from the

33 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 terms of 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. (0) 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. (z) 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 uponresistance 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. (g)

murder her

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 woman to 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 mistake commits a different crime from that to which he was solicited by the accessory. It has been said, that if A. orders B. to 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

A. being counselled to mur

der B. mur

ders C.

Criteria in such cases.

Accessory repents and countermands the principal.

Of accessories

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
66 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
"the flagitious orders he gave, since that consequence appears, in
"the ordinary course of things, to have been highly probable." (t)

66

66

66

of

Mr. Justice Foster then proposes the following criteria, as 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, wilfully and "knowingly commit a felony of another kind, or upon a different "subject." (w)

A. commands B. to kill C., but before the execution thereof repents and countermands B., yet B. proceeds in the execution 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. (x)

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.

(t) Fost. 370, 371.

(w) Fost. 372.

(x)

Hale 617.

(y) 1 Hale 618. 4 Blac. Com. 37.

created by

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 accessories after. (e) It has, however, been said, that if the act of parliament that makes the felony in express terms, comprehend accessories before, 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. (f) 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. (h)

must know of

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. 1 Hale 618, 619. 4 Blac. Com. 38. 5 Ann. c. 31. s. 5.

(a) 2 Hawk. P. C. c. 29. s. 27. 1 Hale 619. but not the merely suffering him to escape, where it is a bare omission. 1 Hale 619. 2 Hawk. P. C. c. 29. s. 29.

(b) ? Hawk. P, C. c. 29. s. 27.

(c) 2 Hawk. P. C. c. 29. s. 1.
(d) Fost. 123. Cromp. Just. 41 b.
pl. 4 and 5.

(e) 1 Hale 613. Ante p. 32.

(f) Hale 614.

(g) 2 Hawk. P. C. c. 29. s. 14.
(h) 1 Hale 614, 615,

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

must be complete.

Feme covert.

Prosecutions

against accessories after the fact at common law not frequent.

Of the proceedings

against accessories.

plete at the time of the assistance given, else it makes not the assistant an accessory. So that if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent; this does not make him accessory to the homicide, for till death ensues there is no felony committed. (k)

The law has such a regard to the duty, love, and tenderness, which a wife owes to her husband, that it does not make her an accessory to felony by any receipt whatever which she may give to him; considering that she ought not to discover her husband. (1)

It is not thought necessary to discuss further the general principles of law relating to accessories after the fact, since prosecutions against such persons grounded on the common law are seldom instituted at the present time; nor do they appear to have been frequent for many years past, nor to have had any great effect. (m) With respect to receivers of stolen goods, who by the 3 and 4 W. and M. c. 9. and by the 5 Anne, c. 31, are made accessories after the fact, it is intended to treat of their offence in a subsequent chapter. (n) It may be observed, however, that the statute 5 Anne, c. 31. s. 5. enacts, that if any person shall receive, barbour, or conceal, any burglars, felons, or thieves, knowing them to be so, he shall be taken as an accessory to the felony. (0) And in the case of horse-stealing, a statute of Elizabeth (p) has taken away clergy as well from the accessory after as before the fact. But this statute extends only to such persons as were in judgment of law accessories at the time the act was made, namely, accessories at common law; not to such as are made accessories by subsequent statutes; and therefore a person knowingly receiving a stolen horse, who is made an accessory by later statutes, is not ousted. (q)

The principal and accessory may be indicted in the same indictment and tried together, which is the best and most usual course: (r) and the accessory shall not, without his own consent, be brought to trial, till the guilt of the principal is legally ascer

(n) Post, Book IV. Chap. xiii. of Receiving stolen Goods.

(0) Vid. 2 East. P. C. 744. as to the construction of this statute.

(p) 31 Eliz. c. 12. s. 5.

(q) Fost. 373. citing MSS. Tracy and Denton.

(r) 1 Hale 623. Fost. 365. Rex v. Danelly and Vaughan, Old Bailey, Sept. 1816, ante, p. 30. It seems to have been settled that if the principal and accessory appear together,

and the principal plead the general issue, the accessory shall be put to plead also, and that if he 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 accessory not guilty. But it seems agreed, that if the principal plead a plea in bar, or abatement, or a former acquittal, the accessory shall not be forced to answer till that plea be determined; for if it be found for the principal, the accessory is discharged; if against the principal, yet he shall afterwards plead over to the felony, and may be acquitted. 2 Hawk. P. C. c. 29. s. 47. 1 Hale 624.

tained by conviction or outlawry, unless they are tried together. (s) This, however, must be understood, with the exception of those accessories after the fact, commonly called receivers of stolen goods, and certain accessories before the fact in cases of burglary, robbery, and grand larceny, who, by the enactments of several statutes, (t) may be proceeded against by indictment for a misdemeanor, though the principal may not have been convicted; as will be shewn more at length in subsequent parts of this Work. (u) Where the proceedings are against the accessory only, the name of the principal should be stated in the indictment, if it is known; and where it was stated in an indictment against an accessory to a felony, that the felony was committed by a person to the jurors unknown, and it appeared that the principal felon was a witness before the grand jury, it was held that the indictment could not be supported. (w)

An indictment against an accessory should state that the principal committed the offence; and it is not sufficient merely to state that he was indicted for the offence, as the indictment is only an accusation, and it does not follow that he really committed the offence because he was indicted for it. (0)

arraigned as

accessory to such of the

principals as are convicted.

Formerly if a man had been indicted as accessory in the same A man may be 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 acce. sory to two or more, and the jury find him accessory to one, it is a good verdict, and judgment may pass upon him. (x) And therefore the Court in their discretion may arraign him as accessory to such of the principals as are convicted; and if he be found guilty as accessory to them or any of them, judgment shall pass upon him. (y) An acquittal in such case would not formerly have discharged him as accessory to the others; (2) but by the statute 43 Geo. 3. c. 113. s. 5. it is provided that no person shall be tried more than once for the same offence of being accessory before the fact.

If A. be indicted as principal, and B. as accessory, and both be acquitted, or if B. only be acquitted, yet B. may be indicted as principal in the same offence, and his former acquittal is no bar. (a) But it seems to be agreed, that if A. be indicted as principal and acquitted, he cannot be afterwards indicted as accessory before the fact. (b) If, however, a man be indicted as

(8) 1 Hale 623. 2 Hawk. c. 29. s. 45. Fost. 360.

(t) 1 Anne, sess. 2. c. 9. s. 2. 5 Anne, c. 31. s. 6. 22 Geo. 3. c. 58. 3 Geo. 4. c. 38. s. 4.

(u) Post, Book IV. Chap. i. of Burglary, and Chap. xiii. of Receiving stolen Goods.

(w) Rex v Walker, 3 Camph. 264. So in an indictment for larceny, though the goods may be laid to be the property of persons unknown, such an allegation is improper if the owner be really known. 2 East. P. C. 651. 781, Post, Book IV. Chap. iv. on Larceny.

a.

(0) Lord Sanchar's case, 9 Co. 117

(a) Fost. 361. 9 Co. 119.
(y)

Hale 624. 2 Hawk. P. C. c. 29.
s. 46. Plowd. 98, 99. Fost. 361.
(2) 2 Hawk. P. C. c. 29. s. 46.
(a) 1 Hale 625. Rex v Winifred
and Thomas Gordon. 1 Leach 515.
S. C. 1 East. P. C. 35.

(b) 1 Hale 626. 2 Hale 244. But
Mr. Justice Foster says, that he knows
not upon what grounds; as in con-
sideration of law the offences of prin-
cipal and accessory are quite dif-
ferent. See Fost. 361, 362.

Former ac

quittal when

a bar to a fresh indictment.