It was contended, that as Hall had been acquitted, Hughes must be so also; for the statute had only altered the form of pleading, and not the law, as to accessories before the fact; but it was held, that the statute had made the offence of the accessory before the fact a substantive felony, and that the old law which made the conviction of the principal a condition precedent to the conviction of the accessory, was done away by that enactment, Reg. v. Hughes, Bell, C. C. 242. In every case where there may be a doubt whether a person be a principal or accessory before the fact, it may be advisable to prefer the indictment under this section, as such an indictment will be sufficient, whether it turn out on the evidence that such person was a principal or accessory before the fact, as well as where it is clear that he was either the one or the other, but it is uncertain which he was. It may be well to observe, however, that there are cases in which it is not clear that an indictment under this section would suffice. Suppose for instance that the offence of the principal be local; e. g., a burglary committed in the county of Worcester, and that the accessory is indicted in the county of Stafford on the ground that the evidence shows that the acts, by which he became accessory were done in the latter county, it may be questionable whether the accessory could be indicted and tried under this section in that county; for it only authorises the accessory to be indicted and tried "as if he were a principal felon," and the principal could only be indicted and tried in Worcestershire. Possibly if such an objection were taken on the trial, it might be held that s. 7 of this Act authorised the indictment and trial in Staffordshire on the ground that the evidence showed the party to have become an accessory before the fact in that county. But supposing that to be so, the same question might be raised in arrest of judgment or on error, and on the face of the record all that would appear would be that the prisoner was indicted and tried as a principal in Staffordshire for a burglary committed in Worcestershire; but even here it might be held that the effect of the 11 & 12 Vict. c. 46, s. 1, is to make every indictment which charges a person as principal contain a charge of being accessory before the fact also, and consequently that there was nothing on the face of the record inconsistent with the facts having proved that the prisoner was such an accessory in Staffordshire. However, in any such case, it would be prudent to insert a count framed under the next section. In Reg. v. Chadwick, Stafford: Sum. Ass. 1850, MSS., C.S.G., the prisoner was indicted as a principal for murder by arsenic, and the jury found that he procured the arsenic, and caused it to be administered by another person; but was absent when it was administered; and thereupon it was objected that the 11 & 12 Vict. c. 46, s. 1, did not apply to murder; but Williams J., overruled the objection. The learned Judge afterwards communicated the decision to myself, and I pointed out that in the 7 Geo. 4, c. 64, ss. 9, 10, 11; 4 Geo. 4, c. 48, s. 1; 7 & 8 Geo. 4, c. 28, ss. 1, 2, 3, 5, 13; 4 & 5 Vict. c. 22, and other statutes, it was manifest that "felony" included murder; and the learned Judge, having given the matter full consideration, refused to reserve the point. My Lord Hale in commenting on the jurisdiction of Justices of the Peace, says (2 Hale, 45)" By the Statutes of 18 Ed. 3, c. 2; 34 Ed. 3, c. 1; 17 Rich. 2, c. 10; though they do only mention felonies, and do not expressly mention murders and manslaughters, and although the Commission of the Peace mentions not murders by express name, but only felonies generally, yet by these general words in these Statutes and this Commission, they have power to hear and determine murders and manslaughters, and thus it has been resolved, 5 Ed. 6, Dy. 69, a.; Pref. to 10 Co. Rep. against the opinion of Fitzherbert in his Justice of Peace, and 9 Hen. 4, 24, Coron. 437." This shows that the decision of Williams, J. was correct. Mr. Archbold (Criminal Acts, 530) strongly objects to this clause. After treating the rule in treason and misdemeanors that all are principals as absurd, he says, "But there is no reason why felonies should be involved in the same absurdity. Supposing a man has been guilty, and accused as accessory before the fact to a murder, and he is then, according to the above section, indicted for having committed murder, how are the jury, who are bound by their oath to give their verdict according to the evidence, to find a man guilty of the murder, when the evidence is that he was not present at the murder-that he did not aid or abet those who committed it, but had merely advised it some months before?" Now the answer to this is very plain; the objection rests merely on a legal distinction, which would never have entered into the head of any one but a lawyer, and was not finally settled till Rex v. Birchenough, R. & M. C. C. R. 477; and there are old authorities the other way in Stamforde, which were recognised by Lord Hale, 1 Hale, 626; 2 Hale 224, and Forster, 361. The distinction is this; that if A. procures B. to murder C., and this murder is committed by B. in A.'s absence, A. is guilty of murder if B. is an innocent agent, but is only an accessory before the fact if B. is a guilty agent. Now it is obvious that there is no more difficulty in a jury understanding that they may convict A. of murder, where B. is a guilty agent, than where he is an innocent one. In either case all they have to try is whether A. caused B. to commit the murder. Juries are perfectly well able to understand that he who causes a thing to be done by another is just as much responsible as if he did that thing himself-qui facit per alium facit per se-and there is no more difficulty in satisfying them that a man ought to be convicted of a murder who causes it to be done by another in his absence, than in satisfying them that where pre As t 3. Wh Fact to a common be passed an acces d misdemeanor all are principals, and "of together Fiction and con rincipa convicte and may Reg. v. any acce Convicte 4. Vhosoever shall counsel, procure, or command excel viction 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 thereupon be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished. Note. This clause is taken from the 7 Geo. 4, c. 64, s. 9; and 9 Geo. 4, c. 54, s. 23 (I). Mr. Davis (Crim. L. 2) says "this section is practically merged in the more comprehensive terms of the first section." This is a mistake, the prosecutor may at his option prefer an indictment either under this or the preceding section, and we have shown in the last note that there are cases in which it may be advisable to prefer an indictment under this section. As to accessories after the fact : fact may be substan 3. Whosoever shall become an accessory after the Accessories fact to any felony, whether the same be a felony at after the common law or by virtue of any Act passed or to indicted as be passed, may be indicted and convicted either as such, or as an accessory after the fact to the principal felony, sives felons. 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 thereupon be punished in like manner as any accessory after the fact to the same felony, if convicted as an accessory, may be punished. Note.-This clause is taken from the 11 & 12 ment 4. Every accessory after the fact to any felony Punish(except where it is otherwise specially enacted), of accessowhether the same be a felony at common law or by ries after the fact. |