the property must be considered as having been taken invito domino. R. v. Tolfree, Ry. & M. 243. R. v. Thompson, 14 Shaw's J. P. 309. R. v. Tollett & Taylor, Car. & M. 112. And where upon an indictment against a woman for setting fire to the house of her husband, it appeared that she had lived separate from him for two years, and had gone by her maiden name; and it also appeared clearly from the evidence, that she had set fire to the house out of malice to her husband, she having declared that she wished to burn him in the house: the judges held that she ought not to be convicted. R. v, Eliza March, Ry. & M. 182.

If the woman be indicted as a wife,-that being an admission upon record that she is so, will be sufficient. R. v. Knight and wife, 1 Car. & P. 116. Otherwise, if she set up her coverture as a defence, she must prove it. And proof merely of cohabitation with the man, and passing hy his name, does not seem to be sufficient proof of this; R. v. Hassal et al., 2 Car. & P. 434; although on the other hand, actual evidence of the marriage would not perhaps be required. See R. v. Mary Good, 1 Car. & K. 185.

Ambassadors and their servants.] For offences which are mala prohibita merely, and not mala in se, ambassadors and their suites are not punishable in this country. But for direct attempts against the life of the Queen, they are punishable; and if they are not punishable in the same manner for conspiracies against the Queen, this arises rather from political reasons, than from any rules of law. 1 Hale, 96-99; Fost. 187, 188. Also for murder, rape, or any other offence of great enormity against nature and the fundamental laws of society, they are punishable by the laws of this country as any other alien. Id. And Lord Hale cites, as an instance, the execution of Don Pantaleon Sa, the Portuguese ambassador's brother, and some of the ambassador's servants, for a murder committed by them in London. See however the case of R. v. Guerchy, (1 W. Bl. 545), where the attorney-general entered a nolle prosequi to an indictment found against the French ambassador, for hiring a person to assassinate the Chevalier D'Eon.

Aliens.] Aliens are punishable in this country, for offences committed here, in precisely the same way as natural born subjects; and if indicted, it is no excuse whatever that the act charged against them is no offence by the laws of their native country. R. v. Esop, 7 Car. & P. 456.

Corporations.] It was formerly imagined that an indictment would not lie against a corporation aggregate; and it was then the custom to join in the indictment with the corpo

ration, or indict alone, such of the leading members of the body as principally caused the act or omission complained of. It was afterwards holden that an indictment would lie against them by their corporate name for a breach of duty. R. v. The Birmingham and Gloucester Railway Co. 3 Q. B. 223. And it is now fully settled that an indictment will lie against a corporation aggregate, as well for a misfeasance as a nonfeasance-for a wrongful act as well as for a wrongful omission. R. v. The Great North of England Railway Co., 11 Shaw's J. P. 21.

Persons offending from chance, mistake, &c.] Where a man, in the execution of one act, by misfortune or chance, and not designedly, does another act, for which, if he had wilfully committed it, he would be liable to be punished:in that case, if the act he was doing were lawful, or merely malum prohibitum, he shall not be punishable for the act arising from misfortune or chance; but if malum in se, it is otherwise. 1 Hale, 39; Fost. 259. Even the killing of another by misfortune, or in any other way not felonious, is not now punishable, nor is any forfeiture incurred. But this exemption from punishment must be understood of cases where the innocent act is done with reasonable skill and care: if the unintended offence arise from ignorance, where skill was required, or from negligence, where care and caution were required, the party will in most cases be liable to punishment for the act done, which was not intended. If a man take upon himself an office or duty, requiring skill or care,-if by his ignorance, carelessness, or negligence he cause the death of another, he will be guilty of manslaughter: as if a person, by careless or furious driving, unintentionally run over another and kill him, it will be manslaughter; R. v. Walker, 1 Car. & P. 320. R. v. Mastin, 6 Car. & P. 396. R. v. Grout, Id. 629. R. v. Timmins, 7 Id. 499. R. v. Swindall et al., 2 Car. § K. 230; or if a person in command of a steam-boat, by negligence or carelessness, unintentially run down a boat, &c., and the person in it is thereby drowned, he is guilty of manslaughter. R. v. Green, 7 Car. & P. 156; and see R. v. Allen, Id. 153. In like manner, if a person, whether a medical man or not, profess to deal with the life or health of another, he is bound to use competent skill and sufficient attention; and if he cause the death of the other through a gross want of either, he will be guilty of manslaughter. R. v. Spiller, 5 Car. & P. 333. R. v. Van Butchell, 3 Id. 629. R. v. Williamson, Id. 635. R. v. St. John Long, 4 Id. 398, 423. R. v. Webb, 1 Moody & R. 405. Or, if a man, without malice to any individual, wilfully do an act, which he knows must or will probably cause the death of some person whom he knows not, and a man be thereby killed, he will be guilty of murder. If a

man, in building or repairing a house, throw a stone from it into the street or way, and it hit a person passing, and kill him, -if he did this in a street where many persons were passing, and without properly warning the persons below, he is guilty of murder; if in a retired place where no persons were likely to pass, he would not be liable to punishment. 3 Inst. 70. Fost. 263. If a man, being on a horse which he knows to be used to kick, wilfully ride him amongst a crowd of persons, and the horse kick a man and kill him, the rider is guilty of murder, although he had no malice against any particular person, nor any other intention than that of diverting himself by frightening the persons around him. 1 Hawk. c. 31,8. 68. But if a horse run away with his rider, so that he has no control over him, and the horse kill or injure a man, the rider is dispunishable. See Gibbon v. Pepper, 2 Salk. 638, 1 Ld. Raym. 38.

A person, from ignorance or mistake, not of law but of fact, may commit an offence, and still be dispunishable for it: as if a man, thinking to kill a housebreaker in his house, kill one of his own family, he is not punishable for it. Cro. Car. 538. 4 Bl. Com. 27. But if the act he intended doing were unlawful, he may in general be punishable for the act he committed through ignorance or mistake, in the same way as if he wilfully did it: as, for instance, if a man intending to kill A. kill B., he will be equally guilty as if he had killed A.

1

Persons offending through compulsion.] If a man be forced to commit an offence, by such threats or menaces of personal violence by others, as induces a well-grounded apprehension of death or other bodily harm in case he should refuse to do it, this will in general excuse him. See 3 Inst. 10. Hale, 56. Fost. 217. Even if a man be thus compelled to join rebels or foreign enemies, in a time of rebellion or war, he will be excused for remaining with them so long as the compulsion lasted. Fost. 216, 217. But no threat to burn his house or destroy his property, or the like, will be sufficient for this purpose. McGrowther's case, Fost. 13. 9 St.

Trial. 566.

Persons who are the innocent agents of others.] If a man procure an offence to be committed by an innocent agent, the man alone is guilty, the agent not. If an idiot or madman be incited to commit murder, and he do it, the inciter is guilty of the murder, the idiot or madman not. And the inciter in such a case is deemed principal in the first degree, though not present when the offence was committed: he cannot be deemed accessory, for that necessarily presupposes a principal, and the idiot or madman, so far from being principal, is merely the instrument of death in the hands of the inciter; he must therefore be principal, and in the first degree,

for there is no other person whom he can aid or abet. 1 Hale, 617. 2 Hawk. c. 29, s. 11. Where a man was indicted as principal in stealing coal from a mine, and it appeared that he was lessee of one mine, and from thence caused his workmen to take the coal of other persons under the adjoining land, he was convicted, the judge, (Erle, J.) saying that although the prisoner did not, by his own hand, pick or remove the coal, yet if a man do, by means of an innocent agent, an act which amounts to a felony, the employer, and not the agent, is the person accountable for the act. R. v. Bleasdale, 2 Car. & K.765. So where a post-office order was payable to Wm. Smart, and the prisoner, knowing the fact, forged Smart's name to a letter authorizing one Bartlett to sign Smart's name to the usual receipt on the money order, which Bartlett (not knowing the fraud) accordingly did, and received the amount of the post-office order, and gave it to the prisoner for Smart: the prisoner being indicted for forgery of the receipt, Platt, B., after conferring with the Lord Chief Baron, held that Bartlett must be deemed an innocent agent, and the case must therefore be considered the same as if the prisoner himself signed the receipt. R. v. Clifford, 2 Car. § K. 202. So, where A. employed B., a die-sinker, to make dies which would impress the resemblance of the two sides of a shilling, and B. immediately communicated the matter to the officers of the Mint, who directed him to execute A.'s order, and he did so: A. being indicted for the offence as principal and convicted, the judges held that he was rightly convicted. R. v. Barman, 1 Car. § K

295.

SECTION II.

Degrees of Guilt.

A party is guilty either as a principal or accessory: as principal, he is either principal in the first degree or in the second; as accessory, he is either accessory before the fact, or accessory after it.

1. Principals.

The distinction between principals and accessories, only obtains in felonies; in treason and misdemeanors all are principals.

Principals are either in the first degree or in the second. He who actually commits the offence, is said to be principal in the first degree; he who is present, aiding and abetting him in doing it, is said to be principal in the second degree. See R. v. Boyce, 4 Burr. 2073. Persons who are present at the commission of an offence, are said to be aiding and abetting the party actually committing it, if they be confederated or

engaged with him in a common design, of which the offence is part, R. v. Tattersall, 1 Russ. 22. R. v. Standley, R. & Ry. 305. R. v. Bowen, Car. & M. 149, and see R. v. Hornby et al., 1 Car. & K. 305, or if by their presence they encourage him in the commission of it. R. v. Murphy, 6 Car. & P. 103. And persons are said to be so present, who, being engaged in the same design with the person who actually commits the offence, although not actually present at the commission of it, are yet at such a convenient distance as to be able to come to the immediate assistance of their associate, if required, or to watch to prevent surprise, or the like. See Fost. 350-355. R. v. Goggerly & Whitford, R. & Ry. 343. And where a person was waiting outside of a house, to receive goods which his confederate was stealing within, he was holden to be a principal in the theft. K. v. Owen, Ry. & M. 96. So, persons present, aiding and abetting in part of the offence, may, if the offence be completed by their confederate, be indicted as principals: and therefore where two persons, with their umbrella, screened a third whilst he was breaking into a dwelling house in the day time, and then went away, and were not seen near the place whilst the third party was committing a larceny within the house, Garelee, J., and Gurney, B., held that they were principals as to the whole offence, namely, the breaking and entering the dwelling house, and stealing therein. R. v. Jordan et al., 7 Car. & P. 432.

But if a man be at such a distance from the place where the offence is committed, that he could not assist in it if required, he cannot be deemed a principal: and therefore it was holden, that going towards the place where a larceny was to be committed, for the purpose of assisting in carrying off the property, and assisting accordingly, did not make the party a principal in the larceny, where it appeared that he was at such a distance at the time of the felonious taking, that he could not have assisted in it. R. v. Kelly, R. & Ry. 421. So, where persons, having stolen goods from a warehouse, carried them along the street for about thirty yards, and then fetched the prisoner, who was apprised of the robbery, but not at all acting in it, and he assisted in carrying away the property: it was holden that he was not a principal, but an accessory merely. R. v. King, R. & Ry. 332. So, where a servant let another into his master's house, for the purpose of stealing in it, and where he remained all night; the servant left the house the next morning and did not return until the evening, and during his absence the other committed a larceny in the house the servant being indicted as accessory before the fact, it was contended by his counsel that he should have been indicted as principal; but Coleridge, J., held that there was no ground for the objection, as no part of the larceny was committed whilst the servant was in the house or could be aiding in it. R. v. Tuckwell & Perkins, Car. § M. 215. So,