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the case of participes criminis, we are not to be governed by the bare sound, but by the true legal import of the words; and also that every person who comes within the description of these statutes, various as they are in point of expression, is in the judgment of the Legislature an accessory before the fact; unless he is present at the fact, and in that case he is undoubtedly a principal. (x)

Whoever procures a felony to be committed, though it be by the Accessories by intervention of a third person, is an accessory before the fact; for the interven

tion of a third there is nothing in the notion of commanding, hiring, counselling, person. aiding, or abetting, which may not be effected by the intervention of a third person without any direct immediate connection between the first mover and the actor. It is a principle in law which can never be controverted, that he who procures a felony to be done is a felon. So that if A. bid his servant hire somebody, no matter whom, to murder B. and furnish him with money for that purpose, and the servant procure C. a person whom A. never saw nor heard of to do it, A. who is manifestly the first mover or contriver of the murder is an accessory before the fact. (y) And a nobleman was found guilty of murder by his peers upon evidence which satisfied them that he had contributed to the murder by the intervention of his lady and of two other persons who were themselves no more than accessories, without any sort of proof that he had ever conversed with the person who was the only principal in the murder, or had corresponded with him directly by letter or message. (3)

In high treason there are no accessories but all are principals, on In what crimes account of the heinousness of the crime. (á) But in petit treason,

accessories. murder, and felonies in general, there may be accessories, except only in those offences which by judgment of law are sudden and unpremeditated, as manslaughter and the like: which therefore cannot have any accessories before the fact. (b) In petit larceny there can be no accessories either before or after the fact, although it be felony, because it is not such as judgment of death ought by law to be passed upon it; but procurers and counsellors are principals as in trespass. (c) In forgery it is laid down generally in

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may be

(2) That is, a principal in the first swerable as accessories in the manner degree if the aetual perpetrator, or a charged if the offence had been a robprincipal in the second degree if only bery: but as it appeared that the peran aider and abetlor. Fost. 131. And son robbed was a party to the conspisee Fost. 130, where speaking of a racy, and gave his money freely, so case in 1 And. 195. in which an in- that there was no robbery, judgment dictment was held to be sufficient, was given for the prisoners. though the words of the statute of Ph. (z) The case of the Earl of Somer. & M. were not pursued, the words set indicted as an accessory before the excitavit, movit, et procuravit, being fact to the murder of Sir Thomas deemed tantamonnt to the words of Overbury, 19 St. Tri. 804. the statute and descriptive of the same (a) 2 Hawk. P. C. c. 29. s. 2, 5. offence, he says that he takes that I Hale 613. Post. 341. 4 Blac. Coin. case to be good law, though he con- 35. fesses it is the only precedent he has (6) 4 Blac. Com. 36. i Hale 615. met with where the words of the sta- 2 Hawk. P. C. c. 29. s. 24. tate have been totally dropped.

(c) 2 East. P. C. 743. i Hale 530, (y) See the case of Macdaniel, Egan, 616. 2 Inst. 183. 12 Rep. 81. Evans's and Berry, Fost. 125. 2 Hawk. P. C. case, Post. 73. 4 Blac. 36. It appears c. 29. s. 1, 10. 19 Howell's St. Tri. however that in Reddeard's case, E. 746, 789. The opinion was, that the 11, Aon. (De Grey's MS.) Powell, J. parties clearly would have been an- said it was a vulgar error to think that

the books that all are principals, and that whatever would make a man accessory before in felony would make him a principal in forgery ; (d) but it is conceived that this must be understood of forgery at common law, and where it is considered only as a misdemeanor. (e) And where three persons agreed to utter a forged bank note, and one uttered it at Gosport, and the other two, by previous concert, waited at Portsmouth; the two latter were held to be accessories; and having been tried and convicted as principals were recommended for a pardon. (f) In crimes under the degree of felony there can be no accessories; but all persons con

cerned therein, if guilty at all, are principals. (g) In felonies

It should be observed as tó felonies created by acts of parliacreated by statute.

ment, that regularly if an act of parliament enact an offence to be felony, though it mention nothing of accessories before or after, yet virtually and consequentially those that counsel or command the offence are accessories before the fact, and those who know

ingly receive the offender are accessories after. (h) Accessorius

It is a maxim that accessorius sequitur naturam sui princisequitur naturam sui palis; (i) and therefore an accessory cannot be guilty of a higher principalis. crime than his principal. So that if a servant instigates a stranger

to kill his master, this being murder in the stranger as principal, of course the servant is accessory only to the crime of murder ; though had he been present and assisting he would have been guilty as principal of petty treason and the stranger of murder. (k) But a statute excluding accessories from the benefit of clergy does not thereby exclude the principals; nor does a statute excluding the principals thereby exclude the accessories. (1) And if a statute takes away clergy from accessories, and a subsequent statute makes accessories persons who were not so before, the latter shall have their clergy. (m) Certain accessories after the fact, namely receivers of stolen goods, are in some instances punished with inore

severity than the principal offenders. (n) How far an It has been occasionally much considered how far an accessory accessory is implicated is involved in the guilt of the principal when the principal does when the prin- not act in conformity with the plans and instructions of the acces

petit larceny or any felony, capital or Morris's case, 2 Leach 1096 note (a).
not, might not have accessories after (f) Rex v. Soares, Atkinson and
the fact. Serj. Forster's MS. cited Brighton, MS. S. C. 2 East. P. C. 974.
2 East. P, C. 743. But the principle Russ. and Ry. 25.
as stated in the text seems well esta- (g) 4 Blac. Com. 36. 1 Hale 613.
blished; and in the case of Evans, (h) 1 Hale 613,614, 704, 3 lost. 59.
(Foster 73), Mr. J. Foster expressly (i) 3 Inst. 139.
says, “ Evans ought not to have been (K) 4 Blac. Com. 36.

put upon bis trial; for the acts (1) 2 Hawk. P. C. c. 33. S. 26. But “ which makereceivers of stolen goods, see 2 East. P. C. c. 21. s. 9. where it

knowingly accessories to the felony is said that Lord Hale and Foster, J. “ must be understood to make them were decidedly of opinion, that prin

accessories in such cases only where cipals in arson were virtually excluded “ by law an accessory may be, and from the benefit of clergy by the stat, “there can be no accessory to petty 4 & 5 Ph. & M. c. 4. which excluded “ larceny."

the accessory before. (d) Bothe's case, Moor 666. i Sid. (m) Fost. 372, 373. 2 East. P. C. c. 312. 2 Hawk. c. 29. s. 2. and autho- 16. S. 47. p. 616. rities cited in 2 East. P. C. 973.

(n) 4 Geo. 1. c. 11. 29 Geo. 2. c. (e) 2 East. P. C. 973. And see post, 30. s. 1. and 2 Geo. 3. c. 28-fourteen Book IV. Chap. on Forgery. And see years' transportation.

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terms of the

sory. With regard to this, it appears that if the principal totally cipal varies and substantially varies from the terms of the instigation, if being from the solicited to commit a felony of one kind, he wilfully and knowingly instigation. commit a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. (n) Thus if A. command B. to burn C.'s house, and he in so doing commits a robbery; now A. though accessory to the burning is not accessory to the robbery, for that is a thing of a distinct and unconsequential nature. (c)"And if A. counsels B. to steal goods of C. on the road, and B. breaks into C.'s house and steals them there, A. is not accessory to the breaking the house; because that is a felony of another kind. (2) He is however accessory to the stealing. (-) But if the principal complies in substance with the instigation of the accessory, varying only in circumstances of time or place, or in the manner of execution, the accessory will be involved in his guilt: as if A. command B. to murder C. by poison, and B. does it by a sword or other weapon, or by any other means, A. is accessory to this murder; for the murder of C. was the object principally in contemplation, and that is effected. (p) And it seems that if A. counsels B. to steal goods in C.'s house but not to break into it, and B. does break into it, A. is accessory to the breaking. (a) And where the principal goes beyond the terms of the solicitation, yet if, in the event, the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessory to that felony. As if A. advise B. to rob C., and in robbing him B. kills him, either upon resistance made, or to conceal the fact, or upon any other motive operating at the time of the robbery: or if A. solicit B. to burn the house of C., and B. does it accordingly, and the flames taking hold of the house of D., that likewise is burnt. In these cases A. is accessory to B. both in the murder of C. and in the burning of the house of D. The advice, solicitation, or orders, were pursued in substance, and were extremely flagitious on the part of A.; and the events, though possibly falling out beyond his original intention, were, in the ordinary course of things, the probable consequences of what B. did under the influence and at the instigation of A. (9)

Where A. counselled a pregnant woman to murder her child Counselling a when it should be born, and she murdered it accordingly, A. was pregnant held to be accessory to the murder: the procurement before the

murder her birth being considered as a felony continued after the birth, and child. until the murder was perpetrated by reason of that procurement.(c)

But the more difficult questions arise where the principal by A. being counmistake commits a different crime from that to which he was soli- selled to murcited by the accessory. It has been said, that if A. orders B. to ders C. kill C., and he by mistake kills D., or aiming a blow at C. misses him and kills D., A. will not be accessory to this murder, because it differs in the person. (r) And in support of this position Saun

woman to

(n) Fost. 369.
(0) 1 Hale 617. 4 Blac. Com. 37.
(3) Plowd. 475.
(2) I Hale 617.

(p) Post, 369, 370. 2 Hawk. P. C. VOL, I.

c. 29. s. 20.

(a) Bac. Max, Reg. 16.
(q) Fost. 370.
(c) Rex v. Parker, Dy. 186. a. pl. 2.
(r) i Hale 617. 3 last. 51,

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ders' case (s) is cited; who with the intention of destroying his wife, by the advice of one Archer, mixed poison in a roasted apple, and gave it her to eat; and the wife having eaten a small part of it, and having given the remainder to their child, Saunders (making only a faint attempt to save the child whom he loved and would not have destroyed) stood by and saw it eat the poison, of which it soon afterwards died. And it was held, that though Saunders was clearly guilty of the murder of the child, yet Archer was not accessary to that murder. But Mr. Justice Foster thinks, that this case of Saunders does not support the position (which he calls a merciful opinion) to its full extent; and he proposes the following case as worthy of consideration. “B. is an utter stranger to the “person of C.; A. therefore takes upon him to describe him by his “stature, dress, age, complexion, &c. and acquaints B. when and “ where he may probably be met with. B. is punctual at the time “ and place; and D., a person possibly in the opinion of B. answer

ing the description, unhappily comes by and is murdered, upon

a strong belief on the part of B. that this is the man marked out “ for destruction. Here is a lamentable mistake ;-but who is an“swerable for it? B. undoubtedly is; the malice on his part egreditur personam.

And

may not the same be said on the part “ of A.? The pit which he, with a murderous intention, dug for “ C., D. through his guilt fell into and perished. For B., not " knowing the person of C., had no other guide to lead him to his

prey than the description A. gave of him. B. in following this “ guide fell into a mistake, which it is great odds any man in his “ circumstances might have fallen into. I therefore, as at present

advised, conceive that A. was answerable for the consequence of “the flagitious orders he gave, since that consequence appears, in

6the ordinary course of things, to have been highly probable.” (1) Criteria in Mr. Justice Foster then proposes the following criteria, as such cases.

explaining the grounds upon which the several cases falling under this head will be found to turn. “ Did the principal commit the “ felony he stands charged with under the influence of the flagi“tious advice; and was the event, in the ordinary course of

things, a probable consequence of that felony? or did he, follow“ ing the suggestions of his own wicked 'heart, wilfúlly and

knowingly commit a felony of another kind, or upon a different

“ subject." (w) Accessory re- A. commands B. to kill C., but before the execution thereof pents and

repents and countermands B., yet B. proceeds in the execution countermands the principal.

thereof; A. is not accessory, for his consent continues not, and he gave timely countermand to B.: but though A. had repented, yet if B. had not been actually countermanded before the fact committed,

A. had been accessory. (6) Of accessories IV. An accessory after the fact, is a person who, knowing a after the fact. felony to have been committed by another, receives, relieves,

comforts, or assists the felon. (y) And it seems to have been agreed, that any assistance given to one known to be a felon, in order to hinder his being apprehended or tried, or suffering the (s) Plowd. 475. 1 Hale 431.

(2) I Hale 617. (t) Fost. 370, 371.

(y) i Hale 618. 4 Blac. Com. 37. (w) Post. 372.

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punishment to which he is condemned, is a sufficient receipt to make a man an accessory of this description : as where one assists a felon with a horse to ride away, or with money or victuals to support him in his escape, or where one harbours and conceals in his house a felon under pursuit, by reason whereof the pursuers cannot find him; and much more where one harbours in his house and openly protects such a felon, by reason whereof the pursuers dare not take him.(z) Also whoever rescues a felon from an arrest for the felony, or voluntarily and intentionally suffers him to escape, is an accessory to the felony: (a) and it has been said, that those are in like manner guilty who oppose the apprehending of a felon.(b) It is agreed, by all the books, that a man may be an accessory after the fact by receiving one who was an accessory before as well as by receiving a principal. (c) And it has been holden, that a man may make himself an accessory after the fact to a larceny of his own goods, or to a robbery on himself, by harbouring or concealing the thief, or assisting in his escape. (d)

Where an act of parliament enacts an offence to be felony, In offences though it mentions nothing of accessories, yet virtually and con- statute. sequentially those that knowingly receive the offender are acces sories after. (e) It has, however, been said, that if the act of parliament that makes the felony in express terms, comprehend accessories be; ore, and make no mention of accessories after, it seems there can be no accessories after; the expression of procurers, counsellers, abettors, all which import accessories before, making it evident that, the Legislature did not intend to include accessories after, whose offence is of a lower degree than that of accessories before. (S) But by others it is considered to be settled law, that in all cases where a statute makes any offence treason, or felony, it involves the receiver of the offender in the same guilt with himself, in the same manner as in treason or felony at common law, unless there be an express provision to the contrary. (g) And although it be generally true, that an act of parliament creating a felony renders consequentially accessories, before and after within the same penalty, yet the special penning of the act sometimes varies the case: thus, the statute 3 Hen. 7. c. 2. for taking away women, makes the taking away, the procuring and abetting, and also the wittingly receiving, all equally felonies and excluded from clergy. So that acts of parliament may diversify the offences of accessory or principal according to their various penning, and have done so in many cases. (1)

There is no doubt but that it is necessary for a receiver to The accessory have had notice, either express or implied, of a felony having the felony been committed, in order to make him an accessory by receiving committed, the felon; (i) and it is also agreed, that the felony must be com- and the felony (z) 2 Hawk. P. C. c. 29. s. 26. (c) 2 Hawk. P. C. c. 29. s. 1.

plete, i Hale 618, 619. 4 Blac. Com. 38. (d) Fost. 123. Cromp. Just. 41 b. 5 Aon. c. 31. s. 5.

pl. 4 and 5. (a) 2 Hawk. P. C. c. 29. s. 27. (e) i Hale 613. Ante

P. 1 Hale 619,: but not the merely suf- (f) I Hale 614. fering him to escape, where it is a (g) 2 Hawk. P. C. c. 29. s. 14. bare omission. i Hale 619. 2 Hawk. (h) 1 Hale 614, 615, P. C. c. 29. s. 29.

(i) 2 Hawk. P. C. c. 29. s. 32. (6) 2 Hawk. P, C. c. 29. s. 27.

32.

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