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won at play by the prosecutor of the defendant; and that he had distinctly left it to them to decide whether the assault were on that account, or on account of the abusive language then used, and to acquit the defendant on those counts, if they were of opi

nion that the assault was on account of the abusive language. Sentence may After this answer had been communicated from the bench, it be passed pur- was moved in arrest of judgment, that, the verdict being general, statute after a there would be inconsistent judgments on the several counts, one general ver- on the special counts on the statute which prescribed a positive dict of guilty, punishment, and the other on the count for the common assault dictment con- which was discretionary.(l) But the rule was afterwards abantaining two

doned, and sentence was passed upon the defendant pursuant to counts on the

the directions of the statute.(m) one for a com- The statute 1 & 2 G. 4. c. 88. s. 2. enacts, “ that if any permon assault.

“son shall assault, beat, or wound any constable, officer, headAssaulting any “ borough, or other person whomsoever, with intent in so doing, constable, &c. or other per

or by means thereof to obstruct, resist, or prevent the lawful son, in order “ apprehension or detainer of any person charged with or susto prevent an

pected of felony; or if any person charged with or suspected of apprehension for felony.

“ felony shall assault, beat, or wound any constable, officer, head“ borough, or other person whomsoever, with intent in so doing,

or by means thereof, to obstruct, resist, or prevent his or her “ apprehension or detainer; then and in every or any such case, “ if the person or persons so offending shall be convicted of a “misdemeanor only, it shall be lawful for the court by or before “ whom any such person or persons shall be so convicted as “aforesaid, 'to order and direct, in case it shall think fit, that “ such person or persons shall, in addition to any other pains,

penalties or punishment to which he, she or they are now sub“ject or liable, be kept to hard labour for any term not exceeding “ two years, and not less than six months.(a)

(I) Upon this point the case of Rex (a) Where a rescue is effected, see v. Young and others, 3 T.R. 103. the first section of this statute, ante, was referred to.

(m) Rex v. Darley, 4 East. 174,

p. 385.

CHAPTER THE TWELFTH.

OF MAIMING, &c. BY THE FURIOUS DRIVING, &c. OF STAGE

COACHMEN.

The statute 1 G. 4. c. 4. enacts, “ that if any person whatever Where any “shall be maimed, or otherwise injured by reason of the wanton person is in“ and furious driving or racing, or by the wilful misconduct of

jured by the

wanton and any coachman or other person having the charge of any stage furious driv“ coach or public carriage, such wanton and furious driving or ing, or wilful

racing, or wilful misconduct of such coachman or other person, the coachman “ shall be and the same is hereby declared to be a misdemeanor, of any public “ and punishable as such by fine and imprisonment: provided carriage, such “ always, that nothing in this act contained shall extend or be ing, &c. is deconstrued to extend to hackney coaches, being drawn by two clared to be a “ horses only, and not plying for hire as stage coaches.”

By a former act, 50 G. 3. c. 48. s. 15. a penalty not exceeding 50 G. 3. c. 48. 101. nor less than 51. was imposed upon a coachman who, by fu- Penalty upon riously driving or by negligence or misconduct, shall overturn the driving fucarriage, or in any manner endanger the persons or property of riously, &c. the passengers, or the property of the owners or proprietors of such carriage; unavoidable accidents being excepted.

misdemeanor.

END OF VOL. I.

ADDENDA, &c.

TO VOL, I.

VOL. I. Page 6.—The statutes 21 H. 8. c. 7. and 12 Ann. c. 7. are repealed by 7 & 8 Geo.

4. c. 27. 15 line 12 from the bottom, after“ rebels (a),” add—" And in general the

person committing a crime will not be answerable if he was not
a free agent, and was subject to actual force at the time the fact
was done. Thus, if A. by force take the arm of B., in which is
a weapon, and therewith kill C., A. is guilty of murder, but not
B.: but if it be only a moral force put upon B., as by threaten-
ing him with duress or imprisonment, or even by an assault to
the peril of his life, in order to compel him to kill C., it is no
legal excuse.(a) An ideot or lunatic, or a child so young as not
to be punishable for his criminal act when made use of for the
purpose of committing crimes, are merely the instruments of

the procurer, who will be answerable as a principal.”(b)
25, dele from the paragraph beginning “ When the rule was first settled,” to

the bottom, and also the following pages, 26, 27, and 28, and

two lines at the top of page 29.
32, note (f), add—“ And see Rex v. Badcock and Others, Russ. & Ry. 249."
36, line 17, after “ effect (m),dele to the end of that page, and also pages

37 and 38, and insert as follows:-" It should seem, however,
that the recent enactment of 7 & 8 Geo. 4. c. 28. will apply to
accessories after the fact, where no punishment is specially pro-
vided for their felony. The eighth section of that statute Felonies not
enacts, that every person convicted of any felony not punish- capital punish-
able with death, shall be punished in the manner prescribed by able under the
the statute or statutes specially relating to such felony, and that acts, if any
every person convicted of any felony for which no punishment relating there-
hath' been or hereafter may be specially provided, shall be to, otherwise

under the 7 & deemed to be punishable under this act, and shall be liable, at

8 Geo. 4. c. 28. the discretion of the Court, to be transported beyond the seas for the term of seven years, or to lie imprisoned for any

term not exceeding two years, and, if a male, to be once, twice, or thrice publicly or privately (whipped if the Court shall so think

8. 8,

(a) 1 Hale, 433. 1 East. P. C. c. 5. s. 12. p. 225.

(6) 1 Hawk. P. C. c. 31. 1. 7. 1 East, P. C. c. 5, s. 14. p. 228,

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fit), in addition to such imprisonment.' The late consolidation acts, 7 & 8 Geo. 4. c. 29., 7 & 8 Geo. 4. c. 30., and 9 Geo. 4. c. 31., make accessories after the fact to felonies punishable under those acts respectively, liable to imprisonment for any term not exceeding two years. The principal and accessory may be indicted in the same indictment, and tried together, which is the best and most usual course. Formerly the accessory could not, without his own consent, have been brought to trial till the guilt of the principal was legally ascertained by conviction or outlawry, unless they were tried together.(c) And an accessory could not in such case have been tried, unless the principal had been attainted, so that if the principal stood mute of malice, or challenged peremptorily above the legal number of jurors, or refused to answer direcily to the charge, the accessory could not have been put upon his trial.(d) But the late statute 7 Geo. 4. c. 64. has made the following salutary provisions for the effec

tual prosecution of accessories. “ The ninth section of that statute, for the more effectual prose

cution of accessories before the fact to felony, enacts, that if any person shall counsel, procure, or command any other person to commit any felony, whether the same be a felony at com. mon law, or by virtue of any statute or statutes made or to be made, the person so counselling, procuring or commanding shall be deemed guilty of felony, and may be indicted and convicted either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amen. able to justice, and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished ; and the offence of the person so counselling, procuring, or commanding, howsoever indicted, may be inquired of, tried, determined, and punished by any Court which shall have jurisdiction to try the principal felon, in the same manner as if such offence had been committed at the same place as the principal felony, although such offence may have been committed either on the bigh seas, or at any place on land, whether within his Majesty's dominions or without; and that in case the principal felony shall have been committed within the body of any couoty, and the offence of counselling, procuring, or commanding, shall have been committed within the body of any other county, the last mentioned offence may be inquired of, tried, determined, and punished, in either of of such counties: provided always, that no person who shall be once duly tried for any such offence, whether as an accessory before the fact, or as for a substantive felony, shall be liable to

be again indicted or tried for the same offence.' “ The tenth section of the same statute, for the more effectual

prosecution of accessories after the fact to felony, enacts, that if any person shall become an accessory after the fact to any felony, whether the same be felony at common law, or by virtue of any statute or statutes made or to be made, the offence of such person may be inquired of, tried, determined, and punished by any Court which shall have jurisdiction to try the principal felon, in the same manner as if the act, by reason whereof such person shall have become an accessory, had been committed at the same place as the principal felony, although

If offences committed in different counties, accessories may be tried in either. Only one trial. S. 10. How accessory, if after the fact, may be tried.

(c) i Hale 623. 2 Hawk. c. 29. s. 45. Fost. 360.

(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 mur

der 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. Tr. 314.

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