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direct, by hire, counsel, command, or conspiracy; or indirect, by evincing an express liking, approbation, or assent to another's felonious design of committing a felony: 2 Hawk. c. 29, s. 16; but the bare concealment of a felony to be committed will not make the party concealing it an accessory before the fact: 2 Hawk. c. 29, s. 23; nor will tacit acquiescence, or words which amount to a bare permission, be sufficient to constitute this offence: 1 Hale, 616. The procurement must be continuing; for if the procurer of a felony repent, and before the felony is committed actually countermand his order, and the principal notwithstanding commit the felony, the original contriver will not be an accessory: 1 Hale, 618. So, if the accessory order or advise one crime, and the principal intentionally commit another; as, for instance, to burn a house, and instead of that he commit a larceny; or to commit a crime against A., and instead of so doing he commit the same crime against B.; the accessory will not be answerable: 1 Hale, 617; but, if the principal commit the same offence against B. by mistake instead of A., it seems it would be otherwise: Fost. 370, et seq,; but see 1 Hale, 617; 3 Inst. 51. But it is clear that the accessory is liable for all that ensues upon the execution of the unlawful act commanded; as, for instance, if A. command B. to beat C., and he beat him so that he dies, A. is accessory to the murder: see section 62, post; 1 Hale, 617. Or if A. command B. to burn the house of C., and in doing so the house of D. is also burnt, A. is accessory to the burning of D.'s house: R. v. Saunders, Plowd. 475. So, if the offence commanded be effected, although by different means from those commanded, as, for instance, if J. W. hire J. S. to poison A., and, instead of poisoning him, he shoots him, J. W. is, nevertheless, liable as accessory: Fost. 369, 370; section 62, post. Where the procurement is through an intermediate agent it is not necessary that the accessory should name the person to be procured to do the act: R. v. Cooper, 5 C. & P. 535.

Several persons may be convicted on a joint charge against them as accessories before the fact to a particular felony, though the only evidence against them is of separate acts done by each at separate times and places: R. v. Barber, 1 C. & K. 442.

It may be necessary to observe, that it is only in felonies that there can be accessories; in high treason, every instance of incitement, etc., which in felony would make a man an accessory before the fact, will make him a principal traitor: Fost. 341; and he must be indicted as such: 1 Hale, 235. Also, all those who in felony would be accessories before the fact, in offences under felony are principals, and indictable as such: R. v. Clayton, 1 C. & K. 128; R. v. Moland, 2 Moo. 276; R. v. Greenwood, 2 Den. 453; under section 61, ante, that now applies to all offences. In manslaughter it has been said there can be no accessories before the fact, for the offence is sudden and unpremeditated; and therefore, if A. be indicted for murder, and B. as accessory, if the jury find A. guilty of manslaughter they must acquit B: 1 Hale, 437, 466, 615; 1 Hawk. c. 30, s. 2. Where, however, the prisoner procured and gave a woman poison in order that she might take it and so procure abortion, and she did take it in his absence, and died of its effects, it was held that he might be convicted as an accessory before the fact to the crime of manslaughter: R. v Gaylor, Dears. & B. 288. In the course of the argument in that case, Bramwell, B., said: "Suppose a man for mischief gives another a strong dose of medicine, not intending any further injury than to cause him to be sick and uncomfortable, and death ensues, would not that be manslaughter? Suppose, then, that another had counselled him to do it, would not he who counselled be an accessory before the fact?

In R. v. Chadwick, Stafford Sum. Ass. 1850, the prisoner was indicted as a principal for murder by arsenic, and the jury found that he procured the arsenic, and caused it to be administered by another person, but was absent when it

was administered; and thereupon it was objected that the 11 & 12 V., c. 46, s. 1, which was similar to chapter 145 Rev. Stat. s. 1, did not apply to murder, but Williams, J., overruled the objection, and refused to reserve the point. Where the principal and accessory are tried together, one being charged as principal and the other as accessory, if the principal plead otherwise than the general issue, the accessory shall not be bound to answer until the principal's plea be first determined: 1 Hale, 624. Where the principal was indicted for larceny in a dwelling-house, and the accessory was charged in the same indictment as accessory before the fact to the said "felony and burglary," and the jury acquitted the principal of the burglary, but found him guilty of the larceny, it seems the judges were of opinion that the accessory should have been acquitted; for the indictment charged him as accessory to the burglary only, and the principal being acquitted of that, the accessory should have been acquitted also: R. v. Dannelly and Vaughan, R. & R. 310. Where three persons were charged with a larceny, and two others as accessories, in one count, and the latter were also charged separately in other counts with substantive felonies, it was held that, although the principals were acquitted, the accessories might be convicted on the latter counts: R. v. Pulham, 9 C. & P. 280.

If a man be indicted as accessory in the same felony to several persons, and be found accessory to one, it is a good verdict, and judgment may be passed upon him: R. v. Lord Sanchar, 9 Co. 189; Fost. 361; 1 Hale, 624.

OFFENCES COMMITTED DIFFERENTLY.

62. Every one who counsels or procures another to be a party to an offence of which that other is afterwards guilty is a party to that offence, although it may be committed in a way different from that which was counselled or suggested.

2. Every one who counsels or procures another to be a party to an offence is a party to every offence which that other commits in consequence of such counselling or procuring, and which the person counselling or procuring knew, or cught to have known, to be likely to be committed in consequence of such counselling or procuring.

This is believed to express the existing law: Fost., part 3, and cases under preceding section."-Imp. Comm. Rep.

The mere fact of being stakeholder for a prize fight where one of the combatants was killed does not make one accessory before the fact to the manslaughter: R. v. Taylor, 13 Cox, 68.

ACCESSORY AFTER THE FACT.

63. An accessory after the fact to an offence is one who receives, comforts or assists any one who has been a party to such offence in order to enable him to escape, knowing him to have been a party thereto.

2. No married person whose husband or wife has been a party to an offence shall become an accessory after the fact thereto by receiving, comforting or assisting the other of them, and no married woman whose husband has been a party to an offence shall become an accessory after the fact thereto, by receiving, comforting or assisting in his presence and by his authority any other person who has been a party to such offence in order to enable her husband or such other person to escape.

The Imperial Commissioners report this section as declaratory of the existing law, but that is an error. A husband, at common law, cannot aid his wife to escape. Then, section 13, ante, seems to have been forgotten in drafting this section 63.

See as to punishment, sections 531, 532. Accessories after the fact to certain offences, not triable at Quarter Sessions, section 540. See section 627 as to indictment of accessories after the fact in certain cases: see R. v. Lee, Warb. Lead. Cas. 9, for a collection of cases on the subject.

An accessory after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon: 1 Hale, 618; 4 Bl. Com. 37. Any assistance given to one known to be a felon, in order to hinder his apprehension, trial, or punishment, is sufficient to make a man an accessory after the fact; as, for instance, that he concealed him in the house: or shut the door against his pursuers, until he should have an opportunity of escaping: 1 Hale, 619; or took money from him to allow him to escape: or supplied him with money, a horse or other necessaries, in order to enable him to escape: 2 Hawk. c. 29, s. 26; or bribed

the gaoler to let him escape, or conveyed instruments to him to enable him to break prison and escape: 1 Hale,

621.

But merely suffering the principal to escape will not make the party an accessory after the fact, for it amounts at most but to a mere omission: 1 Hale, 619. So, if a person supply a felon in prison with victuals or other necessaries for his sustenance: 1 Hale, 620; or relieve and maintain him if he be bailed out of prison: Id.; or if a physician or surgeon professionally attend a felon sick or wounded, although he know him to be a felon. See R. v. Chapple, 9 C. & P. 355; R. v. Jarvis, 2 M. & Rob. 40.

A wife is not punishable as accessory for receiving, etc., her husband, although she knew him to have committed felony: 1 Hale, 48, 621; R. v. Manning, 2 C. & K. 903, n.; for she is presumed to act under his coercion; but see now section 13, ante. But no other relation of persons can excuse the wilful receipt or assistance of felons; a father cannot assist his child, a child his parent, a husband his wife, a brother his brother, a master his servant, or a servant his master: 1 Chit. 266. (Section 63 ante alters this as to a husband assisting his wife.) Even one may make himself an accessory after the fact to a larceny of his own goods, or to a robbery on himself, by harbouring the thief, or assisting in his escape: Fost. 123. If the wife alone, the husband being ignorant of it, receive any other person being a felon, the wife is accessory, and not the husband: 1 Hale, 621. And 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. (See now section 13 ante.)

To constitute this offence it is necessary that the accessory have notice, direct or implied, at the time he assists or comforts the felon, that he had committed a felony. It is also necessary that the felony be completed at the time the assistance is given; for, if one wounds another

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