Page images

terested motives, and thus more the fact is still indictable, though clearly to delineate the crime. she afterwards consent, the offence But this mode of penuing the act being complete at the time of taking. leaves many cases unprovided for, If, however, she be taken against which are not unlikely to occur, her will in one county, and afteras, for instance, the abduction of an wards go voluntarily into another, adopted child. It is no excuse that the fact is only indictable in the the woman was first taken away former, the case not being within with her own consent, if she after- the 7 Geo. 4, c. 64, sec. 12. (See wards refused to continue with the post, tit. Indictment.") offender : 1 Russ. 571. And it The 20th section of this statute is seems certain, that if she were ori- framed in order to meet such cases ginally taken away against her will, as that of Wakefield.

before the

ted on the
seas or
a broad.


7 Geo. 4, c. 64. Accessory IX. For the more effectual prosecution of accessories

before the fact to felony, be it enacted, that if any person fact may be tried as such, shall counsel, procure, or command, any other person to or as a sub-' commit any felony, whether the same be a felony at comstantive fe

mon law, or by virtue of any statute, or statutes, made, or lon,although the offence

to be made, the person so counselling, procuring, or combe commit- manding, shall be deemed guilty of felony, and may be in

dicted and convicted, either as an accessory before the fact, to the principal felony, together with the principal felon, or after the conviction of 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, bé amenable to justice, and may be punished in the same manner as any accessory before the fact, to the same felony, if convicted as an accessory, 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 without the body of any county,

and the offence of counselling, procuring, or commanding, committed shall have been committed within the body of any other in different county, the last-mentioned offence may be inquired of, trien, counties, ac- determined, and punished, in either of such counties: processory may

If the of. fences be

vided always, that no person, who shall be once duly tried for any such offence, whether as an accessory before the fact, or as for a substantive felony, shall be liable to be again indicted, or tried for the same offence.

be tried in either.

after the

tion to try

If the of

X. And, for the more effectual prosecution of accessories Accessory after the fact to felony, be it enacted, that if any person shall become an accessory after the fact to any felony, tried by any

fact may be whether the same be a felony at common law, or by virtue court which of any statute or statutes, made, or to be made, the offence has jurisdicof such person may be inquired of, tried, determined, and

the princi. punished, by any court which shall have jurisdiction to try pal felon. the principal felon, in the same manner as if the act, by reason whereof such person shall have become an accessory, had been committed at the same place as the principal felony, although such act 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 ibe body of any county, and the act, by reason whereof any person shall have become accessory, shall have been fences be c immitted within the body of any other county, the offence committed of such accessory may be inquired of, tried, determined, in different and punished, in either of such counties. Provided always, cessory may that no person, who shall be once duly tried for any offence be tried in of being an accessory, shall be liable to be again indicted, either. or tried, for the same offence.

Accessories XI. And, in order that all accessories may be convicted

may be proand punished in cases where the principal felon is not at- secured after tainted, be it enacted, that if any principal offender shall conviction

of the prinbe in any wise convicted of any felony, it shall be lawful to

cipal, though proceed against any accessory, either before or after the the princifact, in the same manner as if such principal felon had been pal be not atiainted thereof, notwithstanding such principal felon shall attainted&c. die, or be admitted to the benefit of clergy, or pardoned, or otherwise delivered before attainder; and every such accessory 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.

Vote. -A repealed clause (sec. 4.) were attainted, it followed, that if of the 3 Geo.4. c. 38, had made an the principal stood mute of malice, accessory before the fact, in bur- or challenged peremptorily above sary, robbery, and grand larceny, the legal number of jurors, or refused ibdictable for a misdeameanor to answer directly to the charge, caly, where the principal had not the accessory could not be put upon been convicted; so that, until the his trial. Fost. 363. So also, if the present statute, such an accessory, principal died before attainder, or Celess convicted as an accessory,

were adınitted to the benefit of -bar is to say, after conviction of clergy, or received a pardon, and the principal, was not deemed a duly pleaded such pardon, the atelua

tainder being thus barred, the acIte eleventh section of this sta.

cessory escaped. These defects tste is founded on a repealed sec- were remedied by the statute of 1193 of 1 Anne, st. 2, c. 9. As, at Anne, which is essentially in the comon law, an accessory could same terms as the present statute, tot be tried, unless the principal except that it contains clauses respecting the principal standing or command the offence, are acmute, &c. which are not now ne- cessories before the fact, and they cessary. (See 7 & 8 Geo. 4, c. 28, who knowingly receive the offender ss. 2 & 3.) It may here be re- are accessories after. 1 H, P.C. marked, that if an act of Parliament 613. Receivers of stolen goods enact an offence to be felony, though may be tried either as accessories, it mention nothing of accessories or for a substantive felony: (See before or after, yet virtually and post, tit,“ Receiving Stolen Goods.") consequentially they ibat counsel

2 Ed. 3, c.

Statute of



3. Item, it is enacted, that no man, great nor small, of what Northamp- condition soever he be, except the King's servants, in his

presence, and his ministers, in executing of the King's precepts, or of their office, and such as be in their company assisting them, and also upon a cry made for arms to keep the peace, and the same, in such places where such acts happen, be so hardy to come before the King's justices, or other of the King's ministers, doing their office with force and arms, nor bring no force in affray of the peace, nor to go, nor ride armed at night, nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison, at the king's pleasure. And that the King's justices, in their presence, sheriffs, and other ministers, in their bailiwicks, lords of franchises, and their bailiffs in the same, and mayors, and hailiffs of cities and boroughs, within the same cities and boroughs, and borough-holders, constables, and wardens of the peace within their wards, shall have power to execute this act, And that the justices assigned, at their coming down into the country, shall have power to inquire how such officers and lords have exercised their offices in this case, and to punish them whom they find that have not done that which

pertained to their office, Note.-Anaffray is a public offence, upon the single combat no death to the terror of the king's subjects : ensue nor blood drawn, yet the 3 Inst. 158. It cometh of the French very combat for revenge is an afword affrayer, to affright; and there- fray, and is to be punished by fine fore may be without word or blow and imprisonment,” &c. 3 Inst

. 158, given, and so is the word used in the which words would imply, that any statute of Northampton: Cowell. But thing less than a combat is not an it seems that, before that statute, a affray for wbich a man can be inblow was necessary to constitute dicted at common law. an affray. Lord Coke says, “ albeit

7 Ric. 2, c. 13. No man shall ride in harness within the realm, nor with launcegays.

[merged small][ocr errors]

20 Ric. 2, c. 1.
First, whereas, in a statute made the seventh year of the
reign of the King that now is, it is ordained and assented,
that no man shall ride armed within the realm, against the
form of the statute of Northampton thereupon made, nor
with launcegays within the same realm; and that the said
launcegays shall be utterly put out within the said realm,
as a thing prohibited by the King, upon pain of forfeiture
of the same launcegays, armours, or any other harness, in
the hands and possession of them that bear them from hence-
forth, within the same realm, against the same statutes and
ordinances, without the King's special license. Our Lord
the King, considering the

great clamour made to him in this
present Parliament, because that the said statute is not
holden, hath ordained and established in the said Parlia.
ment, that the said statutes shall be fully holden and kept,
and duly executed, and that the said launcegays shall be
clear put out, upon the pain contained in the said statute of
Northampton, and also to make fine and ransom to the
King. And, moreover, that no lord, knight, nor other,
little nor great, shall go, nor ride by night nor by day
armed, nor bear sallet nor skull of iron, nor of other ar-
mour, upon the pain aforesaid, save and except the King's
officers and ministers in doing their office.

[ocr errors]

(See, also, tit. “ Burning.")

7 88 Geo. 4, c. 30.
II. Be it enacted, that if any person shall unlawfully and Setting tire
maliciously set fire to any church or chapel, or to any cha- 10 a church,
pel for the religious worship of persons dissenting from the buuse, or
united church of England and Ireland, duly registered or certain
recorded ; or shall unlawfully and maliciously set fire to buildings.
auy house, stable, coach-house, outhouse, warehouse, office,
skop, mill, malthouse, hop-oast, barn, or granary, or to any
building or erection used in carrying

on any

trade or manuor any branch thereof, whether the same, or any of them respectively, shall then be in the possession of the

offender, or in the possession of any other person, with intis tent thereby to injure or defraud any person, every such

offender shall be guilty of felony, and, being convicted
thereof, shall suffer death as a felon.
Note. This enactment is founded

was necessary to prove, in addition chiefly on the 43 Geo. 3, c. 58, s. to the actual burning, that the pro1, which is repealed. The clause perty in question came under the relating to churches and chapels is description of domus, and that it said to be new. Upon an indict- belonged to another person. The ment for arson at common law, it word domus, however, necessarily


TE IS 2!


[ocr errors]

excluded various kinds of property; within the act; but, at any rate, and much inconvenience arose from if they be parcel of the mansionthe rule as to the ownership or oc- house, the burning of them is incupation being in another person. dictable at common law: 3 Inst. 67. Thus, it was determined, that if a The possession may be laid in diftenant set fire to the house of his ferent persons, in separate counts. landlord, before the tenancy expired, And, if the premises be described he was not guilty of arson: Breeme's as in the possession of A. B., proof case, 1 Leach, 220, 4th ed. These that they are in the possession of defects have been remedied by va- the tenants of A.B. will support rious statutes, and ultimately by the indictment: Rex v. Ball, R. & M. the present. It is to be observed, 30. Where a parish pauper set that the present act uses the words fire to a house in which he was put set fire to” alone, and not “burn to reside by the overseers, and the or set fire to,” which are the words trustees, in whom the legal ownerof the repealed statute of 52 Geo. 3, ship was vested, were not known, 130. But from analogy to Taylor's it was holden, that it might be de. case, 2 E. P. C. c. 21, s. 4, an ac- cribed as the house of the overseers, tual burning must be proved, in or- or of persons unknown. Rer v. der to bring a case within the act. Rickman, 2 E. P. C. 1034. As the

In an indictment for arson, either words of the statute must be strictly at common law, or upon this sta- pursued, it will be essential, iu tute, the parish in which the of- laying the intent, not to omit the fence is alleged to have been com. word, “thereby.” Anon. 5 Ev. mitted must be laid according to s. 334. If a man, maliciously inthe truth. With regard to the spe. tending to burn the house of A., cies of property mentioned in the happen to burn the house of B., he statute, it seems clear, that under may be indicted as having malithe general word “ outhouse,” va- ciously burned the house of B.: 1 rious buildings may be compre

Haw. P. C.c. 18, s. 18. The fact of hended. Thus a school-room, which burning is, in the absence of other was separated from the dwelling- circumstances, strong presumptive house by a narrow passage, about evidence of a felonious intent, for a a yard wide, the roof of which was man must necessarily be deemed partly overhung by that of the to have intended the mischief dwelling-house, the two buildings, which is the consequence of the together with some others, and the act. Rex v. Farrington, R. & R. court which enclosed them, being 207. See further upon the points rented by the same person, was of evidence relative to arson, Minruled to be well described as an ton's case, 2 E. P. C. 1021; Proouthouse: Winter's case, R. & R. bert's case, id. 1030; Isaac's id. 295. It can scarcely be conceived 1031 ; Rickman's case, id. 1034 ; that a dairy-house or a mill-house Gillson's case, 2 Leach, 1007; Rer should not be deemed an outhouse v. Doran, 1 Esp. 127.


(See, also, tits.Smuggling,and Rescue.")

9 Geo. 4, c. 31. Attempting

XI. Be it enacted, that if any person unlawfully and mato murder, by means of biciously shall administer, or attempt to administer, to any

« PreviousContinue »