No accessaries in petit larceny.

How accessaries before the fact may be tried.

(13) It seems agreed, that the law hath such a regard to that duty, love, and tenderness, which a wife owes to her husband, as not to make her an accessary to felony by any receipt given to her husband. Yet if she be any way guilty of procuring her husband to commit it, it seems to make her an accessary before the fact, in the same manner as if she had been sole. Also, it seems agreed, that no other relation besides that of a wife to her husband will exempt the receiver of a felon from being an accessary to the felony; from whence it follows, that if a master receive a servant, or a servant a master, or a brother a brother, or even a husband a wife, they are accessaries in the same manner as if they had been mere strangers to one another. 2 Haw. c. 29. § 34.

(14) But if the wife alone, the husband being ignorant of it, do receive any other person, being a felon; the wife is accessary, and not the husband. 1 Hale, 621.

(15) But if the husband and wife both receive a felon knowingly, it shall be adjudged only the act of the husband, and the wife shall be acquitted. Id.

There can be no accessaries in petit larceny. 12 Rep. 81. 1 Hale, 530. Case of A. Evans, Fost.73.

The felony must be complete at the time of the assistance given. 4 Bl. Com. 38. 2 Haw. P. C. 320.

IV. How Accessaries to be proceeded against.

For the more effectual prosecution of accessaries before the fact to felony, it is, by the stat. 7 G. 4. c. 64. § 9. enacted, "That if any person shall counsel, procure, or command any other person to commit 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 person so counselling, procuring, or commanding, shall be deemed guilty of felony, and may be indicted and convicted, either as an accessary before the fact, to the principal felony, together with 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 amenable to justice, and may be punished in the same manner as an accessary before the fact to the same felony, if convicted as an accessary, 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 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 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 such counties: Provided always, that no person, who shall be once duly tried for any such offence, whether as an accessary before

the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offence."

By 7 & 8 G. 4. c. 29. § 61., in the case of every felony punishable Accessaries under this act, every principal in the second degree, and every ac- before the fact cessary before the fact, shall be punished with death, or otherwise, in felony in the same manner as the principal in the first degree is by this act punishable.

punishable as the principal in the first degree. Accessaries, after the fact on the high seas, or

on land within the king's dominions, or

By 7 G. 4. c. 64. § 10. if any person shall become an accessary after the fact to any felony, the offence of such person may be enquired 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 without, may be felony, although such act may have been committed, either on the tried in any high seas, or at any place on land, whether within his Majesty's court having dominions or without and that in case the principal felony shall jurisdiction to 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 enquired 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.

try the principal. If the principal felony be comcounty, and the party be acces sary in another, he may be tried

mitted in one

in either.

the fact to be

§ 11. In order that all accessaries may be convicted and Accessaries punished in cases where the principal felon is not attainted, if before and after any principal offender shall be in any wise convicted of any punished, if the felony, it shall be lawful to proceed against any accessary, either principal felon before or after the fact, in the same manner as if such prin- is convicted, cipal felon had been attainted thereof, notwithstanding such prin- though not cipal felon shall die, or be admitted to the benefit of clergy, attainted. or pardoned, or otherwise delivered before attainder; and every such accessary shall suffer the same punishment, if he or she be in any wise convicted, as he or she should have suffered if the principal had been attainted.

Indictment.

The accessary may be indicted in the same indictment with the principal, and that is the best and most usual way; but he may be indicted in another indictment: but then such indictment must contain the certainty and kind of the principal felony. 1 Hale, 623.

Formerly if a man had been indicted as accessary in the same felony to several persons, he could not have been arraigned till all the principals were convicted and attainted: but as the law now stands, if a man be indicted as accessary to two or more, and the jury find him accessary to one, it is a good verdict, and judgment may pass upon him. 9 Rep. 119. Fost. 361.

And therefore the court in their discretion may arraign him as accessary to such of the principals who are convicted; and if he be found guilty as accessary to them or any of them, judgment shall pass upon him: But on the other hand, if he be acquitted, that acquittal will not discharge him as accessary to the others;

Accessary and principal in the same indict

ment.

Case where a person is charged as accessary to

more than one.

Case of Donally and Vaughan.

Objection on behalf of an

but no person shall be tried more than once for the same offence of being accessary before the fact.

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 accessary, until it is reversed. Baldwin's case, Monmouth Sum. Ass. 1812, cor. Thomson B. 3 Campb. 265.

The judgment upon an indictment must be taken to be good until it is reversed by a writ of error; as in the case of proceedings against the accessary. So, if there be a judgment against the husband for treason, not reversed by error, it is sufficient to deprive the wife of her dower. Per Lawrence J. Holmes v. Walsh, 7 T. R. 465.

If the principal and accessary are joined in one indictment and tried together, which seems to be the most eligible course where both are amenable, there is no room to doubt, whether the accessary may not enter into the full defence of the principal, and avail himself of every matter of fact, and every point of law tending to his acquittal. For the accessary is in this case to be considered as particeps in lite, and this sort of defence necessarily and directly tendeth to his own acquittal. Fost. 365.

But when the accessary is brought to his trial after the conviction of the principal, it is not necessary to enter into a detail of the evidence on which the conviction was founded. Nor doth the indictment aver that the principal was in fact guilty. It is sufficient if it recite, with proper certainty, the record of the conviction. This is evidence against the accessary, sufficient to put him upon his defence, for it is founded upon a legal presumption, that every thing in the former proceeding was rightly and properly transacted. But a presumption of this kind must, as it seemeth, give way to facts manifestly and clearly proved. Fost. 365.

As against the accessary, therefore, the conviction of the principal will not be conclusive; it is as to him res inter alios acta: for an accessary may controvert the guilt of the principal, notwithstanding the record of his conviction. Smith's case, O. B. Dec. 1783. 1 Leach, 289.

And therefore if it shall come out in evidence upon the trial of the accessary, as it sometimes hath and frequently may, that the offence of which the principal was convicted did not amount to felony in him, or not to that species of felony with which he was charged, the accessary may avail himself of this, and ought to be acquitted. Fost. 365.

John Donally and George Vaughan were tried at the O. B. Sept. Sess. 1816. Donally being indicted for a burglary in the house of a Mr. Poole, and Vaughan as accessary before the fact to the "said felony and burglary." It appeared that by a pre

accessary, that as the jury had

acquitted the principal of burglary, and

found him

stealing in the house, they could not find the accessary guilty as ac

cessary to the "said felony

vious concert between Donally and Vaughan, and a person named R. v. Donally Barrett, Donally accompanied three other men, who went to rob and Vaughan. Mr. Poole's house, Vaughan and Barrett watching in a passage on the opposite side of the street; and the purpose of Donally, Vaughan, and Barrett, clearly being to procure a burglary to be committed by the three other men, and afterwards to apprehend and convict them, in order to get shares of the reward. Mr. Poole's house was robbed; the three men who accompanied Donally were almost immediately apprehended by Vaughan and Barrett, and had been tried at a former sessions at the Old Bailey for burglary, but were convicted only of stealing in the dwelling-house to the amount of 40s., in consequence of Mr. Poole's evidence, as to its being possible at the time the robbery was committed, to see a person's face by the light of the day. Upon the present indictment against Donally and Vaughan, the jury acquitted Do- and burglary;" nally of the burglary, but found him guilty of stealing in the but that they dwelling-house to the amount of 40s., and they found Vaughan ought to have guilty as an accessary to the "said felony and burglary," the acquitted the charge stated in the indictment. Upon this finding, Curwood, they had negaaccessary, as after taking an objection that this could not be larceny in tived the burDonally, because not done animo furandi, further objected on glary. behalf of the prisoner Vaughan, that as the indictment was against him as accessary to a burglary committed by Donally, and as the jury had acquitted the principal of the burglary, the charge against the accessary must necessarily fail. That the offence of an accessary, though distinct, is yet derivative from that of the principal, and may be considered as the shadow of a substance. That by the reversal of an attainder against a principal, the attainder against the accessary, which depends upon the attainder of the principal, is ipso facto utterly defeated and annulled. And that though the charge against the accessary in this indictment of which the jury had found him guilty, is as accessary to the "said felony and burglary," yet that the word felony, as thus used, is only descriptive of the character of the burglary, and by no means applies to any other or different offence. That in an indictment against an accessary to a murder, the charge would be laid against him as accessary to the "said felony and murder," but would not import two crimes, or any other crime than that which the law denominates murder. That upon the whole, therefore, the charge against Vaughan could only be considered as a charge of being accessary to a supposed burglary by Donally; and that as the jury had negatived such burglary, they ought consequently to have acquitted Vaughan. Graham B. who tried the prisoners, respited judgment upon these objections, which, in Michaelmas term following, were argued before the twelve judges in the Exchequer chamber. opinion of the judges was not formally communicated; but it is understood to have been unanimous in favour of the objection on behalf of Vaughan; and in the proportion of ten to two in favour of the objection on behalf of Donally. 1 Russ. 40, 41. (n.) 2 Marsh, 571. S. C.

The

And as in point of law, so also in point of fact, if it shall manifestly appear in the course of the accessary's trial that the principal was innocent, common justice, seemeth to require that the accessary should be acquitted. A. is convicted upon circum

Accessary acquitted may be indicted as principal.

Whether the

principal acquitted may be indicted as accessary before.

Principal acquitted may be indicted as accessary after.

Accessary before acquitted, may be indicted

as accessary after.

If a charge against an accessary is, that the principal felony was committed by persons unknown, it is no objection that the

stantial evidence, strong as that sort of evidence can be, of the murder of B.; C. is afterwards indicted as accessary to this murder; and it cometh out upon the trial by incontestable evidence that B. is still living; (Lord Hale somewhere mentioneth a case of this kind;) is C. to be convicted or acquitted? The case is too plain to admit of a doubt. Or suppose B. to have been in fact murdered, and that it should come out in evidence, to the satisfaction of the court and jury, that the witnesses against A. were mistaken in his person, (a case of this kind Mr. Justice Foster says he has known,) and that A. was not nor could possibly have been present at the murder. Fost. 367, 368.

If one person be indicted as principal, and another as accessary, and both be acquitted, yet the person indicted as accessary may be indicted as principal, and the former acquittal as accessary is no bar. 1 Hale, 626.

But if a person be indicted as principal, and acquitted, he shall not be indicted as accessary before: And if he be, he may plead his former acquittal in bar, for it is in substance the same offence. 1 Hale, 626. (a)

But Mr. Justice Foster observes upon this, that in the eye of the law the offences of principal and accessary do specifically differ; and if a person indicted as principal, cannot be convicted upon evidence tending barely to prove him to have been accessary before the fact, which must needs be admitted, it doth not appear how an acquittal upon one indictment can be a bar to a second for an offence specifically different from it. Fost. 362.

And the distinction is also taken in R. v. Winifred Gordon, 1 East's P. C. 352: and there it was held by all the judges, that W. G. having been indicted as accessary before the fact, and acquitted upon that indictment, might be indicted again as principal.

So if a man be indicted as principal, and acquitted, he may be indicted as accessary after, for they are offences of several natures. 1 Hale, 626.

yet

Id.

And so it is if he be indicted as accessary before, and acquitted; for the same reason he may be indicted as accessary after.

Where the proceedings are against the accessary only, the name of the principal should be stated in the indictment, if it be known; and where it was stated in an indictment against an accessary 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. R. v. Walker, Gloucester Sum. Ass. 1812. cor. Le Blanc J. 3 Campb. 264.

R. v. James Bush, jun. The prisoner was tried before Garrow B. at Gloucester Sum. Ass. 1818, was convicted, and received sentence of transportation for 14 years, but execution was staid in order that the opinion of the judges might be taken upon the propriety of the conviction. The indictment stated, that a certain person or certain persons, to the jurors unknown, the dwelling-house of Hannah Wilmot burglariously did break

(a) Blackstone says this is matter of some doubt. 4 Comm. 40.