Criteria in

such cases.

Accessory repents and countermands

the principal.

Of accessories

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66

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ders' case (s) is cited; who with the intention of destroying his wife, by the advice of one Archer, mixed poison in a roasted apple, and gave it her to eat; and the wife having eaten a small part of it, and having given the remainder to their child, Saunders (making only a faint attempt to save the child whom he loved and would not have destroyed) stood by and saw it eat the poison, of which it soon afterwards died. And it was held, that though Saunders was clearly guilty of the murder of the child, yet Archer was not accessary to that murder. But Mr. Justice Foster thinks, that this case of Saunders does not support the position (which he calls a merciful opinion) to its full extent; and he proposes the following case as worthy of consideration. "B. is an utter stranger to the person of C.; A. therefore takes upon him to describe him by his stature, dress, age, complexion, &c. and acquaints B. when and "where he may probably be met with. B. is punctual at the time "and place; and D., a person possibly in the opinion of B. answer"ing the description, unhappily comes by and is murdered, upon a strong belief on the part of B. that this is the man marked out "for destruction. Here is a lamentable mistake;—but who is an"swerable for it? B. undoubtedly is; the malice on his part " egreditur personam. And may not the same be said on the part "of A. The pit which he, with a murderous intention, dug for "C., D. through his guilt fell into and perished. For B., not "knowing the person of C., had no other guide to lead him to his prey than the description A. gave of him. B. in following this guide fell into a mistake, which it is great odds any man in his "circumstances might have fallen into. I therefore, as at present "advised, conceive that A. was answerable for the consequence of "the flagitious orders he gave, since that consequence appears, in "the ordinary course of things, to have been highly probable." (t) Mr. Justice Foster then proposes the following criteria, as explaining the grounds upon which the several cases falling under this head will be found to turn. "Did the principal commit the "felony he stands charged with under the influence of the flagi"tious advice; and was the event, in the ordinary course of "things, a probable consequence of that felony? or did he, follow"ing the suggestions of his own wicked heart, wilfully and knowingly commit a felony of another kind, or upon a different "subject." (w)

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A. commands B. to kill C., but before the execution thereof repents and countermands B., yet B. proceeds in the execution thereof; A. is not accessory, for his consent continues not, and he gave timely countermand to B.: but though A. had repented, yet if B. had not been actually countermanded before the fact committed, A. had been accessory. (x)

IV. An accessory after the fact, is a person who, knowing a after the fact. felony to have been committed by another, receives, relieves, comforts, or assists the felon. (y) And it seems to have been agreed, that any assistance given to one known to be a felon, in order to hinder his being apprehended or tried, or suffering the

(s) Plowd. 475.
(t) Fost. 370, 371.
(w) Fost. 372.

1 Hale 431.

(x)

Hale 617.

(y) 1 Hale 618. Blac. Com. 37.

In offences created by

punishment to which he is condemned, is a sufficient receipt to
make a man an accessory of this description: as where one assists
a felon with a horse to ride away, or with money or victuals to
support him in his escape, or where one harbours and conceals in
his house a felon under pursuit, by reason whereof the pursuers
cannot find him; and much more where one harbours in his
house and openly protects such a felon, by reason whereof the
pursuers dare not take him. (z) Also whoever rescues a felon
from an arrest for the felony, or voluntarily and intentionally
suffers him to escape, is an accessory to the felony: (a) and it has
been said, that those are in like manner guilty who oppose the
apprehending of a felon. (b) It is agreed, by all the books, that a
man may be an accessory after the fact by receiving one who was
an accessory before as well as by receiving a principal. (c) And it
has been holden, that a man may make himself an accessory after
the fact to a larceny of his own goods, or to a robbery on himself,
by harbouring or concealing the thief, or assisting in his escape. (d)
Where an act of parliament enacts an offence to be felony,
though it mentions nothing of accessories, yet virtually and con- statute.
sequentially those that knowingly receive the offender are acces -
sories after. (e) It has, however, been said, that if the act of par-
liament that makes the felony in express terms, comprehend
accessories before, and make no mention of accessories after, it
seems there can be no accessories after; the expression of pro-
curers, counsellers, abettors, all which import accessories before,
making it evident that the Legislature did not intend to include
accessories after, whose offence is of a lower degree than that of
accessories before. (f) But by others it is considered to be set-
tled law, that in all cases where a statute makes any offence
treason, or felony, it involves the receiver of the offender in the
same guilt with himself, in the same manner as in treason or
felony at common law, unless there be an express provision to
the contrary. (g) And although it be generally true, that an act
of parliament creating a felony renders consequentially accessories
before and after within the same penalty, yet the special penning
of the act sometimes varies the case: thus, the statute 3 Hen. 7.
c. 2. for taking away women, makes the taking away, the pro-
curing and abetting, and also the wittingly receiving, all equally
felonies and excluded from clergy. So that acts of parliament may
diversify the offences of accessory or principal according to their
various penning, and have done so in many cases. (h)

must know of

There is no doubt but that it is necessary for a receiver to The accessory have had notice, either express or implied, of a felony having the felony been committed, in order to make him an accessory by receiving committed, the felon; (i) and it is also agreed, that the felony must be com- and the felony

(z) 2 Hawk. P. C. c. 29. s. 26. 1 Hale 618, 619. 4 Blac. Com. 38. 5 Ann. c. 31. s. 5.

(a) 2 Hawk. P. C. c. 29. s. 27. 1 Hale 619. but not the merely suffering him to escape, where it is a bare omission. 1 Hale 619. 2 Hawk. P. C. c. 29. s. 29.

(b) 2 Hawk. P. C. c. 29. s. 27.

must be complete. (c) 2 Hawk. P. C. c. 29. s. 1. (d) Fost. 123. Cromp. Just. 41 b. pl. 4 and 5.

(e) 1 Hale 613. Ante p. 32.
(f) Hale 614.

(g) 2 Hawk. P. C. c. 29. s. 14.

(h) 1 Hale 614, 615.

(i) 2 Hawk. P. C. c. 29. s. 32.

Feme covert.

Prosecutions

against accessories after the fact at

common law

plete at the time of the assistance given, else it makes not the assistant an accessory. So that if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent; this does not make him accessory to the homicide, for till death ensues there is no felony committed. (k)

The law has such a regard to the duty, love, and tenderness, which a wife owes to her husband, that it does not make her an accessory to felony by any receipt whatever which she may give to him; considering that she ought not to discover her husband. (1)

It is not thought necessary to discuss further the general principles of law relating to accessories after the fact, since prosecutions against such persons grounded on the common law are seldom instituted at the present time; nor do they appear to have not frequent. been frequent for many years past, nor to have had any great effect. (m) With respect to receivers of stolen goods, who by the 3 and 4 W. and M. c. 9. and by the 5 Anne, c. 31, are made accessories after the fact, it is intended to treat of their offence in a subsequent chapter. (2) It may be observed, however, that the statute 5 Anne, c. 31. s. 5. enacts, that if any person shall receive, harbour, or conceal, any burglars, felons, or thieves, knowing them to be so, he shall be taken as an accessory to the felony. (0) And in the case of horse-stealing, a statute of Elizabeth (p) has taken away clergy as well from the accessory after as before the fact. But this statute extends only to such persons as were in judgment of law accessories at the time the act was made, namely, accessories at common law; not to such as are made accessories by subsequent statutes; and therefore a person knowingly receiving a stolen horse, who is made an accessory by later statutes, is not ousted. (g)

Of the proceedings

against accessories.

The principal and accessory may be indicted in the same indictment and tried together, which is the best and most usual course: (r) and the accessory shall not, without his own consent, be brought to trial, till the guilt of the principal is legally ascer

(k) 2 Hawk. c. 29. s. 35. 4 Blac. Com. 38.

(1) 2 Hawk. c. 29. s. 34. 1 Hale 621. ante, p. 19. But this applies to no other relation besides that of a wife to her husband: and the hushand may be an accessory for the receipt of his wife. 1 Hale 621.

(m) Fost. 372.

(n) Post, Book IV. Chap. xiii. of Receiving stolen Goods.

(0) Vid. 2 East. P. C. 744. as to the construction of this statute.

(p) 31 Eliz. c. 12. s. 5.

(q) Fost. 373. citing MSS. Tracy and Denton.

(r) 1 Hale 623. Fost. 365. Rex v. Danelly and Vaughan, Old Bailey, Sept. 1816, ante, p. 30. It seems to have been settled that if the principal and accessory appear together,

and the principal plead the general issue, the accessory shall be put to plead also, and that if he likewise plead the general issue, both may be tried by one inquest; but that the principal must be first convicted; and that the jury shall be charged, that if they find the principal not guilty, they shall find the accessory not guilty. But it seems agreed, that if the principal plead a plea in bar, or abatement, or a former acquittal, the accessory shall not be forced to answer till that plea be determined; for if it be found for the principal, the accessory is discharged; if against the principal, yet he shall afterwards plead over to the felony, and may be acquitted. 2 Hawk. P. C. c. 29. s. 47. 1 Hale 624.

tained by conviction or outlawry, unless they are tried together. (s) This, however, must be understood, with the exception of those accessories after the fact, commonly called receivers of stolen goods, and certain accessories before the fact in cases of burglary, robbery, and grand larceny, who, by the enactments of several statutes, (t) may be proceeded against by indictment for at misdemeanor, though the principal may not have been convicted; as will be shewn more at length in subsequent parts of this Work. (u) Where the proceedings are against the accessory only, the name of the principal should be stated in the indictment, if it is known; and where it was stated in an indictment against an accessory to a felony, that the felony was committed by a person to the jurors unknown, and it appeared that the principal felon was a witness before the grand jury, it was held that the indictment could not be supported. (w)

An indictment against an accessory should state that the principal committed the offence; and it is not sufficient merely to state that he was indicted for the offence, as the indictment is only an accusation, and it does not follow that he really committed the offence because he was indicted for it. (0)

such of the

Formerly if a man had been indicted as accessory in the same A man may be felony to several persons, he could not have been arraigned till all arraigned as the principals were convicted and attainted: but as the law now accessory to stands, if a man be indicted as accessory to two or more, and the principals as jury find him accessory to one, it is a good verdiet, and judgment are convicted. may pass upon him. (r) And therefore the Court in their discretion may arraign him as accessory to such of the principals as are convicted; and if he be found guilty as accessory to them or any of them, judgment shall pass upon him. (y) An acquittal in such case would not formerly have discharged him as accessory to the others; (2) but by the statute 43 Geo. 3. c. 113. s. 5. it is provided that no person shall be tried more than once for the same offence of being accessory before the fact.

quittal when bar to a fresh

a

indictment.

If A. be indicted as principal, and B. as accessory, and both be Former acacquitted, or if B. only be acquitted, yet B. may be indicted as principal in the same offence, and his former acquittal is no bar. (a) But it seems to be agreed, that if A. be indicted as principal and acquitted, he cannot be afterwards indicted as accessory before the fact. (b) If, however, a man be indicted as

a.

(0) Lord Sanchar's case, 9 Co. 117

(x) Fast. 361. 9 Co. 119.

(y) Hale 624. 2 Hawk. P. C. c. 29.
s. 46. Plowd. 98, 99. Fost. 361.
(z) 2 Hawk. P. C. c. 29. s. 46.
(a) 1 Hale 625. Rex v Winifred
and Thomas Gordon. 1 Leach 515.
S. C. 1 East. P. C. 35.

(b) 1 Hale 626. 2 Hale 244. But
Mr. Justice Foster says, that he knows
not upon what grounds; as in con-
sideration of law the offences of prin-
cipal and accessory are quite dif-
ferent. See Fost. 361, 362.

Accessory may be tried where

the principal

offender has

not attainted.

principal and acquitted, he may be indicted as accessory after the fact; and so if he be indicted as accessory before the fact and acquitted, he may be indicted as accessory after the fact. (c)

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Anciently an accessory could not be tried unless the principal were attainted so that if the principal stood mute of malice, or challenged peremptorily above the legal number of jurors, or rebeen convict- fused to answer directly to the charge, the accessory could not ed, &c. though have been put upon his trial. (d) But the statute 1 Anne, stat. 2. c. 9., provides a remedy for this defect; and enacts that "if any principal offender shall be convicted of any felony, or shall stand "mute, or peremptorily challenge above the number of twenty persons returned to serve of the jury, it shall and may be lawful "to proceed against any accessory, either before or after the fact, "in the same manner as if such principal felon had been attainted "thereof, notwithstanding any such principal felon shall be ad"mitted to the benefit of his clergy, pardoned, or otherwise deli"vered before attainder; and every such accessory shall suffer the "same punishment, if he or she be convicted, or shall stand mute, "or peremptorily challenge above the number of twenty persons "returned to serve of the jury, as he or she should have suffered "if the principal had been attainted." Upon this statute it has been held that it is sufficient, in an indictment for felony against a receiver of stolen goods, to state that the principal was tried and duly convicted," without going on to shew that judgment was passed upon him, or how he was delivered. (e) And where an indictment for receiving stolen goods averred that the principal felon had been duly convicted, upon an objection that the record which was produced was not sufficiently formal and correct to support the averment, it was held that the judgment was not necessary, and might be rejected; that the conviction was sufficient; that in the common case, where the receiver is tried with the thief, there is no judgment on the thief before the verdict against the receiver; and that although the record produced was full of errors, yet an erroneous attainder of the principal is sufficient, as against the accessory, until it is reversed. (ƒ)

(c) 1 Hale 626.

(d) Fost. 362, where the doctrine is reprobated: and see 1 Hale 625, where it is said that it was for this reason that Weston, the principal actor in the murder of Sir Thomas Overbury, could not for a long while be prevailed upon to plead, that so the Earl and Countess of Somerset, who were the movers and procurers, might escape. 1 St. Tri. 314.

(e) Hyman's case, 2 Leach 925. 2 East. P. C. 782.

(f) Baldwin's case, 3 Campb. 265. Cor. Thomson, B. Monmouth Summer assizes, 1812. The judgment was very informal, concluding and the said Isaac Powell in mercy, &c." See further as to the sufficiency of an erroneous attainder of the principal

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