BOOK II.

PART IV.

ACCESSARIES, &c.

Indictment of a Principal in the Second Degree.

AFTER stating the offence of the principal in the first degree, and immediately before the conclusion of the indictment, charge the principalin the second degree thus:]-And the jurors aforesaid, upon their oath aforesaid, do further present, that J. W., late of the parish aforesaid, in the county aforesaid, labourer, on the day and year aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, feloniously was present, aiding, abetting, and assisting the said J. S., the [felony and larceny] aforesaid to do and commit; [against the peace, &c. In an indictment for murder, this is inserted immediately before the concluding clause, and so the jurors, &c.; and this clause then charges both the principals in the first and second degree with the murder, thus:]-And so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. S. and J. W., the said J. N. in manner and form aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder; against the peace, &c. See ante, p. 307, 308.

Where a statute creates a felony, and punishes with death persons guilty thereof, without making 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. R. v. Midwinter et al., 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, rape, sodomy, robbery, and burglary), those present aiding and abetting in the offence are impliedly punishable with death, although the statute make no mention of them. 1 Hale, 537. Fost. 359. But where 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, that

person only who actually committed the offence being deemed to be within the statute. Fost. 356, 357. R. v. Page et al., Fost. 355. Yet, in this latter case, if the accessary be expressly within the statute as well as the person actually committing the offence, it must be deemed virtually to include the principal in the second degree by necessary implication. See R. v. Gogerly, R. & R. 343. This was the rule upon the construction of statutes before the abolition of the benefit of clergy, and is still applicable, because 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. 7 & 8 G. 4, c. 28, s. 7. But this rule is now of less general importance, because the various statutes upon which these questions have arisen are now repealed; and by statutes 7 & 8 G. 4, c. 29, s. 61, (larceny), and 7 & 8 G. 4, c. 30, s. 26, (malicious injuries), (which include the offences of the most general occurrence), principals in the second degree in felonies punishable by these acts respectively, are punishable with death, or otherwise, in the same manner as principals in the first degree. Provisions applicable to principals in the second degree are also contained in most of the sections of the the stat. 9 G. 4, c. 31, relating to offences against the person; and by stat. 1 W. 4, c. 66, s. 25, (the forgery act), principals in the second degree are punishable with death or otherwise, in the same manner as principals in the first degree; and see sect. 1. Where, however, upon the construction of any particular statute, principals in the second degree are not punishable with death, and no punishment is prescribed by the statute, then principals in the second degree may be transported for seven years, or imprisoned (with or without hard labour, and with or without solitary confinement for the whole or any part of the imprisonment, 7 & 8 G.4, c. 28, s. 9), not exceeding two years; and, if a male, may be once, twice, or thrice publicly or privately whipped, in addition to the imprisonment, if the court shall think fit. 7&8 G. 4, c. 28, s. 8. See ante, p. 157.

In the case of a felony at common law not punishable with death; and in cases of felony at common law or by statute, where the principal in the first degree is expressly, and the principal in the second degree is, by construction of law, punishable with death, (vide supra), the pleader may charge the principal in the second degree either as principal in the first degree, (for proof that he was present aiding and abetting will in such a case maintain an indictment charging him with having actually committed the offence, see Mackally's case, 9 Co. 67 b. 1 Hale, 438. R. v. Towle, R. & R. 314, ante, p. 6), or as being present aiding and abetting, as in the form above given, at his option.

Evidence.

The defendant must be proved to have been present aiding and abetting in the commission of the offence.

It is

Presence in this sense is either actual or constructive. not necessary that the party should be actually present, an ear or eye witness of the transaction: he is, in construction of law, present aiding and abetting, if, with the intention of giving assistance, he be near enough to afford it, should the occasion arise. Thus, if he be outside the house watching to prevent surprise, or the like, whilst his companions are in the house committing the felony, such constructive presence is sufficient to make him a principal in the second degree. Fost. 350. See R. v. Borthwick et al., 1 Dougl. 207. R. v. Gogerley, R. & R. 343. R. v. Owen, R. & M. 96. But he must be sufficiently near to give assistance; R. v. Stewart, R. & R. 363; and the mere circumstance of a party going towards a place where a felony is to be committed, in order to assist to carry off the property; and assisting in carrying it off will not make him a principal in the second degree, unless, at the time of the felonious taking, he were within such a distance as to be able to assist in it. R. v. Kelly, R. & R. 421. So, where two persons broke open a warehouse, and stole thereout a quantity of butter, which they carried along the street thirty yards, and then fetched the prisoner, who, being apprised of the robbery, assisted in carryiug away the property, it was holden that he was not a principal, but only an accessary. R. v. King, R. & R. 332. See R. v. M'Makin, Ib. And although an act be committed in pursuance of a previous concerted plan between the parties, those who are not present, or so near as to be able to afford aid and assistance, at the time when the offence is committed, are not principals, but accessaries before the fact. R. v. Soares, R. & R. 25. R. v. Davis, Id. 113. R. v. Else, Id. 142. R. v. Badcock, Id. 249. But presence during the whole of the transaction is not necessary; for instance, if several combine to forge an instrument, and each executes by himself a distinct part of the forgery, and they are not together when the instrument is completed, they are, nevertheless, all guilty as principals. R. v. Bayley, R. & R. 446. See 2 East, P. C. 768.

There must also 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 no act in concert with those who commit it, he will not be a principal in the second degree, merely because he did not endeavour to prevent the felony, or apprehend the felon. I Hale, 439. Fost. 350. It is not necessary, however, to prove that the party actually aided in the commission of the offence; if he watched for his companions, in order to prevent surprise; or remained at a convenient distance, in order to favour their escape, if necessary; or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions; in contemplation of law he was present aiding and abetting. So, a participation, the result of a concerted design to commit a spe

cific offence, is sufficient to constitute a principal in the second degree. Thus, if several act in concert to steal a man's goods, and he is induced by fraud to trust one of them, in the presence of the others, with the possession of the goods, and then another of the party entice the owner away, that he who has the goods may carry them off, all are guilty as principals. R. v. Standley, R. & R. 305. So, it has been holden that, to aid and assist a person to the jurors unknown, to obtain money by ring-dropping, is felony, if the jury find that the prisoner was confederate with the person unknown to obtain the money by means of this practice. R. v. Moore, 1 Leach, 314. And if two persons encourage each other to murder themselves together, and one does so, but the other fails in the attempt upon himself, he is a principal in the murder of the other. R. v. Dyson, R. & R. 523. So, likewise, if several persons combine for an unlawful purpose, or for a purpose to be carried into effect by unlawful means; see Fost. 351, 352; particularly, if it be to be carried into effect notwithstanding any opposition that may be offered against it; Fost. 353,354; and one of them, in the prosecution of it, kill a man, it is murder in all who are present, whether they actually aid or abet or not, see the Sissinghurst-house case, 1 Hale, 461, provided the death were caused by the act of some one of the party in the course of his endeavours to effect the common object of the assembly. 1 Hawk. c. 31, s. 52. Fost. 352. R. v. Hodgson et al., 1 Leach, 6. R. v. Plumer, Kel. 109. But the act must be the result of the confederacy; for, if several are out for the purpose of committing a felony, and upon alarm and pursuit run different ways, and one of them kill a pursuer to avoid being taken, the others are not to be considered as principals in that offence. R. v. White, R. & R. 99. The purpose must also be unlawful; for, if the original object be lawful, and be prosecuted by lawful means, should one of the party in the prosecution of it kill a man, although the party killing, and all those who actually aid and abet him in the act, may, according to circumstances, be guilty of murder or manslaughter, yet the other persons who are present, and who do not actually aid and abet, are not guilty as principals in the second degree. Fost, 354, 355. 2 Hawk. c. 29, s. 9.

A mere participation in the act, without a felonious participation in the design, will not be sufficient. 1 East, P. C. 257. R.v. Plumer, 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. 1 Hale, 446.

In the case of murder by duelling, in strictness both of the seconds are principals in the second degree; yet Lord Hale considers that, as far as relates to the second of the party killed, the rule of law in this respect has been too far strained; and he seems to doubt whether such second should be deemed a principal in the second degree. 1 Hale, 442, 452.

Indictment of an Accessary before the Fact, together with the

Principal.

After charging the principal with the offence, and immediately before the conclusion of the indictment, charge the accessary thus:]— And the jurors aforesaid upon their oath aforesaid do further present, that J. W., late of the parish aforesaid, in the county aforesaid, labourer, before the said [felony and larceny] was committed in form aforesaid, to wit, on the first day of May in the year aforesaid, at the parish aforesaid, in the county aforesaid, did feloniously and maliciously incite, move, procure, aid, counsel, hire, and command the said J. S., the said [felony and larceny] in manner and form aforesaid to do and commit; against the peace, &c. &c. The act of accessary before the fact is described in the several statutes creating new felonies, or punishing with death the principals and accessaries in felonies at common law, in different terms. In prudence, perhaps, it will be better to pursue the words of the statute upon which the indictment is framed, in describing the offence of the accessary in it; but if the statute do not mention accessaries, or in the case of a felony at common law, the words in the above form, “incite, move, procure," &c., will be sufficiently indicative of the offence. And even where the statute does expressly describe the offence of accessary in terms, it is not absolutely necessary to describe it in the same terms in the indictment; a description in equivalent terms will be sufficient: thus, where the words in the statute were "command, hire, or counsel," and in the indictment, "excite, move, and procure," the indictment was holden good; because the words were of the same legal import. R. v. Grevil, 1 And. 195. A man may be indicted as accessary to one of several principals, or to all: and if he be indicted as accessary to all, he may be convicted on such indictment as accessary to one or some of them. Lord Sanchar's case, 9 Co. 119. Fost. 361. 1 Hale, 624. see ante, p. 8. As to the venue, see ante, p. 22.

The offence of accessary before the fact is felony, but is not punishable with death unless it be so expressly provided by statute. Accessaries before the fact to murder are punishable with death. 9 G. 4, c. 31, s. 3. So are accessaries to administering poison, and attempts to drown, suffocate, or strangle, and to maliciously shooting and stabbing, with intent to murder or maim, &c. 9 G. 4, c. 31, s. 11, 12. So are accessaries to administering poison to a woman quick with child, with intent, &c. 9 G. 4, c. 31, s. 13. Accessaries to administering poison to a woman not quick with child, with intent, &c., are punishable as principals. 9 G. 4, c. 31, s. 13. So are accessaries to the forcible abduction of women for lucre. 9 G. 4, c. 31, s. 19. So are accessaries to child stealing. 9 G. 4, c. 31, s. 21. So are accessaries to bigamy. 9 G. 4, c. 31, s. 22. And accessaries to any felony, punishable under stat. 9 G. 4, c. 31, for whom no punishment is