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receivedly convicted;" how he was desverred that t

principal and acquitted, he may be indicted as accessory after the fact; and so if he be indicted as accessory before the fact and acquitted, he may be indicted as accessory after the

fact. (c) Accessory may Anciently an accessory could not be tried unless the principal

te were attainted : so that if the principal stood mute of malice, or the principal offender has challenged peremptorily above the legal number of jurors, or rebeen convict- fused to answer directly to the charge, the accessory could not ed, &c. though he

have been put upon his trial. (d) But the statute ) Anne, stat. 2. not attainted.

c. 9., provides a remedy for this defect; and enacts that “ if any
“ principal offender shall be convicted of any felony, or shall stand
“ mute, or peremptorily challenge above the number of twenty
“ persons returned to serve of the jury, it shall and may be lawful
“ to proceed against any accessory, either before or after the fact,
“ in the same manner as if such principal felon had been attainted
“ 'thereof, notwithstanding any such principal felon shall be ad-
“ mitted to the benefit of his clergy, pardoned, or otherwise deli-
66 vered before attainder; and every such accessory shall suffer the
“ same punishment, if he or she be convieted, or shall stand mute,
“ or peremptorily challenge above the number of twenty persons
“ returned to serve of the jury, as he or she should have suffered
“ if the principal had been attainted.” Upon this statute it has
been held that it is sufficient, in an indictment for felony against a
receiver of stolen goods, to state that the principal was tried
and duly convicted,” without going on to shew that judgment was
passed upon him, or how he was delivered. (e) And where an in-
dictment 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
accessory, until it is reversed.(f)
(c) i Hale 626.

while unreversed, 1 Hawk. P. C. C.
(d) Fost. 362, where the doctrine is 29. S. 40. And see in Lord Sanchar's
reprobated : and see i Hale 625, where case, 9 Co. 119, that if the principal
it is said that it was for this reason be erroneously attainted, yet the ac-
that Weston, the principal actor in cessory shall be attainted ; for the at-
the murder of Sir Thomas Overbury, tainder against the principal stands till
could not for a long while be prevail. it is reversed. And by Lawrence, J.
ed upon to plead, that so the Earl and in Holines v. Walsh, 7 T.R. 405, “the
Countess of Somerset, who were the “judgment upon an indictment must
movers and procurers, inight escape. “ be taken to be good until it is re-
1 St. Tri. 314.

“ versed by a writ of error ; as in the (e) Hyman's case, 2 Leach 925. 2 “ case of proceedings agaipst the acEast. P. C. 782.

“cessory. So if there be a judgment of) Baldwin's case, 3 Campb. 265. “ against the husband for treason not Cor. Thomson, B. Monmouth Sum “ reversed by error, it is sufficient to mer assizes, 1812. The judgment was “ deprive the wife of her dower.” And very informal, concluding and the see i Hale 625. But by the reversal .said Isaac Powell in mercy, &c." See of an attainder against a principal, further as to the sufficiency of an the attainder against the accessory, erroneous attainder of the principal which depends upon the attainder of

vor bow het going on at the pritor felony


Where the principal and accessory are tried together upon the The accessory same indictment, there is no doubt but that the accessory may mayco

ay tbe guilt of the enter into the full defence of the principal, and avail himself of principal. every matter of fact and every point of law tending to his acquittal; for the accessory is in this case to be considered as particeps in lite; and this sort of defence necessarily and directly tends to his own acquittal. And where the accessory is brought to his trial after the conviction of the principal, and it comes out in evidence upon the trial of the accessory 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 accessory may avail himself of this, and ought to be acquitted. (g) For though it is not necessary upon such trial on the part of the prosecution to enter into a detail of the evidence on which the conviction was founded, and the record of the conviction is deemed sufficient evidence against the accessory to put him upon his defence ; yet the presumption raised by the record that every thing in the former proceeding was rightly and properly transacted must, it is conceived, give way to facts manifestly and clearly proved; and that as against the accessory the conviction of the principal will not be conclusive, being as to him res inter alios: acta. (h) This was the opinion of Mr. Justice Foster; and upon this opinion the court, in a case at the Old Bailey, permitted the counsel for a prisoner indicted as an accesory to controvert the propriety of the conviction of the principal by vivá voce testimony, and to shew that the act done by the principal did not amount to a felony, and was only a breach of trust.(i) And in a later case in the same court it was also admitted that the record of the conviction of the principal was not conclusive evidence of the felony against the accessory, and that he has a right to controvert the propriety of such conviction.(k)

But how far an accessory can defend himself in point of fact, by shewing that the principal was totally innocent, has been considered as a question of more difficulty, and one which should be handled with caution ; because facts for the most part depend upon the credit of witnesses ; and when the strength and hinge of a cause happen to be disclosed, as they may be by one trial, daily experience convinces us that witnesses for very bad purposes may be too easily procured. Upon this point, however, Mr. Justice Foster cites some authorities, which he apprehends to be strong, to shew that the accessory may insist upon the innocence of the principal ; and then gives his own opinion. He says, “if it shall manifestly appear, in the course “ of the accessory's trial, that in point of fact the principal was. “ innocent, common justice seems to require that the accessory

the principal, is ipso facto utterly defeated and annulled, Lord Sanchar's case, 9 Co. 119. Fost. 366.

(g) Fost. 365. Rex v. M‘Daniel and Others, 19 Sta. Tri. 806.

(h) Ibid.
() Smith's case, 1 Leach 288.

(k) Prosser's case, (mentioned in a note to Smith's case, i Leach 290.) Cor. Gould, J. who is considered to have been a very accurate crown lawyer. And sce Rex v. M Daniel and Others, 19 St. Tri. 806.

« should be acquitted. A. is convicted upon circumstantial evi“ dence, strong as that sort of evidence can be, of the murder of “ B.; C, is afterwards indicted as accessory to this murder; and “ it comes out upon the trial, by incontestible evidence, that B. is “ still living ; (Lord Hale somewhere mentions 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 mur“ dered, and that it should come out in evidence, to the satisfac“tion of the court and jury, that the witnesses against A. were “ mistaken in his person, (a case of this kind I have known) and " that A, was not, nor could possibly have been, present at the

66 murder.”(1) In what county Where a person is feloniously stricken or poisoned in one they shall be

county, and dies thereof in another county, the accessory may be tried.

indicted in the county where the death shall happen. (m)

And where a murder or felony was comunitted in one county, and the person was accessory in another county, the accessory may be indicted in the county where he was accessory. And the judges of assize, or two of them, of the county where the offence of the accessory shall have been committed, on suit to them made, shall write to the keeper of the records where the principal shall have been convicted, to certify them whether such principal be attainted, convicted, or otherwise discharged, which he shall cer

tify under his seal.(n) 43 G.3. c. 113. In the case of accessories to any felony before the fact, whether

the principal felony be committed within the body of any county or upon the high seas, and whether the procuring, &c, or abetting, or otherwise becoming accessories before the fact be committed within the body of any county, or upon the high seas, the offence of such accessories may be tried in case the principal felony was committed within the body of any county) by the course of the common law, either within the county where the principal felony was committed, or in the county where the offence of becoming accessory before the fact was committed; and in case the principal felony was committed upon the high seas, then the offence of becoming accessory before the fact may be tried in such court, &c. as is directed by the statute 28 Hen. 8. c. 15. for trying felonies committed upon the high seas. (0)

The 33 Hen. 8. c. 23, intituled “An Act to proceed by com“ mission of oyer and terminer against such persons as shall con“ fess treason, &c. without remanding the same to be tried in the « shire where the offence was committed,”(p) gives certain powers for making commissions of oyer and terminer for the speedy trial

(1) Fost. 367, 378; and see 3 Esp. R. (m) 2 & 3 Edw. 6. c. 24. s. 2, 3. 134, (in the case of Cook v. Field,) in) 2 & 3 Edw. 6. c. 24. s. 4. Lord where it was stated by Bearcroft, and Sanchar's case, 9 Co. 117, where seveassented to by Lord Kenyon, that ral questions were moved upon this where the principal has been convict statute. Such accessory was dispu. ed, it is nevertheless on the trial of nishable at common law, 2 Hale P. C. the accessory competent to the de- 623. fendant to prove the principal inno- (0) 43 G. 3. c. 113. s. 5. Rex v. cent. And see Rex v. M‘Daniel and Morris, Russ. & Ry. 270. Others, 19 St. Tri. 806.

. I East. P. C. 369.

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of persons examined before the King's council, or three of them, upon any murders or other offences therein mentioned under such circumstances and in such cases as in the said act are mentioned ; but no provision is therein made for the trial of accessories before the fact in murder : it is therefore provided by the statute 43 G. 3. c. 113. 8. 6. that the powers and authorities of the former statute shall be extended to the offence of procuring, &c. or otherwise becoming an accessory before the fact to any murder. (9)

(9) By s. 7. this act is not to extend to Ireland.

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OFFENCES which may be made the subject of indictment, and are below the crime of treason, may be divided into two classes,

felonies and misdemeanors. Felony defined. The term felony appears to have been long used to signify the

degree or class of crime committed, rather than the penal consequence of forfeiture occasioned by the crime, according to its original signification. The proper definition of it, however, as stated by an excellent writer, recurs to the subject of forfeiture, and describes the word as signifying—an offence which occasions a total forfeiture of either lands or goods, or both, at the common law; and to which capital or other punishment may be superadded according to the degree of guilt. (a) Capital punishment does by no means enter into the true definition of felony : but the idea of felony is so generally connected with that of capital punishment, that it is hard to separate them; and to this usage the interpretations of the law have long conformed. Therefore, if a statute makes any new offence felony, the law implies that it shall be punished with death as well as with forfeiture, unless the offender prays the benefit of clergy, which all felons are entitled once to

have, unless the same is expressly taken away by statute. (6) What words in With regard to felonies created by statute, it seems clear that a statute create a felony.

not only those crimes which are made felonies in express words, but also all those which are decreed to have or undergo judgment of life and member by any statute, become felonies thereby, whether the word “ felonybe omitted or mentioned. (c) And where a statute declares that the offender shall, under the particular circumstances, be deemed to have feloniously committed the act, it makes the offence a felony, and imposes all the common and ordinary consequences attending a felony. (d) But an offence shall never be made felony by the construction of any doubtful and ambiguous words of a statute ; and therefore, if it be pro

(a) 4 Bla. Com. 95, and see i Hawk. c. 25. s. I, “The higher crimes, rape, “ robbery, murder, arson, &c., were “ called felony; and being interpreted “ want of fidelity to his lord, made “ the vassal lose his fief.” 2 Hume, App. ii. p. 129. As to the derivation of the word felony, from feah, or fee, the fief or estate, and lon, the price or values and ascribing to it the inean

ing of pretium feudi, see Spelm. Gloss. Felon, 4 Bla. Com. 95.

(6) 4 Bla. Com. 98. Rex v. Johnson, 3 M. & S. 549. Post, Book IV. Chap. xv.

(c) i Hale 703. i Hawk. P.C. c. 40. s. 2.

(d) By Bayley, J. in Johnson's case, 3 M. & S. 556.

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