Instruction 4.100, Criminal Model Jury Instructions for Use in the District Court

ACCESSORY BEFORE THE FACT

Section 2 of chapter 274 of our General Laws provides for the

punishment of any person who:

“is accessory [to a felony] before the fact

by counseling, hiring or otherwise procuring

such felony to be committed. . . .”

The phrase “before the fact” refers to time; the defendant is accused

of having been an accessory to a felony before that felony was committed.

To prove the defendant guilty of being an accessory before the fact to

a felony, the Commonwealth must prove three things beyond a reasonable

doubt:

First: That someone other than the defendant committed a felony;

Second: That the defendant was an accessory to that felony by

counseling, hiring, or in some other way arranging for that person to

commit the felony; and

Third: That the defendant did so with the same intent that the

principal person was required to have to be guilty of the felony.

As to the first element, a “felony” is a crime for which a person may

be sent to state prison. Other, lesser crimes are called “misdemeanors.” I

instruct you as a matter of law that [relevant felony] is a felony. Before you

may find the defendant guilty of being an accessory before the fact to that

felony, the Commonwealth must prove beyond a reasonable doubt that the

principal person whom the defendant is accused of aiding, did in fact

commit that felony.

Here charge on the elements of the underlying felony.

Second, the Commonwealth must prove that this defendant

counseled, or hired, or otherwise procured or encouraged or assisted that

person in committing the felony. This requires a greater involvement than

merely knowing about the crime, but it does not require that the defendant

physically took part in the crime itself. It is enough if the Commonwealth

proves that the defendant joined the criminal venture and took some

significant role in it; that he (she) encouraged the principal person to

commit the crime, or helped to plan or commit the crime, or stood by to

help with the crime if he (she) were needed.

Thirdly, the Commonwealth must prove that the defendant had the

same intent that the principal person is required to have had to be found

guilty. The defendant must not only have had knowledge of what was

being planned; he (she) must have intended to be part of it.

For an elaboration of the intent requirement, see Instruction 4.200 (Joint Venture).

SUPPLEMENTAL INSTRUCTION

Where principal and accessory tried together. I have instructed you

that, as part of its case against the defendant, the

Commonwealth must prove beyond a reasonable doubt that the

principal person is guilty of the felony which this defendant is

accused of having aided or encouraged. Therefore, if your

verdict is that the accused principal person, ________ , is not

guilty of the felony, you are also required to find this defendant

not guilty on this charge of being an accessory before the fact.