And it seems if a person do barely receive, comfort, and conceal an offender guilty of any common trespass, or inferior crime of the like nature, though he knew him to have been guilty, and that there is a warrant out against him, (which by reason of such concealment cannot be executed), yet he is not an accessary to the offence; but perhaps in such case he may be indictable for a contempt of the law in hindering the due course of justice. (2 Hawk. c. 29, s. 4.) The felony must be completed. If therefore A. gives B. a mortal stroke, and C. receives or relieves A., or helps him to escape before the death of B., and B. afterwards dies, C. is not an accessary, because at the time when he harboured A. no felony had been completely committed. (1 Hale, 622; 2 Hawk. c. 29, s. 35; 4 Bla. Com. 38.) Relieves, comforts, or assists the Felon.]-In the explication of these words, several things are considerable: (1) Generally, any assistance whatsoever given to one known to be a felon, in order to hinder his being apprehended, or tried, or suffering the punishment to which he is condemned, is sufficient to bring a man within this description, and make him accessary to the felony; as where one assists him with a horse to ride away with, or with money or victuals to support him in his escape. (2 Hawk. c. 29, s. 26.) (2) But if a man know that a person hath committed a felony, but doth not discover it, this doth not make him an accessary, but it is a misprision of felony, for which he may be indicted, and upon his conviction fined and imprisoned. ( Hale, 618; post, "Felony," Vol. III.) (3) Also if a man see another commit a felony, but consents not, nor yet takes care to apprehend him, or to levy hue and cry after him, or upon hue and cry levied doth not pursue him; this is a neglect punishable by fine and imprisonment, but it doth not make him an accessary. (1 Hale, 618.) (4) In like manner, if one commit a felony, and come to a person's house before he be arrested, and such person suffer him to escape without arrest, knowing him to have committed a felony, this doth not make him an accessary; but if he take money of the felon to suffer him to escape, this makes him accessary and so it is if he shut the fore-door of his house, whereby the pursuers are deceived, and the felon hath opportunity to escape, this makes him an accessary; for here is not a bare omission, but an act done by him to accommodate the felon's escape. (1 Hale, 619.) (5) Also it seems to be settled at this day, that whosoever rescues a felon from an arrest for the felony, or voluntarily suffers him to escape, is an accessary to the felony. (2 Hawk. c. 29, s. 27.) (6) But if a felon be in prison, he that relieves him with necessary meat, drink, or clothes, for the sustentation of life, is not accessary. (1 Hale, 620.) (7) So if he be bailed out, it is lawful to relieve and maintain him, for he is quodammodo in custody, and is under a certainty of coming to his trial. (1 Hale, 620.) (8) But if a felon be in gaol, for a man to convey instruments to him to break prison to make an escape, or to bribe the gaoler to let him escape, makes the party an accessary; for though common humanity allows every man to afford such persons necessary relief, yet common justice prohibits all unlawful attempts to cause their escapes. (1 Hale, 621; post, "Escape," Vol. II.) (9) The sending a letter in favour of a felon, or advising to labour witnesses not to appear, makes no accessary; but it is a high contempt. (Hale's Sum. 219.) (10) A man may be accessary to an accessary before the fact, by the receiving of him, knowing him to be an accessary to felony. (1 Hale, 622; 2 Hawk. c. 29, s. 1; 3 P. Wms. 475; ante, 20.) (11) If a man have goods stolen, and he receive his goods again, simply, without any contract to favour the felon in his prosecution, this is lawful; but if he receive them upon agreement not to prosecute, or to prosecute faintly, this is theftbote, punishable by imprisonment and ransom, but yet it makes him not an accessary; but if he takes money of him to favour him, whereby he escapes, this makes him accessary. (1 Hale, 619.) (12) It seems agreed, that the law hath such a regard to that duty, love, and tenderness which a wife owes to her husband, as not to make her an accessary to felony by any receipt given to her husband. Yet if she be any way guilty of procuring her husband to commit it, it seems to make her an accessary before the fact, in the same manner as if she had been sole. Also it seems agreed, that no other relation besides that of a wife to her husband will exempt the receiver of a felon from being an accessary to the felony; from whence it follows, that if a master receive a servant, or a servant a master, or a brother a brother, or even a husband a wife, they are accessaries in the same manner as if they had been mere strangers to one another. (2 Hawk. c. 29, s. 34; post, "Wife," Vol. V.) But if the wife alone, the husband being ignorant of it, do receive any other person, being a felon, the wife is accessary, and not the husband. (1 Hale, 621.) But 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.) (13) A person may be indicted for receiving stolen property if it remain the same in substance though the name be changed, and therefore a principal may be indicted for stealing a live sheep and the accessary with receiving twenty pounds of mutton. (R. v. Cowell, 2 East, P. C. 781; and see R. v. Puckering, R. & M. C. C. 242.) 4. Of Accessaries after the fact. V. Of the Proceedings against Accessaries. And herein-first, of Proceedings in General-secondly, of the Indictment (5.) Proceedings -thirdly, of the Trial-fourthly, of the Evidence-fifthly, of the Punishment. against accessa (1.) PROCEEDINGS in General. ries. (1.) In general. necessary. Formerly accessaries could not be prosecuted with effect until the principal Conviction of was convicted and attainted, and such conviction is still necessary before principal, when proceedings against accessaries in general after the fact, unless they consent to such proceedings, see 1 Hale, 623; 2 Hawk, c. 29, s. 45; now, however, by the recent statute, 7 & 8 Geo. IV. c. 64, s. 9, accessaries before the fact to felonies are to be deemed guilty of a substantive felony, and may be proceeded against as felons whether or not the principal has been convicted. (See the provisions in full, post, 30.) But this statute only applies where the accessary might at common law have been indicted with, or after the conviction of, the principal. (R. v. Russell, Moody, C. C. 356.) And therefore a person cannot be tried for inciting another to commit suicide, although the other commits suicide. (Reg. v. Leddington, 9 C. & P. 79.) And receivers of stolen goods, if the stealing was a felony, may be tried and convicted, either as accessaries or for a substantive felony, and in the latter case whether or not the principal be convicted or be amenable to justice, or may be indicted and convicted for a misdemeanor if the stealing was a misdemeanor. (7 & 8 Geo IV. c. 29, s. 54, post, 34.) cessary. And with respect to attainder, by the stat. 7 Geo. IV. c. 64, s. 11, which Attainder of prinrecites, that in order that all accessaries may be convicted and punished in cipal, when necases where the principal felon is not attainted, it is enacted, "That if any principal offender shall be in anywise convicted of any felony, it shall be lawful to proceed against any accessary, either before or after the fact, in the, same manner as if such principal felon had been attainted thereof, notwithstanding such principal felon shall die or be admitted to the benefit of clergy, or pardoned, or otherwise delivered before attainder; and every such accessary shall suffer the same punishment, if he or she be in anywise convicted, as he or she should have suffered if the principal had been attainted." This provision is substituted for that contained in the stat. 1 Ann. st. 2, c. 9, s. 1, which is repealed. If the principal be erroneously attaint, yet the accessary shall be put to Where the prin cipal is erroneously attainted. 5. Proceed- answer, and shall not take advantage of the error in that attainder; but the ings against. principal reversing the attainder reverseth the attainder of the accessary. (1 Hale, 625.) Where an indictment for receiving stolen goods averred that the principal felon had been duly convicted, upon an objection that the record which was produced was not sufficiently formal and correct to support the averment, it was held that the judgment was not necessary, and might be rejected; that the conviction was sufficient; that in the common case where the receiver is tried with the thief, there is no judgment on the thief before the verdict against the receiver; and that although the record produced was full of errors, yet an erroneous attainder of the principal is sufficient, as against the accessary, until it is reversed. (Baldwin's case, Monmouth Summer Assizes, 1812, cor. Thomson B., 3 Campb. 265. (a)) And it should seem the reversal will not now be of any avail to the accessary if he be not indicted as an accessary, but for a substantive felony according to the foregoing Where a person is charged as accessary to more than one. Accessary when may be tried twice. recent enactments. Formerly if a man had been indicted as accessary in the same felony to several persons, he could not have been arraigned till all the principals were convicted and attainted: but now, if a man be indicted as accessary to two or more, and the jury find him accessary to one, it is a good verdict, and judg ment may pass upon him. (Lord Sanchar's case, 9 Rep. 119; Fost. 361.) And therefore the Court in their discretion may arraign him as accessary to such of the principals who are convicted; and if he be found guilty as ac cessary to them or any of them, judgment shall pass upon him; but on the other hand, if he be acquitted, that acquittal will not discharge him as accessary to the others. By statute 7 Geo. IV. c. 64, s. 9, post, 29, it is provided, that no person who shall be once duly tried for any such offence, viz. of being accessary before the fact to a felony, whether as an accessary before the fact or as for a substantive felony, shall be liable to be again indicted or tried for the same offence. Again, the 10th section of the same act (post, 31) provides, that no person who shall be once duly tried for any offence of being accessary, shall be liable to be again indicted or tried for the same offence. But if one person be indicted as principal, and another as accessary, and both be acquitted, yet the person indicted as accessary may be indicted as principal, and the former acquittal as accessary is no bar. (1 Hale, 626.) It has been said, if a person be indicted as principal, and acquitted, he shall not be indicted as accessary before: and if he be, he may plead his former acquittal in bar, for it is in substance the same offence. (1 Hale, 626.) But Mr. Justice Foster observes upon this, that in the eye of the law the offences of principal and accessary do specifically differ; and if a person indicted as principal cannot be convicted upon evidence tending barely to prove him to have been accessary before the fact, which must needs be admitted, it doth not appear how an acquittal upon one indictment can be a bar to a second for an offence specifically different from it. (Fost. 362.) And the distinction is also taken in Rex v. Winifred Gordon; (1 East's P. C. 352;) and there it was held by all the judges, that W. G. having been indicted as accessary before the fact, and acquitted upon that indictment, might be indicted again as principal. So if a man be indicted as principal, and acquitted, he may be indicted as accessary after, for they are offences of several natures. (1 Hale, 626.) And so it is if he be indicted as accessary before, and acquitted; yet for the same reason he may be indicted as accessary after. (Id.) No particular observations seem necessary as to the proceedings themselves (a) The judgment upon an indictment must be taken to be good until it is reversed by a writ of error; as in the case of proceedings against the accessary. So if there be a judgment against the hus band for treason, not reversed by error, it is sufficient to deprive the wife of her dower. (Per Lawrence, J. Holmes v. Walsh, 7 T. R. 465.) against. against accessaries, except perhaps as regards-the indictment; the evidence; 5. Proceedings the trial; and the punishment of them; each of which proceedings we shall consider accordingly. (2.) THE INDICTMENT AGAINST ACCESSARIES. (a) Since the 7 Geo. IV. c. 64, s. 9, and 7 & 8 Geo. IV. c. 29, ss. 54, 55, the (2.) Indictment, points relative to indictments against accessaries, collected in the prior edi tions of this and other works, are for the most part inapplicable. By the former of these enactments accessaries before the fact to felonies Accessaries before may be indicted and convicted either as an accessary together with the prin- the fact. cipal, or after conviction of the principal, or he may be indicted for a substan tire felony, whether or not the principal has been convicted or is amenable to justice. (See ante, 23, 24, and the words of the act, post, 30.) By the 7 & 8 Geo. IV. c. 29, s. 61, and 7 & 8 Geo. IV. c. 30, s. 26, accessaries before the fact to misdemeanors punishable under those acts may be indicted as principals. (See these enactments, "Larceny," Vol. III; and “Malicious Injuries to Property," Vol. V.) With respect to accessaries after the fact, it has been already observed that Accessaries after at common law an accessary could not be tried without his consent before the fact. the conviction of his principal; (Fost. 365; 2 Hawk. c. 29, s. 45; 1 Hale, 623; ante, 23); and this is still law in the case of accessaries after the fact, except in particular cases of receivers of stolen property, provided for by the 7 & 8 Geo. IV. c. 29, s. 54 & 55, (post, 34.) By the first of these sections (54) accessaries after the fact to receiving stolen property as therein mentioned, the stealing whereof amounts to a felony, may be indicted and convicted as such accessary after the fact, or for a substantive felony, and in the latter case, whether or not the principal has been convicted or is amenable to justice. (See this enactment in full, post, 34.) Also by the other section (55) the receiver of stolen property, the stealing whereof is a misdemeanor, by that act may be indicted and convicted of a misdemeanor, whether the principal has been convicted or not, or whether or not he be amenable to justice. (b) (See this enactment in full, post, 34.) With respect to the venue in the indictment, see post, 29. Venue. dies. The prosecutor has now the option, in prosecuting an accessary before the Choice of remefact, to indict him either as an accessary in an indictment against him with the principal, or to indict him alone as an accessary after the conviction of the principal, or to indict him alone for a substantive felony. In the choice of these remedies it would be best to adopt the first, as the prosecutor would (a) As to the framing of indictments in general, see post, “Indictment," Vol. III. (b) Formerly where the principal was amenable to justice, the receiver ought still to have been prosecuted as an accessary to the felony, and not for a misdemeanor only, under the 3 W. & M. c. 9, s. 4, and 5 Anne, c. 3!, s. 6. By all the judges, 2 MS. Sum. 309; Fost. 373. Tass Jonathan Wild was indicted for a misdemeanor, in receiving stolen goods, knowing them to have been stolen. Upon the prosecutor's evidence it appeared that the felons had been convicted and executed. Whereupon it was objected that this indictment would not lie, being only given in case where the felon cannot be taken, this being only a jurisdiction given under these particular circumstances. And Pratt, C. J., being of that opinion, 5. Proceedings against. cipal is erroneously attainted. Where a person is charged as accessary to more than one. Accessary when may be tried twice. answer, and shall not take advantage of the error in that attainder; but the principal reversing the attainder reverseth the attainder of the accessary. (1 Hale, 625.) Where an indictment for receiving stolen goods averred that the principal felon had been duly convicted, upon an objection that the record which was produced was not sufficiently formal and correct to support the averment, it was held that the judgment was not necessary, and might be rejected; that the conviction was sufficient; that in the common case where the receiver is tried with the thief, there is no judgment on the thief before the verdict against the receiver; and that although the record produced was full of errors, yet an erroneous attainder of the principal is sufficient, as against the accessary, until it is reversed. (Baldwin's case, Monmouth Summer Assizes, 1812, cor. Thomson B., 3 Campb. 265. (a)) And it should seem the reversal will not now be of any avail to the accessary if he be not indicted as an accessary, but for a substantive felony according to the foregoing recent enactments. Formerly if a man had been indicted as accessary in the same felony to several persons, he could not have been arraigned till all the principals were convicted and attainted: but now, if a man be indicted as accessary to two or more, and the jury find him accessary to one, it is a good verdict, and judg ment may pass upon him. (Lord Sanchar's case, 9 Rep. 119; Fost. 361.) And therefore the Court in their discretion may arraign him as accessary to such of the principals who are convicted; and if he be found guilty as accessary to them or any of them, judgment shall pass upon him; but on the other hand, if he be acquitted, that acquittal will not discharge him as accessary to the others. By statute 7 Geo. IV. c. 64, s. 9, post, 29, it is provided, that no person who shall be once duly tried for any such offence, viz. of being accessary before the fact to a felony, whether as an accessary before the fact or as for a substantive felony, shall be liable to be again indicted or tried for the same offence. Again, the 10th section of the same act (post, 31) provides, that no person who shall be once duly tried for any offence of being accessary, shall be liable to be again indicted or tried for the same offence. But if one person be indicted as principal, and another as accessary, and both be acquitted, yet the person indicted as accessary may be indicted as principal, and the former acquittal as accessary is no bar. (1 Hale, 626.) It has been said, if a person be indicted as principal, and acquitted, he shall not be indicted as accessary before: and if he be, he may plead his former acquittal in bar, for it is in substance the same offence. (1 Hale, 626.) But Mr. Justice Foster observes upon this, that in the eye of the law the offences of principal and accessary do specifically differ; and if a person indicted as principal cannot be convicted upon evidence tending barely to prove him to have been accessary before the fact, which must needs be admitted, it doth not appear how an acquittal upon one indictment can be a bar to a second for an offence specifically different from it. (Fost. 362.) And the distinction is also taken in Rex v. Winifred Gordon; (1 East's P. C. 352;) and there it was held by all the judges, that W. G. having been indicted as accessary before the fact, and acquitted upon that indictment, might be indicted again as principal. So if a man be indicted as principal, and acquitted, he may be indicted as accessary after, for they are offences of several natures. (1 Hale, 626.) And so it is if he be indicted as accessary before, and acquitted; yet for the same reason he may be indicted as accessary after. (Id.) No particular observations seem necessary as to the proceedings themselves (a) The judgment upon an indictment must be taken to be good until it is reversed by a writ of error; as in the case of proceedings against the accessary. So if there be a judgment against the hus band for treason, not reversed by error, it is sufficient to deprive the wife of her dower. (Per Lawrence, J. Holmes v. Walsh, 7 T. R. 465.) |