Also known as: accessories before the fact · accessory before fact
Written by attorneys — see sources below.
A participant in a felony at common law who aids, abets, or encourages the commission of the crime but is not present at the scene when the crime occurs.
Anita Ali met with a field operator weeks before the planned tampering and supplied a detailed diagram plus specialized tools. She remained miles away while the operator cut into the pipeline at night. Because her advance assistance enabled the felony without her presence at the scene, she qualifies as an accessory before the fact.
Antonio Alvarado told an associate days earlier that shortcuts on a court filing would go undetected. He stayed away from the office while the associate forged the judge's signature. His prior encouragement of the felony without presence at the act makes him an accessory before the fact.
Aaron Adams sold goods to a buyer knowing the buyer would transport them across state lines. Adams remained absent from the actual transportation. His contribution of the goods that enabled the interstate felony without presence at the scene establishes accessory-before-the-fact liability.
In 1940, the United States Court of Appeals for the Fourth Circuit heard an appeal from a conviction and sentence of Max Backun under an indictment charging him and one Zucker with transporting stolen merchandise of a value in excess of $5,000 in interstate commerce, knowing it to have been stolen, in violation of the National Stolen Property Act. Zucker pleaded guilty and testified for the prosecution after being apprehended at a pawnshop in Charlotte, North Carolina, in possession of a large quantity of silverware, a portion of which was shown to have been stolen a short while before. He testified that he purchased all of the silverware from Backun in New York, partly on credit, that Backun had the silverware concealed in a closet and in the cellar of his residence, that there was no sale for second-hand silverware in New York but a good market for it in the South, that Backun knew of Zucker’s custom to travel in the South, and that Backun sold to him for $1,400 silverware shown by other witnesses to be of much greater value, with a part wrapped in a laundry bag identified by means of a laundry ticket as having been in the possession of Backun. As bearing upon Backun’s knowledge that the stolen silverware was to be transported by Zucker in interstate commerce, Zucker testified that Backun knows he goes on the road, that he told Backun he wanted to go on the road with it, and that Backun knew that and that was the reason he wanted to sell it to him. Not all of the property found in possession of Zucker and acquired by him from Backun was shown to be stolen property, which was established only as to such part as was identified by the witnesses Jeffries, McCracken, McPherson, Shelhorse, Coleman, and Kibler, who fixed the value of the property they identified at considerably less than $5,000. The witness Littlejohn valued the entire lot of silver in possession of Zucker at $10,000 and a portion identified by persons in Charlotte at $6,000 or $7,000, but there was no evidence to show that any part of the silver was stolen except that identified by the witnesses on the trial, and there was evidence that a Mrs. Dewar and a Mrs. Ragland, who did not testify at the trial, came to Charlotte and identified silver the value of which was not shown. The case reached the Fourth Circuit after Backun’s conviction in the trial court, where he raised contentions including lack of evidence connecting him to the transportation, insufficient proof of the statutory value, and improper admission of the laundry ticket.
View caseAnika Anand sent a message directing others to intercept a warning that would have saved the victim's life. She stayed away from the location of the killing. Her pre-crime aid without presence at the homicide renders her an accessory before the fact.
Evidence was taken at Huntsville by agreement of the parties to facilitate the hearing and to subserve the convenience of the witnesses, although the judges sat as individual members to avoid exercising judicial power away from the seat of government. The information charged John B. Tally, judge of the ninth judicial circuit, with willful neglect of duty in failing to intervene to prevent the Skeltons from killing R. C. Ross and with complicity in the murder of Ross by the Skeltons. Tally was the brother-in-law of Robert, John, James, and Walter Skelton, whose sister Annie Skelton had been the object of Ross's criminal intimacy. Ross left Scottsboro on January 6, 1894, fearing danger from the Skeltons but returned on January 30 because of his wife's illness and stayed secluded until February 4. On February 4, Ross left Scottsboro in a hack with armed companions for Stevenson. The Skeltons pursued on horseback, overtook the party at Stevenson, and killed Ross by shots from behind the depot platform, telegraph poles, and an oil house. In Scottsboro that morning Tally went to the depot. After E. H. Ross sent a warning telegram to R. C. Ross, Tally sent a telegram to Huddleston reading "Do not let the party warned get away" with the instruction "say nothing." Testimony including uncommunicated intentions and attorney-client communications was excluded. The defense offered explanations for the rental of a horse used by Walter Skelton and for Tally's brief meeting with Robert Skelton as the Skeltons departed.
View caseAustin Abbott gave instructions from another jurisdiction that furthered the unlawful scheme. He never entered the state where the overt acts occurred. His remote encouragement of the felony without presence supports accessory-before-the-fact status.
In October 1901, Frederick A. Hyde and John A. Benson began operating in San Francisco, California, a business of obtaining school lands from the states of California and Oregon within proposed forest reserves and exchanging them for more valuable public lands of the United States outside such reserves. They employed Joost H. Schneider as an agent to obtain fictitious affidavits and Henry P. Dimond as an attorney to handle matters before the General Land Office. Woodford D. Harlan and William E. Valk served as employees in the General Land Office in Washington, D.C. Benjamin F. Allen and Grant I. Taggart held positions as forest superintendent and supervisor. On December 30, 1901, the indictment alleged that Hyde, Benson, Dimond, and Schneider conspired in Washington, D.C., to defraud the United States by using false applications in the names of fictitious or unqualified persons to acquire school lands from California and Oregon, then corruptly influencing Land Office officials to approve exchanges for selected public lands totaling 6,800 acres. The scheme involved paying small sums to individuals for use of their names, bribing officials for information and expedited approvals, and securing the establishment of forest reserves in advantageous locations. Overt acts charged included Dimond entering appearances in selection cases in the General Land Office, Hyde causing documents to be mailed from Vancouver to the Commissioner, and payments by Benson to Valk or Harlan. Following the return of the indictment, removal proceedings were instituted against Hyde and Dimond before a United States Commissioner in California. After testimony, the commissioner ordered removal, and writs of habeas corpus and certiorati were denied by the United States Circuit Court and affirmed by the Supreme Court in Hyde v. Shine. A demurrer to the indictment was overruled, with the ruling affirmed by the Court of Appeals of the District of Columbia. Motions for a bill of particulars were granted. Motions to elect counts were denied. Pleas in abatement were rejected after demurrers were sustained. At trial in the Supreme Court of the District of Columbia, Benson and Dimond were acquitted while Hyde and Schneider were convicted on all but two counts. Hyde received a sentence of two years' imprisonment and a $10,000 fine, and Schneider was sentenced to one year and two months' imprisonment and a $2,000 fine. The Court of Appeals of the District of Columbia affirmed the convictions in Hyde v. United States, 35 App. D.C. 451, after which the Supreme Court granted certiorari. The indictment contained 42 counts, with the first detailing the conspiracy and subsequent counts adding specific overt acts such as filings by Dimond and payments to officials. Evidence at trial included Schneider's partial disclosure to government agents in 1902 and documents, letters, and witness statements regarding the land selections and communications with the Land Office.
View caseAdam Anderson waited in a car several hundred feet from the victims' home while accomplices committed the robbery and murder. He supplied no aid at the immediate scene of the killings. His role as the planned getaway driver without presence at the homicide makes him an accessory before the fact.
On April 1, 1975, at approximately 7:45 a.m., Thomas and Eunice Kersey, aged 86 and 74, were robbed and fatally shot at their farmhouse in central Florida. Sampson and Jeanette Armstrong went to the back door of the Kersey house and asked for water for an overheated car. When Mr. Kersey came out of the house, Sampson Armstrong grabbed him, pointed a gun at him, and told Jeanette Armstrong to take his money. Mr. Kersey cried for help, and his wife came out of the house with a gun and shot Jeanette Armstrong, wounding her. Sampson Armstrong, and perhaps Jeanette Armstrong, then shot and killed both of the Kerseys, dragged them into the kitchen, and took their money and fled. Two witnesses testified that they drove past the Kersey house between 7:30 and 7:40 a.m. They saw a large cream- or yellow-colored car parked beside the road about 200 yards from the house. A man was sitting in the car. Another witness testified that at approximately 6:45 a.m. he saw Ida Jean Shaw, petitioner's common-law wife and Jeanette Armstrong's mother, driving a yellow Buick with a vinyl top which belonged to her and petitioner Earl Enmund. Enmund was a passenger in the car along with an unidentified woman. At about 8 a.m. the same witness saw the car return at a high rate of speed. Enmund was driving, Ida Jean Shaw was in the front seat, and one of the other two people in the car was lying down across the back seat. Enmund, Sampson Armstrong, and Jeanette Armstrong were indicted for the first-degree murder and robbery of the Kerseys. Enmund and Sampson Armstrong were tried together. The prosecutor maintained in his closing argument that Sampson Armstrong killed the old people. The judge instructed the jury on felony murder, including that the evidence must establish beyond a reasonable doubt that the defendant was actually present and was actively aiding and abetting the robbery or attempted robbery, and that the unlawful killing occurred in the perpetration of or in the attempted perpetration of the robbery. The jury found both Enmund and Sampson Armstrong guilty of two counts of first-degree murder and one count of robbery. A separate sentencing hearing was held and the jury recommended the death penalty for both defendants. The trial judge then sentenced Enmund to death on the two counts of first-degree murder after finding four statutory aggravating circumstances and that none of the statutory mitigating circumstances applied. The Florida Supreme Court remanded for written findings as required by statute. The trial judge reiterated the findings, and the Florida Supreme Court affirmed Enmund's conviction and sentences after rejecting two of the four aggravating circumstances but concluding that the remaining two outweighed the absence of mitigating circumstances. The Florida Supreme Court found that there was no direct evidence at trial that Earl Enmund was present at the back door of the Kersey home when the plan to rob the elderly couple led to their being murdered. However, the jury could have concluded he was the person in the car by the side of the road near the scene of the crimes waiting to help the robbers escape. We granted Enmund's petition for certiorari presenting the question whether death is a valid penalty under the Eighth and Fourteenth Amendments for one who neither took life, attempted to take life, nor intended to take life.
View caseThe key distinction is presence at the scene. A principal in the second degree must aid or encourage while actually or constructively present. An accessory before the fact provides the same type of aid but remains absent when the crime occurs.
Supporting sources
At common law an accessory before the fact could not be tried or convicted until the principal had first been convicted. Modern statutes in most jurisdictions have eliminated this procedural requirement.
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Yes. Encouragement or counseling given in advance satisfies the aiding or abetting element even without physical assistance or presence at the scene.
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Yes. Providing a diagram, tools, or detailed instructions in advance constitutes aiding or encouraging the crime when the supplier stays away from the scene.
Supporting sources
…1976), cert. denied, 434 U. S. 878 (1977). Although petitioner could be convicted of second-degree murder only if he were an accessory before the fact rather than a principal, the Florida Supreme Court reasoned: "[T]he only evidence of the degree of his participation is the jury's likely inference that he was the person in the car by…