No person so tried, shall be accessary before the fact to the same, shall and may be inquired 43 G. 3. c.115. of in and by such court, and in such manner and form, as in and by the said act, 28 H. 8. is appointed and directed for the trying, determining, and adjudging, of felonies done upon the high seas: provided that no person who shall hereafter be once tried and acquitted, or convicted of any such offence, in procuring, &c. any felony, or of otherwise becoming an accessary before the fact to such felony, whether the trial of such person shall have been had according to the course of the common law, as in the case of a felony committed within the body of any county in this realm, or according to the provisions contained in the 28 H. 8. as in the case of a felony committed on the high seas, shall be liable to be again indicted, prosecuted, or tried, for the same offence, in any court or jurisdiction whatsoever. (a) liable to be again tried for the same offence in any court. 33 Hen. 8. c.23. recited, and the powers tained respecting murder, &c. shall be therein con extended to accessaries be fore the fact in murder and in manslaughter. And by 6. reciting that whereas by an act, made in the 33 H. 8. intituled, an act to proceed, by commission of oyer and terminer, against such persons as shall confess treason, &c. without remanding the same to be tried in the shire where the offence was committed; certain powers, &c. are given for making commissions of oyer and terminer, for the speedy trial, &c. of persons examined before the king's council, or three of them, upon any murders or other offences therein mentioned, and for inquiring of, &c. such murders and other offences, under such circumstances, and in such cases, as in the said act are mentioned, which said act, so far as the same relates to the crime of murder, is still in force and unrepealed, but no provision is therein made for the trial of accessaries before the fact in murder, or for the trial of the offence of manslaughter, either upon indictments for that offence, or for the crime of murder, under any commission to be made or issued in pursuance of the same act, whereby persons guilty of those offences, and more particularly when such murders or manslaughters happen to be committed out of the realm, and not upon the high seas, may frequently escape punishment, therefore it is enacted that from henceforth all and singular the powers, &c. in the said last recited act contained respecting the offence of murder, and the examination of any person or persons upon any murders by the king's council, or three of them, and the making or issuing of commissions of oyer and terminer for the trial, conviction, or delivery of offenders, and the inquiring, hearing, and determining of all such murders in manner therein mentioned, and all other the clauses, &c. concerning the offence of murder, and the inquiring, &c, thereof, and the trial, &c. of such offenders therein, as in the same act are mentioned, are hereby extended to the offence of procuring, &c. or otherwise becoming an accessary before the fact to any murder; and also to the offence of manslaughter, in like manner as if those offences had been expressly mentioned in the said last recited act; and in case any offender shall, in pursuance of If on the trial this or the said recited act, be indicted for murder, and upon of any offender such trial it shall appear that the person so indicted and tried is for murder, it shall appear he guilty of manslaughter, and of no greater offence, the jury may is guilty of on such indictment find the party guilty of manslaughter only; manslaughter or, in case of doubt or difficulty, may find a special verdict, upon only, the jury (a) See title Ships for the occasion of passing this act. may find accordingly, or a special verdict. 43 G. 3. c. 113. which there shall be the like proceedings, &c. as if the offence had been committed within the body of any county within this realm, and such trial had been had and such general or special verdict had been found upon an indictment for murder found and tried according to the course of the common law by a jury of the same county within which the offence was committed. Trial of re ceivers of stolen property in some other part of the United Kingdom. § 8. With respect to the trial of offenders receiving goods stolen in some other part of the United Kingdom, the 13 Geo. 3. c. 31. § 5. enacts that any person in either part of the United Kingdom, receiving or having any money, cattle, goods, or other effects feloniously taken in the other part of the United Kingdom, knowing the same to be feloniously taken, may be indicted, tried, &c. in that part of the United Kingdom where he received the same, as if the same had been feloniously taken in that part of the United Kingdom. And since the union with Ireland, the 44 Geo.3. c. 92. 44 Geo. 3. c. 92. § 8. makes a general provision, and enacts, "that if any person or persons in any one of the parts of the United Kingdom, shall hereafter receive or have any cattle, goods, or other effects, stolen or otherwise feloniously taken in any other part of the United Kingdom, knowing the same to have been stolen or otherwise feloniously taken, every such person shall be liable to be indicted, tried and punished for such offence in that part of the United Kingdom, where he, she, or they shall so receive or have the said cattle, goods, or other effects, in the same manner to all intents and purposes, as if the said cattle, goods, or other effects, had been originally stolen or otherwise feloniously taken in that part of the United Kingdom, in which such person shall so receive or have such cattle, goods, or other effects respectively." (a) same indict Indictment. Accessary and The accessary may be indicted in the same indictment with principal in the the principal, and that is the best and most usual way: but he may be indicted in another indictment: but then such indictment must contain the certainty and kind of the principal felony. 1 Hale, 623. ment. Principal to be first convicted. Both tried by one inquest. It seemeth that the accessary may be put to answer before the principal hath appeared: but his plea cannot be tried before such appearance, unless he desire it himself; but if he will put himself upon the trial before the principal be tried he may; and his acquittal or conviction, upon such trial, is good. 2 Haw. c. 29. § 45. 1 Hale, 623. But it seemeth necessary in such case to respite judgment till the principal be convicted and attaint; for if the principal be after acquitted, that conviction of the accessary is annulled, and no judgment ought to be given against him: but if he be acquitted of the accessary, that acquittal is good, and he shall be discharged. 1 Hale, 623, 624. It seems to be settled at this day that if the principal and accessary appear together, and the principal plead the general issue, the accessary shall be put to plead also; and that if he (a) This act, and also the 45 Geo. 5. c. 92. and the 54 Geo. 3. c. 186. provide for the more easy apprehending and trying of offenders escaping from one part of the United Kingdom to the other. likewise plead the general issue, both may be tried by one inquest; but that the principal must be first convicted, and that the jury shall be charged, that if they find the principal not guilty, they shall find the accessary not guilty. But it seems agreed, that if the principal plead a plea in bar, or abatement, or a former acquittal, the accessary shall not be forced to answer, till that plea be determined, for if it be found for the principal, the accessary is discharged; if against the principal, yet he shall after plead over to the felony, and may be acquitted. 2 Haw. c. 29. § 47. 1 Hale, 624. Anciently the accessary could not be tried unless the principal were attainted (3 Ed. 1. c. 14.): but by the 1 Ann. stat. 2. c. 9. 1. if the principal be convicted, or if he peremptorily challenge above twenty of the jury, the accessary may be tried and punished as if the principal had been attainted, and this, although the principal be admitted to his clergy, pardoned, or otherwise delivered before attainder. 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 as the law now stands, 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 judgment may pass upon him. 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; but by stat. 43 Geo. 3. c. 113. § 5. it is provided, that no person shall be tried more than once for the same offence of being accessary before the fact. Accessary may be tried, though the principal be not attainted Case where a person is charged as more than one. accessary to Case where the principal is erroneously attainted. Monmouth Sum. Ass. 1812. Cor. If the principal be erroneously attaint, yet the accessary shall be put to 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 Baldwin's case, 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. 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 husband 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. If the principal and accessary are joined in one indictment and tried together, which seems to be the most eligible course where both are amenable, there is no room to doubt, whether the acces Thomson, B. 3. Campb. 265. Accessary acquitted may be indicted as principal. Whether the principal ac qufited may be indicted as accessary before. sary may not enter into the full defence of the principal, and avail himself of every matter of fact, and every point of law tending to his acquittal. For the accessary is in this case to be considered as particeps in lite, and this sort of defence necessarily and directly tendeth to his own acquittal. Fost. 365. But when the accessary is brought to his trial after the conviction of the principal, it is not necessary to enter into a detail of the evidence on which the conviction was founded. Nor doth the indictment aver that the principal was in fact guilty. It is sufficient if it recite, with proper certainty, the record of the conviction. This is evidence against the accessary, sufficient to put him upon his defence, for it is founded upon a legal presumption, that every thing in the former proceeding was rightly and properly transacted. But a presumption of this kind must, as it seemeth, give way to facts manifestly and clearly proved. Fost. 365. As against the accessary therefore, the conviction of the principal will not be conclusive; it is as to him res inter alios acta: for an accessary may controvert the guilt of the principal, notwithstanding the record of his conviction. Smith's case, O. B. Dec. 1783. 1 Leach, 289. And therefore if it shall come out in evidence upon the trial of the accessary, as it sometimes hath and frequently may, that the offence of which the principal was convicted did not amount to felony in him, or not to that species of felony with which he was charged, the accessary may avail himself of this, and ought to be acquitted. Fost. 365. And as in point of law, so also in point of fact, if it shall manifestly appear in the course of the accessary's trial that the principal was innocent, common justice seemeth to require that the accessary should be acquitted. A. is convicted upon circumstantial evidence, strong as that sort of evidence can be, of the murder of B.; C. is afterwards indicted as accessary to this murder; and it cometh out upon the trial by incontestible evidence that B. is still living, (Lord Hale somewhere mentioneth a case of this kind,) is C. to be convicted or acquitted? The case is too plain to admit of a doubt. Or suppose B. to have been in fact murdered, and that it should come out in evidence, to the satisfaction of the court and jury, that the witnesses against A. were mistaken in his person, (a case of this kind Mr. Justice Foster says he has known,) and that A. was not nor could possibly have been present at the murder. Fost. 367, 368. 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, 625. But 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 R. 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. Principal atquitted may be indicted as ac cessary after. Accessary before acquitted may be indicted as accessary after. R v. Walker, Where the proceedings are against the accessary only, the name of the principal should be stated in the indictment, if it be known; and where it was stated in an indictment against an ac- Gloucester cessary to a felony, that the felony was committed by a person Sum.Ass. 1812. to the jurors unknown; and it appeared that the principal felon cor. Le Blanc J. was a witness before the grand jury, it was held that the indict- 3 Campb. 264. ment could not be supported. Particular Statutes against Receivers. By stat. 3 W. c. 9. If any person shall buy or receive any 3 w. c. 9. § 4. stolen goods, knowing the same to be stolen, he shall be deemed an accessary after the fact, and shall incur the same punishment as an accessary, &c. after the felony committed. By the 5 Ann. c. 31. § 5. If any person shall buy or receive Receiving any stolen goods or chattels, knowing them to be stolen, or shall stolen goods, receive, harbour, or conceal any burglars, felons, or thieves, or harbouring knowing them to be so, he shall be deemed accessary to the felons. felony; and being convicted on the testimony of one witness, shall suffer death as a felon convict [but within clergy*]. 5 Ann. c. 31. By 4 G. c. 11. § 1. where any persons have been convicted of 4 Geo. c. 11. any offences within clergy, or where any shall hereafter be convicted of any crimes, for which they are to be excluded the benefit of clergy, and his majesty shall be pleased to pardon on condition of transportation, and such intent shall be signified by one of the principal secretaries of state; the Court having proper authority may allow such offenders the benefit of a pardon, and direct the conveyance of such persons to some contractor for transportation, as also of any person or persons convicted of receiving or buying stolen goods, knowing them to be stolen, for the term of 14 case the condition be general, or else for the term made part of the condition. years, in In the case of R. v. Davidson, at Carlisle assizes, 1766; Margaret Davidson was indicted for stealing bags, containing 1601. in money, out of a dwelling-house; and Isabel and Margaret Carter were indicted in one count for receiving the money, knowing it to have been stolen ; and in a second count, for harbouring and concealing Margaret Davidson, knowing her to have been guilty of that felony. And an objection being made that money is not within the acts of parliament relating to receivers of stolen goods, • These words were in former editions, but are not in this statute. Transportation for 14 years. |