A feme covert is not guilty of felony in stealing her husband's goods, because a husband and wife are considered but as one person in law, and the husband, by endowing his wife at the marriage with all his worldly goods, gives her a kind of interest in them: for which cause even a stranger cannot commit larceny in taking the goods of the husband by the delivery of the wife, as he may by taking away the wife by force and against her will, together with the goods of the husband. (h)

The wife is not

guilty of felony in stealing her husband's goods.

wife, unless he

And in a case where the prisoner was an apprentice to the pro- And a stranger secutor, and it appeared that the prosecutor's wife had continual cannot commit larceny of the custody of the key of the closet where her husband's plate was husband's usually locked up, and that she had pawned some articles of it in goods by the order to supply the prisoner with pocket money, but the articles delivery of the she pawned were not those which the prisoner was charged with is her adulstealing; and the prisoner confessed that he took the articles terer. mentioned in the indictment from the closet, and a pawnbroker proved that he received them in pledge from the prisoner, but it did not appear by what means the prisoner had gained access to the closet from which they were taken, the prisoner was acquitted. The Court held, that the prosecutor's wife, having the constant keeping of the key of the closet where the plate was usually locked up, and it appearing that the prisoner could not have taken it without her privity or consent, it might be presumed that he had received it from her. (i) But it should be observed, that if the wife steal the goods of her husband and deliver them to B. who knowing it carries them away, B. being the adulterer of the wife, this, according to a very good opinion, would be felony in B.; for in such case no consent of the husband can be presumed. (k)

A feme covert shall not be deemed acessory to a felony for Feme covert receiving her husband who has been guilty of it, as her husband not accessory shall be for receiving her; nor shall be a principal in receiving her for receiving husband when his offence is treason; for she is sub potestate viri, and bound to receive him. (4) Neither is she affected by receiving, jointly with her husband, any other offender. (m)

her husband.

It is no ground for dismissing an indictment for burglary or Indictment larceny as to the wife, that she is charged with her husband and against husdescribed as his wife; for the indictment is joint and several band and wife. according as the facts may appear; and on such an indictment the wife may be convicted, and the husband acquitted. (x)

(h) 1 Hale 514. where it is put thus: "If she take or steal the goods of her "husband and deliver them to B., "who, knowing it, carries them away, "this seems no felony in B.; for they "are taken quasi by the consent of her "husband. Yet trespass lies against "B. for such taking; for it is a tres"pass: but in favorem vitæ it shall "not be adjudged a felony, and so I "take the law to be, notwithstanding "the various opinions." And he cites Dalton, cap. 104. p. 268, 269. ex lectura Cooke (new ed. c. 157. p. 504.)

And see 1 Hawk. P. C. c. 33. s. 32.
3 Inst. 110. 2 East P. C. 558.

(i) Harrison's case, 1 Leach 47.
2 East P. C. 559.

(k) Dalton, cap. 104. pl. 268, 269, (new edit. c. 157. p. 504.)

(7) 1 Hale 47. 1 Hawk. P. C. c. 1.
s. 10.

(m) 1 Hale 48, 621. But if the wife
alone, the husband being ignorant,
do knowingly receive B. a felon, the
wife is accessory and not the hus-
band. 1 Hale 621.
(x) 1 Hale 46.

Evidence of

the woman

And in burglary or larceny if a man and woman are indicted, being the wife. and the woman pretends to be the man's wife, but is not so described in the indictment, the onus of proving that she is his wife is upon her. Thus where Thomas Wharton and Jane Jones were indicted for burglary, and the woman pleaded that she was married to Wharton, and would not plead to the name of Jones, the grand jury who found the bill were sent for; and in their presence, and with their consent, the court inserted the name Jane Wharton, otherwise Jones, not calling her the wife of Thomas Wharton, but giving her the addition of spinster; upon which she pleaded; and the court told her that if she could prove that she was married to Wharton before the burglary, she should have the advantage of it: but on the trial she could not, and was found guilty, and judgment given upon her. (y) But cohabitation and reputation will be sufficient evidence upon such point. William Atkinson and Mary Atkinson were indicted for disposing of forged country bank notes; and it appeared that the man disposed of them in the presence of the woman at a public house, to which they went together to meet the person to whom they were disposed of; that the man went thither by appointment, and the woman had a bundle of the same notes in her pocket. There was evidence, on the part of the prosecution, that they had lived and passed as man and wife for some months; upon which it was put to Gibbs C. B., whether the woman was not entitled to an acquittal, and he thought she was; and the counsel for the prosecution at once acquiesced. (z)

Ignorance. IV. Upon the plea or excuse of ignorance, it may be shortly observed, that it will apply only to ignorance or mistake of fact, and not to any error in point of law. For ignorance of the municipal law of the kingdom is not allowed to excuse any one that is of the age of discretion, and compos mentis, from its penalties when broken; on the ground that every such person is bound to know the law, and presumed to have that knowledge. (n) But in some instances an ignorance or mistake of the fact will excuse ; which appears to have been ruled in cases of misfortune and casualty; as if a man, intending to kill a thief or housebreaker in his own house, by mistake kills one of his own family, this will not be a criminal action. (0)

(y) Rex v. Jones, Kel. 37.

(z) Rex v. Atkinson, O. B. Jan. Sess. 1814. MS. Bayley J.

(n) 1 Hale 42. 4 Blac. Com. 27. Ignorantia juris, quod quisque tene

tur scire, neminem excusat, is a maxim as well of our own law as it was of the Roman. Plowd. 343. Ff. 22. 6. 9.

(0) Levett's case, Cro. Car. 538. 4 Blac. Com. 27. 1 Hale 42, 43.

CHAPTER THE SECOND.

OF PRINCIPALS AND ACCESSORIES.

WHERE two or more are to be brought to justice for one and the same felony, they are considered in the light either,-I. of principals in the first degree; II. principals in the second degree; III. accessories before the fact; or, IV. accessories after the fact. And in either of these characters they will be felons in consideration of law; for he who takes any part in a felony, whether it be a felony at common law or by statute, is in construction of law a felon, according to the share which he takes in the crime. (a)

I. Principals in the first degree are those who have actually and with their own hands committed the fact; and it does not appear necessary to say any thing in this place by way of explanation of the nature of their guilt, which will be detailed in treating of the different offences in the course of the work.

Principals in

the first degree.

II. Principals in the second degree are those who were present Principals in aiding and abetting at the commission of the fact. They are ge- the second nerally termed aiders and abettors, and sometimes accomplices; degree. but the latter appellation will not serve as a term of definition, as it includes all the participes criminis, whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact. (b) The distinction between principals in the first, and principals in the second degree; or, to speak more properly, the course and order of proceeding against offenders founded upon that distinction, appears to have been unknown to the most ancient writers on our law; who considered the persons present aiding and abetting in no other light than as accessories at the fact. (c) But as such accessories they were not liable to be brought to trial till the principal offenders should be convicted or outlawed; a rule productive of much mischief, as the course of justice was frequently arrested by the death or escape of the principal, or from his remaining unknown or concealed. And with a view to obviate this mischief the judges by degrees adopted a different rule; and at length it became settled law that all those who are present aiding and abetting when a felony is committed are principals in the second degree. (d)

(a) Fost. 417. (b) Fost. 341.

(c) Fost. 347.

(d) Coal-heavers' case, 1 Leach 66. And see Fost. 428. and Rex v. Towle and others, Mich. T. 1816. Russ. and Ry. 314. This law was by no means

settled till after the time of Edw. 3.;
and so late as the first of Queen Mary
a chief justice of England strongly
doubted of it, though indeed it had
been sufficiently settled before that
time.

How far a principal in

the second degree must be

present at the time of the fact committed.

In order to render a person a principal in the second degree, or an aider and abettor, he must be present aiding and abetting at the fact, or ready to afford assistance if necessary: but the presence need not be a strict actual immediate presence, such a presence as would make him an eye or ear witness of what but passes, may be a constructive presence. So that if several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each takes the part assigned him; some to commit the fact, others to watch at proper distances and stations to prevent a surprize, or to favour, if need be, the escape of those who are more immediately engaged; they are all, provided the fact be committed, in the eye of the law present at it; for it was made a common cause with them, each man operated in his station at one and the same instant, towards the same common end, and the part each man took tended to give countenance, encouragement, and protection to the whole gang, and to insure the success of their common enterprize. (e) But there must be some participation; therefore, if a special verdict against a man as a principal does not shew that he did the act, or was present when it was done, or did some act at the time in aid which shews that he was present aiding and assisting, or that he was of the same party, in the same pursuit, and under the same expectation of mutual defence and support with those who did the fact, the prisoner cannot be convicted. (a) So, if several are out for the purpose of committing a felony, and upon alarm and pursuit run different ways, and one of them maim a pursuer to avoid being taken, the others are not to be considered as principals in that maiming. (y) And it is not sufficient to make a man a principal in uttering a forged note, that he came with the utterer to the town where it was uttered, went out with him from the inn where they put up a little before he uttered it, joined him again in the street a short time after the uttering, and at a little distance from the place of uttering, and ran away when the utterer was apprehended. (c) This case has however been considered as having been decided upon the principle, that the circumstances which will amount to a constructive presence at common law will not be sufficient for the same purpose upon an indictment under a statute. (d) The general rule however applies to offences by statute as well as at common law, viz. that all present at the time of committing an offence are principals, although one only acts, if they are confederates, and engaged in a common design, of which the offence is part. (a) And it has been considered, in a case where three persons were charged with uttering a forged note, that other acts done by all of them jointly, or by any of them separately, shortly before the offence, may be given in evidence to shew the confedeand common purpose, although such acts constitute distinct (e) Fost. 350. 2 Hawk. P. C. c. 29. s. 7, 8.

racy

(x) Rex v. Borthwick, Dougl. 207. (y) Rex v. White and Richardson, Hil. T. 1806. Russ. and Ry. 99, post, Book III. Chap. x.

(c) Rex v. Davis and Hall, East. T. 1806. MS. Bayley, J. and Russ. and

Ry. 113.

(d) By Graham, B. in the case of Brady and others, O. B. June, 1813, 1 Stark. Crim. Plead. 80. in the note.

(a) Rex v. Tattersall, Sedgewick and Hodgson, East. T. 1901. MS. Bayley, J.

felonies. (b) And also that what was found upon each may be proved against each to make out such confederacy, although it were not found until some interval after the commission of the offence. (c) Going towards the place where a felony is to be committed, in order to assist in carrying off the property, and assisting accordingly, will not make the party a principal if he was at such a distance at the time of the felonious taking as not to be able to assist in it. The prisoner and J. S. went to steal two horses; J. S. left the prisoner half a mile from the place in which the horses were and brought the horses to him, and both rode away with them. Upon a case reserved, the judges thought the prisoner an accessory only, not a principal, because he was not present at the original taking. (d) But where a man committed a larceny in a room of a house, in which room he lodged, and threw a bundle containing the stolen property out of the window to an accomplice who was waiting to receive it, the judges came to a different conclusion. The accomplice was indicted and convicted as a receiver; and the learned judge before whom he was tried was of opinion, that as the thief stole the property in his own room, and required no assistance to commit the felony, the conviction of the accomplice as a receiver might have been supported, if the jury had found that the thief had brought the goods out of the house, and delivered them to the accomplice: but as the jury had found that the thief threw the things out of the window, and that the accomplice (whose defence was that he had picked up the bundle in the street) was in waiting to receive them, he thought the point fit for consideration. And the judges were of opinion that the accomplice in this case was a principal, and that the conviction of him as a receiver was wrong. (e)

When an offence is committed through the medium of an innocent agent, the employer, though absent when the act is done, is answerable as a principal. Thus, if a child under years of discretion, a madman, or any other person of defective mind, is incited to commit a murder or other crime, the inciter is the principal ex necessitate, though he were absent when the thing was done. (e) And if a man give another a forged note that the other may utter it, if the latter be ignorant of the note being forged, the uttering by the latter is, it seems, the uttering of the former, though the former were absent at the time of the actual uttering. (ƒ) But if the person who received the note knew that it was forged, the person who gave it would not, as it should seem, be punishable as a principal. For where a person having incited another to lay poison is absent at the time of laying it, he is an accessory only, though he prepared the poison, if the person laying it is amenable as a principal; but is punishable as a principal if the person laying the poison is not so amenable. (g) Where poison is laid for a man, and all who were present and concurred in laying it are absent at

(b) Id ibid.

(c) Id. ibid.

(d) Rex v. Kelly, Mich. T. 1820. MS. Bayley, J. and Russ. and Ry. 421. And see post, Book IV. Chap. xxi. Of receiving stolen goods.

(e) Rex v. Owen, East. T. 1825. Ry.

and Mood. C. C. R. 96.

(e) Fost. 340. Kel. 52. Post, Book III. Chap. i.

(f) Rex v. Palmer and Hudson, 1 New Rep. 96. Post, Book IV.Chap. xxx. (g) Fost. 349.