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he would stand in a different position to those who had counselled him to the commission of the crime. But it altogether fails where the immediate agent is an innocent one. Then those who have plotted and arranged that he should do the particular act are themselves principals. Suppose the prisoners had been both. abroad, and that, having planned the forgery, one of them had given the order for the plate by letter, can it be doubted that they would be indictable as principals; and can it make any difference that one of them is in this country? It seems to me, then, that the circumstance of the immediate agent in this forgery being an innocent person renders the rule of law as to principal and accessory inapplicable." Alderson, B.: "If a person does an act of this kind, with a guilty intent, he is not the agent of any one. If he does it innocently, he is the agent of some person or persons; and if two have agreed to employ him, he is the agent of both. In this case, therefore, it is a question for the jury whether the prisoners were jointly acting in procuring this plate to be made. If they were, then the engraver acts on behalf of both. It makes no difference whether they were in England or elsewhere; when they have once agreed to do the thing, the act of one is the act of all, although the rest be absent at the time."(g)

*It has been held, that to aid and assist a person to the jurors unknown, [*55 to obtain money by the practice of ring-dropping is felony, if the jury find that the prisoner was confederating with the person unknown to obtain the money by means of this practice. (99) And if several act in concert to steal a man's goods, and he is induced by fraud to trust one of them in the presence of the others with the possession of the goods, and then another of the party entice the owner away, in order that the party who has obtained such possession may carry the goods off, all will be guilty of felony, the receipt by one, under such circumstances, being a felonious taking by all.(h) So, where a prisoner asked a servant who had no authority to sell, the price of a mare, and desired him to trot her out, and then went to two men, and having talked to them, went away, and the two men then came up and induced the servant to exchange the mare for a horse of little value, it was held that if the prisoner was in league with the two men to obtain the mare by fraud and steal her he was a principal.(i)

If a fact amounting to murder should be committed in prosecution of some unlawful purpose, though it were but a bare trespass, all persons who had gone in order to give assistance, if need were, for carrying such unlawful purpose into exccution, would be guilty of murder. But this will apply only to a case where the murder was committed in prosecution of some unlawful purpose, some common design in which the combining parties were united, and for the effecting whereof they had assembled; for unless this shall appear, though the person giving the mortal blow may himself be guilty of murder, or manslaughter, yet the others who came together for a different purpose will not be involved in his guilt.(k)1 Thus where three soldiers went together to rob an orchard; two got upon a pear-tree, and the third stood at the gate with a drawn sword in his hand; and the owner's son coming by collared the man at the gate, and asked him what business he had there, whereupon the soldier stabbed him; it was ruled to be murder in the man

(9) Reg. r. Bull, 1 Cox C. C. 281. It follows from this case that the trial of the guilty parties may be where the innocent agent made the plate, although they may be in another county, or even out of the kingdom when the plate is made. In point of law the act of the innocent agent is as much the act of the procurer as if he were present and did the act himself See Rex v. Brisac, 4 East R. 163.

(gg) Moore's case, 1 Leach 314.

(h) Rex v. Standley, MS., Bayley, J., and R. & R. 305; Rex v. County, MS., Bayley J. Post, Book IV.

(1) Reg. e. Sheppard, 9 C. & P. 121 (38 E. C. L. R.), Coleridge, J.

(k) Fost. 351, 352; 2 Hawk. P. C. c. 29, s. 9; see Reg. v. Howell, 9 C. & P. 437 (38 E. C. L. R.), per Littledale, J.

1 One may aid and abet another, in the commission of the offence of manslaughter, and be punishable accordingly. So, under an indictment, charging one with being present, aiding, helping, abetting, comforting, assisting and maintaining S. K. in the commission of murder, the prisoner may be well convicted of manslaughter: State v. Coleman, 5 Porter 32.

VOL. 1.-4

who stabbed, but that those on the tree were innocent. It was considered that they came to commit a small inconsiderable trespass, and that the man was killed upon a sudden affray without their knowledge. But the decision would have been otherwise if they had all come thither with a general resolution against all opposers; for then the murder would have been committed in prosecution of their original purpose.(1)

*Where on a trial for murder the case on the part of the Crown was, that *56] the prisoner and Jackson had followed the deceased for the purpose of robbing him, and that, in pursuance of that object, one or both of them struck the deceased on the head and killed him, and the preceding passage was cited for the prisoner; Bramwell, B., told the jury, "The rule of law is this: if two persons are engaged in the pursuit of an unlawful object, the two having the same object in view, and in the pursuit of that common object, one of them does an act which is the cause of death under such circumstances that it amounts to murder in him, it amounts to murder in the other also. The cases which have been referred to may be explained in this way. The object for which the parties went out was a comparatively trifling one, and it is almost impossible to suppose that if one had committed a murder whilst engaged in the pursuit of such an object, the act could have been done in furtherance of the common object they had in view, which was comparatively so unimportant." Suppose two men go out together, and one of them holds a third man for the purpose of enabling his companion to cut that man's throat, and his companion does so, no one could doubt that they were both equally guilty of murder Therefore, if you find the common unlawful object in two prisoners, and death ensuing from the act of Jackson in pursuance of that common unlawful object, under such circumstances that it was murder in him, it is your duty to find the prisoner guilty."(m)

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For where there is a general resolution against all opposers, whether such resolution appears upon evidence to have been actually and explicitly entered into by the confederates, or may be reasonably collected from their number, arms, or behavior, at or before the scene of action, and homicide is committed by any of the party, every person present in the sense of the law when the homicide is committed will be involved in the guilt of him that gave the mortal blow.(n) Thus where several persons are together for the purpose of committing a breach of the peace, assaulting persons who pass, and, while acting together in that common object, a fatal blow is given, it is immaterial which struck the blow, for the blow given under such circumstances is in point of law the blow of all, and it is unnecessary to prove which struck the blow.(0)

But it must be observed that this doctrine respecting the whole party being involved in the guilt of one or more, will apply only to such assemblies as are formed for carrying some commen purpose, unlawful in itself, into execution. For if the original intention was lawful, and prosecuted by lawful means, and opposition is made by others, and one of the opposing party is killed in the struggle, in that case the person actually killing may be guilty of murder or manslaughter, as circumstances may vary the case: but the persons engaged with him will not be involved in *his guilt, unless they actually aided and abetted him in the fact; for they *57] assembled for another purpose which was lawful, and consequently the guilt

(1) Fost. 353; Case at Sarum Lent Assizes 1697, MS.; Denton v. Chapple, 2 Hawk. P. C. c. 29, s. 8. And see Rex v. Hodgson and others, 1 Leach 6; and an Anon. case at the Old Bailey in December Sessions 1664, 1 Leach 7, note (a), where several soldiers, who were employed by the messengers of the Secretary of State to assist in the apprehension of a person, unlawfully broke open the door of a house where the person was supposed to be; and having done so, some of the soldiers began to plunder, and stole some goods. The question was, whether this was felony in all; and Holt, C. J., citing the case, says, That they were all engaged in an unlawful act is plain, for they could not justify breaking a man's house without making a demand first; yet all those who were not guilty of the stealing were acquitted, notwithstanding their being engaged in one unlawful act of breaking the door; for this reason, because they knew not of any such intent, but it was a chance opportunity of stealing, whereupon some of them did lay hands."

(m) Reg. v. Jackson, 7 Cox C. C. 357.

(n) Fost. 353, 354; 2 Hawk. P. C. c. 29, s. 8. See post, 742.

(0) Reg. v. Harrington, 5 Cox C. C. 231, Martin, B.

of the person actually killing cannot by any fiction of law be carried against them beyond their original intention.(p)

When several are present and abet a fact, an indictment may lay it generally as done by all, or specially, as done by one and abetted by the rest. (q) And even in offences in which there could have been only one principal in the first degree, as in rape, a charge against all as principals in the first degree is valid, if there be not difference in the punishment between the principals in the first and those in the second degree; though it should seem that the more correct form in a case of this kind would be to charge the parties according to the facts as they will be proved. (r) An indictment against the principal in the second degree in murder should show distinctly that he was present when the mortal stroke was given; and it should seem that it would not be sufficient to state that both of their malice aforethought made the assault; that the principal in the first degree then and there gave the mortal stroke, and so that both murdered; at least it would not be sufficient if, before the allegation that both murdered, it is stated that the one (the principal in the second degree) counselled and incited the other to do the act.(s)

III. An accessory before the fact is he who, being absent at the time of the offence committed, doth yet procure, counsel, command or abet another to commit a felony.(t)1 And it seems that those who by hire, command, counsel, or conspiracy, and those who by showing an express liking, approbation, or assent to another's felonious design of committing a felony, abet and encourage him to commit it, but are so far absent when he actually commits it that he could not be encouraged by the hopes of any immediate help or assistance from them, are accessories before the fact.(u) But words that amount to bare permission will not make an accessory, as if A. says he will kill J. S., and B. says "you may do your pleasure for me," this will not make B. an accessory.(v) And it seems to be generally agreed that he who barely conceals a felony which he knows to be intended is guilty only of misprision of felony, and shall not be adjudged an accessory.(w) The same person may be a principal and an accessory in the same felony, as where A. commands B. to kill C., and afterwards actually joins with him in the fact.(x)

The offence of an accessory before the fact differs so much from that of a principal in the second degree, that where a person was indicted as an accessory before the fact, it was held that she could not be convicted of that charge upon evidence proving her to have been present aiding and abetting; it being clearly

(p) Fost. 354, 355; 2 Hawk. P. C. c. 29, s. 9. And see further upon this point, post, Book III. Chap. III. on Homicide.

See post, 706.

(q) 2 Hawk P. C. c. 23, s. 76, and c. 25, s. 64; Rex v. Young, 3 T. R. 98.
(r) Rex v. Vide, Fitz. Corone, pl. 86; Rex v. Burgess, Tr. T. 1813. Post, 920.
(8) Rex v. Winifred and Thomas Gordon, 1 Leach 515; 1 East P. C. 352.
(t) 1 Hale 615.

(u) 2 Hawk. P. C. c. 29, s. 16.

(e) 1 Hale 616.

(a) 1 Hale 616; 2 Hawk. P. C. c. 29, s. 23.

(z) 2 Hawk. P. C. c. 29, s. 1, where it is said also that he may be charged as principal and accessory in the same indictment; but this was not allowed: Rex v. Madden, R. & M., C. C. R. 277; Rex v. Galloway, Ibid. 234, until the 11 & 12 Vict. c. 46. In Atkin's case,

who was tried for the murder of Sir E. Godfrey, two indictments were found against him, one as principal, the other as accessory; and he was arraigned upon both at the same time. But the first was abandoned, and evidence given only in support of the second; the verdicts appear, however, to have been pronounced successively: 7 Howell's St. Tri. 231.

1 Accessories before the fact: see Hately v. State, 15 Geo. 346; M.Carty v. State, 26 Miss. 233; Brennan v. People, 15 Ill. 511; Brown v. State, 18 Ohio St. 496. It is not material that an accessory should have originated the design of committing the offence. If the principal had previously formed the design, and the alleged accessory encouraged him to carry it out by stating falsehoods or otherwise, he is guilty as accessory of the offence: Keithler v. State, 10 S. & M. 192. A person may be legally convicted as accessory before the fact of murder in the second degree: Jones v. State, 13 Texas 168. The distinction between principals and accessories before the fact is abolished in Michigan and California: Shannon v. People, 5 Mich. 71; People v. Bigler, 5 Cal. 23; People v. Davidson, Ibid.

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