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 to make a man an accessory of this description: as where one assists a felon with a horse to ride away, or with money or victuals to support him in his escape, or where one harbors and conceals in his house a felon under pursuit, by reason whereof the pursuers cannot find him; and much more where one harbors in his house and openly protects such a felon, by reason whereof the pursuers dare not take him.(q) If A. has his goods stolen by B., and C. knowing they were stolen receives them, this simply of itself makes not an accessory; but if B. come to C. and deliver him the goods to keep for him, C. knowing that they were stolen, and that B. stole them, or if C. receive the goods to facilitate the escape of B., or if C. knowingly receives them upon agreement to furnish B. with supplies out of them, and accordingly supplies him, this makes C. an accessory. But the bare receiving of stolen goods, knowing them to be stolen, makes not an accessory; for he may receive them to keep for the true owner, or till they are recovered or restored by law. (r)

Where, after setting out the conviction of a principal for a robbery of a £100 note, an indictment alleged that the prisoner did receive, harbor, maintain, relieve, aid. comfort and assist the principal, knowing him to have committed the robbery, and it appeared that shortly after the robbery the prisoner applied to his landlady to change the note, but did not succeed; and that the principal went to a shop to purchase some articles, for the payment of which he tendered the note, and received a large part of it in change, and that during the time he was in the shop the prisoner was waiting outside; Maule, J., held that there was evidence of comforting and assisting. If a man stole a horse, and another assisted him in coloring and disguising him, so that he could not be known again, that would make him an accessory. Here the prisoner assists the party who has stolen the note to get rid of it, and thus evade the justice of the country.(s)

Where a lad robbed a banking house, in which he was clerk, and the same evening went to the room of the prisoner, a man, where he stayed twenty minutes, and both of them proceeded together that evening, by coach, to Bristol, and thence to Liverpool, where they were apprehended before they set sail for America, whither the prisoner had said they were going: it was held that this was evidence to go to the jury, upon an indictment charging the prisoner with harboring, receiving, and maintaining the boy, although the places in the coaches were paid for by the boy.(t) So a man who employs another person to harbor the principal may be convicted as an accessory after the fact, although he himself did no act of relieving or assisting the principal.(u)

*Also, whoever rescues a felon from an arrest for the felony, or voluntarily and intentionally suffers him to escape, is an accessory to the felony :(v) and [*65 it has been said, that those are in like manner guilty who oppose the apprehending of a felon (w) It is agreed by all the books, that a man may be an accessory after the fact by receiving one who was an accessory before, as well as by receiving a principal.(c) And it has been holden, that a man may make himself an accessory after the fact to a larceny of his own goods, or to a robbery on himself, by harboring or concealing the thief, or assisting in his escape.(y)

In order to support a charge of receiving, harboring, 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.(z)

Where an indictment alleged that Mills sent letters demanding money with

(g) 2 Hawk. P. C. c. 29, s. 26; 1 Hale 618, 619; 4 Blac. Com. 38.

(r) 1 Hale 619.

(s) Reg. v. Butterfield, 1 Cox C. C. 39.

(1) Rex v. Lee, 6 C. & P. 536 (25 E. C L. R.), Williams, J.

(u) Rex v. Jarvis, 2 M. & Rob. 40, Gurney, B.

(r) 2 Hawk. P. C. c. 29, s. 27; 1 Hale 619; but not the merely suffering him to escape, where it is a bare omission: 1 Hale 619; 2 Hawk. P. C. c. 29, s. 29.

() 2 Hawk. P. C. c. 29, s. 27.

(y) Fost. 123; Cromp. Just. 41 b, pl. 4 and 5.

(x) 2 Hawk. P. C. c. 29, s. l.

(2) Reg. v. Chapple, 9 C. & P. 355 (38 E. C. L. R ), Law, R., after consulting Littledale, J., and Alderson, B.

menaces, and that the prisoner did "feloniously receive, harbor, maintain, and assist" the said Mills, knowing her to have committed the said felony, and the letters contained threats of exposing the immorality of the prosecutor, and one of them threatened to insert a paragraph in the "Satirist;" and immediately afterwards articles reflecting on the prosecutor appeared in that paper, of which the prisoner was the proprietor, and on being cautioned as to the course he was pursuing, the prisoner said he could not stop the publication of such articles in future. and referred to Mills, and gave her address, and on being told that the prosecutor would submit to a little extortion rather than have his character assailed, the prisoner consented to wait a week that the prosecutor might be spoken to on the subject. Notices, however, that further articles of the same nature would be published continued to appear in the "Satirist." It was contended that there was no evidence to prove that the prisoner was an accessory; it was answered that any assistance given to the principal to enable her to carry out the object with which the felony was committed was sufficient. Erle, J.: "I do not agree to that proposition; the assistance must tend to prevent the principal felon from being brought to justice. The question is, did he, after the felony was complete, assist the felon to elude justice? It is no part of this felony that the money should be paid: the crime is complete as soon as the demand is made. Can it be said, then, that by assisting in a fresh attempt to obtain money, he aided her in concealing or even carrying out the one completed." Erle, J., however left the case to the jury, intending to reserve the point; but the jury acquitted the prisoner. (a)

Where an Act of Parliament enacts an offence to be felony, though it mentions nothing of accessories, yet virtually and consequentially those that knowingly re

ceive the offender are accessories *after.(b) It has, however, been said, that *66] if the Act of Parliament that makes the felony in express terms, comprehend accessories before, and make no mention of accessories after, it seems there can be no accessories after; the expression of procurers, counsellors, abettors, all which import accessories before, making it evident that the Legislature did not intend to include accessories after, whose offence is of a lower degree than that of accessories before.(c) But by others it is considered to be settled law, that in all cases where a statute makes any offence treason, or felony, it involves the receiver of the offender in the same guilt with himself, in the same manner as in treason or felony at common law, unless there be an express provision to the contrary. (d) And although it be generally true, that an Act of Parliament creating a felony renders consequentially accessories before and after within the same penalty, yet the special penning of the Act sometimes varies the case: thus the 3 Hen. 7, c. 2 (now repealed), for taking away women, made the taking away, the procuring and abetting, and also the wittingly receiving, all equally felonies and excluded from clergy. So that Acts of Parliament may diversify the offences of accessory or principal according to their various penning, and have done so in many cases (e)

There is no doubt but that it is necessary for a receiver to have had notice, either express or implied, of the felony having been committed, in order to make him an accessory by receiving the felon ;(ƒ) and it is also agreed, that the felony must be complete at the time of the assistance given, else it makes not the assistant an accessory. So that if one wound another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent; this does not make him accessory to the homicide, for till death ensues there is no felony committed.(g) The law has such a regard to the duty, love, and tenderness, which a wife owes to her husband, that it does not make her an accessory to the felony by any receipt whatever which she may give to him; considering that she ought not to discover her husband.(h)

(a) Reg. v. Hansill, 3 Cox C. C. 597. (c) 1 Hale 614.

(e) 1 Hale 614.

(b) 1 Hale 613, ante, p. 61.
(d) 2 Hawk. P. C. c. 29, s. 14.
(ƒ) 2 Hawk. P. C. c. 29, s. 32.

(g) 2 Hawk. c. 29, s. 35; 4 Blac. Com. 38; but I apprehend it would make him accessory to the felony of maliciously wounding. C. S. G.

(h) 2 Hawk. c. 29, s. 34; 1 Hale 621, ante, p. 46. But this applies to no other relation besides that of a wife to her husband; and the husband may be an accessory for the receipt of his wife: 1 Hale 621.

It is not thought necessary to discuss further the general principles of law relating to accessories after the fact, since prosecutions against such persons grounded on the common law are seldom instituted at the present time; nor do they appear to have been frequent for many years past, nor to have had any great effect.(i) It should seem, however, that the 7 & 8 Geo. 4, c. 28, ss. 8, 9, will apply to accessories after the fact, where no punishment is specially provided for their felony.(k) The Consolidation Acts of the 24 & 25 Vict. make accessories after the fact to felonies punishable under those Acts respectively liable to imprisonment for any term not exceeding two years.(1)

*The principal and accessory may be indicted in the same indictment, and [*67 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.(!) And an accessory could not in such case have been tried, un(i) Fost. 372. (k) See ante, p. 3.

(1) See ante, p. 5.

(1) 1 Hale 623; 2 Hawk. c. 29, s. 45; Fost. 360.

Where the accessory is tried alone, the record of the principal's conviction must be produced; but if there are counts charging the accessory with "being present, aiding and abetting," the guilt of the principal may be proved by parol testimony, although he may have been actually convicted: State v. Taylor, 2 Bailey 49.

Indictment. The first count, after stating that A. B. had committed larceny at, &c., on, &c.. charged the defendant with then and there aiding and abetting A. B., &c. The second count charged the defendant as an accessory to the larceny before the fact. Plea, not guilty. Verdict and judgment against the defendant. Held, 1. That the want of an averment in the indictment, that the principal had been convicted, was no ground for arresting the judgment. 2. That an accessory must be tried after the conviction of the principal, or be tried with him: Harty v. State, 3 Blackf. 386. Where the principal and accessory are joined in one indictment, but are tried separately, the record of the conviction of the principal is primâ facie evidence of his guilt, upon the trial of the accessory, and the burden of proof rests on the accessory, not merely that it is questionable whether the principal ought to have been convicted, but that he clearly ought not to have been convicted: Comm. v. Knapp, 10 Pick. 477. See also State v. Cruak, 2 Bailey 66. It is not necessary to set out the conviction of the principal in the indictment: Ibid. The court may in its discretion permit an accessory to be tried separately from the principal: State v. Yaney, 1 Const. Rep. 237. An accessory cannot be put on trial before the conviction of the principal unless he consent thereto, or be put on trial with his principal: State . Pybus, 4 Hamp. 442; Whitehead v. State, Ibid. 278; Comm. v. Woodward, Thacher's Crim. Cas. 63; Sampson v. Comm., 5 W. & S. 385. Accessory discharged by acquittal of principal: United States v. Crane, 4 McLean 317. On the trial of a prisoner indicted as an accessory to murder, the record of the conviction of the principal is evidence to prove that conviction, and all its legal consequences, though not evidence of the fact of the guilt of the prisoner: Keithler v. State, 10 Sm. & Marsh. 192. Where a principal and accessory are tried separately, though on the same indictment, evidence of the conviction of the principal is not admissible on the trial of the accessory, unless judgment has been first rendered against the principal: State v. Duncan, 6 Ired. 98. An accessory cannot take advantage of error in the record against the principal, and the attainder of the principal while unreversed is primâ facie evidence against the accessory of the principal's guilt: State v. Duncan, 6 Ired. 236. The confession of a principal is not evidence against an accessory: State v. Newport, 4 Harring. 567. Upon the trial of a principal in the second degree, it is competent for the state to offer in evidence an admission of his own guilt made by the principal in the first degree, to establish the fact of such guilt, in addition to the record of his conviction. The original indictment, verdict, and judgment against a principal in the first degree are admissible against one indicted in the second degree, and is primâ facie evidence of the guilt of the principal in the first degree: Studstill v. State, 7 Geo. 2. The principal must be tried and convicted before an accessory can be tried: Bacon v. People, 1 Parker C. R. 246. It is only necessary that one of several principals should be convicted: Starin v. People, 45 N. Y. 333. To establish the guilt of one charged as accessory before the fact to a felony, the guilt of the principal must first be proved: Ogden v. State, 12 Wis. 532. An accessory may be indicted without the conviction of the principal being averred, but his guilt must be averred, and the evidence must show that his guilt was legally established before the trial of the accessory: Holmes v. Comm., 1 Casey 221. Where the accessory is tried alone before the conviction of the principal, acts and conduct of the principal, immediately following the commission of the offence and tending to show that he committed it, are competent evidence to prove the guilt of the principal: State v. Rand, 33 N. H. 216. A discharge of the principal in the first degree in an indictment for murder does not discharge the other defendants who are arraigned as accessories: State v. Phillips, 24 Mo. 475. On an indict

less 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.(m) But the 24 & 25 Vict. c. 94, which came into operation on Nov. 1, 1861, has made the following salutary provisions for the effectual prosecution of accessories. "As to accessories before the fact:

Sec. 1. "Whosoever shall become an accessory before the fact to any felony, whether the same be a felony at common law or by virtue of any Act passed or to be passed, may be indicted, tried, convicted, and punished in all respects as if he were a principal felon."

This clause is taken from the 11 & 12 Vict. c. 46, s. 1, upon which it was held, that it was no objection to an accessory before the fact being convicted that his principal had been acquitted. Hall and Hughes were jointly indicted for stealing certain cotton. Hall was acquitted and called as a witness against Hughes; and it clearly appeared that Hall had stolen the cotton at the instigation of Hughes, and in his absence. 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.(n)

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 authorizes *68] 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 sec. 7 of this Act authorized 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 24 & 25 Vict. c. 94, 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

(m) Fost. 362, where the doctrine is reprobated; and see 1 Hale 625, where it is said that it is for this reason that Weston, the principal actor in the murder 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. (n) Reg. v. Hughes, Bell C. C. 242.

ment for an assault with intent to kill, the defendant cannot be convicted of being an accessory before the fact: State v. Scannell, 39 Me. 68 Where the offence of a principal is committed in one county and that of the accessory in another, the accessory may be tried in the county where he performed the act which made him an accessory: Bacon v. People, 1 Parker C. R. 246. An accessory before the fact to a felony procured in another state, to be committed within New Hampshire, cannot be tried for the offence of procuring its commission, in the County of New Hampshire, within which the principal offence is committed: State v. Moore, 6 Foster 448.

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,(o) 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; and having given the matter full consideration, refused to reserve the point. And this decision was clearly right; for it has been held that a commission to the ordinary to receive all clerks indicted for felony. but not for murder, gave authority to the ordinary to receive a person indicted for murder; and all the justices said that murder is felony, and if a commission be made to two to inquire of all felonies, they can well take indictments of murder, although a pardon of all felonies is not available for one indicted of murder; for that is by statute 13 R. 2, st. 2, c. 1.(p)

Sec. 2. "Whosoever 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 Act passed or to be passed, shall be 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 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."(q)

"As to accessories after the fact:

Sec. 3. "Whosoever shall become an accessory after the fact to any felony, whether the same be a felony at common law or by virtue of any Act passed or to be passed, may be indicted and convicted either as an accessory after the fact to the principal *felony, together with the principal felon, or after the conviction [*69 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."(r)

Upon an indictment against a prisoner as a principal he cannot be convicted under this section as an accessory after the fact. The prisoner was indicted for stealing from the person; there was no evidence to prove that charge, but there was ample evidence to prove that he was an accessory after the fact to the stealing from the person; it was held that he could not be convicted as such accessory upon this indictment.(s)

Sec. 4. "Every accessory after the fact to any felony (except where it is otherwise specially enacted), whether the same be a felony at common law or by 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 labor, and it shall be lawful for the Court, if it shall think fit, to require the offender to enter into his own recognizances 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."

"As to accessories generally:

Sec. 5. If any principal offender shall be in anywise convicted of any felony, it shall be lawful to proceed against any accessory, either before or after the fact, in the same manner as if such principal felon had been attainted thereof, notwith

(0) Stafford. Sum. Ass. 1850, MSS. C. S. G.

(p) Anonymous, Keilw. 91, b; and see 2 Hale 45; 3 Inst. 236, and Graves' Cr. St. 20, 2d edit.

(7) This clause is taken from the 7 Geo. 4, c. 64, s. 9; and 9 Geo. 4, c. 54, s. 23 (I). (r) This clause is taken from the 11 & 12 Vict. c. 46, s. 2.

() Reg. Fallon, 1 L. & C. 217.