Sentence may be passed pursuant to the

statute after a general ver

dict of guilty, dictment containing two counts on the statute and

upon an in

one for a common assault.

constable, &c. or other person, in order to prevent an apprehension for felony.

won at play by the prosecutor of the defendant; and that he had distinctly left it to them to decide whether the assault were on that account, or on account of the abusive language then used, and to acquit the defendant on those counts, if they were of opinion that the assault was on account of the abusive language.

After this answer had been communicated from the bench, it was moved in arrest of judgment, that, the verdict being general, there would be inconsistent judgments on the several counts, one on the special counts on the statute which prescribed a positive punishment, and the other on the count for the common assault which was discretionary.(1) But the rule was afterwards abandoned, and sentence was passed upon the defendant pursuant to the directions of the statute.(m)

66

66

66

The statute 1 & 2 G. 4. c. 88. s. 2. enacts, "that if any per"son shall assault, beat, or wound any constable, officer, headAssaulting any "borough, or other person whomsoever, with intent in so doing, or by means thereof to obstruct, resist, or prevent the lawful "apprehension or detainer of any person charged with or sus"pected of felony; or if any person charged with or suspected of felony shall assault, beat, or wound any constable, officer, head66 borough, or other person whomsoever, with intent in so doing, or by means thereof, to obstruct, resist, or prevent his or her "apprehension or detainer; then and in every or any such case, "if the person or persons so offending shall be convicted of a "misdemeanor only, it shall be lawful for the court by or before "whom any such person or persons shall be so convicted as "aforesaid, to order and direct, in case it shall think fit, that "such person or persons shall, in addition to any other pains, "penalties or punishment to which he, she or they are now subject or liable, be kept to hard labour for any term not exceeding "two years, and not less than six months. (a)

(1) Upon this point the case of Rex (a) Where a rescue is effected, see v. Young and others, 3 T. R. 103. the first section of this statute, ante, was referred to. p. 385.

(m) Rex v. Darley, 4 East. 174,

OF MAIMING, &c. BY THE FURIOUS DRIVING, &c. of stage

COACHMEN.

misconduct of

THE statute 1 G. 4. c. 4. enacts, "that if any person whatever Where any "shall be maimed, or otherwise injured by reason of the wanton person is in"and furious driving or racing, or by the wilful misconduct of wanton and jured by the any coachman or other person having the charge of any stage furious driv"coach or public carriage, such wanton and furious driving or ing, or wilful racing, or wilful misconduct of such coachman or other person, the coachman "shall be and the same is hereby declared to be a misdemeanor, of any public "and punishable as such by fine and imprisonment: provided carriage, such always, that nothing in this act contained shall extend or be ing, &c. is de"construed to extend to hackney coaches, being drawn by two clared to be a "horses only, and not plying for hire as stage coaches."

wanton driv

misdemeanor.

coachman

By a former act, 50 G. 3. c. 48. s. 15. a penalty not exceeding 50 G. 3. c. 48. 107. nor less than 57. was imposed upon a coachman who, by fu- Penalty upon riously driving or by negligence or misconduct, shall overturn the driving fucarriage, or in any manner endanger the persons or property of riously, &c. the passengers, or the property of the owners or proprietors of such carriage; unavoidable accidents being excepted.

END OF VOL. I.

ADDENDA, &c.

TO VOL. I.

VOL. I.

Page

6. THE statutes 21 H. 8. c. 7. and 12 Ann. c. 7. are repealed by 7 & 8 Geo. 4. c. 27.

15 line 12 from the bottom, after "rebels (a)," add-" And in general the person committing a crime will not be answerable if he was not a free agent, and was subject to actual force at the time the fact was done. Thus, if A. by force take the arm of B., in which is a weapon, and therewith kill C., A. is guilty of murder, but not B.: but if it be only a moral force put upon B., as by threatening him with duress or imprisonment, or even by an assault to the peril of his life, in order to compel him to kill C., it is no legal excuse.(a) An ideot or lunatic, or a child so young as not to be punishable for his criminal act when made use of for the purpose of committing crimes, are merely the instruments of the procurer, who will be answerable as a principal."(b)

25, dele from the paragraph beginning "When the rule was first settled," to
the bottom, and also the following pages, 26, 27, and 28, and
two lines at the top of page 29.

32, note (ƒ), add-" And see Rex v. Badcock and Others, Russ. & Ry. 249."
36, line 17, after “ effect (m),” dele to the end of that page, and also pages
37 and 38, and insert as follows:-" It should seem, however,
that the recent enactment of 7 & 8 Geo. 4. c. 28. will apply to
accessories after the fact, where no punishment is specially pro-
vided for their felony. The eighth section of that statute
enacts, that every person convicted of any felony not punish-
able with death, shall be punished in the manner prescribed by
the statute or statutes specially relating to such felony, and that
every person convicted of any felony for which no punishment
hath been or hereafter may be specially provided, shall be
deemed to be punishable under this act, and shall be liable, at
the discretion of the Court, to be transported beyond the seas
for the term of seven years, or to be imprisoned for
any term
not exceeding two years, and, if a male, to be once, twice, or
thrice publicly or privately (whipped if the Court shall so think

(a) 1 Hale, 433. 1 East. P. C. c. 5. s. 12. p. 225.

(b) 1 Hawk. P. C. c. 31. 3. 7. 1 East.

P. C. c. 5. s. 14. p. 228,

Felonies not capital punishable under the acts, if any relating thereto, otherwise

under the 7 & 8 Geo. 4. c. 28. s. 8.

A

Of the proceedings a

gainst acces sories.

7 G. 4. c. 64. s. 9.

How accessories before the fact may be tried.

If offences committed in different counties, accessories may be tried in either. Only one trial. S. 10. How accessory, if after the fact, may be tried.

fit), in addition to such imprisonment.' The late consolidation
acts, 7 & 8 Geo. 4. c. 29., 7 & 8 Geo. 4. c. 30., and 9 Geo. 4. c.
31., make accessories after the fact to felonies punishable under
those acts respectively, liable to imprisonment for any term not
exceeding two years. The principal and accessory may be in-
dicted in the same indictment, and 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.(c) And an accessory
could not in such case have been tried, unless 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.(d) But the late statute 7 Geo. 4.
c. 64. has made the following salutary provisions for the effec-
tual prosecution of accessories.

"The ninth section of that statute, for the more effectual prose-
cution of accessories before the fact to felony, enacts, that if
any person shall counsel, procure, or command any other per-
son to commit any felony, whether the same be a felony at com-
mon law, or by virtue of any statute or statutes made or to be
made, the person so counselling, procuring. or commanding
shall be deemed guilty of felony, and may be indicted and con-
victed either as an accessory before the fact to the principal fe-
lony, 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 amen-
able to justice, and may be punished in the same manner as any
accessory before the fact to the same felony, if convicted as an
accessory, may be punished; and the offence of the person so
counselling, procuring, or commanding, howsoever indicted,
may be inquired of, tried, determined, and punished by any
Court which shall have jurisdiction to try the principal felon, in
the same manner as if such offence had been committed at the
same place as the principal felony, although such offence may
have been committed either on the high seas, or at any place on
land, whether within his Majesty's dominions or without; and
that in case the principal felony shall have been committed with-
in the body of any county, and the offence of counselling, pro-
curing, or commanding, shall have been committed within
the body of any other county, the last mentioned offence may
be inquired of, tried, determined, and punished, in either of
of such counties: provided always, that no person who shall be
once duly tried for any such offence, whether as an accessory
before the fact, or as for a substantive felony, shall be liable to
be again indicted or tried for the same offence.'
"The tenth section of the same statute, for the more effectual
prosecution of accessories after the fact to felony, enacts, that
if any person shall become an accessory after the fact to any fe-
lony, whether the same be felony at common law, or by virtue
of any statute or statutes made or to be made, the offence of
such person may be inquired of, tried, determined, and pu-
nished by any Court which shall have jurisdiction to try the
principal felon, in the same manner as if the act, by reason
whereof such person shall have become an accessory, had been
committed at the same place as the principal felony, although

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

(d) Fost. 362., where the doctrine is reprobated; and see 1 Hale 625., where it is said that it was for this reason that Weston, the principal actor in the mur

der 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.