after the fact. R. v. King, R. & Ry. 332. But receiving stolen goods, knowing them to have been stolen, did not amount to the offence of accessory after the fact to the principal felon, until made so by stat. 3 & 4 W. & M. c. 9, and 5 Anne, c. 31, 8.5. 2 Hawk. c. 29, s. 3. And a wife cannot be convicted as accessory after the fact, for any receipt of or assistance to her husband. Id. s. 34. See R. v. Mary Good, 1 Car. & K. 185. But the exemption does not extend further: a husband may be indicted as accessory after the fact to his wife, a brother to a brother, a master to a servant, a servant to a master. 2 Hawk. c. 29, s. 34. And the doctrine extends to every felony, and to manslaughter as well as to others. R. v. Greenacre, 8 Car. & P. 35. But it must be considered as having reference to felony only; the same receipt which in felony will make a man accessory after the fact, will in treason make the party a principal traitor, 1 Hale, 238, but in misdemeanors is not punishable. 1 Hale, 613.

When, and how tried.] Formerly an accessory after the fact could only be tried with the principal, or after the principal was convicted; and if tried after the conviction of the principal, he could only be tried in the county where the offence of accessory was commited. But by stat. 11 & 12 Vict. c. 46, s. 2, reciting this, and that it was sometimes productive of a failure of justice, it is enacted that if any person shall become an accessory after the fact to any felony, whether the same be a felony at common law or by statute, he may be indicted and convicted either as an accessory after the fact to the principal felony 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 amenable to justice, and may thereupon be punished in like manner as any accessory after the fact to the same felony, if convicted as an accessory, may be punished; and the offence of such person, 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 the act by reason of which such person shall have become an accessory had been committed at the same place as the principal felony.

The following may be the form of an

Indictment against an Accessory after the Fact, with the Principal, or for a substantive Felony.

Hants, The jurors for our lady the Queen upon their to wit: Soath present, that A. B., on the- · day of· in the year of our Lord -, [&c., stating the offence against the principal; and immediately before the conclusion

i

Inciting to the Commission of Offences.

19

add:] And the jurors aforesaid upon their oath aforesaid do further present, that C. D., after the said A. B. had done and committed the said felony, to wit, on the day and year aforesaid, well knowing that the said A. B. had done and committed the same, him the said A. B. did feloniously receive, harbour, and maintain: against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity.

This form answers, as well where the accessory is tried alone for a substantive felony, according to stat. 11 & 12 Vict. c. 46, s. 2, above-mentioned, as where he is tried with the principal. R. v. Hansill, 13 Shaw's J. P. 556. In either case, the prosecutor must first prove the offence of the principal, as if he alone were on his trial; and then he must prove the receipt or assistance of the accessory, and that he knew at the time that the principal had committed the felony. On the other hand, the accessory may not only controvert his own guilt, but that of his principal also; and if he succeed in either, he must be acquitted.

As to the joinder of several accessories, see stat. 14 & 15 Vict. c. 100, s. 15, ante, p. 17.

Punishment.] There is no uniform punishment for the offence of accessory after the fact. The offence in all cases is felony; but it is punishable in various ways, by the several statutes which assign the punishment to the principal felony. In felonies within stat. 7 & 8 G. 4, c. 29 (the Larceny Act), accessories after the fact are punishable with imprisonment with or without hard labour, for any term not exceeding two years, by sect. 61; and the same, in felonies within stat. 7 & 8 G. 4, c. 30 (Malicious Injuries), by sect. 26; in felonies within stat. 9 G. 4, c. 21 (Offences against the Person), by sect. 31; in felonies within stat. 1 W. 4, c. 66 (Forgery), by sect. 25; in felonies within stat. 2 W. 4, c. 32 (Coin), by sect. 18; and in felonies within stat. 1 Vict. c. 36 (Post Office), by sect. 35.

4. Persons who solicit and incite others to commit Offences, which are not afterwards committed.

We have seen that the offence of accessory before the fact is, where a person incites another to commit a felony, which the other afterwards commits. The offence of the accessory, in this case is a felony. But if the party thus incited do not afterwards commit felony, or if a man solicit or incite another to commit an indictable misdemeanor which the other does not afterwards commit, the offence of the inciter is but a common law misdemeanor, punishable as such with imprisonment or fine, or both. R. v. Higgins, 2 East, 5.

The following may be the form of an

Indictment for soliciting a Person to commit an indictable Offence.

Bedfordshire, The jurors for our lady the Queen upon their to wit: Soath present, that A. B., on the day of

, in the year of our Lord, unlawfully did solicit and incite one C. D. to [here state the offence]: against the peace of our lady the Queen, her crown and dignity.

Also, by stat. 1 Vict. c. 36, which defines and punishes several felonies and misdemeanors in respect of the post-office, such as stealing or embezzling letters, stealing from letters, opening or delaying letters, &c., it is enacted by sect. 36, that every person who shall solicit or endeavour to procure any other person to commit a felony or misdemeanor punishable by the Post-office Act, shall be deemed guilty of a misdemeanor, and be adjudged to be imprisoned for a term not exceeding two years.

5.

Persons who attempt to commit Crimes, but do not complete them.

All attempts to commit a felony, not specially provided for and made punishable by some particular statute, are punishable as misdemeanors at common law, whether committed with force or otherwise. See R. v. Higgins, 2 East, 5. And in like manner, every attempt to commit a misdemeanor, either at common law, or created by statute, is itself a misdemeanor at common law. R. v., R. & Ry. 107, per Le Blanc, J. R. v. Butler, 6 Car. & P. 368, per Patteson, J. R. v. Roderick, 7 Car. & P. 795. R. v. Ball, Car. § M. 249. The punishment at common law, is by fine or imprisonment, or both. But the punishment by statute, for some cases of this description, is more severe: an assault with intent to commit a felony, generally, is punishable with imprisonment, with or without hard labour, for not more than two years; 9 G. 4, c. 31, s. 25; an assault with intent to rob, is made a felony, and punishable with imprisonment with or without hard labour, for not more than three years; 1 Vict. c. 87, s. 6; attempts to murder, by poison, by stabbing, cutting or wounding, by shooting or attempting to shoot, or by attempts to drown, suffocate, or strangle,-are all made felonies, and punishable with great severity. 1 Vict. c. 85. These several offences we shall notice fully in a subsequent part of the work, when we come to give the forms of indictments, and the evidence necessary to support them.

CHAPTER II.

Apprehension of the Offender.

I propose to arrange the matter of this chapter, under the following heads:

Section 1. Arrest without Warrant.

2. Arrest with Warrant.

3. The Examination and Commitment or Bail. 4. Conviction of Juvenile Offenders for Larceny.

SECTION I.

Arrest of Offender without Warrant.

In the act of committing the offence.] Every person,private individuals as well as constables,-present when a felony is committed or a dangerous wound given, not only may apprehend the offender, but they are bound to do so. 2 Hawk. c. 12, 8. 1. 1 East, P. C. 377, s. 1. If a private person be present at an affray, he may stay the affrayers until the heat is over, and then deliver them over to the constable, and he may stop others coming to join either party; 2 Hawk. c. 13, s. 8; and a constable of course may act in like manner, and may keep any of the affrayers in safe custody until he can bring them before a justice of the peace. So, it has been holden that any person may arrest another, whom he sees cheating with false dice. 2 Hawk. c. 12, s. 20. But after the affray is ended, the parties cannot be arrested without warrant. 2 Hawk. c. 13, s. 8. Id. c. 12, s. 20. 2 Inst. 52.

In all cases of offences against stat. 7 & 8 G. 4, c. 29 (Peel's Act, Larceny, &c.), it is enacted, that any person found committing any offence punishable, either upon indictment or upon summary conviction, by virtue of that Act, (except only the offence of angling in the day time,) may be immediately apprehended without a warrant, by any peace officer,-or by any owner of the property on or with respect to which the offence shall be committed, or by his servant, or by any person authorized by him,-and forthwith taken before some neighbouring justice of the peace, to be dealt with according to law. 7 & 8 G. 4, c. 29, 8. 63.

So, in all offences against stat. 7 & 8 G. 4, c. 30 (Peel's Act, Malicious Injuries), persons found offending may be apprehended in like manner. Id. s. 28. In these cases, and in cases within ch. 29 above mentioned, the offender must be taken, either in the act of committing the offence, or on fresh

pursuit; Hanway v. Boultbee, 1 Moody & R. 15. R. v. Curran, 3 Car. & P. 397; but not on his return after committing the offence. R. v. Phelps et al., Car. & M. 180.

So, by the statute against night poachers, 9 G. 4, c. 69, s. 2, it is enacted, that if any person shall be found on any land, committing any such offence as hereinbefore mentioned, it shall be lawful for the owner or occupier of such land,—or for any person having a right or reputed right of free-warren or free-chase thereon,-or for the lord of the manor or reputed manor wherein such land may be situate,-and also for any gamekeeper or servant of any of the persons herein mentioned, or any persons assisting such gamekeeper or servant,-to seize and apprehend such offender upon such land, or, in case of pursuit being made, in any other place to which he may have escaped therefrom, and to deliver him as soon as may be into the custody of a peace officer, in order to his being conveyed before two justices of the peace. See R. v. Ball, Ry. § M. 330. The offender, however, to come within this clause of the Act, must have by night (that is, from the expiration of the first hour after sunset, until the beginning of the last hour before sunrise) unlawfully taken or destroyed game or rabbits, in any land, whether open or inclosed, or have by night unlawfully entered into or been in any land, whether open or inclosed, with any gun, net, engine, or other instrument, for the purpose of destroying game. See 9 G. 4, c. 69, 8. 1. R. v. Tomlinson, 7 Car. & P. 183. So, if any person by night shall take or destroy game or rabbits on a public road or foot path, or the sides thereof, or at the openings, outlets, or gates from land into such road or path, the owner or occupier of any land adjoining either side of that part of such road or path where the offender shall be, and the gamekeeper or servant of such owner or occupier, and any person assisting such gamekeeper or servant, and for all the persons authorized by stat. 9 G. 4, c. 69, s. 2, to apprehend any person offending against the provisions of that Act, may seize and apprehend any offender against the provisions of this Act. 7 & 8 Vict. c. 29, 8. 2. But if the poachers are not found upon the land or road committing the offence, but are met by the gamekeeper on the road, on their return after committing it, he has no right to apprehend them under these statutes. R. v. Meadham, 2 Car. & K. 633. It may be necessary to mention, that a person appointed as a watcher, is within the meaning of these clauses. R. v. Price, 7 Car. § P. 178. R. v. Fielding, 2 Car. § K. 621. But the gamekeeper of a person who is not himself the owner or occupier of the land, but has merely the permission of the owner to shoot over it and to preserve the game there, cannot apprehend poachers under the above statutes. R. v. Addis, 6 Car. & P. 388.

So, by the statute for the protection of works of art, and scientific and literary collections, (8 & 9 Vict. c. 44), sect. 3,