Mr. Chief Justice Shepard
delivered tbe opinion of tbe Court:
1. There was no error in denying tbe motion of defendant Meagber for a separate trial. This is a matter within tbe discretion of tbe trial court, whose action will not be reviewed unless clearly made to appear that tbe party sustained substantial prejudice. Nothing of the kind has been shown. Tbe expectation of tbe introduction of a confession of tbe codefendant — the single ground of tbe motion — was not realized.
2. Tbe evidence on which tbe conviction was bad has been given at considerable length in tbe statement of tbe case, because of tbe assignment of error on the refusal of tbe court to direct a verdict of not guilty as to Meagber, on tbe ground that tbe [72] evidence did not show the commission of any offense by him. The contentions of the appellant are, first, that there is no evidence to show that the abortion was caused by the use of a catheter as charged in the indictment; second, assuming there was evidence sufficient to warrant the conviction of Maxey, there was a total lack of evidence tending to show that Meagher advised, aided or abetted, or assisted Maxey; on the other hand, it shows that the only assistance given and every suggestion made by him was exclusively for, in aid of, and at the request of the victim, who was innocent of any offense.
(1) The evidence was ample, in our opinion, to warrant the jury in finding that Maxey caused the abortion, and in inferring that it was by the use of the catheter found in her house.
(2) It is manifest that Meagher was not personally present, inciting Maxey to, and aiding her in fact in, the performance of the criminal act. All that was necessary, however, was to prove facts and circumstances from which it might be inferred, with sufficient certainty, that he abetted the performance of the criminal act in such a way as to constitute him a principal offender under the provisions of sec. 908 of the Code [31 Stat. at L. 1337, chap. 854], which reads as follows: “In prosecutions for any criminal offense, all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals, and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes, whatever the punishment may be.” One who procures, commands, advises, instigates or incites the commission of an offense, though not personally present at its commission, is, by the common law, an accessory before the fact. 1 Am. & Eng. Enc. Law, p. 258; 12 Cyc. Law & Proc. p. 190; Com. v. Smith, 11 Allen, 243, 256; McCarney v. People, 83 N. Y. 408, 412, 38 Am. Rep. 456; People v. McKane, 143 N. Y. 455, 464, 38 N. E. 950; State v. Maloy, 44 Iowa, 104, 113; Hughes v. State, 75 Ala. 31, 35; Griffith v. State, 90 Ala. 583, 588, 8 So. 812. The section of the Code above quoted makes all such persons principals. And it is not essential that any [73] specific time or mode of committing the offense shall have been advised or commanded, or, if so, that it shall have been committed in the particular way instigated. Griffith v. State, supra; Pearce v. Oklahoma, 55 C. C. A. 550, 118 Fed. 425. Nor is it necessary that there shall have been any direct communication between the actual perpetrator and the accessory, who, under the Code, is now a principal. Com. v. Smith, supra.
Applying these principles to the evidence, we think it was properly submitted to the jury. It appears from the testimony of May Brooks, the credibility of which was for the jury to determine, that neither she nor her sister knew the defendant. Maxey; that they had never heard of her save through Meagher; that he took them near Maxey’s house and pointed it out to .them; that he furnished them the exact amount of money charged for the treatment; that he told Claudia Parrish to tell Maxey that she was married and that “Mrs. Bock” had sent her; and that he waited for their return from the house, and was. informed that Maxey had inquired who sent her and had been answered as he had directed; also that she had received, and been satisfied with, the sum of money furnished. The daughter-in-law of Maxey, produced as a witness by the latter, corroborated this evidence as to the fact of the visit on Monday, her talk about an abortion, and the return of Claudia on Wednesday. From this evidence it might be inferred that Meagher arranged with Maxey for the treatment, was informed of its cost, and that the statement that Claudia was a married woman and had been sent by “Mrs. Bock” was a prearranged password by which Maxey might be assured that the girl was sent by him to be operated upon. Whether the particular means to procure abortion had been suggested or provided for is, as we have seen, immaterial. It has not been contended that the evidence of the surgeons was not ample to warrant the belief that septicaemia was superinduced by the treatment of Maxey, and was the efficient cause of the death that speedily ensued.
(3) The charge of the court, which was also excepted to, instructed the jury that they could find Meagher guilty as-charged, if satisfied beyond a reasonable doubt that he, though [74] the victim and her sister, procured the act to be done by Maxey; that is to say, if they were his agents to go to her and have the act performed they were acting for him, and what they did became his act. The ground of the motion, applicable to this particular bearing of the evidence, was that “the evidence conclusively shows, that the only assistance given, and every suggestion made by Meagher, was solely and exclusively to, and for, and in aid of, and at the request of, and carried out by and through the victim, Claudia Parrish, who is innocent, in the eyes of the law, of any offense whatever.” The evidence, however, goes beyond a mere suggestion of the act to the deceased, for it shows that he went with her to the place and directed her to the person, both before unknown to her, and then gave her the necessary money to procure the performance of the act. Being of the opinion that the evidence was sufficient to warrant submission to the jury on the issue charged, the question raised goes to its efficiency, as matter of law, to show the commission of any offense by Meagher. In other words, did the court take a correct view of the law as applied to the evidence? The contention of counsel for the appellant is thus stated: “One who counsels with and gives aid to a woman who may be pregnant, in relation to her endeavor to secure someone to perform the crime of abortion upon her person, is guilty of no offense, provided he does not counsel with, aid, or abet the person committing the crime.” The proposition, as stated, is incorrect in the assumption that the defendant merely aided the deceased “in relation to her endeavor,” because the evidence tended to show that her action was taken at his instigation and through his aid also. Assuming, then, that the deceased, though consenting to the commission of the criminal act, was herself guilty of no offense in law, as contended, is it true that the defendant, who instigated the act, designated the person, and furnished the money for its performance, is equally guiltless in contemplation of law ? We are of the opinion that he is not. As has been said by the Supreme Court of the United States: “It is the known and familiar principle of criminal jurisprudence, that he who commands or procures a crime to be done, if it is done, is guilty [75] ■of the crime, and the act is his act. This is so true that even the agent may be innocent, when the procurer or principal may be convicted of guilt, as in the case of infants or idiots employed to administer poison. The proof of the command or procurement may be direct or indirect, positive or circumstantial; but this is matter for the consideration of the jury, and not of legal competency.” United States v. Gooding, 12 Wheat. 460, 469, 6 L. ed. 693, 696. See also 1 Bishop, Crim. Law, secs. 649, 651, 652; People v. Adams, 3 Denio, 190, 207, 45 Am. Dec. 468; Seifert v. State, 160 Ind. 464, 467, 98 Am. St. Rep. 340, 67 N. E. 100. Those authorities fully sustain the general principle of law declared by the court, that one may be convicted as a principal, though acting in the commission of the crime through an innocent agent. Save the case last cited, however, they arc not directly in point in respect of the application of the principle to the particular phase of the ease as presented.
In the case referred to (Seifert v. State, supra) the evidence tended to show that the appellant, charged by a woman with responsibility for her pregnancy, gave her a catheter, advising and directing its use to procure a miscarriage. She used the instrument, producing a miscarriage that caused her death. In affirming the conviction the court said: “The first question presented is whether a person who procures an instrument for a woman, which he advises and directs her to use upon herself to procure a criminal abortion, can be convicted as a principal where the woman, pursuant to such advice and direction, uses •such instrument for such purpose in the absence of the former, thereby causing her to miscarry and die. Assuming, without deciding, that it was not the purpose of the legislature in the ■enactment of sec. 1857, Burns’s 1901, entirely to blot out the distinction between principals and accessories, we think that, it may still be affirmed that appellant was properly charged as principal. While the principal in the commission of a felony must be actually or constructively present at the time of its commission, * * * yet a person who causes such a crime to be committed through an innocent agent is deemed constructively present. * * * This fiction of the constructive presence [76] of the real instigator and promoter of the crime is indulged in a case where an innocent agent commits the act because there* would otherwise be no principal. This being the reason for the doctrine, it is evident that the test as to whether the former is a principal or an accessory does not depend upon whether the agent is morally innocent, but upon whether he is criminally responsible for the particular crime charged.” After saying that the penalties of the act are denounced not primarily, if at all, against the woman, but against the third person, the court proceeded to say: “Moreover, if the act, done with the criminal purpose, eventuates in the death of the woman, that is a substantive offense * * * and as it is not consummate until her death, it is evident that she cannot become the principal, and that for want of some principal whom the third person-may be regarded as an accessory to, the latter must be treated as a principal, or else we have the solecism of a felony without a principal. It is argued by appellant’s counsel that there was no-principal, and therefore no crime. The maxim Qui facit per aliumfacit per se is of extensive application in the criminal law, and, if the State’s theory of the facts be assumed, it may be stated that appellant was clearly within the operation of the-maxim as a working rule.” Approving the reasoning of that, case, we can see no substantial ground upon which it can be-distinguished from this. Though the facts are not identical they are of the same substantial nature. Our Code obliterates the former distinction between principals and accessories before-the fact which that court had to take into consideration. The cases relied on by the appellant are: Com. v. Drake, 124 Mass. 21; People v. McGonegal, 136 N. Y. 62, 32 N. E. 616;, People v. Balkwell, 113 Cal. 259, 76 Pac. 1017. Without reviewing those cases, we think it sufficient to say that they present a very different state of facts. In the McGonegal and Drake Oases, that are chiefly relied on, defendants apparently did no more than accompany the party practised upon, furnishing the aid and comfort of their presence; neither of them advised or procured the treatment, or furnished the opportunity and means therefor. Their conduct, though they did not go so* [77] far, more nearly resembled that of the witness May Brooks; and it was contended by the appellant, as well as declared in the charge of the court, that she was an accomplice in contemplation ■of law. The court did not err in denying the motion upon each ground.
3. Errors have been assigned on exceptions taken to the refusal of the court to give to the jury the first and second special instructions prayed by the defendant Meagher, as well as to parts of the charge. The special instructions required the exclusion, from the consideration of the jury, of so much of the testimony of the witness May Brooks as related to conversations between her and her sister and the defendant Maxey; and further declared the law applicable to the case in accordance with defendant’s view of the elements necessary to constitute the crime charged against him. The exceptions to the refusal of these, as well as those taken to so much of the charge as declared the legal responsibility of defendant for the act procured to be done by the deceased, if acting under his instigation, have been substantially considered and disposed of under the preceding assignment. Further discussion is unnecessary.
4. The fifth special instruction asked on behalf of the defendants, though refused, was substantially embraced in the charge in the following words:
“Now, as to Mrs. Brooks’s testimony: It has been argued to you that she is an accomplice with Mrs. Maxey, that if Mrs. Maxey did commit this crime then Mrs. Brooks aided her or procured her in such a way that she is to be treated as an accomplice. I have held that, strictly, she stands in that position. The general rule is that, where an accomplice testifies in a case, his or her testimony is to be taken with great caution, because of the guilt which he has to admit himself as against himself. And the rule is that the jury are to be cautioned not to find defendants guilty upon the uncorroborated testimony of accomplices. They may do so, but the rule is for the court to caution them and advise them not to do that without corroborating testimony.”
The court then proceeded to add: “But you are to consider the comparative guilt of the two parties in a case like that, [78] Mrs. Maxey and Mrs. Brooks, in determining bow morally guilty Mrs. Brooks was in wbat sbe did. And there is testimony in tbe case tending to corroborate Mrs. Brooks in some parts. Bor instance, — it is only an instance, — sbe says that tbe girl was to come back there tbe next day but one. This is corroborated by tbe testimony of Mrs. Lackey, tbe witness introduced by tbe defendant, that sbe did come back there tbe next day but one; and tbe fact that tbe girls were there at tbe bouse is testified to by Mrs. Lackey. Tbe fact that Claudia went up stairs is corroborated by Mrs. Lackey, and that there was talk there between them on tbe subject of an abortion. This, and perhaps other circumstances that may occur to you, tend to corroborate tbe story of Mrs. Brooks. So that, as tbe case is situated, taking it as a practical case, it is one in which if you believe tbe testimony of Mrs. Brooks you have a right to receive it and give credit to it, and to find a verdict upon it if you find it corroborated in other material particulars by other testimony or by facts which there is no testimony about.”
To this addition, save tbe last sentence, defendants excepted, and have assigned error thereon. Tbe contention in support of this assignment is that, while tbe court charged that May Brooks was a technical accomplice, and that her testimony must be taken with caution, it removed tbe beneficial effect thereof by tbe reference to her criminal conduct, as compared with that of Maxey. It is argued that this, and tbe further statement as to her corroboration, constitute an unwarrantable comment on tbe evidence, highly prejudicial to both defendants. ' Tbe rule of practice in respect of charging a jury, that prevails in tbe Federal courts, has been declared by tbe Supreme Court of tbe United States as follows: “It is true that in tbe Federal courts.tbe rule that obtains is similar to that in tbe English courts, and tbe presiding judge may, if in bis discretion bethink proper, sum up tbe facts to tbe jury; and if no rule of law is incorrectly stated, and tbe matters of fact are ultimately submitted to tbe determination of tbe jury, it has been held that an expression of opinion upon tbe facts is not reviewable on error. Rucker v. Wheeler, 127 U. S. 85, 93, 32 L. ed. 102, [79]*79106, 8 Sup. Ct. Rep. 1142; Lovejoy v. United States, 128 U. S. 171, 173, 32 L. ed. 389, 390, 9 Sup. Ct. Rep. 57. But he should take care to separate the law from the facts, and to leave the latter in unequivocal terms to the judgment of the jury as their true and peculiar province. M'Lanahan v. Universal Ins. Co. 1 Pet. 170, 182, 7 L. ed. 98, 104. As the jurors are the triers of fact, expressions of opinion by the court should be so guarded as to leave the jury free in the exercise of their own judgments. They should be made distinctly to understand that the instruction is not given as to a point of law by which they are to be governed, but as a 'mere opinion as to the facts, to which they should give no more weight than it was entitled to.” Starr v. United States, 153 U. S. 614, 624, 38 L. ed. 841, 845, 14 Sup. Ct. Rep. 919. We are not certain that the language referred to, if unqualified elsewhere in the charge, was in violation of the rule stated. The jury was told that in considering the credibility of the witness, as an accomplice of the defendant Maxey, they might consider their comparative moral guilt. That there was a difference in this respect was obvious to everybody ; but the jury were not told that there was in fact. The legal effect of the testimony of the defendant’s witness, Lackey, was, if credible, to corroborate the statements of the witness May Brooks in certain material points; and this is all that the jury were charged. If any impression to the contrary, however, could have been made upon the jury, it was removed in the very next sentence quoted above. Moreover, the court, having before charged the jury that the presumption of innocence attended the defendants at every stage, and that their guilt must be shown by the evidence beyond a reasonable doubt, addressed them, in conclusion, as follows: “You begin with the presumption that the defendants are entirely innocent, and you entertain no idea that they are guilty except such ideas as necessarily flow from the testimony that you hear introduced. But you treat them and look upon them as innocent, until the evidence, and the evidence alone, has entirely satisfied your minds that they are guilty as charged.” Again, when the charge had been given and the exceptions were noted before the jury retired, and in reply [80] to an exception taken to another statement, on the same ground, the court said to the jury: “Of course, I am not advising you as to what you are to find. Of course that is all for you to say.” If, then, the language excepted to could be certainly considered as an expression of opinion by the court, the jury were left free in the exercise of their own judgment.
5. Another assignment, of similar purport remains to be considered. In charging the jury, the court treated the case of the defendants separately, first taking up that of the defendant Maxey. In so far as it related to her, no exception was taken. In concluding that portion of the charge the court said: “Now, as I said before, if you fail to find that Mrs. Maxey did commit the abortion as charged in the indictment, then there is no offense against Mr. Meagher. But if you find that she did procure the abortion, considering the testimony which was admissible against her simply, then the question arises, is Mr. Meagher guilty ? Then you would ‘revieve’ (evidently 'review’ was the word used) the testimony as to his part in the transaction, the testimony as to what occurred before the girls went to the house, and how they happened to go there. The question then would be for you to determine whether he did, through the girls, procure Mrs. Maxey to do what she did.” The contention is that the words used in the last sentence were equivalent to a statement that Mrs. Maxey had in fact committed the act charged. In other words, the court having fully and fairly charged the jury on the case against Maxey, telling them that they could not find her guilty unless they believed from the evidence, beyond a reasonable doubt, that she did commit the act as charged, and that if they did not so find there could be no case against Maxey, is to be held to have finally withdrawn the question of her guilt from the consideration of the jury, and decided it for them. It is impossible to conceive that the jury could have had any other impression than that the statement was necessarily founded upon the assumption that they should previously have reached the conclusion that Maxey was guilty, for otherwise they could not consider the case against Meagher at all. The meaning of the court, if by any possibility [81] doubtful, was made perfectly clear by what was said when the exception was noted. Both defendants stated an exception to this part of the charge, as stated in the bill of exceptions, as follows: “In putting the proposition to the jury in the form of' a question, and using these words, assuming you find these facts as I am — Your Honor predicated — The Court: ‘I do not think I used that language.’ Counsel: ‘You asked them about the abortion first; that proposition you must find. Then you proceeded with the second proposition, assuming you find these facts as I am. When you put the second proposition. In that connection we desire to note an exception.’ The Court: ‘I think the jury will not be misled by the last part of it. Of course the form in which I stated it to you I do not remember. But you need to find certain things in order to find an offense at all. If you do not find that, there will be a verdict of not guilty. Going on from that point, I assumed you did find that, and dealt with the further testimony. Of course I am not advising you as to what you are to find. Of course that is all for you to say.’ ”
Having considered all the important questions raised on the record, we find no error in the proceedings on the trial. The judgment against both appellants will therefore be aifirmed. It is so ordered.
Affirmed.