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(who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime (k). Herein absence is necessary to make him an accessory; for if such procurer, or the like, be present, he is guilty of the crime as principal (1). If A. then advises B. to kill another, and B. does it in the absence of A.; now B. is principal and A. is accessory to the murder. And this holds, even though the party killed be not in rerum naturâ at the time of the advice given. As, if A., the reputed father, advises B., the mother of a bastard child, unborn, to strangle it when born, and she does so; A. is accessory to this murder (m). And it is also settled, that whoever procureth a felony to be committed, though it be by the intervention of a third person, is an accessory
a before the fact (n).] It is likewise a rule, that he who in anywise commands or counsels another to commit an unlawful act, is accessory to all that ensues upon that unlawful act, supposing at least that it was a probable consequence thereof, but not otherwise (o). As if A. advises B. to rob C., and B. does so accordingly, and on resistance made kills C., B. is guilty of murder as principal, and A. as accessory (p). [But if A. commands B. to
P burn C.'s house, and he, in so doing, commits a robbery; now A., though accessory to the burning, is not accessory to the robbery, for that is a thing of a distinct and unconsequential nature (9). But if the felony committed
) be the same in substance with that which is commanded, and only varying in some circumstantial matters ;-as if
(k) 1 Hale, P. C. 615, 616. See seems that in reason it must be so 24 & 25 Vict. c. 94, s. 2; The Queen qualified. v. Gregory, Law Rep., 1 C. C. R. 77.
(P) Fost. ubi
Blackstone, (1) See R. v. Jordan, 7 Car. & P. vol. iv. p. 37 (after Hale), puts the 432; R. v. Tuckwell, 1 Car. & Mar. case of A. commanding B. to beat C., 215,
and B. beating him so that he dies. (m) Dyer, 186.
But this alone would perhaps not (n) Foster, 125.
suffice to make A. accessory to the (0) This qualification of the rule murder. will be found in Fost. 370. (And (7) Hawk. P. C. b. 2, c. 29, s. 22. sce | Ilale, P. C. 617.) And it
[upon a command to poison Titius, he is stabbed or shot, and dies ;—the commander is still accessory to the murder, for the substance of the thing commanded was the death of Titius, and the manner of its execution is a mere collateral circumstance (r).
3. An accessory after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts or assists the felon (s). Therefore, to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed, and that it was committed by the party in question (t). In the next place he must receive, relieve, comfort or assist the criminal. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried or suffering punishment, makes the assistor an accessory. As furnishing him with a horse to escape his pursuers, a house or other shelter to conceal him, or open force and violence to rescue or protect him (u). So likewise to convey instruments to a felon to enable him to break gaol, or to bribe the gaoler to let him escape, makes a man an accessory to the felony (x).] But to buy or receive stolen goods, knowing them to be stolen, does not fall within the definition of this offence; and at common law, such receiving was a misdemeanor only, because the offender received the goods only and not the felon (y). But this offence (as we shall see in the appropriate place) is now differently treated (z).
[The felony must be complete at the time of the assistance given, else it makes not the assistor an accessory. As if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent, this does not make him accessory
(7) Hawk. P. C. b. 2, c. 29, s. 20.
(x) See 28 & 29 Vict. c. 126, Ss. 37-40.
(y) 4 B1. Com. p. 38.
(1) As to receiving stolen goods, ride post, p. 136.
[to the homicide ; for till death ensues there is no felony committed (a). But so strict is the law where a felony is actually complete, in order to do effectual justice, that the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child the parent, if the brother receives the brother, the master his servant, or the servant his master, or even if the husband receives his wife, who have any of them committed a felony, the receivers become accessories ex post facto (6). But a feme covert cannot become an accessory by the receipt and concealment of her husband; for she is presumed to act under his coercion; and therefore she is not bound, neither ought she, to discover her lord (c).
4. The last point of inquiry is, how accessories are to be treated, considered distinct from principals: and the general rule of the antient law,-borrowed from the Gothic constitutions,-is this, that accessories shall suffer the same punishment as their principals (d): if one be liable to death, the other is also liable ; as, by the laws of Athens, delinquents and their abettors were to receive the same punishment (e).] With which, as regards accessories before the fact, the modern rule is strictly consonant; for, by 24 & 25 Vict. c. 94, s. 1, all these are to be indicted, tried, convicted and punished in all respects as if they were principal felons (f). [Why then, it may be asked, are such elaborate distinctions
(a) Hawk. P. C. b. 2, c. 29, s. 35. (6) 3 Inst. 108; Hawk. ubi sup.
(d) See Stiern. de Jure Goth. I. 3,
(c) See 1 Hale, P. C. 47, 621; Reg. v. Good, 1 Car. & K. 185. So also a wife cannot be indicted for receiving goods stolen by her husband. (Reg. 1. Brooks, 22 L. J. (M. C.) 121.) As to the doctrine of the wife's coercion by her husband, vide sup. p. 32.
(c) Pott. Antiq. b. I, c. 26.
(J) This provision is a re-enactment of 11 & 12 Vict. c. 46, s. 1 (repealed by 24 & 25 Vict. c. 95). See also 24 & 25 Vict. c. 96, s. 98; c. 97, s. 56; c. 98, s. 49; c. 99, s. 35; c. 100, s. 67, in reference to the particular felonies panishable under those Acts, respectively.
[made between accessories and principals, if both are to suffer the same punishment ?
For these reasons: 1. To distinguish the nature and denomination of crimes, that the accused may know how to defend himself when indicted; the commission of an actual robbery being quite a different accusation from that of harbouring the robber. 2. Because, though accessories before the fact are treated as principals, yet accessories after the fact are usually punished with less severity (g). 3. Because, formerly, no man could be tried as accessory till after the principal was convicted, or, at least, he must have been tried at the same time with him ; though that rule is now wholly abolished (h).
(9) Accessories after the fact to And he cites Beccaria, c. 37, in any felony, are in general punishable support of this doctrine. with imprisonment for any term not (h) 1 Hale, P. C. 623; Fost. 363. exceeding two years, with or with- The rule was abolished as to accesout hard labour; and may also be sories before the fact by 7 Geo. 4, required to find security to keep the c. 64. And now, by 24 & 25 Vict. peace, or, in default, to suffer an c. 94, (re-enacting in substance additional imprisonment to the ex- 11 & 12 Vict. c. 46, ss. 1, 3,) it is tent of one year. (See 24 & 25 Vict. provided, that an accessory before c. 94, s. 4.) But accessories after the fact to any felony shall be inthe fact to murder are punishable dicted, tried, convicted, and punby penal servitude for life, or not ished, in all respects, as if he wero less than five years, (see 24 & 25 a principal felon. It is further enVict. c. 100, s. 67, and 27 & 28 Vict. acted by the same Act, that any acC. 47,) or to be imprisoned with cessory either before or after the fact or without hard labour to the ex- may be indicted and convicted, either tent of two years. It is the opinion as such accessory together with the of Blackstone (vol. iv. p. 39), that principal felon, or after his convic“ if a distinction were constantly to tion: or may be indicted and conbe made between the punishments victed of a substantive felony, wheof principals and accessories even ther the principal felon shall have before the fact, the latter to be been convicted or not, or shall or treated with a little less severity shall not be amenable to justice, than the former, it might prevent and may thereupon be punished in the perpetration of many crimes, by the same manner as an accessory increasing the difficulty of finding before or after the fact, (if cona person to execute the deed itself ; victed as an accessory,) may respecas his danger would be greater than tively be punished. (24 & 25 Vict. that of his accomplices by reason of c. 94, ss. 1, 2, 3.) the difference of his punishment.”
[4. Because, though a man be indicted as accessory, and acquitted, he may afterwards be indicted as principal ; for an acquittal of receiving or counselling a felon, is no acquittal of the felony itself. Yet it was formerly a matter of some doubt, whether, if a man were acquitted as principal, he could afterwards be indicted as accessory before the fact, since those offences are frequently very near allied; and therefore an acquittal of the guilt of one may be an acquittal of the other also (i). But that doubt has been since overruled (k); and it has always been clearly held, that one acquitted as principal may be indicted as accessory after the fact ; since that is always an offence of a different species of guilt, principally tending to evade the public justice, and is subsequent in its commencement to the other. Upon these reasons, the distinction of principal and accessory will appear to be highly necessary; though the punishment is, in all cases,
, the same with regard to principals and accessories before the fact.]
(i) 1 Hale, P. C. 625, 626; Hawk. P. C. b. 2, c. 35, s. 11.
(k) R. v. Birchenough, 1 M.C.C.R. 477; R. v. Parry, 7 C. & P. 836.