purpose; yet a statute, taking away clergy from the offender and all who assist him, includes aiders and abettors present. (a) Indictment against aiders When several are present and abet a fact, an indictment or appeal may lay it generally as done by all, or specially, as done by and abettors. one and abetted by the rest. (b) And even in offences in which there could have been only one principal in the first degree, as in rape, a charge against all as principals in the first degree is valid, if there be no difference in the punishment between the principals in the first and those in the second degree; though it should seem that the more correct form in a case of this kind would be to charge the parties according to the facts as they will be proved. (c) An indictment against the principal in the second degree in murder should shew distinctly that he was present when the mortal stroke was given; and it should seem that it would not be sufficient to state that both of their malice aforethought made the assault; that the principal in the first degree then and there gave the mortal stroke, and so that both murdered: at least it would not be sufficient if, before the allegation that both murdered, it is stated that the one (the principal in the second degree) counselled and incited the other to do the act. (d) before the fact. III. An accessory before the fact is he who, being absent at the Of accessories time of the offence committed, doth yet procure, counsel, command or abet another to commit a felony.(h) And it seems that those who by hire, command, counsel, or conspiracy, and those who by shewing an express liking, approbation, or assent to another's felonious design of committing a felony, abet and encourage him to commit it, but are so far absent when he actually commits it that he could not be encouraged by the hopes of any immediate help or assistance from them, are accessories before the fact. But words that amount to bare permission will not make an accessory, as if A. says he will kill J. S., and B. says you may do your pleasure for me," this will not make B. an accessory. (i) And it seems to be generally agreed that he who barely conceals a felony which he knows to be intended is guilty only of misprision of felony, and shall not be adjudged an accessory.(k) The same person may be a principal and an accessory in the same felony, as where A. commands B. to kill C., and afterwards actually joins with him in the fact. (7) The offence of an accessory before the fact differs so much from that of a principal in the second degree, that where a person was (a) Rex v. Gogerly, Hil. T. 1818, MS. Bayley. J. Russ. and Ry. 343, and post, Book IV. Chap. vii. (b) 2 Hawk. P. C. c. 23. s. 76., and c. 25. s. 64. (c) Rex v. Vide, Fitz. Corone, pl. 86. Rex v. —, Tr. T. 1813. Post, Book III. Chap. vi. (d) Rex v. Winifred and Thomas Gordon, 1 Leach 515. 1 East. P. C. 352. (h) 1 Hale 615. (i) 2 Hawk. P. C. c. 29. s. 16. (k) 1 Hale 616. 2 Hawk. P. C. c. 29. 6. 23. (1) 2 Hawk. P. C. c. 29. s. 1., where it is said also that he may be charged as principal and accessory in the same indictment; but qu. if this would be allowed at the present day. In Atkins' case, who was tried for the murder of Sir E.Godfrey, two indictments were found against him, one as principal, the other as accessory; and he was arraigned upon both at the same time. But the first was abandoned, and evidence given only in support of the second: the verdicts appear, however, to have been pronounced successively. 7 Howell's St. Tri. 231. Offence of acthe fact differs cessory before from that of principal in the second degree. Description of accessories before the fact in different statutes. indicted as an accessory before the fact, it was held that she could not be convicted of that charge upon evidence proving her to have been present aiding and abetting; it being clearly admitted to be necessary to charge a principal in the second degree with being present aiding and abetting. (m) In a modern case, where one Danelly was indicted for a burglary, and Vaughan as an accessory to such felony and burglary, and Danelly had been acquitted of the burglary but found guilty of larceny, and Vaughan found guilty as accessory, it was objected that as the jury had acquitted the principal of the burglary, the accessory must be acquitted altogether. But as a great majority of the Judges upon a case reserved were of opinion that Danelly was free from any felonious intent, the charge against Vaughan, as accessory, of course could not be supported. (n) It is to be observed that the Legislature, in statutes made from time to time concerning accessories before the fact, has not confined itself to any certain mode of expression; but has rather chosen to make use of a variety of words all terminating in the same general idea. Thus some statutes make use of the word accessories, singly, without any words descriptive of the offence: (p) others have the words abetment, procurement, helping, maintaining, and counselling; (q) or aiders, abettors, procurers, and counsellors. (r) One describes the offence by the words command, counsel, or hire; (s) another calls the offenders procurers or accessories. (t) One having made use of the words comfort, aid, abet, assist, counsel, hire, or command, immediately afterwards, in describing the same offence in another case, uses the words counsel, hire, or command only. (u) One statute calls them counsellors and contrivers of felonies; (w) and many others make use of the terms counsellors, aiders, and abettors, or barely aiders and abettors. Upon these different modes of expression, all plainly descriptive of the same offence, Mr. Justice Foster thinks it may safely be concluded that in the construction of statutes which oust clergy in (m) Rex v. Winifred and Thomas Gordon, 1 Leach 515. S. C. 1 East. P. C. 352. And see Haydon's case, 4 Co. 42 b. In Gordon's case it was the opinion of all the judges that the prisoner who was discharged upon this objection might be indicted again as principal. So in 1 Hale 625 it appears that if one person be indicted as principal and another as accessory, and both be acquitted, yet the person indicted as accessory may be indicted as principal, and the former acquittal as accessory is no bar. But it is said that if a person be indicted as principal and acquitted, he shall not be indicted as accessory before. 1 Hale 626.; yet qu. and see Fost. 362. It seems to be admitted, that if a man be indicted as principal and acquitted, he may be indicted as accessory after; and so if he be indicted as accessory before, and acquitted, he may be indicted as accessory, after. 1 Hale 626. (n) Rex v. Danelly and Vaughan, Mich. T. 1816. 2 Marsh 571. and 1 Russ. & Ry. 310. Post, Book IV. Ch. vi. s. 1. It was urged that Vaughan could not be guilty as accessory to the "said felony and burglary" as charged in the indictment, the jury having negatived the burglary; that an accessory must be convicted of a felony of the same species as the principal, and that his offence, though distinct, is yet derivative from that of the principal. (p) 31 Eliz. c. 12. s. 5. 21 Jac. 1. c. 6. (q) 23 Hen. 8. c. 1. s. 3. tion of a third the case of participes criminis, we are not to be governed by the bare sound, but by the true legal import of the words; and also that every person who comes within the description of these statutes, various as they are in point of expression, is in the judgment of the Legislature an accessory before the fact; unless he is present at the fact, and in that case he is undoubtedly a principal. (a) Whoever procures a felony to be committed, though it be by the Accessories by intervention of a third person, is an accessory before the fact; for the interventhere is nothing in the notion of commanding, hiring, counselling, person. aiding, or abetting, which may not be effected by the intervention of a third person without any direct immediate connection between the first mover and the actor. It is a principle in law which can never be controverted, that he who procures a felony to be done is a felon. So that if A. bid his servant hire somebody, no matter whom, to murder B. and furnish him with money for that purpose, and the servant procure C. a person whom A. never saw nor heard of to do it, A., who is manifestly the first mover or contriver of the murder is an accessory before the fact. (y) And a nobleman was found guilty of murder by his peers upon evidence which satisfied them that he had contributed to the murder by the intervention of his lady and of two other persons who were themselves no more than accessories, without any sort of proof that he had ever conversed with the person who was the only principal in the murder, or had corresponded with him directly by letter or message. (z) In high treason there are no accessories but all are principals, on account of the heinousness of the crime. (a) But in petit treason, murder, and felonies in general, there may be accessories, except only in those offences which by judgment of law are sudden and unpremeditated, as manslaughter and the like: which therefore cannot have any accessories before the fact. (b) In petit larceny there can be no accessories either before or after the fact, although it be felony, because it is not such as judgment of death ought by law to be passed upon it; but procurers and counsellors are principals as in trespass. (c) In forgery it is laid down generally in (x) That is, a principal in the first degree if the actual perpetrator, or a principal in the second degree if only an aider and abettor. Fost. 131. And see Fost. 130, where speaking of a case in 1 And. 195. in which an indictment was held to be sufficient, though the words of the statute of Ph. & M. were not pursued, the words excitavil, movit, et procuravit, being deemed tantamonnt to the words of the statute and descriptive of the same offence, he says that he takes that case to be good law, though he confesses it is the only precedent he has met with where the words of the statute have been totally dropped. (y) See the case of Macdaniel, Egan, and Berry, Fost. 125. 2 Hawk. P. C. c. 29. s. 1, 10. 19 Howell's St. Tri. 746, 789. The opinion was, that the parties clearly would have been an swerable as accessories in the manner (2) The case of the Earl of Somer- (a) 2 Hawk. P. C. c. 29. s. 2, 5. 1 Hale 613. Fost. 341. 4 Blac. Com. 35. (b) 4 Blac. Com. 36. 1 Hale 615. 2 Hawk. P. C. c. 29. s. 24. (c) 2 East. P. C. 743. 1 Hale 530, 616. 2 Inst. 183. 12 Rep. 81. Evans's case, Fost. 73. 4 Blac. 36. It appears however that in Reddeard's case, E. 11, Ann. (De Grey's MS.) Powell, J. said it was a vulgar error to think that In what crimes there may be accessories. In felonies created by statute. Accessorius sequitur naturam sui principalis. How far an accessory is implicated when the prin the books that all are principals, and that whatever would make a man accessory before in felony would make him a principal in forgery; (d) but it is conceived that this must be understood of forgery at common law, and where it is considered only as a misdemeanor. (e) And where three persons agreed to utter a forged bank note, and one uttered it, at Gosport, and the other two, by previous concert, waited at Portsmouth; the two latter were held to be accessories; and having been tried and convicted as principals were recommended for a pardon. (ƒ) In crimes under the degree of felony there can be no accessories; but all persons concerned therein, if guilty at all, are principals. (g) It should be observed as to felonies created by acts of parliament, that regularly if an act of parliament enact an offence to be felony, though it mention nothing of accessories before or after, yet virtually and consequentially those that counsel or command the offence are accessories before the fact, and those who knowingly receive the offender are accessories after. (h) It is a maxim that accessorius sequitur naturam sui principalis; (i) and therefore an accessory cannot be guilty of a higher crime than his principal. So that if a servant instigates a stranger to kill his master, this being murder in the stranger as principal, of course the servant is accessory only to the crime of murder; though had he been present and assisting he would have been guilty as principal of petty treason and the stranger of murder. (k) But a statute excluding accessories from the benefit of clergy does not thereby exclude the principals; nor does a statute excluding the principals thereby exclude the accessories. (1) And if a statute takes away clergy from accessories, and a subsequent statute makes accessories persons who were not so before, the latter shall have their clergy. (m) Certain accessories after the fact, namely receivers of stolen goods, are in some instances punished with more severity than the principal offenders. (n) It has been occasionally much considered how far an accessory is involved in the guilt of the principal when the principal does not act in conformity with the plans and instructions of the acces Morris's case, 2 Leach 1096 note (a). (f) Rex v. Soares, Atkinson and Brighton, MS. S. C. 2 East. P. C. 974. Russ. and Ry. 25. (g) 4 Blac. Com. 36. 1 Hale 613. (h) 1 Hale 613, 614, 704. 3 Inst. 59. (i) 3 Inst, 139. (k) 4 Blac. Com. 36. (1) 2 Hawk. P. C. c. 33. s. 26. But see 2 East. P. C. c. 21. s. 9. where it is said that Lord Hale and Foster, J. were decidedly of opinion, that principals in arson were virtually excluded from the benefit of clergy by the stat. 4 & 5 Ph. & M. c. 4. which excluded the accessory before. (m) Fost. 372, 373. 2 East. P. C. c. 16. s. 47. p. 616. (n) 4 Geo. 1. c. 11. 29 Geo. 2. c. 30. s. 1 and 2 Geo. 3. c. 28-fourteen years' transportation, terms of the sory. With regard to this, it appears that if the principal totally cipal varies and substantially varies from the terms of the instigation, if being from the solicited to commit a felony of one kind, he wilfully and knowingly instigation. commit a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. (n) Thus if A. command B. to burn C.'s house, and he in so doing commits a robbery; now A. though accessory to the burning is not accessory to the robbery, for that is a thing of a distinct and unconsequential nature. (o) And if A. counsels B. to steal goods of C. on the road, and B. breaks into C.'s house and steals them there, A. is not accessory to the breaking the house; because that is a felony of another kind. (r) He is however accessory to the stealing. (z) But if the principal complies in substance with the instigation of the accessory, varying only in circumstances of time or place, or in the manner of execution, the accessory will be involved in his guilt: as if A. command B. to murder C. by poison, and B. does it by a sword or other weapon, or by any other means, A. is accessory to this murder; for the murder of C. was the object principally in contemplation, and that is effected. (p) And it seems that if A. counsels B. to steal goods in C.'s house but not to break into it, and B. does break into it, A. is accessory to the breaking. (a) And where the principal goes beyond the terms of the solicitation, yet if, in the event, the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessory to that felony. As if A. advise B. to rob C., and in robbing him B. kills him, either upon resistance made, or to conceal the fact, or upon any other motive operating at the time of the robbery: or if A. solicit B. to burn the house of C., and B. does it accordingly, and the flames taking hold of the house of D., that likewise is burnt. In these cases A. is accessory to B. both in the murder of C. and in the burning of the house of D. The advice, solicitation, or orders, were pursued in substance, and were extremely flagitious on the part of A.; and the events, though possibly falling out beyond his original intention, were, in the ordinary course of things, the probable consequences of what B. did under the influence and at the instigation of A. (g) murder her Where A. counselled a pregnant woman to murder her child Counselling a when it should be born, and she murdered it accordingly, A. was pregnant held to be accessory to the murder: the procurement before the woman to birth being considered as a felony continued after the birth, and child. until the murder was perpetrated by reason of that procurement. (c) But the more difficult questions arise where the principal by mistake commits a different crime from that to which he was solicited by the accessory. It has been said, that if A. orders B. to kill C., and he by mistake kills D., or aiming a blow at C. misses him and kills D., A. will not be accessory to this murder, because it differs in the person. (r) And in support of this position Saun A. being counselled to murders C. der B. mur |