in prison, and J. W. 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 accessary after the fact; for it amounts at most but to a mere omission. 9 H. 4, 1. 1 Hale, 619. So, if a person supply a felon in prison with victuals or other necessaries for his sustenance; 1 Hale, 620; or if a physician or surgeon professionally attend a felon sick or wounded, although he know him to be a felon; 1 Hale, 332; or 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, Moor, 8, or know of the felony and do not discover it: 1 Hale, 371,618: none of these acts would be sufficient to make the party an accessary after the fact. A wife, however, is not punishable as accessary, for receiving, &c., her husband, although she know him to have committed felony, 1 Hale, 48, 621, for she is presumed to act under his coercion. But no other relationship of parties 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. Id. 3. It must be proved that J. W., at the time he received or assisted the principal felon, knew that he had committed a felony. This knowledge may be proved either from the defend-ant's admissions, or the like, or by evidence of circumstances from which the jury may fairly presume it. See ante, p. 113, and see R. v. Burridge, 3 P. Wms. 439. Indictment against an Accessary after the Fact, the Principal being convicted. Proceed as in the precedent ante, p. 522, to the asterisk; and then 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, well knowing the said J. S. to have done and committed the said [felony and larceny] aforesaid, after the same was so committed as aforesaid, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, him the said J. S. did feloniously receive, harbour, and maintain; against the peace, &c. &c., as in ordinary cases. Prove the conviction of the principal, as directed ante, p. 522; and the guilt of the accessary, as directed ante, p. 524. Indictment for soliciting a Person to commit an Offence. Middlesex, to wit:-The jurors for our lord the King upon their oath present, that J. S., late of the parish of B., in the county of M., labourer, on the third day of May, in the first year of the reign of our sovereign lord William the Fourth, falsely, wickedly, and unlawfully did solicit and incite one J. W., a servant of one J. N., to take, embezzle, and steal a large quantity, to wit, one hundred pounds weight of cotton twist, of the value of, of the goods and chattels of his master, the said J. N.; to the great damage of the said J. N., to the evil example of all others in the like case offending, and against the peace of our lord the King, his crown and dignity. Fine or imprisonment, or both. R. v. Higgins, 2 East, 5. Evidence. Prove the soliciting or inciting, as alleged in the indictment. Prove it in the same manner as you would prove the offence of accessary before the fact, with the exception of proving the larceny or embezzlement committed; if it appear that J. W. actually committed the offence to which he was incited by J. S., J. S. must be acquitted; for the misdemeanor in that case would be merged in the felony. See R. v. Higgins, 2 East, 5. BOOK II. PART V. SUBSEQUENT FELONY. Indictment for a subsequent Felony after a prior Conviction for Felony. MIDDLESEX, to wit:-The jurors for our lord the King upon their oath present, that heretofore, to wit, at &c., [describing the court where the defendant was tried and convicted], on the day of in the first year of the reign of our sovereign lord William the Fourth, J. S. was then and there convicted of felony, and which said conviction is still in full force, strength, and effect, and not in the least reversed, annulled, or made void. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S., late of the parish of B., in the county aforesaid, labourer, being so convicted of felony as aforesaid, afterwards, on the day of in the year aforesaid, with force and arms, at the parish last aforesaid, in the county last aforesaid, [three pairs of shoes of the value of twelve shillings, one shirt of the value of four shillings, and one waistcoat of the value of seven shillings], of the goods and chattels of J. N., then and there being found, then and there feloniously did steal, take, and carry away; [describing some felony not punishable with death, as in the precedents ante, passim]; against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity. It is sufficient to state that the defendant was at a certain time and place convicted of felony, without otherwise describing the previous felony. 7 & 8 G. 4, c. 28, s. 11. Transportation for life, or for not less than seven years, or imprisonment (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 four years; and, if a male, to 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. 11. See ante, p. 157. Evidence. The allegations to be proved in the order in which they occur in the indictment, are, 1. The previous conviction, which is proved by a certificate, see ante, p. 118; with evidence of the identity of the defendant. And 2. The subsequent felony, which is proved as in other cases. See the different titles. This course, however, has been found to create a prejudice in the minds of the jury, and to operate as a hardship upon the defendant; and therefore, a practice has prevailed universally at the Old Bailey, and generally upon the circuits, to prove the subsequent felony first, and then, after the jury have delivered their opinion upon that, to present the charge with respect to the previous conviction, for the first time, to their consideration. It is understood that the judges have lately determined, that this course is to be adopted for the future. INDEX. A. ABATEMENT, plea in, 75. In what cases, 75; for want of Abduction, 365-367. Indictment for the abduction of a wo- Abettors. See "Aiders." Acceptance of a bill of exchange, forging and uttering, 293. Accessary, a competent witness against his principal, 136. Accountable receipt, forgery of, indictment for, 297; punishment, Accusing, or threatening to accuse a man of an infamous crime, Acquittance for money or goods, forgery of, indictment for, 297; A A |