§ 30.03 ACCOMPLICE LIABILITY: COMMON LAW TERMINOLOGY

• Jurisdiction: United States

§ 30.03. Accomplice Liability: Common Law Terminology

[A] Parties to a Felony

[1] General Comments

Except for the offense of treason,¹⁹ the common law created two categories of parties to crime—principals and accessories—each of which category was further divided into two subgroups, discussed below.

As discussed in subsection [B], the common law distinctions between the parties were of considerable practical significance. Today, virtually every state has legislatively repealed the common law distinctions, in whole or in substantial part. Nonetheless, courts often persist in using common law language. Therefore, knowledge of the terminology remains valuable.

[2] Principal in the First Degree

[a] In General

A "principal in the first degree" is the person who, with the requisite mens rea: (1) physically commits the acts that constitute the offense; or (2) as described in subsection [b] below, commits the offense by use of an "innocent instrumentality" or "innocent human agent."²⁰ The principal in the first degree is "the criminal actor"²¹ or "perpetrator" of the offense. It is his conduct from which all secondary parties' liability derives.

In most cases, the principal in the first degree is the individual who personally commits the crime. He is the one who strangles V1, has sexual intercourse with V2, or takes and carries away the personal property of V3, i.e., he is the person who performs the proscribed physical acts.

[b] Innocent-Instrumentality Rule

[i] In General

The innocent-instrumentality rule provides that a person is the principal in the first degree if, with the mens rea required for the commission of the offense, he uses a non-human agent or a non-culpable human agent to commit the crime.

For example, suppose that D trains his dog to pick up his neighbor's newspaper (yes, some people still have newspapers delivered to their home) every morning from the front lawn and bring it to D, who keeps the newspaper as his own. D is guilty of petty larceny—he is the principal in the first degree of the theft. Because the dog is not a human being and, therefore, does not have the capacity to form a culpable mental state, the animal is D's innocent instrumentality. We no more treat the dog as the perpetrator of the theft than we would say that a gun is the "perpetrator" of a murder and that the person pulling the trigger is the gun's "accomplice."

A human being may also be an innocent instrumentality. A person is the principal in the first degree of an offense if he uses or manipulates another person to commit an offense, such that the other person is not guilty of the offense due to lack of mens rea or because of the existence of an excusing condition. For example, suppose that D falsely informs X that V's lawn mower belongs to D. Based on the false representation, D convinces X to "retrieve" the property from V's front lawn. On these facts, X is not guilty of larceny because he lacked the specific intent to steal. Instead, D is guilty of the theft as the principal in the first degree. In this example, X is similar to the dog in the preceding hypothetical: He is a non-culpable agent who was manipulated—like the strings on a marionette—by a culpable party to commit the offense.

Similarly, D is also the principal in the first degree if he causes X, an insane person²² or a child,²³ to commit an offense, or if he coerces X to commit the crime.²⁴ In these circumstances, X is innocent of the offense as the result of an excuse (insanity, infancy, or duress), and accountability for the crime shifts to D.

[ii] Difficulty in Application of the Rule: "Nonproxyable" Offenses

Occasionally, the innocent-instrumentality doctrine creates problems for courts when dealing with what has been characterized by one scholar as a "nonproxyable"²⁵ offense. A "nonproxyable" offense is one that, by definition, seemingly can only be perpetrated by a designated person or category of persons.

For example, as ordinarily defined, perjury can only be committed by one who intentionally falsely testifies under oath as a witness in an official proceeding. Suppose that D, by deception, causes W, a witness in a judicial proceeding, to unintentionally give false testimony regarding material facts. In these circumstances, W is not guilty of perjury, due to lack of mens rea. Ordinarily, therefore, D would be guilty of perjury as a principal in the first degree through the innocent- instrumentality doctrine. But can someone, never under oath in a judicial proceeding, be said to have perjured himself? Perjury appears to be a nonproxyable offense.

Or, consider a twist on the Biblical story: Adam gives Eve an apple to eat, which Adam alone knows is a forbidden act. Are we prepared to hold Adam guilty, through his innocent instrumentality, of "eating the apple," which he did not do?²⁶

More seriously, consider the offense of rape. As the offense is defined at common law, a husband cannot be convicted of raping his own wife, nor can a woman be convicted of raping another woman, although either can be convicted as accomplices in a rape.²⁷ In short, the prohibited action of "rape" (at common law) only applies to a designated class of persons—males who have sexual intercourse with females not their wives. What happens, then, if D coerces X to rape D's wife? To convict D through the innocent-instrumentality doctrine — thus making D the principal in the first...