E. Parties to Criminal Offenses
1. Definitions and Basic Elements
The common law traditionally categorized the participants in a felony as accessory before the fact, principal first, principal second, and accessory after the fact. In treason all four were regarded as principals. In misdemeanors the first three were considered as principals; accessory after the fact to misdemeanor did not entail criminal responsibility. LaFave, 701 (5th ed. 2010); Whitaker v. English, 1 S.C.L. (1 Bay) 15 (1784); State v. Lymburn, 3 S.C.L. (1 Brev.) 397 (1804).
In felony the principal first is the person who actually does the act or who causes the act to be done by an innocent agent, such as a child or insane person. State v. Posey, 35 S.C.L. (4 Strob.) 103 (1849). A principal second is a person who is present at the commission of the offense, aiding or abetting the principal first. State v. Williams, 189 S.C. 19, 199 S.E. 906 (1938). A person may be considered constructively present at the commission of the offense and hence a principal second, even though he is physically some distance away, so long as he plays some role such as lookout, driver, or signaler. LaFave, 703-04 (5th ed. 2010). For an extreme example see State v. Hamilton, 13 Nev. 386 (1878). Early in South Carolina's judicial history it was recognized that there was very limited significance to the distinction between principals first and principals second in terms of pleadings, procedure and sentence. State v. Crank, 18 S.C.L. (2 Bail.) 66 (1831).
Recidivist legislation, popularly known as "two strikes" or "three strikes," provides for a sentence of life imprisonment without parole for a second conviction of a "most serious offense" or a third conviction of a "serious offense." S.C. Code Ann. § 17-25-45 (Supp. 2012). Included in the lists of "most serious offenses" and "serious offenses" are attempt and accessory for any listed offense. Subsection (C)(1) and (2).
It is unclear whether "accessory" includes both accessory before the fact and accessory after the fact. Recent legislation treats accessory after the fact less harshly than accessory before the fact. Compare S.C. Code Ann. §§ 16-1-40 (2003) (accessory before fact to be punished in same manner as principal felon) and 16-1-55 (2003) (lower classification of punishment for accessory after fact than for principal felon). Consequently, it would appear that "accessory" in the new recidivist statute may not apply to accessory after the fact. See the discussion of S.C. Code Ann. § 16-3-1045 (2003) in this supplement to B.8.d. Miscellaneous Conspiracy Statutes, supra.
A number of statutes proscribe some substantive conduct as well as aiding, counseling, or procuring that conduct. E.g., S.C. Code Ann. § 16-23-720(A) (Supp. 2012) (explosion by means of a destructive device). Even without the statutory language regarding aiding, counseling, or procuring, a person who aided, counseled, or procured another to set off the bomb would himself be guilty of the substantive offense under the law of parties, either as an accessory before the fact or as a principal.
Crucial to any prosecution of the defendant as an accomplice of another is proof that the two were in fact aiding or encouraging each other in the commission of the crime. A lack of such proof, and indeed a lack of proof that the two had committed the crime, resulted in a reversal of a murder conviction for failure to grant a directed verdict in State v. Martin, 340 S.C. 597, 533 S.E.2d 572 (2000).
a. Accessory Before The Fact and Principals
By statute, South Carolina has long decreed that both an accessory before the fact and a person who aids in the commission of a felony (a principal second) are guilty of the felony and are to be punished in the same manner as the principal first. S.C. Code Ann. § 16-1-40 (2003). In addition, there are specialized statutes in particular areas further obliterating the distinctions between parties. E.g., S.C. Code Ann. §§ 16-21-140 (2003) (offenses involving motor vehicle titles) and 16-11-535 (2003) (malicious injury to place of worship).
Neither an accessory before the fact nor a principal second can be convicted, however, absent proof that some principal actually committed the crime. This extremely important, and sometimes difficult, point is developed in subsection 3.c, Mutuality of Convictions, infra.
There is a significant difference between the principal first and principal second in the commission of vehicular crimes. The driver of the vehicle must be fidentiied as such by the jury; any others who share culpability must be convicted on a theory of aiding and abetting. State v. Leonard, 292 S.C. 133, 355 S.E.2d 270 (1987), rev'g 287 S.C. 462, 339 S.E.2d 159 (Ct. App. 1986). The Court of Appeals decision had affirmed convictions of reckless homicide of both of the car's occupants in which the jury was not required to determine the driver and was allowed to convict both if each seemed to be encouraging the other.
In reversing the decisions below, the Supreme Court in Leonard also condemned the trial court instructing the jury on the basis of S.C. Code Ann. § 56-5-6120 (2006), which provides that "[i]t is unlawful for the owner or any other person employing or otherwise directing the driver of any vehicle to require or knowingly to permit the operation of such vehicle upon a highway in any manner contrary to law." The Court observed that neither defendant had been charged with a violation of this offense and that the instructions based on it may have confused the jury regarding the separate inquiries applicable to each defendant. 292 S.C. at 137-38, 355 S.E.2d at 272.
An accessory before the fact is one who aids or abets the principal to commit the offense but who is not present at its commission. As is also true in the case of a principal second or an accessory after the fact, the accessory before the fact cannot be convicted unless the principal first actually committed the offense. State v. Farne, 190 S.C. 75, 1 S.E.2d 912 (1939). As will be developed infra, the principal need not, however, actually have been convicted of the offense. S.C. Code Ann. § 16-1-50 (2003).
What is involved in aiding and abetting? A 14-year-old girl daring her accomplice to carry out a threat to strike another with a baseball bat was sufficient to constitute her a principal to assault in In the Matter of McGee, 278 S.C. 506, 299 S.E.2d 334 (1983). A landowner furnishing his sales agent with contracts of sale containing misrepresentations sufficed to make him a party to the agents' false pretense offenses in State v. Jeffcoat, 279 S.C. 167, 303 S.E.2d 855 (1983). With knowledge that her lover was contemplating killing her husband, the defendant responded, "If you are going to do it just do it, I don't want to know about it." State v. Thompson, 279 S.C. 405, 308 S.E.2d 364 (1983), habeas corpus granted by 672 F. Supp. 896 (D.S.C. 1987) (prejudicial admission of co-defendant's statement). This was enough evidence of encouragement to submit to the jury the issue of whether she was an accessory before the fact to murder. The defendant in Thompson was convicted of accessory before and after the fact to the crime committed by the principal, as was the defendant in State v. Massey, 267 S.C. 432, 229 S.E.2d 332 (1976). Overwhelming evidence of guilt for aiding and abetting multiple sexual assaults on a single victim ("running a train") was found in State v. Kilgore, 325 S.C. 188, 480 S.E.2d 736 (1997).
An interesting accessory before the fact issue is suggested by a defendant's oral statement, the improper admission into evidence of which necessitated reversal of a burglary conviction, in State v. Jenkins, 322 S.C. 414, 472 S.E.2d 251 (1996). In this statement, the defendant claimed not to have committed any recent burglaries but to have run a "burglary school" in which he instructed his pupils on the proper way to burgle without being caught; he would also fence the goods stolen in the burglaries they committed. Could he be an accessory before the fact to his pupils' crimes? Probably not, unless he encouraged particular burglaries. On fencing the goods, though, he might well be considered an accessory after the fact, depending on what he learned when he received the goods.
The breach of trust statute penalizes one who commits a breach of trust as well as "[any] person who hires or counsels another person to commit a breach of trust with a fraudulent intention . . . ." S.C. Code Ann § 16-13-230 (2003) (emphasis added). This is an example of accessory before the fact liability. This aspect of the statute was applied in State v. Johnson, 314 S.C. 161, 442 S.E.2d 191 (Ct. App. 1994), cert denied (1995). Many statutes are drafted in a similar manner. E.g., S.C. Code Ann. § 16-15-365 (2003) (exposure of private parts in lewd and lascivious manner, aiding or procuring person to perform such act or permitting use of premises for such act), applied in State v. Bouye, 325 S.C. 260, 484 S.E.2d 461 (1997), cert denied, 522 U.S. 822 (1997).
One present at the scene of the crime who ordered his confederate to point a gun at the victim of the robbery was himself guilty of pointing a firearm. State v. Jennings, 335 S.C. 82, 515 S.E.2d 107 (Ct. App. 1999). When two confederates burglarized a house, both assaulted one occupant, but only one of the confederates assaulted the other occupant, each confederate was guilty as a principal of the assault on the other occupant. State v. Burdette, 335 S.C. 34, 515 S.E.2d 525 (1999).
In a well-reasoned opinion, the Supreme Court of North Carolina concluded that a parent who is present when his child is attacked and who then fails to take all reasonably possible steps to protect his child is guilty, by that failure to act, of aiding and abetting the child's attacker. State v. Walden, 293 S.E.2d 780 (N.C. 1982). In Walden, the defendant stood by passively without objecting while a male guest in her home savagely beat her infant...
