If a person order, counsel or advise one crime, and the person ordered, counselled or advised intentionally commit another, as, for instance, if he be ordered to burn a house and instead of that he commit a theft, or if his instructions are to commit a crime against A, and instead of doing so he purposely commit the crime against B, the person so ordering will not be answerable. But if it be merely by mistake that he commits the offence against B instead of A, in that case the person ordering would be responsible. (1) And it is clearly laid down by the above Article, 62, that he who counsels or procures the commission of any offence is a party to it, although the offence itself be committed in a way different from that which was counselled, and he is a party to every offence which is committed in consequence of such counselling, and which he knew or ought to have known to be likely to be committed in consequence of such counselling; and, therefore, both by this Article and by the common law, he is liable for everything that ensues upon the execution of the unlawful act counselled or commanded.

A commands B to beat C, and B beats him to such an extent that he dies. A is a party to the murder. (2)

A commands B to burn C's house, and in the burning, the house of D is burned also. A is a party to the offence of burning D's house. (3)

A hires B to kill C by means of poison, and instead of poisoning him, B kills C by shooting him. A is a party to the murder. (4)

Not only is a person liable for what is done under his actual or presumed authority; (5) but the agent also is liable for an unlawful act done by him under the express or implied authority of his principal. (6)

Aiding and Abetting at the Commission of the Offence.-A person may be considered as a principal

(1) Fost. 370 et seq.; 2 Hawk., P. C., c. 29, s. 22.

(2) 4 Bl. Com. 37; 1 Hale, 617.

(3) R. v. Saunders, Plowd, 475.

(4) Fost. 369, 370.

(5) R. v. King, 20 U. C. C. P. 248.

(6) R. v. Brewster, 8 U. C. C. P. 208.

present aiding and abetting in the commission of an offence, without his presence being such a strict, actual, immediate presence as would make him an eye or ear witness of what is passing; it may be a constructive presence. (1) So that if a number of persons set out together, or in small parties, upon one common design, be it murder or any other offence, or for any other unlawful purpose, and each takes the part assigned to him; some to commit the act, others to watch at proper distances and stations to prevent a surprise or to favor if need be the escape of those more immediately engaged, they are all, provided the act be committed, present at it. in the eye of the law; for the part taken by each man in his particular station tended to give countenance, encouragement and protection to the whole gang and to ensure the success of their common enterprise. (2) If, however, the original purpose of persons assembling and setting out together be a lawful one, and if their common purpose be prosecuted by lawful means, and opposition to them be made by others, and one of the opposing party is killed in the struggle, the person actually killing may be guilty of culpable homicide, but the persons engaged with him will not be involved in his guilt, unless they actually aided and abetted him in the fact. (3)

Accessories after the Fact.-Article 63 of the Code declares that, "An accessory after the fact to an offence is one who receives, comforts or assists any one who has been a party to such offence, in order to enable him to escape, knowing him to have been a party thereto; and, that, no married person whose husband or wife has been a party to an offence shall become an accessory after the fact thereto, by receiving, comforting or assisting the other of them, and no married woman, whose husband has been a party to an offence, shall become an accessory after the fact thereto, by receiving, comforting or assisting, in his presence and by his authority, any other person who has been a party to such offence, in order to enable her husband or such other person to escape.

(1) 1 Russ. Cr. 5 Ed. 157.

U.c.

(2) Fost. 50; R. v. Howell, 9 C. & P. 437. See also R. v. Slavin, 17 U. C. C. P. 205.

(3) Fost. 354-5; 1 Russ. Cr. 163-4.

The evident basis of this offence is, that to assist an offender to escape punishment is, in principle, an obstruction of public justice, of the same nature as resisting a peace officer in making an arrest. or rescuing a prisoner under arrest, and other like offences. To be an accessory after the fact, a man must be aware of the guilt of the person whom he harbors or assists. And one does not become an accessory after the fact by merely neglecting to inform the authorities that a crime has been committed, or by forbearing to arrest the offender. (1) The accused must have done some act to assist the principal offender in relation to the crime which he has committed. (2) But if a person employ another to harbor or relieve the principal offender, he is equally guilty as an accessory after the fact as if he did the harboring and relieving personally. (3)

The test of an accessory after the fact seems to be that he renders the principal offender some active personal help to enable him to escape punishment, as, by furnishing him with money or food to support him in hiding, or by supplying him with a horse to enable him to fly from his pursuers, or a house or other shelter to conceal him in, or by using open force and violence to protect him, or by conveying instruments to an offender to enable him to break gaol, or by bribing the gaoler to let him escape. (4) Of course, when a person actually rescues an offender from prison or from lawful custody, the rescuer is not only guilty of being an accessory after the fact to the other's offence, if he has actually committed one, but also of the substantive offence of rescue; and he may be indicted either way at the election of the prosecution. (5) But where the rescue is effected before the principal offender has been convicted, the prosecution would probably prefer to prosecute the rescuer on the substantive offence of rescue; for, when a person is in prison or in lawful custody upon a criminal charge, it is an offence to rescue him or to help him to break prison, whether the prisoner be guilty or not of the crime charged against him. (6)

(1) 1 Hale, P. C. 618, 619.

(2) R. v. Chapple, 9 C. & P. 955.

(3) R. v. Jarvis, 2 M. & R. 49.

(4) 4 Bl. Com. 38.

(5) R. v. Burridge, 3 P. Wms. 439, 483, 485, 493.

(6) See Articles 165-167 of the Code. R. v. Allan, Car. & M. 295; R. v. Haswell, R. & R. 458.

Where several principal offenders are guilty of a joint crime, the person harboring them is guilty of a separate offence for each of the offenders whom he harbors. (1)

CHAPTER V.

EXTENT OF THE CRIMINAL LAW AS TO TIME, PERSONS, AND PLACE.

No Limitation of Time under the Common Law. Under the common law, there is no time limited for the prosecution of proceedings at the suit of the Crown; and, therefore, the proceedings in all criminal cases, in relation to which the time is not limited by statute, may be prosecuted during the life of the person charged, at any length of time after the commission of the offence.

Limitations of Time under the Criminal Code. -It is provided, by Article 551, that no prosecution for an offence against the Code, or action for penalties or forfeitures, shall be commenced

(a) after the expiration of THREE YEARS from the time of its commission, if such offence be

1, TREASON, except treason by killing Her Majesty, or where the overt act alleged is an attempt to injure the person of Her Majesty (section 65);

2, TREASONABLE OFFENCES (Section 69) ;

3. any offence against Part XXXIII., relating to the FRAUDULENT MARKING OF MERCHANDISE; nor

(b) after the expiration of TWO YEARS from its commission, if such offence be

1, A FRAUD UPON THE GOVERNMENT (section 133);

2, A CORRUPT PRACTICE IN MUNICIPAL AFFAIRS (section 136) ;

3, UNLAWFULLY SOLEMNIZING MARRIAGE (section 279);

(c) after the expiration of ONE YEAR from its commission, if such offence be

(1) R. v. Richards, L. R. 2 Q. B. D. 311.

1, OPPOSING READING OF RIOT ACT and assembling after procla

mation (section 83);

2, REFUSING TO DELIVER WEAPON TO JUSTICE (section 113); 3, COMING ARMED NEAR PUBLIC MEETING (Section 114);

4, LYING IN WAIT NEAR PUBLIC MEETING (Section 115) ;

5, SEDUCTION of girl under sixteen (section 181);

6, SEDUCTION under promise of marriage (section 182):

7, SEDUCTION of a ward, etc. (section 183);

8, UNLAWFULLY DEFILING WOMEN (section 185);

9, PARENT OR GUARDIAN PROCURING DEFILEMENT OF GIRL (section 186);

10. HOUSEHOLDERS PERMITTING DEFILEMEFT OF GIRLS ON THEIR

PREMISES (section 187); nor

(d) after the expiration of SIX MONTHS from its commission, if the offence be-

1, UNLAWFUL DRILLING (Section 87);

2, BEING UNLAWFULLY DRILLED (section 88);

3. HAVING POSSESSION OF ARMS for purposes dangerous to the public peace (Part VI., section 102);

4. PROPRIETOR OF NEWSPAPER PUBLISHING advertisement offering REWARD for recovery of stolen property (section 157, paragraph (d); nor

(e) after the expiration of THREE MONTHS from its commission, if the offence be

1. CRUELTY TO ANIMALS (under sections 512 and 513) ;

2. RAILWAYS VIOLATING PROVISIONS relating to conveyance of cattle (section 514);

3. REFUSING PEACE OFFICER ADMISSION TO CAR, etc. (section 515); nor

(f) after the expiration of ONE MONTH from its commission, if the offence be

1. IMPROPER USE OF OFFENSIVE WEAPONS (Sections 103, and 105 to 111, inclusive).

And the same Article further provides as follows:

No person shall be prosecuted, under the provisions of section 65 or section 69 of the Code, for any OVERT ACT OF TREASON,