there can be no accessaries. (1) 1 Hale, P. C. 613; 4 Bl. Com. 36. Also in manslaughter there can be no accessaries before the fact, for the offence is sudden and unpremeditated; and therefore, if A. be indicted for murder, and B. as accessary, if the jury find A. guilty of manslaughter, they must acquit B. 1 Hale, 347, 450, 616. It is said in the older books, that in forgery all are principals; (see 2 East, P. C. 973;) but this, it appears, must be understood of forgery at common law, which is a misdemeanor. Id.

Where a statute creates a new felony, without mentioning accessaries, yet the law respecting accessaries is applicable to the new offence. 1 Hale, P. C. 613, 614; 2 East, P. C. 973; 1 Russell by Grea. 34. See ante, p. 215.

Accessaries before the fact-trial and punishment.] Before the 7 Geo. 4, c. 64, accessaries could not be punished until the guilt of the principal offender was established. (2) It was necessary therefore, either to try them after the principal had been convicted, or upon the same indictment with him, and the latter was the usual course. 1 Russell by Grea. 38. But now the 9th section of the above statute enacts, "that if any person shall counsel, procure, or command any other person to commit any felony, whether the same shall 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 accessary 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 an accessary before the fact to the same felony, if convicted as an accessary, 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 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 men[*219] tioned offence 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 such offence, whether as an accessary before the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offence."

(1) State v. Westfield, 1 Bailey, 132. 4 J. J. Marsh. 182. Carlin v. The State, 4 Yerger, 143.

There are no accessaries in petit larceny; but all concerned in the commission of the offence are principals. Ward v. The People, 3 Hill, 395. 6 Hill, 144.

One who incites others to commit an assault and battery is guilty and may be punished as a principal, if the offence be actually committed, although he did not otherwise participate in it. Whatsoever will make a man an accessary before the fact in felony, will make him a principal in treason, petit larceny, and misdemeanors. The State v. Lymburn, 1 Brevard. 397. (2) Commonwealth v. Andrews, 3 Mass. 136. State v. Groff, 1 Murph. 270. An accessary in a felony, cannot be put upon his trial, if the principal be dead, without conviction. Commonwealth v. Phillips, 16 Mass. 423. See Russell on C. & M. 21, n. A.

An accessary before the fact, indicted with his principal, is not bound to plead to the indictment if the latter does not appear. Ashmall's case, 9 C. & P. 237.* An indictment charging that a certain evil-disposed person feloniously stole certain goods, and that A. B. feloniously incited the said evil-disposed person to commit the said felony, and that C. D. and E. F. feloniously received the said goods knowing them to be stolen, is bad as against A. B., but good against the receivers as for a substantive felony. Caspar's case, 2 Moo. C. C. 101; 9 C. & P. 289. See also Pulham's case, 9 C. & P. 280;t Wallace's case, Carr. & M. 200." By the larceny act, 7 & 8 Geo. 4, c. 29, s. 61, and the act relating to malicious injuries to property, 7 & 8 Geo. 4, c. 30, s. 26, in the case of every felony punishable under those acts, every principal in the second degree, and every accessary before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by those acts punishable, and every accessary after the fact to any felony punishable under those acts, shall, on conviction, be liable to be imprisoned for any term not exceeding two years, and every person who shall aid, abet, counsel, or procure the commission of any misdemeanor punishable under those acts, shall be liable to be indicted and punished as a principal offender.

And by the act relative to offences against the person, 9 Geo. 4, c. 31, s. 31, "every accessary before the fact to any felony punishable under this act, for whom no punishment has been therein provided, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned without hard labour in the common gaol or house of correction, for any term not exceeding three years; and every accessary after the fact to any felony punishable under this act, (except murder) shall be liable to be imprisoned with or without hard labour in the common gaol or house of correction for any term not exceeding two years, and every person who shall counsel, aid, or abet the commission of any misdemeanor punishable under this act, shall be liable to be proceeded against as a principal offender."

By the 7 Wm. 4, and 1 Vict. c. 86, s. 6, amending the laws relating to burglary and stealing in a dwelling-house, and the 7 Wm. 4, and 1 Vict. c. 87, s. 9, amending the laws relating to robbery and stealing from the person (by which the 7 & 8 Geo. 4, c. 29, is so far repealed), in the case of every felony punishable under those acts, every principal in the second degree, and every accessary before the fact shall be punishable with death, or otherwise, in the same manner as the principal in the first degree is by those acts punishable, and every accessary after the fact (except only a receiver of stolen property) shall, on conviction, be liable to be imprisoned for any term not exceeding two years.

By the 7 Wm. 4, and 1 Vict. c. 89, s. 11, amending the laws relating to burning or destroying buildings or ships, and by the 7 Wm. 4, and 1 Vict. c. 85, s. 7, amending the laws relating to offences against the *person (by which the [*220] 7 & 8 Geo. 4, c. 30, and the 9 Geo. 4, c. 31, are respectively so far repealed) in the case of every felony punishable under those acts, every principal in the second. degree, and every accessary before the fact, shall be punishable with death or otherwise in the same manner as the principal in the first degree is by those acts punishable, and every accessary after the fact shall on conviction be liable to be imprisoned for any term not exceeding two years.

For the punishment of accessaries in coining, offences relating to the post-office and piracy, see those titles.

Eng. Com. L. Reps. vol. xxxviii. 97.

. Id. 124. + Id. 121. " Id. xli. 113.

Proof with regard to accessaries after the fact.] An accessary after the fact, says Lord Hale, is where a person knowing the felony to be committed by another, receives, relieves, comforts, or assists the felon. 1 Hale, P. C. 618; whether he be a principal, or an accessary before the fact. 2 Hawk. c. 29, s. 1; 3 P. Wms. 475. But a feme covert does not become an accessary by receiving her husband. This, however, is the only relationship which will excuse such an act, the husband being liable for receiving the wife. 1 Hale, P. C. 621. So if a master receives his servant, or a servant his master, or a brother his brother, they are accessaries, in the same manner as a stranger would be. Hawk. B. C. b. 2, c. 29, s. 34. If a husband and wife knowingly receive a felon it shall be deemed to be the act of the husband only. 1 Hale, P. C. 621. But if the wife alone, the husband being ignorant of it, receive any other person being a felon, the wife is accessary, and not the husband. Id.

With regard to the acts which will render a man guilty as an accessary after the fact, it is laid down, that generally, any assistance whatever, given to a person known to be a felon, in order to hinder his being apprehended or tried, or suffering the punishment to which he is condemned, is a sufficient receipt for this purpose; as where a person assists him with a horse to ride away with, or with money or victuals to support him in his escape; or where any one harbours and conceals in his house a felon under pursuit, in consequence of which, his pursuers cannot find him; much more, where the party harbours a felon, and the pursuers dare not take him. Hawk. P. C. b. 2, c. 29, s. 26. See Lee's case, 6 C. & P. 536. So a man who employs another person to harbour the principal may be convicted as an accessary after the fact, although he himself did no act to relieve or assist the principal. Rex v. Jarvis, 2 Moo. & R. 40. So it appears to be settled that whoever rescues a felon imprisoned for the felony, or voluntarily suffers him to escape, is guilty as accessary. Hawk. P. C. b. 2, c. 29, s. 27. In the same manner conveying instruments to a felon, to enable him to break gaol, or to bribe the gaoler to let him escape, makes the party an accessary. But to relieve a felon in gaol with clothes or other necessaries is no offence, for the crime imputable to this species of accessary is the hindrance of public justice, by assisting the felon to escape the vengeance of the law. 4 Bl. Com. 38.

Merely suffering the principal to escape will not make the party an accessary after the fact, for it amounts at most but to a mere omission. 9 H. 4, s. 1; 1 Hale, 619. So if a person speak or write, in order to obtain a felon's pardon or deliverance; 26 Ass. 47; or advise his friends to write to the witnesses not to appear against him at his trial, and they write accordingly; 3 Inst. 139; 1 Hale, 620; [*221] or even if he *himself agree for money not to give evidence against the felon; Moo. 8; or know of the felony and do not discover it; 1 Hale, 371, 618; none of these acts will make a party an accessary after the fact.

The felony must be complete at the time of the assistance given, else it makes not the assistant an accessary. As if one wounded another mortally, and after the wound given, but before death ensued, a person assisted or removed the delinquent, this did not, at common law, make him accessary to the homicide, for till death ensued, there was no felony committed. Hawk. P. C. b. 2, c. 29, s. 35; 4

Bl. Com. 38.

In order to render a man guilty as accessary, he must have notice either express or implied, of the principal having committed a felony. Hawk. P. C. b. 2, c. 29, s. 32. It was formerly considered, that the attainder of a felon, was a notice to all persons in the same county of the felony committed, but the justice of this rule has

་ Eng. Com. Law Reps. xxv. 530.

been denied. Hawk. P. C. b. 2, c. 29, s. 83. It was observed by Lord Hardwicke, that this may be some evidence to a jury, of notice to an accessary in the same county, yet it cannot, with any reason or justice, create an absolute presumption of notice. Burridge's case, 3 P. Wms. 495.

In order to support a charge of receiving, harbouring, comforting, assisting, and maintaining a felon, there must be some act proved to have been done to assist the felon personally; it is not enough to prove possession of various sums of money derived from the disposal of the property stolen. Chappel's case, 9 C. & P. 355.w

Accessaries after the fact―trial and punishment.] With regard to the trial of accessaries after the fact, (vide ante, p. 218, as to the former law,) the 7 Geo. 4, c. 64, s. 10, enacts, "that if any person shall become an accessary after the fact to 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 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 accessary, had been committed at the same place as the principal felony, although such act may have been committed either on the high 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 act by reason whereof any person shall have become accessary, shall have been committed within the body of any other county, the offence of such accessary 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 accessary, shall be liable to be again indicted or tried for

the same offence."

And by s. 11, "if any principal offender shall be in anywise convicted of any felony, it shall be lawful to proceed against any accessary, either before or after the fact, in the same manner as if such principal felon had been attainted thereof, notwithstanding such principal felon shall die or be admitted to the benefit of clergy, or pardoned, or otherwise delivered before attainder; and every such accessary shall suffer the same punishment, if he or she be in anywise convicted, *as [*222] he or she should have suffered if the principal had been attainted."

The Irish statute relating to accessaries, and containing the same provisions as the foregoing acts, is the 9 Geo. 4, c. 54.

Since the passing of the 7 Geo. 4, c. 64, s. 10, an accessary after the fact may be tried, either at the same time with the principal felon, or after his conviction. If the principal has been convicted, and that conviction is alleged in the indictment, it must be proved in the ordinary way by an examined copy.

The conviction appears to be evidence, not only of the fact of the principal having been convicted, but also to be prima facie evidence, that he was guilty of the offence of which he was so convicted. (1) Foster, 365; 2 Stark. Ev. 7, 2d ed.

(1) Where the principal and accessary are joined in one indictment, but are tried separately, the record of the conviction of the principal is prima facie evidence of his guilt, upon the trial of the accessary, and the burthen of proof rests on the accessary, not merely that it is questionable whether the principal ought to have been convicted, but that he clearly ought not to have been convicted. Commonwealth v. Knapp, 10 Pick. 477. See also State v. Crank, 2 Bailey, 66. It is not necessary to set out the conviction of the principal in the inEng. Com. Law Reps. xxxviii. 151.

W

An accessary may avail himself of every matter, both of law and fact, to controvert the guilt of his principal, and the record of the conviction of the principal is not conclusive against him. (2) Foster, 365; Smith's case, 1 Leach, 288; Prosser's case, Id. 290 (n.); 1 Ross. by Grea. 42; Cook v. Field, 3 Esp. 134; and see post, Receiving stolen goods.

And in Turner's case, 1 Moo. C. C. 347, (see ante, p. 54,) in which it was held that a confession by the principal is not admissible to prove the guilt of the receivers, many of the judges appeared to think that if the principal had been convicted, and the indictment against the prisoner had stated not her conviction but her guilt, the conviction would not have been any evidence of her guilt, which must have been proved by other means. And upon the authority of this case, where an accessary before the fact to a murder was tried after the principal had been tried and executed, Parke, B., ordered the proceedings to be conducted in the same manner as if the principal was then on his trial, and the evidence against the accessary was not gone into until the case against the principal was concluded. Ratcliffe's case,

1 Lew. C. C. 121.

Wherever a variance is material as to the principal, it is material and available as to the accessary; and vice versâ, where a variance is immaterial to the principal it is immaterial to the accessary. 2 Stark. Ev. 9, 2d ed.; Hawk. P. C. b. 2, c. 23, s. 176. 9.

If A. be indicted as accessary to B. &. C., he may be convicted on evidence that he was accessary to C. only. Wallis's case, 1 Salk. 334.

For the punishment of accessaries after the fact, see ante, p. 221.

dictment. Ibid. The court may in its discretion permit an accessary to be tried separately from the principal. State v. Yancey, 1 Const. Rep. 237. An accessary cannot be put on his trial before the conviction of the principal, unless he consent thereto, or be put on his trial with his principal. State v. Pybuss, 4 Hump. 442. Whitehead v. The State, 16, 278. Commonwealth v. Woodward, Thacher's Crim. Cas. 63. Sampson v. The Commonwealth, 5 Watts & Serg. 385.

(2) U. States v. Wood, 4 Wash. C. C. Rep. 440. S. C. 3 Wheeler's C. C. 325.