact, or whether she was present when the crime was committed, in either of which cases she will be liable under the statute 11 and 12 Victoria, chapter 46, section 1, to be indicted as a principal in the murder. It will be for you to consider, therefore, whether there is any evidence of a counseling or procuring the murder to be committed by either of the parties accused, and more particularly by the woman. . . . . ... The indictment will probably charge both these persons, husband and wife, as principals in the commission of the crime, and by the statute to which I have referred, both classes of

offenses, namely, that of an accessary before the fact and that of a principal, may now be dealt with alike in the mode of indictment and trial. And proof of a party being either an accessary before the fact, the perpetrator of the crime, or that he was present aiding and abetting in the commission of it, will support an indictment charging him as a principal."

Under these circumstances, the question arises whether it was not meant by the passage of section 29 of the Penal Code to place a person, who in cases of felony would otherwise have been guilty as an accessary before the fact, under the same rule as had heretofore obtained in cases of treason and misdemeanor. The general rule of law is, as stated by Mr. Bishop, that what one does through another's agency is to be regarded as done by him: 1 Bishop's Crim. Law, secs. 656, 673, 682.

If the case were a civil one, a pleading which alleged the doing of an act by the defendant would be sustained upon proof of the doing of the act by his agent, or by any one whom he advised or requested to do it, and it is difficult to see why, under an indictment charging the defendant with the commission of a crime, proof, showing its commission by one whom he advised and procured to do it, would not prove his own guilt of the act charged. By section 275 of the Code of Criminal Procedure, it is enacted that the indictment must contain a plain and concise statement of the act constituting the crime without unnecessary repetition; and by section 284, subdivision 7, it is stated that the indictment is sufficient if the act or omission charged as a crime is stated with such a degree of certainty as to enable a court to pronounce judgment upon conviction, according to the rights of the case. Here the act constituting the crime was the insertion of an instrument in the body of the prosecutrix, and thereby procuring an abortion. That act was plainly charged against the defendant, and in order to prove it, evidence was given of the commission of the act by another by the defendant's advice and procurement, but in his absence. The act that rendered him guilty is charged in the indictment, and it was not a case of variance between the crime as charged and the proof as made.

We think the case of People v. Dumar, 106 N. Y. 502, has no application. The indictment in that case charged the defendant with the crime of grand larceny, in unlawfully stealing and carrying away the property described. The proof was,

that the defendant obtained possession of the property from the owner by sale upon credit, induced by false and fraudulent representations. We held that there was a variance between the proof and the indictment, and that the defendant was left uninformed of the real act committed by him. There was no question in that case in regard to the act charged having been done by a third person in the absence of the defendant, but by his act and procurement. The crime charged was a totally different one from that which the facts proved, although both were grand larceny. The indictment, however, charged one set of facts as constituting grand larceny, and the proof was of a totally different set of facts, which, by the code, also constituted grand larceny. The difficulty was, that the crime as charged was not proved, and the crime as proved was not charged.

Here, as it seems to us, the crime was clearly and properly charged, and the proof shows the defendant to have been guilty of the very act with the commission of which the indictment charged him. It was proved by showing that the act, although committed by a third person, and in the absence of the defendant, was so committed by his aid and procurement, and in that way, in law and in morals, and in good sense, he committed the act himself. This question has been raised in some of the other states where provisions somewhat similar to the section of our Penal Code have been in existence for some years. The case of People v. Outeveras, 48 Cal. 19, is one which arose under the California statute, which somewhat resembles ours. The prisoner was indicted for the crime of burglary, in breaking into and entering a dwellinghouse in the daytime, intending to commit larceny. The proof showed that the entry was made by another than the prisoner, but pursuant to an arrangement with him, and he being near by the house at the time of the entry, and aiding and abetting it. The facts showed that he might have been regarded as a principal in the second degree, as one who stood by and aided and abetted the commission of the act. But the court regarded the question in the same manner as if the proof had shown that the prisoner was absent at the time of the commission of the act, but that he had counseled and procured its commission. The California statute is as follows: "An accessary is he or she who stands by and aids, abets, or assists, or who not being present aiding, abetting, or assisting, hath advised or encouraged the commission of the crime. He