In this original prohibition proceeding instituted in this Court on March 23, 1965, the petitioner, James V. Brown, seeks to prohibit the defendants, Honorable William J. Thompson, Judge of the Intermediate Court of Kanawha County, West Virginia, and Honorable Charles M. Walker, Prosecuting Attorney of Kanawha County, West Virginia, from prosecuting him upon an indictment for a felony returned by the grand jury of the Intermediate Court of Kanawha County, West Virginia, at the Regular January 1965 Term of that court, which indictment charged Ruth Maley, as principal, with the crime of falsifying certain written accounts kept by the State of West Virginia and preparing and submitting certain false written transmittal sheets to the Auditor of this State, with intent to falsify such written accounts, in violation of Section 22, Article 3, Chapter 61, Code, 1931, and Alex Dandy, the petitioner James V. Brown, Emil Belich, Harry Lacey and John Stanton with having counseled with, aided and abetted Ruth Maley to commit such offense in Kanawha County, West Virginia.
Upon the filing of the petition this Court issued a rule returnable April 27, 1965, at which time this proceeding was heard and submitted for decision upon the petition and its exhibits, the joint and several answer of the defendants and its exhibit, and the written briefs and the oral arguments of the attorneys in behalf of the respective parties.
The material facts are not disputed and the questions presented for decision are questions of law.
The indictment against the petitioner and others as defendants, the sufficiency of which is challenged by the petitioner in this proceeding, is based upon Section 22, Article 3, Chapter 61, Code, 1931, and, omitting the name of the appearing witness and the the signature of the prosecuting attorney, is in this form:
“State of West Virginia, Kanawha County, ss:
“IN THE INTERMEDIATE COURT OF SAID COUNTY:
“The Grand Jurors of the State of West Virginia, in and for the body of the County of Kanawha, and now attending *652 the said Court, upon their oaths present, that within three years prior to the date of the finding of this indictment, in the County of Kanawha, State of West Virginia, RUTH MALEY, being then and there an employee, officer, clerk and agent of the State of West Virginia, did knowingly, unlawfully and feloniously make and cause to be made false entries in the written accounts kept by the State of West Virginia by preparing and submitting, and causing to be prepared and submitted, false transmittal sheets in writing accompanied by false statements and invoices in writing for Pioneer Construction Co., Inc., a corporation, to the Auditor of the State of West Virginia, which said written accounts, statements, invoices and transmittal sheets were kept by the said State of West Virginia, with intent in so doing to falsify, alter and conceal the true state of said written accounts against the peace and dignity of the State.
“And the Grand Jurors upon their oaths aforesaid do further present that ALEX DANDY, JAMES V. BROWN, EMIL BELICH, HARRY LACEY and JOHN STANTON, within three years prior to the date of the finding of this indictment in said County of Kanawha, before the felony was committed in form aforesaid, to-wit: within three years prior to the date of the finding of this indictment and in the County aforesaid, did feloniously counsel with, aid and abet the said RUTH MALEY to do and commit the said felony in said Kanawha County in the manner and form aforesaid,
“against the peace and dignity of the State.”
The petitioner contends that the foregoing indictment is fatally defective in that it fails to charge him with the commission of any offense under the laws of this State and that inasmuch as it charges him with being both an accessory before the fact and an aider and abettor in connection with the commission of the offense by Ruth Maley, as principal, the indictment fails fully and plainly to inform the petitioner of the character and cause of the accusation against him. The petitioner insists that as the indictment is void for the foregoing reasons his prosecution under it should be prevented by a writ of prohibition.
*653 On the contrary the defendants insist that the indictment sufficiently charges the petitioner with being an accessory before the fact in connection with the offense committed by Ruth Maley, as principal; and that it fully and plainly informs the petitioner of the character and cause of the accusation against him and is in all respects a valid and sufficient indictment for the offense with which it charges the petitioner.
The petitioner insists that, as the statute which creates the offense with which Ruth Maley is charged in the indictment does not create the crime of an accessory or an aider and abettor in connection with the commission of that particular offense, a person who is such accessory or such aider and abettor, in the absence of such statute, does not commit any offense under the law of this State. He also asserts that there is no general statute of this State which makes it a crime for any person to be an accessory or an aider and abettor in the commission of an offense and that for that reason such accessory or such aider and abettor does not commit any offense under the law of this State. Though it is true that Section 22, Article 3, Chapter 61, Code, 1931, does not expressly make it an offense for any person to be an accessory or an aider and abettor in the commission of the particular offense and though it is also true that there is no general statute of this State which makes it an offense for any person to be an aider and abettor in the commission of any specific offense, it does not follow that the failure of the statute creating the specific offense set forth in the indictment to impose criminal responsibility excludes such accessory or aider and abettor from such responsibility or that to act as accessory or aider and abettor does not constitute a criminal offense. Moreover action by the Legislature in providing with respect to certain specific crimes dealt with by statute such as kidnapping, Section 14 d, Article 2, Chapter 61, Code, 1931, as amended, arson, Section 1, Article 3, Chapter 61, Code, 1931, as amended, and policy or numbers, Section 11a, Article 10, Chapter 61, Code, 1931, as amended, that any person who aids or abets the person who actually commits any of the foregoing crimes shall be guilty of a felony does not indicate or mean that
*654
the failure of any statute to provide for the guilt of an accessory or an aider and abettor excludes such person from criminal responsibility. On the contrary a person is guilty as a principal in the second degree when he aids and abets the actual perpetrator or the principal in the first degree, in the commission by such perpetrator of a common law offense which is also a statutory crime and is also guilty of an offense when he is an accessory before the fact, even though the statute creating the crime does not make aiding and abetting or accessory before the fact in the commission of the statutory crime a separate or substantive offense. If a statute makes an act a crime it includes with the principal felon all persons who are aiders and abettors or who are accessories before or after the fact.
Adkins
v.
Commonwealth,
It is well established, at common law and by numerous decisions of this Court and of the Supreme Court of Appeals of Virginia, that a person who is the absolute perpetrator of a crime is a principal in the first degree and that a person who is present, aiding and abetting the fact to be done, is a principal in the second degree. Book Four, Chapter The Third, page 34, Blackstone’s Commentaries on the Laws of England; 22 C. J. S., Criminal Law, Sections 83, 85 and 88 (1);
State
v.
Garcia,
*655 In Book Four, Chapter The Third, page 34, Blackstone’s Commentaries on the Laws of England, the author says: “I. A man may be principal in an offence in two degrees. A principal, in the first degree, is he that is the actor, or absolute perpetrator of the crime; and, in the second degree, he is who is present, aiding, and abetting the fact to be done. Which presence need not always be an actual immediate standing by, within sight or hearing of the fact; but there may be also a constructive presence, as when one commits a robbery or murder, and another keeps watch or guard at some convenient distance.” And the same author at page 35 states that “II. An accessory is he who is not the chief actor in the offence, nor present at it’s performance, but in someway concerned therein, either before or after the fact committed.”
In 22 C. J. S., Criminal Law, Sections 83, 85 and 88 (1), are these statements:
Section 83: “The principal in the first degree is he that is the actor or actual and immediate perpetrator of the crime, and this is true of course whether the crime is a felony or a misdemeanor.”
Section 85: “A principal in the second degree, or an aider and abettor as he is frequently called, is one who is present actually or constructively, aiding and abetting in the commission of the felony; one who so far participates in the commission of a crime as to be present for the purpose of assisting therein, if necessary; one who gives aid and comfort, or who either commands, advises, instigates, or encourages another to commit a crime; * * * ; a person who, by being present, by words or conduct, assists or incites another to commit the criminal act.
“In order to avoid the technicalities of the law encountered under the ancient authorities which regarded persons aiding and abetting in the commission of a crime as accessaries at the fact, aiders and abettors were early held to be principals in the second degree.”. See Commonwealth v. Knapp, 9 Pick 496 (Mass.),20 Am. Dec. 491 .
*656 “Aiding and abetting is not an independent crime under ‘aider and abettor’ statutes, and the acts which constitute the basis of a charge of aiding and abetting must be acts which tend to the commission of some substantive offense. Accordingly, in order that one may be a principal in the second degree or aider and abettor, the general rule is that it is essential that there be a crime committed and a principal in the first degree, and it must be shown that the person for whom accused was acting was connected with the offense. * * *. Where, however, the crime of aiding and abetting is by statute made a substantive offense one may be prosecuted as a principal, although the person or corporation aided and abetted may not have participated in the unlawful act and may not be chargeable with knowledge thereof.”
Section 88 (1): “All persons who are actually or constructively present at the time and place of a crime, whether it is a felony or merely a misdemeanor, and who either actually aid, abet, assist, or advise its commission, or are there with that purpose in mind, to the knowledge of the person actually committing the crime, are guilty as principals in the second degree or aiders and abettors or as ‘principals’ under applicable statute, although they did not themselves accomplish the purpose. Conduct which amounts to aiding and abetting of the crime by accused at the time and place of its commission is, however, essential to guilt as a principal in the second degree or aider and abettor.”
In
State
v.
Franklin,
There is a clear distinction between the crime of accessory before the fact and the crime of aiding and abetting. An accessory before the fact must be absent at the time and place of the principal offense.
State
v.
Davis,
*658
In
Adkins
v.
Commonwealth,
In several instances in which a common law crime has by statute of this State been made a felony, such as rape, larceny and'murder, as to which latter offense an aider and abettor was criminally liable at common law as principal in the second degree, according to Blackstone’s Commentaries on the Laws of England, Book Four, Chapter The Fourteenth, page 200, and which statute, making rape, larceny or murder a felony, does not make aiding and abetting in the commission of any of such crimes a separate or substantive offense, this Court has held that a person who aids and abets the principal in the first degree who actually perpetrates the criminal act, is subject to criminal liability as a principal in the second degree.
State
v.
Franklin,
In
State
v.
Franklin,
In
State
v.
Digman,
In the North Carolina case of
State
v. Jones,
In
State
v.
Wamsley,
In
State
v.
Prater,
With respect to accessories before the fact the text in 22 C.J.S., Criminal Law, Section 90, contains these statements:
“An accessary before the fact is one who was not present actually or constructively, at the time when the felony was committed, but who counseled, procured, or commanded another to commit it, or who planned, cooperated, assisted, aided, counseled, or abetted in the preparation of it; and he is equally guilty with the principal. Aiding, abetting, and planning the commission of a felony have been held to constitute the substance of the crime, and there is no particular time to which accessaryship is limited. One may be an accomplice and a co-conspirator with another as an accessary before the fact. An accessary before the fact may be described as a confederate.
“A person may be an accessary before the fact and also a principal in the commission of a crime. One may also be guilty as an accessary before the fact, by aiding in, or procuring or instigating a crime, although he or she is incompetent to commit the crime in person. In order that this may be true, however, there must, of course, be a crime committed and a principal in the first degree.
“There are several elements that must concur in order to justify the conviction of one as an accessary before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them, to commit the offense. (2) That he was not present when the offense was committed. (3) That the principal committed the crime.”
In
State
v.
Loveless,
“It is well to note that an accessory before the fact may be convicted * * whether the principal felon be convicted or not, or be amenable to justice or not, * * *’. Code, 61-11-7. Further, * * and every accessory before the fact shall be punishable as if he were the principal in the first degree; * * *’. Code, 61-11-6.
“At this point, it is to be noted that the defendant in this case was indicted and tried separately as an accessory before the fact.
“Accessory before the fact, conspirator and accomplice are terms which are somewhat connected, but not exactly the same from a legal standpoint. An accessory has been defined as: ‘One, who, being absent at the time a crime is committed, yet assists, procures, counsels, incites, induces, encourages, engages, or commands another to commit it.’ Black’s Law Dictionary, Fourth Edition, page 29. * * An accessory is he who is not the chief actor in the offense, nor present at its performance, but is some way concerned therein, either before or after the fact committed. * * *’ State v. Roberts,50 W. Va. 422 ,40 S. E. 484 . Absence at the time and place the offense is committed is the essential element to make one an accessory, the connivance and the result aimed at must occur, and the latter must be the effect of the former to complete the crime. State v. Ellison,49 W. Va. 70 ,38 S. E. 574 .
“The offense of accessory is of two grades: accessory before the fact, and accessory after the fact. We are here concerned only with the former. ‘ “ An accessory before the fact is he that, being absent at the time of the actual perpetration of the crime procures, counsels, commands, incites or abets another to commit it.” * * * The crime of accessory before the fact is a particular one. The absence of the accessory at the time and place of the principal offense is an essential element. * * *’ State v. Roberts, supra.”
*664 The statute creating the crime of murder, which was a felony at common law, does not impose or create criminal liability upon an accessory before the fact to the crime of murder, but notwithstanding the absence of any such provision in that statute this Court in the Loveless case recognized and considered accessory before the fact to the crime of murder of the first degree to be a felony and to be punishable in the same manner as a principal in the first degree.
In
State
v.
Davis,
In the opinion in
State
v.
Roberts,
In 22 C.J.S., Criminal Law, Section 81a, are these statements: “It is now well settled that statutory felonies admit of accessaries to the same extent as did felonies at common law; and the fact that the statute mentions nothing about accessaries is immaterial. A statutory felony,- even though the offense at common law was a misdemeanor, will admit of accessaries.” See also
State
v.
Derosia,
94 N. H. 228,
*665 In Clark and Marshall, Crimes, Third Edition, 1927, Section 31e, the text is expressed in this language: “Statutes defining and punishing offenses are also to be construed in accordance with the common law principles in relation to principals and accessoriés.”
The text in Bishop, On The Unwritten Law, Chapter XVII, Section 139, contains these statements: “When a statute creates a new felony, whether out of what was before innocent, or was a misdemeanor, those who are present aiding one who personally commits it are principals, as already said; and the absent who counselled it, and those who afterward assist the felon to elude justice, are parties in felonies at the common law.”
In The Queen v. Tracy, 6 Mod. 31, 87 English Reports 795 (Reprint), a criminal prosecution against Tracy, a Justice of the Peace, for falsely arresting a person on a forged warrant and extorting various sums of money, before Holt, Chief Justice, and Powell, Justice, the opinion by the chief justice states that “if a thing be made felony, all accessaries before and after are felons in consequence; * * *.”; and in Dominus Rex v. Bear, 2 Salkeld 417, 91 English Reports 363 (Reprint), in which the defendant was indicted, tried and convicted for the offense of criminal libel, the opinion contains these statements: “If H. contrives any treasonable matter, and another writes down the countrivance, the writer is as guilty as the inventor. Where an Act of Parliament makes sodomy felony, and says nothing of the abettors, if B. should stand by and hold the door while A. committed sodomy, B. would be as guilty of felony as A. So in 3 Inst. 59, where an Act of Parliament makes any thing felony, though nothing be said of the accessaries in the statute. So in the lowest offences, where there are no accessaries, but all are principals, as if H. should hold A. while B. beats him, he is guilty of the battery.”
Although accessory before the fact was a crime at common law accessory before or after the fact is made a substantive offense by Section 7, Article 11, Chapter 61, Code, 1931, which provides that “An accessory, either before or after the fact, may, whether the principal felon be convicted or not,
*666
or be amenable to justice or not, be indicted, convicted, and punished in the county in which he became accessory, or in which the principal felon might be indicted. Any such accessory before the fact may be indicted with such principal or separately.” The statute not only makes a person who acts as an accessory before or after the fact guilty of a criminal offense but also fixes the venue for the trial of the offense. In
Moore
v.
Lowe,
In the Moore case, in discussing the statute, Section 7, Article 11, Chapter 61, Code, 1931, this Court used this language: “The common law requirement that the principal be convicted before the prosecution of the accessory could proceed, has been changed in this state by statute. Code, 61-11-7. An accessory, before or after the fact, may now be prosecuted whether the principal has been brought to justice or not. In this sense, at least, the crime of accessory before the fact becomes in this state a substantive offense. It, of course, remains contingent upon the fact of the commission of the principal offense. * * *.”
By Article VIII, Section 21 of the Constitution of this State and Section 1, Article 1, Chapter 2, Code, 1931, the common law is in force in this State so far as it is not repugnant to the principles of the Constitution and except in those respects in which it has been altered by the Legis *667 lature; and at common law an aider and abettor or an accessory is subject to criminal responsibility in connection with the commission of a crime by a principal felon.
From the numerous authorities cited and discussed earlier in this opinion relating to the criminal responsibility of an aider and abettor and an accessory, it is clear that by the common law and the law of this State an accessory or an aider and abettor is guilty of a criminal offense if he counsels, procures or commands another person to commit a statutory offense which was also an offense at common law or a statutory offense which was not an offense at common law, or plans, cooperates, assists, aids or abets in the commission of any such offense. It is also clear that by Section 7, Article 11, Chapter 61, Code, 1931, an accessory before or after the fact is subject to criminal responsibility and may be indicted, convicted and punished for a crime in the county in which he becomes accessory or in the county in which the principal felon might be indicted if the accessorial acts occur in that county.
Moore
v.
Lowe,
The crime created by Section 22, Article 3, Chapter 61, Code, 1931, and for which the petitioner has been indicted, was created by a statute of Virginia in 1849 and has been in effect in this State for many years. It has been considered by this Court in only one prior decision in 1945,
State
v.
Rouzer,
The statute, Section 22, Article 3, Chapter 61, Code, 1931, which creates the offense for which the petitioner was indicted, limits its scope to officers, clerks and agents of the designated instrumentalities, and the petitioner, not being charged in the indictment as such officer, clerk or agent and not being within the scope or purview of the statute, can not be guilty of its violation as the principal felon and the actual perpetrator of the criminal act. That fact, however, does not relieve the petitioner of criminal responsibility for its violation as an aider and abettor and as such a principal in the second degree, or as an accessory before the fact. Any person who is capable of committing a crime may be guilty as a principal in the second degree and the fact that he is incapable of committing an offense as a principal in the first degree does not preclude him from being a principal in the second degree. 22 C.J.S., Criminal Law, Section 85;
State
v.
Digman,
*670 The indictment in this case, which is challenged by the petitioner, sufficiently charges the petitioner with the offense of accessory before the fact to the commission of the principal offense. The language of the indictment indicates clearly that the petitioner and his associates performed the acces-sorial acts before the commission of the felony by the principal in the first degree and were not present when the offense was committed by such principal. As previously stated, an accessory before the fact is one who was not present at the time of the commission of the felony but who counseled, procured, or commanded another to commit it or who planned, co-operated, assisted, aided, or abetted in the perpetration of the offense. The language of the indictment which charges that the petitioner and his named associates “did feloniously counsel with, aid and abet the said RUTH MALEY to do and commit the said felony”, sufficiently describes and charges the petitioner as an accessory before the fact.
The indictment does not fail to inform the petitioner fully of the charge against him. On the contrary it fully satisfies the requirement of Article III, Section 14 of the Constitution of this State that in all trials the accused shall be fully and plainly informed of the character and cause of the accusation. An indictment which charges a principal in the first degree with the commission of the crime created by Section 22, Article 3, Chapter 61, Code, 1931, and which also charges that certain other persons before the commission of the principal offense did feloniously counsel with, aid and abet the principal in the first degree to do and commit the principal offense satisfies the constitutional requirement that in all trials the accused shall be fully and plainly informed of the character and cause of the accusation and is a good and sufficient indictment of the persons charged with being accessories before the fact to the crime created by the statute.
For the reasons stated and under the authorities cited and discussed in this opinion, the writ of prohibition prayed for by the petitioner is denied.
Writ denied.