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the record, to ascertain if the principal be convicted, &c. or not; and if he certify under his seal that he is convicted, &c. then the justices shall proceed against the accessary, in the county in which he became accessary. Still however this certificate is not made evidence by the statute; and therefore it is necessary to produce either the record itself, or at least an examined copy of it. See ante, p. 80, 81.

But although the record of conviction is evidence of the guilt of principal, yet it is not such conclusive evidence as to preclude the accessary from proving the principal's innocence, if he can. Fost. 365-368. R. v. Smith. 1 Leach, 288.

2. Having proved the guilt of the principal, prove the accessary's guilt, as directed, ante, p. 398.

Indictment against an accessary after the fact, with the principal

After stating the offence of the principal, and immediately before the conclusion of the indictment, charge the accessary after the fact, thus:] And the jurors aforesaid, upon their oath aforesaid do further present, that J. W., late of the parish aforesaid in the county aforesaid, labourer, well knowing the said J. S. to have done and committed the said [felony and larceny] in form aforesaid, afterwards, to wit, on the day and year aforesaid, at the parish aforesaid in the county aforesaid, him the said J. S. did feloniously receive, harbour, and maintain : against the peace, &c. as in ordinary cases. to receiving stolen goods, &c. see ante, p. 153-156.

As

Although in high treason there are no accessaries after the fact, those who in felony would be accessaries after the fact, being principals in high treason; yet in their progress to conviction, they must be treated as accessaries, and indicted specially for the receipt, &c. and not as principal traitors. 1 Hale, 238. In offences under felony, there is no penalty inflicted by the common law for receiving, harbouring, or maintaining the principal; 1 Hale, 613; but in some few cases, it is made punishable by statute. Even in cases of petit larceny, the accessary after the fact is not punishable as such. Id. 618. Yet in these cases, if the act of the receiver amount to a rescue, or to the obstructing an officer of justice in the execution of his duty, or the like, he would undoubtedly be indictable for it as for a misdemeanor. 2 Hawk. c. 29, § 4. see ante, p. 305. 308, 309. In felonies at common law, the offence of accessary is a felony within clergy; and he is not ousted of clergy by a statute taking away clergy from the principal, unless the statute in terms extend to receivers also. In felonies created by statute,-if the statute make no mention of accessaries, accessaries after the fact are punishable as for a felony within clergy; see 3 Inst. 59;-if it mention accessaries before the fact, but not accessaries after, the latter,

according to Lord Hale, (1 Hale, 235, 236, 328,) are not punishable; Hawkins, however, is of a different opinion; 2 Hawk. c. 29. s. 14;-but if it mention receivers, &c. they are in that case punishable in the manner directed by the statute.

Accessaries after the fact cannot be tried before the conviction or attainder of their principal, unless they consent to it. 1 Hale, 623. 2 Hawk. c. 29. s. 45. But they may be tried with their principal; 1 Hale, 623; or separately, after the principal has been convicted or attainted. See ante, p. 398.

Evidence.

1. The prosecutor must prove the principal guilty of the felony charged against him by the indictment, as in ordinary

cases.

2. He must prove that J. W. received, harboured, or maintained the principal, after he had so committed the felony: As, for instance, that he concealed him in his house, Dalt. 530, 531, or shut the door against his pursuers, until he should have an opportunity of escaping, 1 Hale, 619, or took money from him to allow him to escape, 9 H. 4, 1, or supplied him with money, a horse, or other necessaries, in order to enable him to escape, Hale. Sum. 218. 2 Hawk. c. 29. s. 26, or that the principal was in prison, and J. W. bribed the gaoler to let him escape, or conveyed instruments to him to enable him to break prison and escape. 1 Hale, 621.

But merely suffering the principal to escape, will not make the party an accessary after the fact; for it amounts at most but to a mere omission. 9 H. 4, 1. 1 Hale, 619. So, if a person supply a felon in prison with victuals or other necessaries for his sustenance, 1 Hale, 620; or if a physician or surgeon professionally attend a felon sick or wounded, although he know him to be a felon, 1 Hale, 332, or if a person speak or write in order to obtain a felon's pardon or deliverance, 26 Ass. 47, or advise his friends to write to the witnesses not to appear against him at his trial, and they write accordingly, 3 Inst. 139. 1 Hale, 620, or even if he himself agree, for money, not to give evidence against the felon, Moor, 8, or know of the felony, and do not discover it: 1 Hale, 371.618: none of these acts would be sufficient to make the party an accessary after the fact.

A wife, however, is not punishable as accessary, for receiving &c. her husband, although she know him to have committed felony, 1 Hale, 48, 621, for she is presumed to act under his coercion. But no other relation of persons can excuse the wilful receipt or assistance of felons: a father cannot assist his child, a child his parent, a husband his wife, a brother his brother, a master his servant, or a servant his master. Id.

3. It must be proved that J. W., at the time he received or

assisted the principal felon, knew that he had committed a felony. This knowledge may be proved, either from the defendant's admissions, or the like, or by evidence of circumstances from which the jury may fairly presume it. See ante, p. 78, 79. and see R. v. Burridge, 3 P. Wms. 439.

Indictment against an accessary after the fact, the principal being convicted.

Proceed as in the precedent, ante p. 400, to the *; and then thus]. And the jurors aforesaid upon their oath aforesaid do further present, that J. W., late of the parish aforesaid in the county aforesaid, labourer, well knowing the said J. S. to have done and committed the said [felony and larceny] aforesaid, after the same was so committed as aforesaid, to wit, on the day and year aforesaid, at the parish aforesaid in the county aforesaid, him the said J. S., did feloniously receive, harbour, and maintain: against the peace, &c. &c. as in ordinary cases. Prove the conviction of the principal, as directed, ante, p. 400; and the guilt of the accessary, as directed, ante, p. 402.

Indictment for soliciting a person to commit an offence.

Middlesex, to wit: The jurors for our lord the king upon their oath present, that J. S., late of the parish of B. in the county of M., labourer, on the third day of May in the third year of the reign of our sovereign lord George the Fourth, falsely, wickedly, and unlawfully did solicit and incite one J. W., a servant of one J. N., to take, embezzle, and steal a large quantity, to wit, one hundred pounds weight of cotton twist, of the value of , of the goods and chattels of his master, the said J. N.: to the great damage of the said J. N., to the evil example of all others in the like case offending, and against the peace of our lord the King, his crown and dignity.

Fine or imprisonment, or both. R. v. Higgins, 2 East, 5.

Evidence.

Prove the soliciting or inciting, as alleged in the indictment. Prove it in the same manner as you would prove the offence of accessary before the fact, with the exception of proving the larceny or embezzlement committed: if it appear that J. W. actually committed the offence to which he was incited by J. S., J. S. must be acquitted; for the misdemeanor in that case would be merged in the felony. See R. v. Higgins, 2 East., 5.

INDEX.

A.

ABATEMENT, plea in, 47. In what cases, 47: for want of
an addition, or for a wrong one, 9; for want of christian
or surname, or for a wrong one, 9. Affidavit to verify
it, 47. Judgment, 48.

Abettors.

See " Aiders."

Abortion. Indictment for administering drugs, &c. to procure
abortion, the woman not being quick with child, 236;
evidence, 236; punishment, 236. Indictment for the
same, the woman being quick with child, 237; evidence,
237; punishment, 237.

Acceptance of a bill of exchange, forging and uttering, 197-
199.

Accessary after the fact, who 402. In what offences, 401.
Must be tried with, or after the principal, 402. Indict-
ment of, together with the principal, 401; evidence,
402; punishment, 402. Indictment of, the principal be-
ing convicted, 403. See "Receivers."

Accessary before the fact, who, 398. In what offences, 398.
Must be tried with or after the principal, 398. Indict-
ment of, together with the principal, 397; evidence,
399; punishment, 398. Indictment of, the principal be-
ing convicted, 400; venue, 400; evidence, 400.
Accessary in one county to a felony in another, venue in in-
dictments against, 6.

Accessary, a competent witness against his principal, 96.
Accomplice, a competent witness, 96; but his testimony re-
quires confirmation, 96.

Acquittal of one defendant, to enable him to give evidence for
a co-defendant, in what cases, 97.

Acts of state, how proved, 88. Acts of state of a foreign go-
vernment, how proved, 86.

Addition of defendant, in an indictment or information, 7; of
his estate and degree, 7, 8; of his mystery, 8; of the
town, hamlet or place, and county where he resided, 8, 9.
It must be given after the first name, and not after the
alias dictus, 7.

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