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Of the proceedings against accessories,

7 G. 4. c. 64.
3. 9.
How acces-
sories before
the fact may
be tried.

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 puoishable 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. bas made the following salutary provisions for the effectual 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 samne 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 bigh seas, or at any place on land, 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 lf 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 coun-
committed 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 pu-
nished in either of such counties: provided always, that no per-
son 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- te

e ter conviction ceed against any accessory, either before or after the fact, in

of principal,

though the the same manner as if such principal felon had been attainted

a 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 acces-
known ; 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 bave 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 princi

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
principal in the same offence, and his former acquittal is no a bar to a fresh
bar.(h] But it is said, that if A. be indicted as principal and indictment.
acquitted, he cannot be afterwards indicted as accessory before
the fact.(i) If, however, a man be indicted as principal and ac-
quitted, he may be indicted as accessory after the fact; and so
if he be indicted as accessory before the fact and acquitted, he
may, it seems, be indicted as accessory after the fact.(k) The
late statute, as we have seen, enacts, that no person who shall
be once duly tried for any offence of being an accessory, shall
be liable to be again indicted or tried for the same offence.(I)"

are convicted.

(e) Rex v. Walker, 3 Campb. 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 Éast. P. C. p. 651, 781. Post. Book IV. Chap. On Larceny.

Lord Sanchar's case, 9 Co. 117 a. og Fost. 361. 9 Co. 119. Hale 624. 2 Hawk. P. C. c. 29. S. 46. Plowd. 98, 99. Fost. 361. (A) I Hale 625. Rex v. Winifred and

Thomas Gordon, 1 Leach 515. S.C. 1
East. P. C. 35.

(i) 1 Hale 626. 2 Hale 244. But
Mr. Justice Foster says, that he knows
not upon what grounds, as in considera-
tion of law the offences of principal and
accessory are quite different. See Fost.
361, 362.

(k) I Hale 626.

in 7 G. 4, c. 64. s. 10.; and see al 30 s.9.

Persons having implements of housebreaking, &c. with felonious intent. And reputed thieves, &c.

Other acts criminal from the intent.

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, stable, 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. 58, line 15, dele from the word “ felony” to the end of the paragraph, and

then add, “ But clergy is not taken away, and ihe 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." 62, line 15, after the word accessories dele to the end of the paragraph and insert

“ But it was questioned whether if they were liable to transportation or to any other punishment than was authorised by the general act of 18 Eliz. c. 7. S. 3. If so they would now be punisha

ble only under the general provision of 7 & 8 G. 4. c. 28. S. 8.” 81, at the end of note (q) add « But the statute 18 Eliz. is repealed by 7 & 8

G. 4.c. 29, See however the clause 7 & 8 G. 4. c. 28. s. 8. giving

a general punishment for felony.” 101, note (e), after 22 & 23 Car. 2. c. 11. s. 9. add “repealed by 9 G. 4. c.

Felonies not capital, punisbable under the acts, if any relating thereto; otherwise under this act.

31."

106, note (p) after 1 Ed. 6. c. 12. s. 10. add“ now repealed by 9 G. 4. C.

31." 109, line 16, after 43 G. 3. c. 58. add " now repealed." note (b) after I G. 4. c. 90. s. 1. add “but is now repealed, new provi

sions being substituted for it by 9 G. 4. c. 31." 110, line 10, after the word “appoint” add “and the late act 7 G. 4. c. 38.

was passed to enable the commissioners for trying offences committed upon the sea and justices of tbe peace to take examina

(m) Rex v. West, and others, 1 East. P. C. c. 4. s. 11. p. 162. The stat. 18 Eliz. 6.7. s. 3. provided that upon allowance of

clergy the offenders might be imprisoned for any time not exceeding a year.

tion touching sucb offences and to commit to safe custody per

sons charged therewith." At the end of the page add, “By 7 & 8 G. 4. c. 28. s. 12. all offences prose- Punishments.

secuted in the High Court of Admiralty of Eugland shall upon 7 & 8 G. 4.c. every first and subsequent conviction be subject to the same po- 28. s. 12. nishments, whether of death or otherwise as if such offences had

been committed upon the land.”
The statute 9 G. 4. c 31. s. 32. enacts “that all indictable offences 9 G. 4.c. 31.

mentioned in this act which shall be committed within the juris. Provisions for
diction of the Admiralty of England, shall be deemed to be of- offences
fences of the same nature, and liable to the same punishments,
as if they had been committed upon the land in England, and a

act committed

at sea. may be dealt with, enquired of, tried, and determined in the at same manner as any other offences committed within the jurisdiction of the Adiniralty of England. Provided always, that Not to effect nothing herein contained shall aller or affect any of the laws re- the laws rela

lating to the government of his Majesty's land or naval forces.” ting to the 120. line 10, from the bottom after the word “ same" insert “ By 7 G. 4. c. forces.

48. s. 19. it is enacted “ that every intimation to any smuggling
vessel or boat in whatever manner given shall be deemed to be a
signal within the meaning of the said act for the prevention of
smuggling and shall subject the person giving such intimation
to be detained and proceeded against as directed by the said

act."
121, after line 5 from the top add, “ By 7 G. 4. c. 48. S. 17. it is enact-

ed that no writ of certiorari shall issuc from the King's
Bench to remove any proceeding before any justice or jus-
tices of the peace under any act for the prevention of smug-
gling, or relating to the revenue of the customs, por shall any
writ of habeas corpus issue to bring up the body of any person
who shall have been convicted before any justice or justices of
the peace under any such act, unless the party against whom
such proceeding shall have been directed or who shall have been
so convicted or his attorney or agent shall state in an affidavit
in writing, to be duly sworn, the grounds of objection to such
proceedings or conviction; and that upon the return to such
writ of certiorari or habeas corpus no objection shall be taken
or considered other than such as shall have been stated in such
affidavit; and that it shall be lawful for any justice or justices
of the peace, and they are hereby required to amend any in-
formation, conviction, or warrant of commitment for any offence

ouder any such act.”
127. line 15, after the word “ clergy (a)” insert “ It should be observed that

so much of this statute as relates to any person who shall beat,
wound, or use any other violence to any person or driver, and
so much thereof as makes any second offence felony is repcaled

by the recent act 9 G. 4. c. 31.
__ note (a) at the end add, “but these sections are repealed by 7 & 8 G. 4.

c. 27."
128, at the end of the chapter add “So much of this statute as relates to any

person who shall beat, wound, or use any other violence to any
person or driver and so much thereof as makes au y second of
fence felony is repealed by the late act 9 G. 4. c.31. but other
provisions are made for the punishment of offences of this de-

scription.
The 26th section enacts “ that if any person shall beat, wound, or 9 G. 4. c. 31.

use any other violence to any person, with intent to deter or hin- Assaults with
der bim from selling or buying any wheat or other grain, flour, intent to ob-
meal, or malt, in any market or other place, or shall beat, struct the
wound, or use any other violence to any person having the care buying or sell
or charge of any wheat or other grain, flour, meal, or malt ing of graid,
whilst on its way to or from any city, market-town, or other
place, with intent to stop the conveyance of the same, every

passage theresuch offender may he convicted thereof before two justices of

f of, punishable

summarily bethe peace, and imprisoned and kept to hard labour in the fore two ma

gistrates.

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common gaol or house of correction, for any term not exceeding three calendar months; provided always that no person, who shall be punished for any such offence, by virtue of this provision, shall be punished for the same offence by virtue of any

other law whatsoever.” 136, line 10, dele the whole of the paragraph and insert “ It may be observed

that to take any reward for helping a person to stolen goods is felony by 7 & 8 G. 4. c. 29. s. 58., and to advertise a reward for the return of things stolen, incurs a forfeiture of fifty pounds

by the fifty-ninth section of the same act.” (n) 147, line 12, dele the first sentence of the paragraph, and insert “ It is an of

fence at common law to refuse to serve an office when duly elected. (0) And the refusal of persons to execute ministerial offices to which they are duly appointed and from the execution of which they have no proper ground of exemption seems in ge

neral to be punishable by indictment." 168, line 25, after “33 8. 3. c. 23.” insert“ repealed by 9 G. 4. c. 31.” 187, line 7, after “ 4 Ed. I. st. 3. c. 5." insert “ now repealed by 9 G. 4. c. 31." note (6) after “18 Edw. 3. st. 3. c. 2.,” add “now repealed by 9 G. 4.

c. 31," and after “1 Ed. 6. c. 12. s. 16." add “ also repealed by

the same act of 9 G. 4. c. 31."
188, line 15, dele the words, “ In the construction of this statute," and insert

as follows: “The provisions of this statute were in several
respects defective. A person whose consort had been abroad
for seven years, though known to be living, might have married
again with impunity. And so might a person who was only
divorced a mensa et thoro. The recent statute, 9 Geo. 4. c. 31.,
therefore repeals the statute of James, and by s. 22. enacts,
• that if any person, being married, shall marry any other per-
son during the life of the former husband or wife, whether the
second marriage shall have taken place in England or elsewhere,
every such offender, and every person counselling, aiding, or
abetting such offender, shall be guilty of felony, and being con-
victed thereof, shall be liable to be transported beyond the seas
for the term of seven years, or to be imprisoned, with or with-
out hard labour, in the common gaol or house of correction, for
any term not exceeding two years; and any such offence may
be dealt with, inquired of, tried, determined, and punished in
the county where the offender shall be apprehended, or be in
custody, as if the offence had been actually committed in that
county; provided always, that nothing herein contained shall
extend to any second marriage contracted out of England by
any other than a subject of his Majesty, or to any person mar-
rying a second time whose husband or wife shall have been con-
tinually absent from such person for the space of seven years
then last past, and shall not have been known by such person to
be living within that time, or shall extend to any person who at
the time of such second marriage shall have been divorced from
the bond of the first marriage, or to any person whose former
marriage shall have been declared void by the sentence of any
Court of competent jurisdiction. The statute of James is how-
ever still in force with respect to offences committed before or
upon the last day of June, 1828. In the construction of this

statute of James.”
208, at the end of the chapter add—“This statute is however repealed by the

9 Geo. 4. c. 31. except as to offences committed before or on the last day of June, 1828, and the enactment of the new statute as to punishment is, (as we have seen,) that the offender shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years."

Exceptions.

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