may have been committed on the high seas or at any place on land, in or out of the queen's dominions; and if the offences of the principal and the accessory have been committed in different counties, the same may be laid in either county.

Accessories before the fact Indictable either as such, or for the Substantive Felony.]-But by 7 G. IV. c. 64, s. 9, the accessory before the fact to any felony, whether at common law or by any statute or statutes made or to be made, shall be deemed guilty of felony, and may be indicted and convicted either as an accessory before the fact to the principal felony, together with the principal felon, or after his conviction; or may be indicted and convicted of a substantive felony, whether the principal felon has been previously convicted or not, or is amenable to justice or not, and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished. This section, which somewhat resembles 3 G. IV. c. 24, s. 3 (repealed by 7 & 8 G. IV. c. 27. s. 1) (l), only makes accessories triable in cases where they might have been tried before, and not in cases where they could not have been tried at common law, because the principal could not be tried; e. g., in selfmurder (m), or in case of the principal being an insane person (n).

And in order that all accessories may be convicted and punished in cases where the principal felon is not attainted, it is enacted (o) that if any principal offender shall be in anywise convicted of any felony, any accessory either before or after the fact may be proceeded against in the same manner as if such principal felon had been attainted thereof: Provided that no person once duly tried for any such offence, whether as an accessory before the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offence (o).

Place of Trial of Accessories before the fact.]—By 7 G. IV. c. 64, s. 9, the offence of such accessory before the fact, howsoever indicted, may be tried and punished by any court having jurisdiction to try the principal felon in the same manner as if such offence of the accessory had been committed at the same place as the principal felony, though such offence may have been committed either on the high seas or at any place on land whether in or out of her majesty's dominions; and in case the principal felony has been committed without the body of

(1) See R. v. Solomons, 1 Moo. C. C. 292; overruling R. v. Cale, id. 11. (m) R. v. Henry Russell, 1 Moo. C. C. 356. See Dyson's case, id. 523; and Reg. v. Leddington, 9 C. & P. 79.

(n) Reg. v. Tyler, 8 C. & P. 616, Lord Denman.

(0) 7 G. IV. c. 64, s. 11. See as to this, 1 Hale, 624, 625.

any county, and the offence of such accessory before the fact has been committed within the body of any other county, the last-mentioned offence may be tried and punished in either county.

Punishment of Accessories for Injuries to the Person.]-By 9 G. IV. c. 31. s. 31, every accessory before the fact to any felony punishable under this act (against malicious and felonious injuries to the person) for whom no punishment has been herein before provided, shall be liable at the discretion of the court to be transported beyond the seas for any term not exceeding fourteen nor less than seven years, or to be imprisoned with or without hard labour in the common gaol or house of correction for any term not exceeding three years; and every accessory after the fact to any felony punishable under this act, except murder, shall be liable to be imprisoned with or without hard labour in the, &c., for not exceeding two years; and every person who shall counsel (i. e. accessory before the fact) aid or abet (principal in the second degree) the commission of any misdemeanour punishable under this act, shall be liable to be proceeded against and punished as a principal offender.

Trial of Accessories in general.]-The acquittal of the accessory being always necessarily involved in that of the principal, the best mode of arraigning and trying an accessory, where it is practicable, is at the same time and on the same indictment with the principal (p). When this is done, the jury are in general first to inquire of the principal; and if they find him guilty, they are then to inquire of the accessory but if they find the principal not guilty, the accessory must be acquitted (q).

So that even in a case where the principal was indicted for burglary and larceny in a dwelling-house, and the accessory was charged in the same indictment as accessory before the fact "to the said felony and burglary," and the jury found the principal guilty of the larceny only

(p) See 2 Hale, 173. Gittin's case, Plowd. 96, 97, 99, shows the inconvenience of trying an accessory before the fact first and separately; for he might be convicted, and the principal acquitted on a subsequent indictment by another jury, which would contradict the first verdict; but this does not hold in the case of principals in the second degree, viz. "present aiding and abetting." was indicted for felony in using an instrument to procure abortion, and B. was indicted with him as an accessory before the fact. A. did not appear to

A.

take his trial; B. who had been on bail, appeared. He was held not compellable to plead to the indictment, and was admitted to bail, not having been indicted for a substantive felony; Reg. v. Ashmall, 9 C. & P. 236.

(g) 1 Hale, 624; 2 Inst. 184. If a principal is pardoned after attainder, the accessory after the fact must plead to an indictment charging that offence. Secus, if the principal had been acquitted, or had obtained his pardon before judg ment, Anon. Sir T. Raym. 477. (O. B. Sess. Jan. 1682.)

and acquitted him of the burglary, the judges seemed of opinion that the accessory should have been acquitted; for as the indictment charged him as accessory to the burglary only, and the principal had been acquitted of that, the accessory should be acquitted also (r). If the person charged as accessory before the fact, was present when the felony was committed, he must be acquitted: for his minor offence is merged in the greater one of principal (s).

Indictment against an Accessory before the Fact to a Felony jointly with the Principal.

After concluding the indictment as against the principal, in the usual form, proceed

And the jurors, &c. do further present, that one E. F. late of, &c. labourer, before the felony and larceny aforesaid was by the said A. B. [the principal] done and committed in form aforesaid, that is to say, on, &c. at, &c. feloniously, wilfully, and maliciously, did incite, move, aid, counsel, hire, command (t), and procure the said A. B., the felony and larceny aforesaid, in manner and form aforesaid, to do and commit, against the peace, &c. (u).

In indicting an accessory before the fact, the principal having been convicted on a prior indictment, or in indicting an accessory after the fact, it must be alleged by whom and upon whose oaths the former presentment was made; for to allege by way of caption of the prior indictment, "that heretofore to wit, at the general sessions of goal delivery of, &c. holden, &c. it was presented, that J. S." (reciting the former indictment,) is bad in arrest of judgment, notwithstanding it goes on to allege," upon which said indictment said J. S. at the session of the goal delivery aforesaid, was duly convicted of the felony and larceny aforesaid, as by the record thereof more fully and at large appears" (v). The conclusion of an indictment against an accessory before the fact is as above. In indicting an accessory after the fact, first conclude the indictment as against the principal, and then proceed

(r) R. v. Dannelly and Vaughan, R. & Ry. 310; S. C. 2 Marsh. 571. It was not necessary to decide the point.

(8) See R. v. Gordon, 1 Leach, 515. But he might be indicted again as principal, S. C.

(t) The words "excite, move, and procure," seem equivalent to "command, hire, or conceal," in a statute, so as to describe the act of an accessory, R. v. Grevil, 1 Anderson's Rep. 195.

(u) For indictments against accessories before the fact, as for a substantive felony, see Archbold, Cr. Pl. 6th ed.

592.

Counts charging a person as accessory, before and after the fact, may not only be joined where the felony is the same, R. v. Dannelly and Vaughan, R. & Ry. 310; 2 Marsh. 571, S. C.; but the prosecutor will not be required to elect on which he will proceed, as the party may be found guilty on both, R. v. Blackson and others, 8 C. & P. 43, Parke, B., and Patteson, J.; but as to receivers, see next section.

(v) Reg. v. Butterfield, 2 M. & Rob. 523, Maule, J.

And the jurors, &c., do further present, that E. F. late of, &c. labourer, well knowing the said A. B. to have done and committed the said felony in manner and form aforesaid, afterwards, to wit, on, &c. at, &c. him the said A. B. did feloniously receive, aid, and comfort, against the peace, &c.

Punishment.]-The punishment of accessories for offences partaking of the nature of larceny, is prescribed by 7 & 8 G. IV. c. 29, s. 61, which enacts, that, in the case of every felony punishable under that act, every accessory before the fact shall be punished in the same manner as the principal in the first degree is punishable; and every accessory after the fact to any felony punishable under that act, shall on conviction be liable to be imprisoned for any term not exceeding two years, which imprisonment, by section 4, may be solitary or with hard labour, at the discretion of the court, subject to 7 W. IV. and 1 V. c. 90, s. 5, post, Chap. VII. s. 15.

Punishment of Principals in second Degree and Accessories to Offences punishable under the Statutes 7 W. IV. and I V. cc. 85, 86, 87, 88, 89.]-In the case of every felony punishable under each of these acts, every principal in the second degree, and every accessory before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by the act punishable; and every accessory after the fact to any felony punishable under the act, (except only a receiver of stolen property (x),) shall on conviction be liable to be imprisoned for any term not exceeding two years (y).

SECTION XII.

OF FELONIOUSLY RECEIVING STOLEN AND EMBEZZLED GOODS. SEVERAL acts had passed with a view to the punishment of receivers of stolen goods, without making their conviction dependent on that of the principal offender. So much confusion, however, prevailed in these provisions, and so much difficulty in construing them, that the law was concisely settled by the following enactment, which, it will be observed, applies not only to the receipt of goods, monies, and securities, where the principal offender is guilty of larceny, but to all cases of embezzlement made felony by the same statute (z).

(a) See 7 W. IV. and 1 Vict. c. 86, s. 9, and c. 87, s. 9.

(y) 7 W. IV. and 1 Vict. c. 86, s. 7; Id. c. 86, s. 6; Id. c. 87, s. 9; Id. c. 88,

s. 4; Id. c. 89, s. 11.

(z) As to embezzlements not made felonies, see post, Ch. VI. s. 22.

Receiving stolen Property, how indictable.]-By stat. 7 & 8 G. IV. c. 29, s. 54; "if any person shall receive any chattel, money, valuable security, or other property whatsoever, the stealing or taking whereof shall amount to a felony (a) either at common law or by virtue of this act, such person knowing the same to have been feloniously stolen or taken, every such receiver shall be guilty of felony, and may be indicted and convicted either as an accessory after the fact, or for a substantive felony; and, in the latter case, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice; and every such receiver, howsoever convicted, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years nor less than seven years, or to be imprisoned for any term not exceeding three years; and if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment; provided always, that no person, howsoever tried for receiving as aforesaid, shall be liable to be prosecuted a second time for the same offence." This punishment remains unaffected by 7 W. IV. and 1 V. ch. 86 or 87. (See p. 298.)

Nature of Offence.]-The guilty knowledge is, of course, the very essence of this offence. Of this, except in cases of confession, direct proof cannot be given; but it may be inferred from circumstances,as the low price at which the goods, if purchased, were bought,-facts tending to show a connexion between the thief and the receiver-the time and secrecy of the transfer, &c., &c., which are always peculiarly for the consideration of the jury. Mr. Dickinson here stated that a receiver must take the goods, in some sense, to his own use; and that, therefore, a person merely employed by the principal to convey them to a place in which the alleged receiver has no interest, though he may be aware of the theft, was not thus liable (6). But it has been since held, that if the receiver (semble, knowing of the theft) takes the property into his possession for the mere purpose of concealment, without making any bargain or deriving any profit, he is as much a "receiver" as if he had purchased it (c). So if he acts without the purpose of profit, and merely to assist the thief (d). A party charged as receiver may controvert the guilt of his principal; and if he show

(a) See s. 56 of 7 & 8 G. IV. c. 29, post, Ch. VI. s. 22; and 7 & 8 G. IV. c. 29, s. 21, Ch. VI. s. 23.

(b) R. v. Rogers and Brace, Old Bailey, 1817, MS. Dickinson.

(c) Per Taunton, J., R. v. Richardson and others, 6 C. & P. 335 (Gaselee, J., and Vaughan, B., present).

(d) Per Gurney, B., R. v. Davis and another, 6 C. & P. 177.