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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 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 one man inflicts a mortal wound in the presence of another, that wound is as much his wound as if he had inflicted it, if they were both concurring in the act that caused it. In both cases the jury must be satisfied that the act of the killer was caused by the other, and the advantage of this clause is, that it reduces the question for the jury to that single issue, and gets rid of the difficulty, which often formerly arose, whether the evidence proved the prisoner to be a principal or accessory before the fact. In all civil cases, and in the ordinary affairs of life, he who causes an act to be done, though he be absent when it is done, is treated as having done that act, and the same has always been the rule in treason and misdemeanor, and felony was the only exception, which the 11 & 12 Vict. c. 46, s. 1, very properly removed.
Mr. Archbold also says, p. 530, that in treason and misdemeanor all are principals, and “of course those who advise treason or misdemeanor, and are not present when it is committed, must necessarily be indicted as principals, there is no other mode of indicting them." This is a mistake. It may be laid either way ; viz., charging as principal, or laying it special as it will appear by the evidence. If one conspires the death of the Queen, and is committed to prison for the same, and one procures him to escape or harbours him after such a time as he knows him charged with treason, or to have committed treason, you may indict him upon the special matter, that A. committed treason, that B. knew of it and received him. Reg. v. Tracy, 6 Mod. 30, per Holt C. J.
Accessories 2. Whosoever shall counsel, procure, or command before the
other fact may be
to commit any felony, whether the
same be a felony at common law or by virtue of as such, or any Act passed or to be passed, shall be guilty of as substan- felony, and may be indicted and convicted either as tive felons.
an accessory before the fact to the principal felony, together with the principal felon, or after the con
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 : 3. Whosoever shall become an accessory after the Accessories fact to any felony, whether the same be å 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, substan
tive 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
4. Every accessory after the fact to any felony Punish(except where it is otherwise specially enacted), ment whether the same be a felony at common law or by ries after
virtue of any Act passed or to be passed, shall be liable, at the discretion of the Court, to be imprisoned in the common gaol or house of correction for any term not exceeding two years, with or without hard labour, and it shall be lawful for the Court, if it shall think fit, to require the offender to enter into his own recognisances and to find sureties, both or either, for keeping the peace, in addition to such punishment: Provided that no person shall be imprisoned under this clause for not finding sureties for any period exceeding one year.
Note.—This clause applies the ordinary punishment given by Peel's Acts to accessories after the fact, to all such accessories, except where it is otherwise specially provided by some other Act.
As to accessories generally : Prosecution 5. If any principal offender shall be in anywise of accessory convicted of any felony, it shall be lawful to proceed after principal has against any accessory, either before or after the fact, been con
in the same manner as if such principal felon had victed, but been attainted thereof, notwithstanding such principal tainted.
felon shall die, or be pardoned, or otherwise delivered before attainder; and every such accessory shall upon conviction suffer the same punishment as he would have suffered if the principal had been attainted.
Note.—This clause is taken from the 7 Geo. 4, c. 61, s. 11, and 9 Geo. 4, c. 54, s. 25 (I.).
Mr. Davis (Crim. L. p. 3) says " by the common law no accessory can be tried until after not merely the conviction but the attainder of the principal," and he had said the same thing in the note to sec. 1, p. 1. This is an entire mistake; an accessory might always be tried at the common law together with his principal, which was the best and most usual course. 1 Hale, 623, 624. 2 Inst. 184.