tution of stolen goods will be found considered, 1 vol. 817 to 821. Parties convicted of petit larceny, were formerly disqualified from giving evidence, Willes, 665. 2 Wils. 18. But by 31 Geo. III. c. 35. they are made competent witnesses.

ACCESSARIES AND RECEIVERS OF STOLEN

GOODS.

In grand larceny there are accessaries before and after the fact The offence. as in other felonies. Thus, a man may be accessary before the fact in stealing his own goods if he procure another to do so with a felonious design. Cro. Eliz. 537. and accessary after if he receives the felon and assist him to escape. Fost. 123. In this offence at common law, those present aiding and abetting, are principals in the second degree; though it is otherwise under some of the statutes which take away clergy, and which are not construed to extend to accessaries or abettors, unless they expressly name them. In petit larceny there can be no accessaries; those who procure, aid, or advise, are principals; and those who merely assist the felon's escape, are not, at common law, regarded as criminal, 1 Hale, 530, 616. nor, at common law, did knowingly receiving stolen goods make a man accessary, unless he harboured or assisted the original offender. This offence was only a misdemeanor, and could not be punished with any severity adequate to its mischievous effects. It has, therefore, been made the subject of several legislative provisions which we will briefly consider.

The 4 and 5 W. and M. c. 9. s. 4. enacts that if any person shall buy or receive any goods or chattels that shall be feloniously taken or stolen from any other person knowing the same to be stolen, he shall be taken and deemed an accessary to such felony after the fact, and shall incur the penalties which attach to offenders in that degree. After this act, no indictment as for a misdemeanor, at common law, could be supported. 1 Ld. Raym. 711, 2. This act, it will be observed, merely makes the receivers of goods accessaries as the receivers of felons were before; it creates no new offence; and, therefore, the persons against whom it was directed merely became accessaries as at common law and could not be punished in case of the principal's escape; but the 1 Ann. st. 2. c. 9. s. 2. reciting this inconvenience provides, "that it shall be lawful to prosecute and punish every such person buying or receiving any stolen goods knowing the same to be stolen as for a mis

demeanor, to be punished by fine and imprisonment, although the principal felon be not before convicted of the said felony, which shall exempt the offender from being punished as accessary, if the principal shall be afterwards convicted. The statute 5 Ann. c. 33. s. 5. soon afterwards enacted "that if any person shall receive or buy any goods or chattels that shall be feloniously taken or stolen from any other person, knowing the same to be stolen, or shall receive, harbour, or conceal, any burglars, felons, or thieves, knowing them to be so, shall be taken and received as accessary to the said felony or felonies, and being of either of the said offences legally convicted, by the testimony of one or more credible witnesses, shall suffer and incur the pains of death as a felon convict." This cause, like the 4 and 5 W. and M. can only be of use when the original felon is convicted; but the section provides "that if any such principal felon cannot be taken so as to be prosecuted and convicted for any such offence, yet nevertheless it shall and may be lawful to prosecute and punish any such person buying or receiving any goods stolen by any such principal felon, knowing the same to be stolen, as for a misdemeanor, to be punished with fine and imprisonment, or such other corporal punishment as the court shall think fit to inflict, although the principal felou be not before convict of the said felony, which shall exempt the offender from being punished as accessary, if such principal felon shall be afterwards taken and convicted." And by 4 Geo. I. c. 11. persons convicted of receiving or buying stolen goods knowing them to be stolen, may be transported for fourteen years. But offenders of this class, notwithstanding the act, may pray the benefit of clergy, and thus receive sentence only for the penalties consequent on its allowance. 2 East, P. C. 744. And this act can only mean persons legally convicted as accessaries under 3 and 4 W. and M. c. 9. aud 5 Ann c. 31. so that to warrant auy judgment under it the principal must be first convicted; and the offence must be such as, at common law, admits of accessaries after; and, therefore, if the principal be convicted of petit larceny only, the verdict finding the accessary guilty under this act is of no effect, and no judgment can be given against him. Fost. 73. Neither does the punishment mentioned in it extend to cases where the principal felon is not convicted and the receiver is found guilty of a misdemeanor under Ì Ann. Sess. 2. c. 9. when fine, imprisonment, and corporal punishment, are prescribed. In the construction of these statutes it has been resolved that where the principal has been convicted, the misdemeanor is merged in the felony, and the prosecutor cannot indict for the former at his option, 2 East, P. C. 746. and even when the principal is not found guilty but in custody and amenable to justice, this

course was formerly illegal. Fost. 373, 4. acc. 2 Ld. Raym. 1370. But the accessary might be tried for the misdemeanor though the principal might have been brought to justice. 1 Leach, 103. And now the 22 Geo. III. c. 58. enacts "that in all cases whatsoever, where any goods or chattels (except lead, iron, copper, brass, bellmetal, and solder) shall have been feloniously taken or stolen, whether the offence of the principal shall amount to grand larceny, or some greater offence, or to petit larceny only; (except where the person or persons actually committing the felony shall have been already convicted of grand larceny or of some greater offence) every person who shall buy or receive any such goods or chattels, knowing the same to have been so taken or stolen, shall be deemed guilty of and may be prosecuted for a misdemeanor and shall be punished by fine, imprisonment, or whipping, as the court of quarter session, who are hereby empowered to try such offender, or as any other court before whom he shall be tried, shall think fit, although the principal felon be not before convicted of the said felony and whether he is amenable to justice or not. And in cases where the felony actually committed shall amount to grand larceny or some greater offence, and where the person or persons actually committing such felony shall not be before convicted, such offender shall be exempted from being punished as accessary if such principal felon shall be afterwards convicted." The metals excepted in this act are specially provided for by 29 Geo. II. c. 30. which enacts that." every person who shall buy or receive any lead, iron, copper, brass, bell-metal, or solder, knowing the same to be unlawfully come by, or shall privately buy or receive any stolen lead, &c. by suffering any door, window, or shutter to be left open or unfastened from sun-setting to sun-rising for that purpose, or shall buy or receive the same or any of them at any time in any clandestine manner from any person or persons whatsoever shall, being thereof convicted by due course of law, although the princi pal felon has not been convicted of stealing the same, be transported for fourteen years according to the laws in force for the transpor→ tation of felons."

In the construction of the former statutes of William and Ann, it has been holden that money is not included in the terms "goods and chattels," and, therefore, the receivers of coin are not within their meaning. 1 Leach, 241. It has also been holden that to receive bank notes is not an offence against which they can operate; though some of the judges strongly dissented from this opinion, thinking that as the 2 Geo. II. c. 25. made it a felony to steal bank notes, like other effects of the same value, the receivers of them were placed in the same condition with the receivers of goods and

chattels. 1 Leach, 468. and 472 in notis. This decision seems also to be shaken by several cases in which bank notes have been holden to be within 12 Ann, c. 7. which makes the stealing of any money, goods or chattels, wares or merchandizes, in a dwellinghouse, a capital offence. 2 Leach, 693, 564, 572, 640.

The legislature have also on various occasions thought fit to pass laws against those who receive particular kinds of property. Thus, we have seen by 29 Geo. II. c. 30. certain metals are protected. The 21 Geo. III. c. 69. subjects persons buying or receiving" any pewter pot or other vessel, or any pewter in any form or shape whatever, knowing the same to be stolen or unlawfully come by;" or effecting the same purpose "by suffering any door, window, or shutter, to be left open or unfastened from sun-setting to sunrising for that purpose," though the principal felon be not convicted, to be transported as other felons for seven years, or to be kept in prison to hard labour from one year to three, and, if the court think fit, publicly whipped not exceeding three times during that period. The "buying or receiving any part of the cargo or loading, or any goods, stores, or thing, of or belonging to any ship or vessel in the river Thames, knowing the same to be stolen or unlawfully come by," is, by 2 Geo. III. c. 28. punished with fourteen years transportation, though the principal offender has not been convicted. Under the first of these acts it is usual to indict for a misdemeanor only; the offence under the second has been holden to amount to felony. 2 T. R. 77. But the legislature seem to have considered it as a misdemeanor only by the 39 and 4 Geo. III. c. 87. s. 22. which recites that " Whereas by 2 Geo. III. c. 28. persons guilty of certain offences are punishable by transportation for fourteen years, but the said offences not being by the said act declared to be felony, the trial thereof may in all cases be put off by means of a traverse to the next sessions after the finding of the bill of indictment for the same and the offender be in the mean time bailed, whereby justice has been in many instances eluded," and then for remedy of this evil enacts "that whenever any indictment shall be found against any person for any of the said offences, the person so indicted shall plead to the said indictment without having time to traverse the same, as is usual in cases of misdemeanors." The 10 Geo. III. c. 48. enacts that " every person who shall buy or receive any stolen jewel, or any stolen gold or silver plate, watch or watches, knowing the same to have been stolen, shall, in all cases where such jewel or gold or silver plate shall have been feloniously stolen, accompanied with a burglary actually committed in the stealing the same, or shall have been feloniously taken by a robbery on the highway be triable as well before conviction of the principal

felon in such felony or burglary and robbery, whether he shall be in or out of custody, as after his conviction." "And if any person so buying or receiving such jewel or gold or silver plate, shall be convicted thereof, he shall be adjudged guilty of felony and transported for fourteen years." A seal of cornelian set in gold, is a jewel within the meaning of this statute; but as watches are not mentioned in the clause which creates the felony and directs the punishment, it seems doubtful whether they come within it so as to receive any peculiar protection. 1 East, P. C. 754. Receivers are included in several of the statutes respecting particular kinds of property; but as the effect of those acts has been already stated, it need not be repeated here.

The case of persons having naval or military stores in possession, has been the object of particular attention on the part of the legislature. Thus the 9 & 10 W. III. c. 41. which we have seen prohibits the making of stores, (a) in the second section directs," that such person in whose custody, possession, or keeping, such goods or stores marked as therein mentioned, (a) shall be found, not being employed as therein mentioned, (a) and such person who shall conceal such goods or stores marked as aforesaid, being indicted and convicted of such concealment, or of the having such goods found in his custody, possession, or keeping, shall forfeit such goods, and the sum of 2007. together with the costs of prosecution, one moiety to his majesty and the other moiety to the informer, to be recovered as aforesaid, and shall also suffer imprisonment until payment and performance of the said forfeiture, unless such person shall, upon his trial, produce a certificate under the hand of three or inore of his majesty's principal officers or commissioners of the navy, ordnance, or victuallers, expressing the numbers, quantities, or weights of such goods as he shall then be indicted for, and the occasion and reason of such goods coming to his hands or possession." The 1 Geo. I. st. 2. c. 25. s. 3. gives power to any one of the principal officers and commissioners of the navy to enquire, empower persons to search by warrant, for stores, and to punish the offenders by fine not exceeding twenty shillings, and imprisonment for a week; and, on non-payment of the fine, to imprison him till payment, or send him to the nearest house of correction to be kept for two months to hard labour and if the offence seemed to require a punishment more severe, to send him to the next gaol, or detain him in the custody of the messenger till he enter into recognizance, proportioned to the magnitude of the charge, to appear and answer in any court where the king shall prosecute him

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(a) See ante 934.