maycontrovert Where the principal and accessory are tried together upon the The accessory same indictment, there is no doubt but that the accessory may the guilt of the enter into the full defence of the principal, and avail himself of principal. every matter of fact and every point of law tending to his acquittal; for the accessory is in this case to be considered as particeps in lite; and this sort of defence necessarily and directly tends to his own acquittal. And where the accessory is brought to his trial after the conviction of the principal, and it comes out in evidence upon the trial of the accessory that the offence of which the principal was convicted did not amount to felony in him, or not to that species of felony with which he was charged, the accessory may avail himself of this, and ought to be acquitted. (g) For though it is not necessary upon such trial on the part of the prosecution to enter into a detail of the evidence on which the conviction was founded, and the record of the conviction is deemed sufficient evidence against the accessory to put him upon his defence; yet the presumption raised by the record that every thing in the former proceeding was rightly and properly transacted must, it is conceived, give way to facts manifestly and clearly proved; and that as against the accessory the conviction of the principal will not be conclusive, being as to him res inter alios acta. (h) This was the opinion of Mr. Justice Foster; and upon this opinion the court, in a case at the Old Bailey, permitted the counsel for a prisoner indicted as an accesory to controvert the propriety of the conviction of the principal by viva voce testimony, and to shew that the act done by the principal did not amount to a felony, and was only a breach of trust.(i) And in a later case in the same court it was also admitted that the record of the conviction of the principal was not conclusive evidence of the felony against the accessory, and that he has a right to controvert the propriety of such conviction.(k) But how far an accessory can defend himself in point of fact, by shewing that the principal was totally innocent, has been considered as a question of more difficulty, and one which should be handled with caution; because facts for the most part depend upon the credit of witnesses; and when the strength and hinge of a cause happen to be disclosed, as they may be by one trial, daily experience convinces us that witnesses for very bad purposes may be too easily procured. Upon this point, however, Mr. Justice Foster cites some authorities, which he apprehends to be strong, to shew that the accessory may insist upon the innocence of the principal; and then gives his own opinion. He says, "if it shall manifestly appear, in the course "of the accessory's trial, that in point of fact the principal was "-innocent, common justice seems to require that the accessory the principal, is ipso facto utterly defeated and annulled, Lord Sanchar's case, 9 Co. 119. Fost. 366. (g) Fost. 365. Rex v. M'Daniel and Others, 19 Sta. Tri. 806. (h) Ibid. (i) Smith's case, 1 Leach 288. (k) Prosser's case, (mentioned in a note to Smith's case, Leach 290.) Cor. Gould, J. who is considered to have been a very accurate crown lawyer. And see Rex v. M'Daniel and Others, 19 St. Tri. 806. In what county they shall be tried. 43 G. 3. c. 113. 8.5. "should be acquitted. A. is convicted upon circumstantial evi"dence, strong as that sort of evidence can be, of the murder of "B.; C. is afterwards indicted as accessory to this murder; and "it comes out upon the trial, by incontestible evidence, that B. is "still living; (Lord Hale somewhere mentions a case of this kind) "Is C. to be convicted or acquitted? The case is too plain to "admit of a doubt. Or, suppose B. to have been in fact mur"dered, and that it should come out in evidence, to the satisfac❝tion of the court and jury, that the witnesses against A. were "mistaken in his person, (a case of this kind I have known) and "that A. was not, nor could possibly have been, present at the "murder."() Where a person is feloniously stricken or poisoned in one county, and dies thereof in another county, the accessory may be indicted in the county where the death shall happen. (m) And where a murder or felony was committed in one county, and the person was accessory in another county, the accessory may be indicted in the county where he was accessory. And the judges of assize, or two of them, of the county where the offence of the accessory shall have been committed, on suit to them made, shall write to the keeper of the records where the principal shall have been convicted, to certify them whether such principal be attainted, convicted, or otherwise discharged, which he shall certify under his seal. (n) In the case of accessories to any felony before the fact, whether the principal felony be committed within the body of any county or upon the high seas, and whether the procuring, &c. or abetting, or otherwise becoming accessories before the fact be committed within the body of any county, or upon the high seas, the offence of such accessories may be tried (in case the principal felony was committed within the body of any county) by the course of the common law, either within the county where the principal felony was committed, or in the county where the offence of becoming accessory before the fact was committed; and in case the principal felony was committed upon the high seas, then the offence of becoming accessory before the fact may be tried in such court, &c. as is directed by the statute 28 Hen. 8. c. 15. for trying felonies committed upon the high seas. (0) The 33 Hen. 8. c. 23, intituled "An Act to proceed by com"mission of oyer and terminer against such persons as shall con❝fess treason, &c. without remanding the same to be tried in the "shire where the offence was committed," (p) gives certain powers for making commissions of oyer and terminer for the speedy trial (1) Fost. 367, 378; and see 3 Esp. R. 134, (in the case of Cook v. Field,) where it was stated by Bearcroft, and assented to by Lord Kenyon, that where the principal has been convicted, it is nevertheless on the trial of the accessory competent to the defendant to prove the principal innocent. And see Rex v. M'Daniel and Others, 19 St. Tri. 806. (m) 2 & 3 Edw. 6. c. 24. s. 2, 3. (n) 2 & 3 Edw. 6. c. 24. s. 4. Lord Sanchar's case, 9 Co. 117, where several questions were moved upon this statute. Such accessory was dispunishable at common law, 2 Hale P. C. 623. (0) 43 G. 3. c. 113. s. 5. Rex v. Morris, Russ. & Ry. 270. (p) 1 East. P. C. 369. of persons examined before the King's council, or three of them, upon any murders or other offences therein mentioned under such circumstances and in such cases as in the said act are mentioned ; but no provision is therein made for the trial of accessories before the fact in murder: it is therefore provided by the statute 43 G. 3. c. 113. s. 6. that the powers and authorities of the former statute shall be extended to the offence of procuring, &c. or otherwise becoming an accessory before the fact to any murder. (q) (q) By s. 7. this act is not to extend to Ireland. 42 CHAPTER THE THIRD. OF INDICTABLE OFfences. Felony defined, What words in a statute create a felony. OFFENCES which may be made the subject of indictment, and are below the crime of treason, may be divided into two classes, felonies and misdemeanors. The term felony appears to have been long used to signify the degree or class of crime committed, rather than the penal consequence of forfeiture occasioned by the crime, according to its original signification. The proper definition of it, however, as stated by an excellent writer, recurs to the subject of forfeiture, and describes the word as signifying-an offence which occasions a total forfeiture of either lands or goods, or both, at the common law; and to which capital or other punishment may be superadded according to the degree of guilt. (a) Capital punishment does by no means enter into the true definition of felony: but the idea of felony is so generally connected with that of capital punishment, that it is hard to separate them; and to this usage the interpretations of the law have long conformed. Therefore, if a statute makes any new offence felony, the law implies that it shall be punished with death as well as with forfeiture, unless the offender prays the benefit of clergy, which all felons are entitled once to have, unless the same is expressly taken away by statute. (b) With regard to felonies created by statute, it seems clear that not only those crimes which are made felonies in express words, but also all those which are decreed to have or undergo judgment of life and member by any statute, become felonies thereby, whether the word "felony" be omitted or mentioned. (c) And where a statute declares that the offender shall, under the particular circumstances, be deemed to have feloniously committed the act, it makes the offence a felony, and imposes all the common and ordinary consequences attending a felony. (d) But an offence shall never be made felony by the construction of any doubtful and ambiguous words of a statute; and therefore, if it be pro hibited under "pain of forfeiting all that a man has," or of "forfeiting body and goods," or of being "at the King's will for body, land, and goods," it shall amount to no more than a high misdemeanor. (e) And though a statute make the doing of an act felonious, yet if a subsequent statute make it penal only, the latter statute is considered as a virtual repeal of the former, so far as relates to the punishment of the offence. (f) And it should also be observed, that where a statute makes a second offence felony, or subject to a heavier punishment than the first, it is always implied that such second offence ought to be committed after a conviction for the first; from whence it follows, that if it be not so laid in the indictment, it shall be punished but as the first offence: for the gentler method shall first be tried, which perhaps may prove effectual (g) Where a statute makes an offence felony which was before only a misdemeanor, an indictment will not lie for it as a misdemeanor. (h) described. The word misdemeanor, in its usual acceptation, is applied to Misdemeanors all those crimes and offences for which the law has not provided a particular name; and they may be punished, according to the degree of the offence, by fine or imprisonment, or both. (i) A misdemeanor is, in truth, any crime less than a felony; and the word is generally used in contradistinction to felony; misdemeanors comprehending all indictable offences which do not amount to felony, as perjury, battery, libels, conspiracies, and public nuisances. (k) Misdemeanors have been sometimes termed misprisions: indeed, the word misprision, in its larger sense, is used to signify every considerable misdemeanor which has not a certain name given to it in the law; and it is said that a misprision is contained in every treason or felony whatsoever, and that one who is guilty of felony or treason may be proceeded against for a misprision only, if the king please. (1) But generally misprision of felony is taken for a concealment of felony, or a procuring the concealment thereof, whether it be felony by the common law, or by statute; (m) and silently to observe the commission of a felony, without using any endeavours to apprehend the offender, is a misprision; a man being bound to discover the crime of another to a magistrate with all possible expedition. (n) If this offence were accompanied with some degree of maintenance given to the felon, the party committing it might be liable as an accessory after the fact. (0) It is clear that all felonies, and all kinds of inferior crimes of a Indictable of public nature, as misprisions, and all other contempts, all dis- fences. turbances of the peace, oppressions, misbehaviour by public offi cers, and all other misdemeanors whatsoever of a public evil example (e) 1 Hawk. P. C. c. 40. s. 3. (f) Hawk. P. C. c. 40. s. 5. (g) 1 Hawk. P. C. c. 40. s. 4. (h) Rex v. Cross, 1 Ld. Raym. 711. 3 Salk. 193. (i) 3 Burn. Just. tit. Misdemeanor, citing Barlow's Justice, tit. Misdem. (k) 4 Bla Com. 5, note 2. 3 Burn. Just. tit. Misdemeanor. (7) 1 Hawk. c. 20. s. 2. and c. 50. s. (m) 1 Hawk. P. C. c. 59. s. 2. Post, 1 Hale 371-375. |