duced to show payment of money to, and receipt of it by him, it cannot be received in evidence unless stamped according to law (0). Indictment against a Clerk or Servant for Embezzlement. That A. B. late of, &c. on, &c. at, &c. being then (p) and there employed as clerk [or" servant," &c. in the words of the statute, as the fact may be] to C. D. did by virtue of such his employment as such clerk, and while he was so employed as aforesaid (q), then and there receive and take into his possession certain money to a large amount, to wit, the amount of five pounds (r), for, and in the name, and on the account of the said C. D. his said master and employer (8), and the said money did then and there unlawfully, fraudulently, and feloniously (1) embezzle; and so the jurors, &c. do say that the said A. B. then and there the said last mentioned money so received by him the said A. B. for, and in the name, and on the account of the said C. D. his master and employer as aforesaid, and then and there being the property of the said C. D. (u) from the said C. D. in manner and form aforesaid, feloniously and fraudulently did steal, take, and carry away, against the form of the statute, &c. and against the peace, &c. Mode of Charging two or three Acts of Embezzlement.]-When it is proposed to charge two or three distinct acts of embezzlement under 7 & 8 G. IV. c. 29, s. 48, they should be stated separately in different counts; and the second and third counts should introduce each charge by alleging it to be " within six calendar months from the time of committing the said offence in the first count of this indictment charged." Strictly speaking, perhaps, this is not necessary, as the objection to charging several distinct acts of felony in an indictment is never an objection which can be taken to the record, where every count always professes to charge a separate offence, but merely the ground of an application to the discretion of the court to compel the prosecutor to elect on which charge he will proceed. But it is safer to insert it. (0) R. v. Hall, 3 Stark. R. 67, 68. (p) See R. v. Somerton, 7 B. & C. 463. (4) It seems the words, "while he was so employed," are necessary, Reg. v. Lovell, 2 M. & Rob. 336 (2 W. IV. c. 4, s. 1). (r) The exact sum laid need not be proved, if money or a note of the kind alleged in the indictment is proved to have been embezzled, R. v. Carson, R. & Ry. 303; nor since 7 & 8 G. IV. c. 29, s. 48, need the coin or security embezzled be stated specifically in the indictment, as in R. v. Furneaux, R. & Ry. 335; R. v. Flower, 8 D. & R. 512; R. v. Tyers, R. & Ry. 402, was held to be requisite; but any "chattel" embezzled must be described as in larceny. (8) Unnecessary to state from whom he received it, R. v. Beacall, 1 C. & P. 313; R. v. Wellings, id. 454. (t) The insertion of the word “feloniously" here is not necessary, if it be introduced at the conclusion, that he “feloniously” stole; but it cannot prejudice, R. v. Crighton, R. & Ry. 62. (u) This is absolutely necessary, R. v. Macgregor, R. & Ry. 23. And if the property be erroneously laid, that variance will be fatal, R. v. Beacall, 1 Moo. C. C. 15. Count at Common Law.]—It is also discreet always to add a count for a larceny by a clerk or servant, and another for a larceny at common law; for if the money so embezzled was ever even constructively in possession of the master, it amounts to that offence (v). Indeed, as the statute (w) provides that the offender “shall be deemed to have feloniously stolen" the chattel or money, it is by no means clear that this last count would not in all cases suffice. SECTION XI. OF ACCESSORIES TO LARCENIES BEFORE AND AFTER THE FACT. ALL parties who are present at the fact, concurring therein, are principals, whether they assist by manual exertion, or only by command, co-operation, or encouragement (x). A constructive presence suffices to make a man a principal (in the second degree); for he need not be actually present, an eye or earwitness of the transaction; he is, in construction of law, "present aiding and abetting," if he act in concert with the principals, and if with the intention of giving them assistance, he be near enough at the time of the felony committed, to afford it, should the occasion arise; e. g., by watching outside a house to prevent surprise, while his companions are committing the felony, or to receive goods which they are stealing in it, or remaining at a convenient distance in order to favour their escape, if necessary (y). If, however, he is constructively present, with the intent not of assisting but of detecting the felony, he has not the felonious intent necessary to convict him as a principal felon, though his motive in so acting was to get a reward (z). Who are Accessories ;-Time of Trial and Venue.]—An accessory is he who is not the chief actor in an offence, nor present at its per (v) See R. v. Peck, and R. v. Smith, ante, p. 265; R. v. Johnson, 3 M. & S. 549. (w) Ante, p. 262.' (r) They were anciently deemed only accessories, viz. down to the reign of Henry VII. See Plowden, 100. (y) Foster, 350; 1 Hale, 439. See R. v. Borthwick, 1 Doug. 207; R. v. Gogerly, R. & Ry. 343; R. v. Owen, 1 Moo. C. C. 96; R. v. Stewart, R. & Ry. 363; Plowden, 96. (z) R. v. Dannelly and another, 2 Marsh. 571; S. C. R. & Ry. 310. Dannelly leaned over the rails of a house while his companions robbed it. He had previously informed the police of the intended burglary: and was suffered by them to escape. formance, but is in some way concerned therein, either before, or after the fact committed (a). An accessory before the fact is he who, being absent at the time of the commission of a felony, procures, counsels, or commands (b) the principal felon to commit it (c); as if several plan a theft which one is to execute; or if a person incites a servant to embezzle the goods of his master. An accessory after the fact is one who, knowing a felony to have been committed, receives, harbours, relieves, comforts, or assists the principal, or accessory before the fact, with a view to his escape (d). As in treasons, so in misdemeanours, there are no accessories: but in felonies only (e). Nor were there any accessories in larceny under or to the value of 12d. until the 7 & 8 G. III. c. 29, abolished the distinction between grand and petty larceny, and rendered the law of grand larceny applicable to all cases of theft, however trifling in value. A party guilty of receiving stolen goods did not come within the definition of an accessory after the fact at common law; but his offence was made punishable as that of an accessory after the fact, and otherwise by several acts, now consolidated by 7 & 8 G. III. c. 29, in sect. 54, and which, as constituting a substantive offence, will be noticed in the next section (ƒ). By the old law, no accessories before or after the fact could, without their consent, be brought to trial, unless with the principal, or after his guilt had been legally ascertained by his conviction on having taken his trial singly; or, after his outlawry on a capital crime, which is equivalent to attainder (g). But 4 Bl. Com. 35. (b) Command includes all those who incite, procure, set on or stir up any other to do the fact, Foster, 126; East's P. C. 641; 2 Haw. c. 33, s. 65. (c) 1 Hale, 613. (d) 1 Hale, 618. Employing another to harbour felons seems sufficient to constitute this offence, 4 Bla. C. 37; 2 Haw. c. 29, s. 1; 3 P. W. 475; but the assisting must be to the felons personally, Reg. v. Chapple and others, 9 C. & P. 395. (e) 1 Hale, 238, 613; Foster, 341. "In the highest offences [crimen læsæ majestatis] and in the lowest [riots, routs, forcible entries, and vi et armis] there be no accessories; but in felonies there be, both before and after." See Co. Lit. 57, a. b. (f) See the old acts, 3 W. & M. c. 9, s. 4; 5 A. c. 31, s. 5; 1 East's P. C. 743. "Con (g) 4 Bl. C. 40, 132, 381. viction and attainder," says Blackstone, are frequently, through inaccuracy, confounded together," 4 Com. 381. In Shakspeare's Henry IV. part 1, Richard Plantagenet is reminded of the Earl of Cambridge, his father's "attainder in the late king's days," and replies, "My father was attached, not attainted;" though, as might be expected in those early times, condemnation, if not legal attainder, followed in the next line "Condemned to die for treason, yet no traitor." Since which, attainder of felony, except in high (or petty) treason or murder, disinherits no heir, and prejudices no title, except the offender's for his life. See R. v. Bridger, T. & Gr. 437; 1 M. & W. 145, S. C.; and 54 G. III. c. 145. now by 7 G. IV. c. 64, s. 11, in order that all accessories may be convicted and punished in cases where the principal felon is not attainted, it is enacted that if any principal offender shall be in anywise convicted of any felony, it shall 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 such principal felon shall die, be [admitted to benefit of clergy, or] pardoned, or otherwise delivered before attainder: and every such accessory shall suffer the same punishment, if in anywise convicted, as he or she should have suffered if the principal had been attainted. An accessory after the fact to a felony, may be tried in the same manner as if the act constituting him the accessory, were committed at the same place as the principal felony: though that act may have been committed on the high seas or at any place on land, in or out of the queen's dominions; and if the offences of the principal and the accessory have been committed in different counties, the same may be laid in either county (h). Accessories before the fact Indictable either as such, or for the Substantive Felony.]—But by 7 G. IV. c. 64, s. 9, the accessory before the fact to any felony, whether at common law or by any statute or statutes made or to be made, 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 his conviction; or may be indicted and convicted of a substantive felony, whether the principal felon has been previously convicted or not, or is amenable to justice or not, 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. This section, which somewhat resembles 3 G. IV. c. 24, s. 3 (repealed by 7 & 8 G. IV. c. 27. s. 1)(i), only makes accessories triable in cases where they might have been tried before, and not in cases where they could not be tried at common law, because the principal could not be tried: e. g., in self-murder (j), or in case of the principal being an insane person (k). Place of Trial.]-By 7 G. IV. c. 64, s. 9, the offence of such accessory before the fact, howsoever indicted, may be tried and punished (h) 7 G. IV. c. 64, s. 10. See ante. (i) See R. v. Solomons, 1 Moo. C. C. 292; overruling R. v. Cale, id. 11. (j) R. v. Henry Russell, 1 Moo. C.C. 356. See Dyson's case, id. 523; and by any court having jurisdiction to try the principal felon in the same manner as if such offence of the accessory had been committed at the same place as the principal felony, though such offence may have been committed either on the high seas or at any place on land whether in or out of her majesty's dominions; and in case the principal felony has been committed without the body of any county, and the offence of such accessory before the fact has been committed within the body of any other county, the last-mentioned offence may be tried and punished in either county; and in order that all accessories may be convicted and punished in cases where the principal felon is not attainted, it is enacted (1) that if any principal offender shall be in anywise convicted of any felony, any accessory either before or after the fact may be proceeded against in the same manner as if such principal felon had been attainted thereof. Proviso against repeated Trials for same Offence.]-Provided that no person 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 (1). Trial of Accessories in general.]-The acquittal of the accessory being always necessarily involved in that of the principal, the best mode of arraigning and trying an accessory, where it is practicable, is at the same time and on the same indictment with the principal (m). When this is done, the jury are in general first to inquire of the principal; and if they find him guilty, they are then to inquire of the accessory but if they find the principal not guilty, the accessory must be acquitted (n). So that even in a case where the principal was indicted for burglary and larceny in a dwelling-house, and the accessory was charged in the (1) 7 G. IV. c. 64, s. 11. See as to this, 1 Hale, 624, 625. (m) See 2 Hale, 173. Gittin's case, Plowd. 96, 97, 99, shows the inconvenience of trying an accessory before the fact first and separately; for he might be convicted, and the principal acquitted on a subsequent indictment by another jury, which would contradict the first verdict; but this does not hold in the case of principals in the second degree, viz. "present aiding and abetting." A. was indicted for felony in using an instrument to procure abortion, and B. was indicted with him as an accessory before the fact. A. did not appear to take his trial; B. who had been on bail, appeared. He was held not compellable to plead to the indictment, and was admitted to bail, not having been indicted for a substantive felony; Reg. v. Ashmall, 9 C. & P. 236. (n) 1 Hale, 624; 2 Inst. 184. If a principal is pardoned after attainder, the accessory after the fact must plead to an indictment charging that offence. Secus, if the principal had been acquitted, or had obtained his pardon before judg ment, Anon. Sir T. Raym. 477. (O. B. Sess. Jan. 1682.) |