Criminal Law.  An accessory before the fact is one who aids, counsels, commands, or encourages the commission of the crime, but who is not present either actually or constructively at the moment of perpetration of the crime.  [Example: X recruits A and B to rob a bank and provides them with guns and masks.  X remains at home while A and B rob the bank.  X is an accessory before the fact.]

At common law, the principal who committed the crime was punished more severely than an accessory before the fact.  Many jurisdictions have abandoned that distinction, however, and an accessory before the fact is regarded just as culpable as the person who directly commits the felony.

California, for example, has abandoned the common law distinction between the accessory before the fact and the person who committed the actual felony. The California Legislature determined that one who acts as an accessory before the fact is just as culpable as the actual perpetrator.  As a result, the California Legislature enacted laws (see Penal Code §§ 31 and 971) which made “accessories before the fact” “aiders and abettors” and liable as principals for the offenses in which they assisted.  Thus, there is no longer any necessity for treating an accessory before the fact as a separate offense in California, because the liability for those acts was subsumed in the liability imposed on the aider and abettor as a principal.  See also Evans v. State, 145 So. 3d 723 (Miss. 2014), quoting Miss. Code Ann. § 97-1-3 (“Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.”)

Reference Desk

State v. Bixby, 373 S.C. 74 (2007):

“The elements that must concur to justify the conviction of one as an accessory before the fact are: (1) that the defendant advised and agreed, or urged the parties or in some way aided them, to commit the offense; (2) that the defendant was not present when the offense was committed; and (3) that the principal committed the crime.”

Yellowbear v. State, 174 P.3d 1270, 1291 (Wyo.2008):

“We have identified the basic elements of the crime of accessory before the fact as being (1) someone committed the underlying felony; and (2) the defendant participated in that crime.”

Brown v. Thompson, 149 W. Va. 649 (1965):

“An accessory before the fact is a person who being absent at the time and place of the crime, procures, counsels, commands, incites, assists or abets another person to commit the crime, and absence at the time and place of the crime is an essential element of the status of an accessory before the fact.”

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