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By the 7 Wm. 4, and 1 Vict. c. 86, s. 6, amending the laws relating to burglary and stealing in a dwelling-house, and the 7 Wm. 4, and 1 Vict. c. 87, s. 9, amending the laws relating to robbery and stealing from the person (by which the 7 & 8 Geo. 4, c. 29, is so far repealed), in the case of every felony punishable under those acts, every principal in the second degree, and every accessary before the fact shall be punishable with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 those acts punishable, and every accessary after the fact (except only a receiver of stolen property) shall, on conviction, be liable to be imprisoned for any term not exceeding two years.

By the 7 Wm. 4, and 1 Vict. c. 89, s. 11, amending the laws relating to burning or destroying buildings or ships, and by the 7 Wm. 4, and 1 Vict. c. 85, s. 7, amending the laws relating to offences against the person, (by which the 7 & 8 Geo. 4, c. 30, and the 9 Geo. 4, c. 31, are respectively so far repealed) in the case of every felony punishable under those acts, every principal in the second degree, and every accessary before the fact, shall be punishable with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 those acts punishable, and every accessary after the fact shall on conviction be liable to be imprisoned for any term not exceeding two years.

For the punishment of accessaries in coining, offences relating to the post-office, and piracy, see those titles.

Proof with regard to accessaries after the fact.] An accessary after the fact, says Lord Hale, is where a person knowing the felony to be committed by another, receives, relieves, comforts, or assists the felon. 1 Hale, P. C. 618; whether he be a principal, or an accessary before the fact. 2 Hawk. c. 29, s. 1; 3 P. Wms. 475. But a feme covert does not become an accessary by receiving her husband. This, however, is the only relationship which will excuse such an act, the husband being liable for receiving the wife. 1 Hale, P. C. 621. So if a master receives his servant, or a servant his master, or a brother his brother, they are accessaries, in the same manner as a stranger would be. [*208] Hawk. P. C. b. 2, c. 29, s. 34. If a husband and wife knowingly receive a felon, it shall be deemed to be the act of the husband only. Hale, P. C. 621. But if the wife alone, the husband being ignorant of it, receive any other person being a felon, the wife is accessary, and not the husband. Id.

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With regard to the acts which will render a man guilty as an accessary after the fact, it is laid down, that generally, any assistance whatever, given to a person known to be a felon, in order to hiuder his being apprehended or tried, or suffering the punishment to which he is condemned, is a sufficient receipt for this purpose; as where a person assists him with a horse to ride away with, or with money or victuals to support him in his escape; or where any one harbors and conceals in his house a felon under pursuit, in consequence of which, his pursuers cannot find him; much more, where the party harbors a felon, and the pursuers dare not take him. Hawk. P. C. b. 2, c. 29, s. 26. See Lee's case, 6 C. and P. 536 (a). So it appears to be settled that whoever res

(a) Eng. Com. L. Rep. xxv. 530.

cues a felon imprisoned for the felony, or voluntarily suffers him to escape, is guilty as accessary. Id. s. 27. In the same manner conveying instruments to a felon, to enable him to break gaol, or to bribe the gaoler to let him escape, makes the party an accessary. But to relieve a felon in gaol with clothes or other necessaries is no offence, for the crime imputable to this species of accessary is the hindrance of public justice, byassisting the felon to escape the vengeance of, the law. 4 BI. Com. 38.

Merely suffering the principal to escape will not make the party an accessary after the fact, for it amounts at most but to a mere omission. 9 H. 4, s. 1; 1 Hale, 619. So if a person speak or write, in order to obtain a felon's pardon or deliverance; 26 Ass. 47; or advise his friends to write to the witnesses not to appear against him at his trial, and they write accordingly; 3 Inst. 139; 1 Hale, 620; or even if he himself agree for money not to give evidence against the felon; Moo. 8: or know of the felony and do not discover it; I Hale, 371, 618; none of these acts will make a party an accessary after the fact.

The felony must be complete at the time of the assistance given else it makes not the assistant an accessary. As if one wounded another mortally, and after the wound given, but before death ensued, a person assisted or removed the delinquent, this did not, at common law, make him an accessary to the homicide, for till death ensued, there was no felony committed. Hawk. P. C. b. 2, c. 29, s. 35; 4 Bl. Com. 38.

In order to render a man guilty as accessary, he must have notice either express or implied, of the principal having committed a felony. Hawk. P. C. b. 2, c. 29, s. 32. It was formerly considered, that the attainder of a felon, was a notice to all persons in the same county of the felony committed, but the justice of this rule has been denied. Hawk. P. C. b. 2, c. 29, s. 83. It was observed by Lord Hardwicke, that though this may be some evidence to a jury of notice to an accessary in the same county, yet it cannot, with any reason or justice, create an absolute presumption of notice. Burridge's case, 3 P. Wms, 495.

[ *209] *Accessaries after the fact-trial and punishment.] With regard to the trial of accessaries after the fact, (vide ante, p. 206, as to the former law,) it is enacted by the 7 Geo. 4, c. 64, s. 10. "That if any person shall become an accessary after the fact, to any felony, whether the same be a 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 accessary, had been committed at the same place as the principal felony, although such act may have been committed either on the high 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 county, and the act by reason whereof any person shall have become accessary, shall have been committed within the body of any other county, the offence of such accessary may be inquired of, tried, determined, and punished in either of such counties. Provided always, that no person who shall be once duly tried for any offence of being an accessary, shall be liable to be again indicted or tried for the same offence."

And by sec. 11, "If any principal offender shall be in anywise convicted of any felony, it shall be lawful to proceed against any accessary, either before or after the fact, in the same manner as if such principal felon had been attainted thereof, notwithstanding such principal felon shall die or be admitted to the benefit of clergy, or pardoned, or otherwise delivered before attainder; and every such accessary shall suffer the same punishment, if he or she be in anywise convicted, as he or she should have suffered if the principal had been attainted."

Since the above statute an accessary after the fact may be tried, either at the same time with the principal felon, or after his conviction. If the principal has been formerly convicted, and that conviction is alleged in the indictment, it must be proved in the ordinary way by an examined copy. The conviction appears to be evidence, not only of the fact of the principal having been convicted, but also to be prima facie evidence, that he was guilty of the offence of which he was so convicted (1). Foster, 365; 2 Stark. Ev. 7, 2d ed.

An accessary may avail himself of every matter, both of law and fact, to controvert the guilt of his principal, and the record of the conviction of the principal is not conclusive against him (2). Foster, 365; Smith's case, 1 Leach, 288; Prosser's case, Id. 290, (n.) 1 Russell, 39; Cook v. Field, 3 Esp. 134, and see post, title, Receiving stolen goods.

Wherever a variance is material as to the principal, it is material and available as to the accessary; and vice versa, where a variance is immaterial to the principal it is immaterial to the accessary. 2 Stark. Ev. 9, 2d ed.; Hawk. P. C. b. 2, c. 23, s. 176, 9.

If A. be indicted as accessary to B. and C., he may be convicted on evidence that he was accessary to C. only. Wallis' case, I Salk. 334. For the punishment of accessaries after the fact, see ante, p. 206.

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Arraignment in general.] A person indicted for felony must in all

(1) Where the principal and accessary are joined in one indictment, but are tried separately, the record of the conviction of the principal is prima facie evidence of his guilt, upon the trial of the accessary, and the burthen of proof rests on the accessary, not merely that it is questionable whether the principal ought to have been convicted, but that he clearly ought not to have been convicted. Commonwealth v. Knapp, 10 Pick. 477. See also State v. Crank, 2 Bailey, 66. It is not necessary to set out the conviction of the principal in the indictment. Ibid. The court may in its discretion permit an accessary to be tried separately from the principal. State v. Yancey, 1 Const. Rep. 237.

(2) U. States v. Wood, 4 Wash. C. C. Rep. 440. S. C. 3 Wheeler's C. C. 325.

cases appear in person and be arraigned, but this does not apply to misdemeanors. 1 Chit. C. L. 414; 4 Bl. C. 375.

The arraignment consists of three parts; the calling the prisoner to hold up his hand, the reading over the indictment to him, and the asking him whether he is guilty or not guilty. 2 Hale, 219.

If the prisoner upon his arraignment refuse to answer, it becomes a question whether it is of malice, or whether he is mute by the visitation. of God. The court will in such case direct a jury to be impanneled, who are immediately returned, Jones' case, 1 Leach, 102, from amongst the by-standers, 1 Chitty, C. L. 424. The prisoner's counsel may address the jury and call witnesses, for the affirmative of the issue is on him. Roberts' case, Carr. C. L. 57.

Where a verdict of mute by the visitation of God is returned, the court will order the trial to proceed, if the prisoner is of competent intellect, and can be made to understand the nature of the proceedings against him. Thus where it appeared that a prisoner who was found mute, had been in the habit of communicating by means of signs, and a witness was called who stated that he was capable of understanding her by means of signs, he was arraigned, put upon his trial, convicted of simple larceny, and received sentence of transportation. Jones' case, 1 Leach, 102; 1 Russ. 7.

So where a prisoner who was found mute could read and write, the indictment was handed to him with the usual questions written upon paper. After he had pleaded, and stated in writing he had no objection to any of the jury, the trial proceeded. The judge's note of the evidence was handed to him after the examination of each witness, and he was asked [*211] in writing if he had any question to put. The *proof on the part of the prosecution being insufficient, he was acquitted without being called upon for his defence. Thompson's case, 2 Lew. C. C. 137.

But where a prisoner is deaf and dumb, and cannot be made to comprehend the nature of the proceedings and the details of the evidence, the proper course seems, after the jury have found him mute by the visitation of God, to re-swear the jury to inquire whether he is able to plead to the indictment; and if that be found in the affirmative, then to swear them again, to inquire if the prisoner be sane or not, and if the jury find him to be insane, the judge will order him to be confined under the 39 and 40 Geo. 3, c. 94, s. 2, post. "There are three points to be inquired into. 1st. Whether the prisoner is mute of malice or not. 2d. Whether he can plead to the indictment or not. 3d. Whether he is of sufficient intellect to comprehend the course of proceedings at the trial so as to make a proper defence." Per Alderson, B. Pritchard's case, 7 C. and P. 203 (a). See also Dyson's case, ibid. 305 (n).

If the prisoner stands mute of malice, or will not answer directly to the indictment, or information, (for treason, felony, piracy, or misdemeanor,) it is enacted by 7 and 8 Geo. 4, c. 28, s. 2, that in every such case it shall be lawful for the court, if it shall so think fit, to order the proper officer to enter a plea of "not guilty," on behalf of such person, and the plea so entered, shall have the same effect as if such person had actually pleaded the same (1).

(1) U. States v. Hare, 3 Wheelers' C. C. 285.

(a) Eng. Com. L. Rep. xxxii. 517.

Where the prisoner refused to plead on the ground that he had already pleaded to an indictment for the same offence, (which had been tried before a court not having jurisdiction,) it was held that the court might order a plea of "not guilty," to be entered for him under the above statute. Bitton's case, 6 C. and P. 92 (a).

In cases of insanity, it is enacted by the 39 and 40 Geo. 3, c. 94, s. 2, that if a person indicted for any offence appears insane, the court may, on his arraignment, order a jury to be impanneled to try the sanity, and if they find him insane, may order the finding to be recorded, and the insane person to be kept in custody till his majesty's pleasure be known. And by the same statute, s. 1, if upon the trial for treason, murder, or felony, insanity at the time of committing the offence is given in evidence, and the jury acquit, they must be required to find specially whether insane at the time of the commission of the offence, and whether he was acquitted on that account; and if they find in the affirmative, the court must order him to be kept in custody till his majesty's pleasure be known. The above enactment applies to misdemeanors as well as to felonies. Little's case, Russ. and Ry. 430 (b).

Where a party was indicted for a misdemeanor in uttering seditious words, and upon his arraignment refused to plead, and showed symptoms of insanity, and an inquest was forthwith taken under the above statute to try whether he was insane or not. It was held, 1st, that the jury might form their own judgment of the present state of the defendant's mind from his demeanor while the inquest was being taken, and might thereupon find him to be insane without any evidence being given as to his present state. *2d, That upon the prisoner showing strong symp- [ *212] toms of insanity in court during the taking of the inquest, it became unnecessary to ask him whether he would cross-examine the witnesses on the inquest, or would offer any remarks on evidence. Goode's case, 7 A.. and E. 536 (c).

A grand jury ought not to ignore a bill on the ground of insanity, but if they believe that the acts done, if committed by a sane person, would have amounted to the offence charged, it is their duty to find the bill, otherwise the court cannot order the party to be detained in custody under the foregoing act. Hodges' case, 8 C. and P. 195 (d).

Postponing the trial.] No traverse is allowed in a case of felony, but where the courts deem it necessary for the purposes of justice, they will postpone the trial until the next assizes or sessions. Instances have occurred in which a principal witness has been of such tender years and so ignorant as not to understand the nature and obligation of an oath, the judge has ordered the trial to be put off until the next assizes, and directed the child in the meantime to be instructed in religion. Ante, p. 115. Also where it appears by affidavit that a necessary witness for the prisoner is ill, Hunter's case, 3 C. and P. 591 (e), or that a witness for the prosecution is unavoidably absent, or is kept out of the way by the contrivance, or at the instigation of the prisoner, the court will postpone the trial.

In Palmer's case, 6 C. and P. 652 (ƒ), the judges of the Central Crim

(a) Eng. Com. L. Rep. xxv. 298. (b) 1 Eng. C. C. 430. (c) Id. xxxiv. 150. (d) Id. xxxiv. 350. (e) Id. xiv. 469. (f) Id. xxv. 579.

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