« EelmineJätka »
Of the proceedings against accessories,
7 G. 4. c. 64.
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
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
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
of the principal should be stated in the indictment if it is against acces-
dictment could not be supported.(e)
pal committed the offence; and it is not sufficient merely to
mitted the offence, because he was indicted for it (f)
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
acquitted, or if B. only be acquitted, yet B. may be indicted as quittal, when
(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
(i) 1 Hale 626. 2 Hale 244. But
(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.
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.”
mentioned in this act which shall be committed within the juris. Provisions for
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
ed that no writ of certiorari shall issuc from the King's
ouder any such act.”
so much of this statute as relates to any person who shall beat,
by the recent act 9 G. 4. c. 31.
person who shall beat, wound, or use any other violence to any
use any other violence to any person, with intent to deter or hin- Assaults with
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
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."
as follows: “The provisions of this statute were in several
statute of James.”
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."