« EelmineJätka »
TO VOL. I.
6.-Tae statutes 21 H. 8. c. 7. and 12 Ann. c. 7. are repealed by 7 & 8 Geo.
4. c. 27.
person committing a crime will not be answerable if he was not
the procurer, who will be answerable as a principal "(6)
the hottom, and also the following pages, 26, 27, and 28, and
two lines at the top of page 29.
37 and 38, and insert as follows:-" should seem, however,
(a) 1 Hale, 433. I East, P. C. c. 5. s. 12. p. 225.
(6) I Hawk. P. C. c. 31. 3. 7. 1 East. P. C. c. 5. s. 14. p. 228.
fit), in addition to such imprisonment.' The late consolidation acts, 7 & 8 Geo. 4. c. 29., 7 & 8 Geo. 4. c. 30., and 9 Geo. 4. c. 31., make accessories after the fact to felonies punishable under those acts respectively, liable to imprisonment for any term not exceeding two years. The principal and accessory may be indicted in the same indictment, and tried together, which is the best and most usual course. Formerly the accessory could not, without his own consent, have been brought to trial till the guilt of the principal was legally ascertained by conviction or outlawry, unless they were tried together.(c) And an accessory could not in such case have been tried, unless the principal had been attainted, so that if the principal stood mute of malice, or challenged peremptorily above the legal number of jurors, or refused to answer directly to the charge, the accessory could not have been put upon his trial.(d) But the late statute 7 Geo. 4. c. 64. has made the following salutary provisions for the effec
tual prosecution of accessories. “ The ninth section of that statute, for the more effectual prose
cution of accessories before the fact to felony, enacts, that if any person shall counsel, procure, or command any other person to commit any felony, whether the same be a felony at common law, or by virtue of any statute or statutes made or to be made, the person so counselling, procuring. or commanding shall be deemed guilty of felony, and may be indicted and convicted either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished ; and the offence of the person so counselling, procuring, or commanding, howsoever 'indicted, may be inquired of, tried, determined, and punished by any Court which shall have jurisdiction to try the principal felon, in the same manner as if such offence had been committed at the same place as the principal felony, although such offence may have been committed either on the high seas, or at any place on Jand, whether within his Majesty's dominions or without; and that in case the principal felony shall have been committed within the body of any county, and the offence of counselling, procuring, or commanding, shall have been committed within the body of any other county, the last mentioned offence may be inquired of, tried, determined, and punished, in either of of such counties: provided always, that no person who shall be once duly tried for any such offence, whether as an accessory before the fact, or as for a substantive felony, shall be liable to
be again indicted or tried for the same offence.' " The tenth section of the same statute, for the more effectual
prosecution of accessories after the fact to felony, enacts, that if any person shall become an accessory after the fact to any felony, whether the same be felony at common law, or by virtue of any statute or statutes made or to be made, the offence of such person may be inquired of, tried, determined, and punished by any Court which shall have jurisdiction to try the principal felon, in the same manner as if the act, by reason whereof such person shall have become an accessory, had been committed at the same place as the principal felony, although
If offences committed in different counties, accessories may be tried in either. Only one trial. S. 10. How accessory, if after the fact, may be tried.
(c) i Hale 623. 2 Hawk. c. 29. s. 45. Fost, 360.
(d) Fost. 362., where the doctrine is reprobated; and see 1 Hale 625., where it is said that it was for this reason that Weston, the principal actor in the mur
der of Sir Thomas Overbury, could not for a long while be prevailed upon to plead, that so the Earl and Countess of Somerset, who were the movers and procurers, might escape. 1 St. Tr. 314.
such act may have been committed either on the high seas or at If offences be any place on land, whether within his Majesty's dominions or committed in without; and that in case the principal felony shall have been different councommitted within the body of any county, and the act by reason ties, accessory whereof any person shall have become accessory shall have been may be tried committed within the body of any other county, the offence of in either. such accessory may be inquired of, tried, determined, and punished in either of such counties: provided always, that no person who shall be once duly tried for any offence of being an ac- One trial only. cessory, shall be liable to be again indicted or tried for the
same offence.' “ The eleventh s. of the same statute, in order that all accessories S. 11. Acces
may be convicted and punished in cases where the principal fe- sory may be lon is not attainted, enacts, “that if any principal offender shall prosecuted afbe in any wise convicted of any felony, it shall be lawful to pro
ter conviction ceed against any accessory, either before or after the fact, in
though the the sanie manner as if such principal felon had been attainted
principal be thereof, potwithstanding such principal felon shall die or be ad- not attainted, mitted to the benefit of clergy, or pardoned, or otherwise deli- &c. vered before attainder ; and every such accessory shall suffer the same punishment, if he or she be in any wise convicted, as he or she should have suffered if the principal had been at
tainted.' “Where the proceedings are against the accessory only, the name Indictment
of the principal should be stated in the indictment if it is against accesknown; and where it was stated in an indictment against an ac- sories. cessory 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 holden that the in
dictment could not be supported. (e) “ An indictment against an accessory should state that the princi
pal 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 com
mitted the offence, because he was indicted for it (f) “ 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 arraigned as all the principals were convicted and attainted: but it was after- accessory to wards settled, that if a man were indicted as accessory to two or
such of the more, and the jury found him accessory to one, it was a good principals as
. verdict, and judgment might pass upon him.(g) “ If A. be indicted as principal, and B. as accessory, and both be Former ac
acquitted, or if B. only be acquitted, yet B. may be indicted as quittal, when
(e) Rex v. Walker, 3 Campb. 264. So Thomas Gordon, 1 Leach 515. S.C. I
accessory are quite different. See Fost. (f) Lord Sanchar's case, 9 Co. 117 a. 361, 362.
1) Fost. 361. 9 Co. 119. I Hale (k) I Hale 626. 624. 2 Hawk. P. C. c. 29. s. 46. Plowd. (1) 7 G. 4. c. 64. s. 10.; and see al30 98, 99. Fost. 361.
8.9. (4) 1 Hale 625. Rex v. Winifred and
ADDENDA, &c. TO VOL. I.
Persons haring implements of housebreaking, &c. with felonious intent. And reputed thieves, &c.
Other acts criminal from the intent.
Felonies not capital, pune isbable under the acts, if any relating thereto; otherwise under this act.
4 , dele, from the paragraph beginning “Where a person is feloniously
stricken,” to the bottom and also the next page. 47, dele, the paragraph beginning, “ With respect to persons having imple
ments," and insert as follows:-" With respect to persons having implements for bouse-breaking, &c. in their possession with a felonious intent, the legislature has made some provisions. The 5 G. 4. c. 83. s. 4. enacts, • That every person having in his or her custody or possession any picklock key, crow, jack, bit, or other implement, with intent feloniously to break into any dwelling-house, warehouse, coach-house, stable, or out-building, or being armed with any gun, pistol, hanger, cutlass, bludgeon, or other offensive weapon, or having upon him or her any instrument with intent to commit any felonious act; and every person being found in or upon any dwelling-house, warehouse, coach house, słable, or out-house, or in any inclosed yard, garden, or area for any unlawful purpose, and every suspected person or reputed thief' frequenting places of public resort and other places specified in the act with intent to commit felony shall be deemed a rogue and vagabond within the intent and meaning of that statute. And in some instances an act, accompanied with a certain intent, has been made a felony by particular statutes; as by the 7 & 8 Geo. 4. c. 29. s. 38., the severing with intent to steal the ore of any metal, or any coal, &c. from any mine, bed or vein thereof is made felony punishable as simple larceny. And by the 7 & 8 G. 4. c. 30. s. 3., the damaging certain articles in a course of manufacture, with intent to to destroy them, and the entering certain places with intent to commit such offence, is made felony punishable by transporta
tion for life or imprisonment, &c.' 38, line 15, dele from the word “ felony” to the end of the paragraph, and
then add, But clergy is vot taken away, and the punishment under this statute would have been formerly only a year's imprisonment by the general statute of 18 Eliz c. 7. s. 3. (m) That statute is repealed by 7 & 8 G. 4. c. 27. but the statute 7 & 8 G. 4. c. 28. s. 8. enacts, that every person convicted of any felony for which no punishment hath been or hereafter may be specially provided, shall be deemed to be punishable under this act, and shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years; and, if a male, to be once,
twice, or thrice publicly or privately whipped (if the court
shall so think fit), in addition to such imprisonment.”
“But it was questioned whether if they were liable to transpor-
ble only under the general provision of 7 & 8 G. 4. c. 28. S. 8.”
G. 4.c. 29, See however the clause 7 & 8 G. 4. c. 28. s. 8. giving
a general punishment for felony.
sions being substituted for it by 9 G. 4. c. 31."
was passed to enable the commissioners for trying offences com-
(m) Rex v. West,
and others, 1 East. P. clergy the offenders might be imprisoned