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old deed is offered in evidence without proof of execution, some account ought to be given of its custody ; B. N. P. 255; or it should be shown that possession has accompanied it. Gilb. Ev. 97.
Where a party producing a deed upon a notice to produce, claims a beneficial interest under it, the party calling for the deed need not prove its execution. Pearce v. Hooper, 3 Taunt. 62. As where assignees produce the assignment of the bankrupt's effects. Orr v. Morice, 3 B. and B. 139 (a). See also Carr v. Burdiss, 5 Try. 136, 1 C. M. and R. 782; Doe v. Wainwright, 5 A. and E. 520 (b).
But where the party producing the deed does not claim an interest under it, the party calling for it must prove it in the regular manner. Gordon v. Secretan, 8 East, 548; Doe v. Cleveland, 9 B. and C. 864 (c). See further Rose. N. P. Ev. 93, 4th ed.
Stamps.] In general, in criminal as well as in civil cases, a document, *which is by law required to be stamped, cannot be given in evi- [*199 ] dence without a stamp, unless, as in the cases after mentioned, the instrument itself is the subject matter of the offence. Thus, where upon an indictment for embezzlement, in order to prove the receipt of the money, evidence was tendered of an unstamped receipt for it, given by the prisoner, it was rejected by Bayley, J., Hall's case, 3 Stark. N. P. C. 67 (d). Upon an indictment for setting fire to a house, with intent to defraud an insurance company, in order to prove the insurance, a policy, not properly stamped, was given in evidence, and the prisoner was convicted ; on a case reserved, the conviction was held wrong, by six judges against five. Gibson's case, Russ. and Ry. C. C. 138, 2 Leach, 1007, 1 Taunt. 98, S. C.
But where the unstamped instrument is offered in evidence, not for the purpose of proving that, which, had it been genuine, it would have proved, but merely as evidence against the prisoner, of the commission of the offence with which he is charged, it is then admissible without a stamp. The prisoner was indicted for forging a bill of exchange, and it was objected for him, that there was no stamp upon it, and that it could not be received in evidence ; but Buller, J., said, that the stamp act was merely a revenue law, and did not purport in any way to alter the law of forgery, and that the false instrument had the semblance of a bill of exchange, and had been negotiated by the prisoner as such, and overruled the objection. Upon a case reserved, the judges were of opinion that the prisoner was properly convicted. Hawkeswood's case, 2 East, P. C. 955, 1 Leach, 257, stated post. A similar objection having been taken in another case, most of the judges maintained the principle in Hawkeswood's case to be well founded. Morton's case, 2 East P. C. 955, stated post. See also Reculist's case, 2 East, P. C. 956, 2 Leach, 703, S.C. Teague's case, 2 East, P. C. 979. If the matter be duly considered, says Mr. East, the words of the stamp acts can only be applicable to true instruments, for a forged instrument, when discovered to be such, can never be made available; though stamped. The acts, therefore, can only be understood as requiring stamps on such instruments as were available without a stamp before those acts passed, and which would be available afterwards, with a stamp.' 2 East, P. C. 956.
(a) Eng. Com. Law Rep. vii. 382. (b) Id. xxxi. 385. (c) Id. xvii. 512.
(d) Id. xiv. 165.
Where the unstamped document is produced in evidence, not as forming the subject matter of the offence, but for a collateral purpose (not being its proper object), it is admissible. Of this rule there are many instances in civil actions. See Rosc. Dig. Ev. N. P. 155, 4th ed. And upon an indictment under 7 Geo. 3, c. 50, s. 2, for stealing a letter out of the post-office, a check contained in the letter, though drawn on unstamped paper, was received in evidence, for the purpose of proving the fact of the letter having been stolen. Pooley's case, 2 Leach, 900, 1 East, P. C. Add. xvii., 3 Bos. and Pul: 315, S. C.
The rule upon this subject seems to be that where the indictment is ( *200 ] *founded upon a written instrument, and the instrument itself is the crime, it is receivable in evidence without a stamp; but where the indictment is for an offence distinct from the instrument, which is only introduced collaterally, it cannot be received unless it be properly stamped. See per Lord Tenterden, C. J. Smyth's case, 5 C. and P. 204 (a).
AIDERS, ACCESSARIES, &c.
Proof with regard to Aiders and Abettors 200 Principal varying from orders given to What presence is sufficient to make a
• 204 party principal in the second degree 201 What offences admit of Accessaries • 205 Punishment
202 Trial and punishment of Accessaries Proof with regard to Accessaries before
before the fact
206 the fact
203 | Proof with regard to Accessaries after the By the interposition of a third person 203 fact
207 Degree of incitement
Under this head will be considered the evidence against aiders, or principals in the second degree, against accessaries before the fact, and accessaries after the fact.
Proof with regard to aiders and abettors.] Although the law on this subject was formerly not well settled, it is now clear that all those who are present, aiding and abetting, where a felony is committed, are principals in the second degree. 1 Russell, 21; Coalheaver's case, 1 Leach, 66; Foster, 428.
With regard to the nature of the felony, it has been held that the rules with regard to principals in the second degree, apply equally to felonies created by statute, as to those offences which are felonies at common law. Tattersall's case, 1 Russell, 22.
Where a count in an indictment charged A. with the murder of B., and C. and D. with being present, aiding and abetting in the commission of the murder, and it appeared that A. was insane, it was held that C. and D. could not be convicted on that count. Tyler's case, 8 C. & P. 616 (6).
(a) Eng. Com. L. Rep. xxiv. 281. (b) Id. xxxiv. 553.
*Proof with regard to aiders and abettors—what presence is sufficient to make a party a principal in the second degree. With regard to what will constitute such a presence as to render a man a principal in the second degree, it is said by Mr. Justice Foster, that if several persons set out together, or in small parties, upon one cominon 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 to prevent a surprise, or to favor, 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. Foster, 350. Thus where A. waits under a window, while B. steals the articles in the house, which he throws through the window to A., the latter is a principal in the offence. Owen's case, 1 Moody, C. C. 96 (a), stated post.
There must be a participation in the act, for although a man be present whilst a felony is committed, if he take no part in it and do not act in concert with those who commit it, he will not be a principal in the second degree, merely because he did not endeavor to prevent the felony, or apprehend the felon. i Hale, 439. Foster, 350.
So a mere participation in the act, without a felonious participation in the design, will not be sufficient. 1 East, P. C. 257: Plumer's case, Kel. 109. Thus, if a master assault another with malice prepense, and the servant, ignorant of his master's felonious design, take part with him, and kill the other, it is manslaughter in the servant, and murder in the master. I Hale, 466.
Where several persons are in company together, engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in his guilt, unless the act done was in some manner in furtherance of the common intention. Several soldiers employed by the messenger of the secretary of state, to assist in the apprehension of a person, unlawfully broke open the door of a house where the person was supposed to be. Having done so, some of the soldiers began to plunder, and stole some goods. The question was, whether this was felony in all. Holt, C. J., observing upon this case, says, that they were all engaged in an unlawful act is plain; for they could not justify breaking a man's house without first inaking a demand. Yet all those who were not guilty of stealing were acquitted, notwithstanding their being engaged in an unlawful act of breaking the door; for this reason, because they knew not of any such intent, but it was a chance opportunity of stealing, whereupon some of them did lay hands. Anon. 1 Leach, 7. (n.) i Russell, 24. See also White's case, R. and R. 99; Hawkins's case, 3 C. and P. 392 (b), post.
Either an actual presence, or such a presence as may be sufficient to afford aid and assistance to the principal in the first degree, is necessary, in order to render a party guilty as a principal in the second degree (1).
(1) The abettor must be in a situation actually to render aid, not merely where the perpetrator supposed he might.
Proof of a prior conspiracy is not legal presumption of having aided, but only evidence.
But if a conspiracy be proved, and a presence in a situation to render aid, it is a legal presumption that such presence was with a view to render aid, and it lies on the party to rebut it, by showing that he was there for a purpose unconnected with the conspiracy: Commonwealth v. Knapp, 9 Pick. 496.
(a) 2 Eng. C. C. 96. (6) Eng. Com. L. Rep. xiv. 365.
See Soare's case, Russ. ånd Ry. 25 (a). Davis's case, *Id. 113; Else's case, Id. 142; Badcock's case, Id. 249; King's case, Id. 332; M'Makin's case, Id. 333, (n.); Kelly's case, Id. 421 ; Stewart's case, Id. 363, all stated post.
What circumstances will render a party liablc as a principal in particular offences, will be found stated in the subsequent part of this work.
Aiders and abettors-trial and punishment.] Aiders and abettors were formerly defined to be accessaries at the fact, and could not have been tried until the principal had been convicted or outlawed. Foster, 347. But it has been long settled, that all those who are present, aiding and abetting when a felony is committed, are principals in the second degree, and may be arraigned and tried before the principal in the first degree has been found guilty, 2 Hale, 223, and may be convicted, though the party charged as principal in the first degree is acquitted. Taylor's case, i Leach, 360 ; Benson v. Offey, 2 Show. 510; 3 Mod. 121 ; Wallis's case, Salk. 334; Towle's case, R. and R. 314 (6); 3 Price, 145; 2 Marsh. 465.
Where a statute creates a felony, and punishes with death persons guilty thereof, without taking provision as to persons present aiding and abetting, principals in the second degree, are thereby punishable with death as well as principals in the first degree. Midwinter's case, Fost. App. 415. Coalheaver's case, 1 Leach, 66. So where a statute makes a common law felony, by name, punishable with death, as in the case of murder, &c., those present aiding and abetting in the offence are impliedly punishable with death, although the statute makes no mention of them. i Hale, 537; Fost. 359. Where, however, a statute imposes the punishment of death upon the person committing the offence, and not upon the offence by name, those present aiding and abetting merely are not punishable with death, the person only who actually committed the offence being deemed to be within the act. Fost. 356, 357; Paget's case, Fost. 355. But in this latter case, if the accessary be expressly within the statute as well as the party actually committing the offence, it must be deemed by necessary implication virtually to include the principal in the second degree. See Gogerley's case, R. and R. 343 (c).
This was the rule upon the construction of statutes before the abolition of the benefit of clergy, and it is still applicable, because by the 7 and 8 Geo. 4, c. 28, s. 7, no person can be punished with death unless it be for some felony, which was before excluded from the benefit of clergy, or made punishable with death by some subsequent statute. But this rule is now of less general importance, because the various statutes upon which these questions have arisen have been repealed. For the punishment of principals in the second degree under the modern statutes consolidating the law, which include the offences of most general occurrence, see post,
See further Archb. C. L. 642, 7th ed. Considerable doubts formerly existed with regard to the punishment of [ *203 ] aiders and abettors, but now by 7 and 8 Geo. 4, c. 29, s. 61, *in case of felony punished under this act, every principal in the second degree, and every accessary before the fact, shall be punishable with death, or otherwise, in the same manner as the principal in the first degree is by
(a) 1 Eng. C. C. 25. (b) 1 Ibid. 314. (c) 1 Ibid. 343.
that act punishable. And by 7 and 8 Geo. 4, c. 30, s. 26, in the case of every felony punishable under that act, every principal in the second degree is punishable with death, or otherwise in the same manner as a principal in the first degree is by that act punishable. Manners's case, 7 C, and P. 801 (a). Young's case, 8 C. and P. 644 (b). See further post, 207.
Proof with regard to accessaries before the fact.] An accessary before the fact, is defined by Lord Hale to be one who, being absent at the time of the offence committed, does yet procure, counsel, command or abet another to commit a felony. Ilale, P. C. 615. The bare concealment of a felony to be committed, will not make the party concealing it an accessary before the fact. 2 llawk. c. 29, s. 23. So words amounting to a bare permission will not render a man an accessary, as if A. says he will kill J. S., and B. says "you may do your pleasure for me.' Hawk. P. C. b. 2, c. 29, s. 16.
The procurement must be continuing ; for if before the commission of the offence by the principal, the accessary countermands him, and yet the principal proceeds to the commission of the offence, he who commanded him will not be guilty as accessary.
1 Hale, P. C. 618. If the party was present when the offence was committed, he is not an accessary, and if indicted as such, he must be acquitted, but he may be subsequently indicted as a principal in the second degree. Gordon's case, 1 Leach, 515; ; 1 East, P. C. 352.
Proof with respect to accessaries before the fact—by the intervention of a third person.] A person may render himself an accessary by the intervention of a third person, without any direct communication between himself and the principal. Thius if A. bid his servant hire somebody to murder B., and furnish him with money for that purpose, and the servant hires C., a person whom A. never saw or heard of, who commits the murder, A. is an accessary before the fact. Macdaniel's case, Fost. 125 ; Hawk. P. C. b. 2, c. 29, ss. 1, 11; 1 Russell, 31; Cooper's case, 5 C. and P. 535 (c).
Proof with regard to accessaries before the fact--degree of incitement.] Upon the subject of the degree of incitement and the force of persuasion used, no rule is laid down. That it was sufficient to effectuate the evil purpose is proved by the result. On principle, it seems that any degree of direct incitement, with the actual intent to procure the consummation of the illegal object, is sufficient to constitute the-guilt of the accessary; and therefore that it is unnecessary to show that the crime was effected in consequence of such incitement, and that it would be no de-. fence to show that the offence would have been committed, although the incitement had never taken place. 3 Stark. Ev. 8, 2d ed.
*Proof with regard to accessaries before the fact-princi- [ *204 ) pal varying from orders given to him. With regard to those cases where the principal varies, in committing the offence, from the conimand or advice of the accessary, the following rules are laid down by Sir Mi
(a) Eng. Com. L. Rep. xxxii. 743.
ld. xxxiv. 564. (c) Id. xxiv. 444.