[(4.) Two parties of persons fight in the street about the removal of goods to avoid a distress. One of the persons engaged kills a looker-on, totally unconcerned in the affray. The other persons present are not responsible for his crime.

(5.) 2 Two persons go out to commit theft. One, unknown to the other, puts a pistol in his pocket, and shoots a man with it. The other person is not responsible for the shot.

(6.) Three persons go out to practice with a rifle, and manage their practice so carelessly that a person is killed by a shot fired by one of them all are guilty of manslaughter.

5

:

4 ARTICLE 39.

ACCESSORIES BEFORE THE FACT.

6

An accessory before the fact is one who directly or indirectly counsels, procures, or commands any person to commit any felony or piracy which is committed in consequence of such counselling, procuring, or command

ment.

Every one who would have been an accessory before the fact if the crime committed, procured, or commanded had been a felony, is a principal if that crime is a misde

meanor.

Knowledge that a person intends to commit a crime, and conduct connected with and influenced by such knowledge, is not enough to make the person who possesses such knowledge, or so conducts himself, an accessory before the fact to any such crime, unless he does something to encourage its commission actively.

Illustrations.

8

(1.) A supplies B with corrosive sublimate, knowing that B means to

1 [R. v. Hodgson and Others, 1 Leach, 6.

2 Per Park, J., Duffey's Cuse, 1 Lew. 194.

3 R. v. Salmon, L. R. 6 Q. B. D. 79.]

4S. D. Art. 39.

[1 Hale, P. C. 615; 2 Hawk, P. C. 442; 1 Russ. Cr. 156-185. As to principals and accessories in forgery, see 2 Russ. Cr. 689. In the following Articles I use the word "instigate" as equivalent to" counsel, procure, or command." Draft Code, s. 71.

6 R v. Cooper, 5 C. & P. 535-7.

711 & 12 Will. 3, c. 7, s. 9.

R. v. Fretwell, L. & C. 161. Contrast with this R. v. Russell, 1 Moody, 356.]

[use it to procure her own abortion, but being unwilling that she should take the poison, and giving it to her because she threatened to kill herself if he did not. B does so use it and dies. Even if B is guilty of murdering herself, A is not an accessory before the fact to such murder.

(2.) 1B and C agree to fight a prize fight for a sum of money; A, knowing of their intention, acts as stakeholder. B and C fight, and C is killed. A is not present at the fight and has no concern with it except being stakeholder. Even if in such a case there can be an accessory before the fact, A is not accessory before the fact to the manslaughter of C.

2 ARTICLE 40.

WHERE CRIME SUGGESTED IS COMMITTED IN A DIFFERENT

WAY.

3 When a person instigates another to commit a crime, and the person so instigated commits the crime which he was instigated to commit, but in a different way from that in which he was instigated to commit it, the instigator is an accessory before the fact to the crime.

Illustration.

A advises B to murder C by shooting, B murders C by stabbing. A is accessory before the fact to the murder of C.

4 ARTICLE 41.

WHERE CRIME COMMITTED IS PROBABLE CONSEQUENCE OF

3

CRIME SUGGESTED.

If a person instigates another to commit a crime, and the person so instigated commits a crime different from the one which he was instigated to commit, but likely to be caused by such instigation, the instigator is an accessory before the fact.

Illustrations.

5 (1.) A describes C to B, and instigates B to murder C. B murders D,

1 [R. v. Taylor, L. R. 2 C. C. R. 147.]

2 S. D. Art. 40.

[Foster, 369-70; Draft Code, s. 72.]

S. D., Art. 41.

[Foster, 370.]

[whom he believes to be C, because D corresponds with A's description of C. A is accessory before the fact to the murder of D.

1 (2.) A instigates B to rob C, B does so, C resists and B kills C. A is accessory before the fact to the murder of C.

2 (3.) A advises B to murder C (B's wife) by poison. B gives C a poisoned apple, which C gives D (B's child). B permits D to eat the apple, which it does, and dies of it. A is not accessory to the murder of D.

3 ARTICLE 42.

WHERE INSTIGATION IS COUNTERMANDED.

If an accessory before the fact countermands the execution of the crime before it is executed, he ceases to be an accessory before the fact, if the principal had notice of the countermand before the execution of the crime, but not otherwise.

Illustration.

A advises B to murder C, and afterwards, by letter, withdraws his advice. B does murder C. A is not an accessory before the fact if his letter reaches B before he murders C; but he is if it arrives afterwards.

5 ARTICLE 43.

INSTIGATION TO COMMIT A CRIME DIFFERENT FROM THE ONE COMMITTED.

When a person instigates another to commit a crime, and the person so instigated commits a different crime, the instigator is not accessory before the fact to the crime so committed.

1 [Foster, 370.

Saunders' Case, Plowd. 475; 1 Hale, P. C. 431. This decision is of higher authority than Foster's dicta, and marks the limit to which they extend, if it does not throw some doubt on them].

3S. D. Art. 42.

[1 Hale, P. C. 618. In the case supposed, the instigator would probably have committed the offence of inciting to the commission of a crime (Art. 50), though he would not be an accessory before the fact. It may also be doubted whether this doctrine would extend to the case of a man who did his best to countermand his advice, but failed, as by an accident in the course of post, &c.]

S. D. Art. 43.

[Cf. Draft Code, s. 72.]

1

Illustration.

[A instigates B to murder C, B murders D, A is not accessory before the fact to the murder of D.

2 ARTICLE 44.

ACCESSORIES AND PRINCIPALS IN SECOND DEGREE TREATED AS PRINCIPALS IN FIRST DEGREE.

3

Accessories before the fact, principals in the second degree, and principals in the first degree in any felony, are each considered as having committed that felony, and each may be indicted, tried, convicted and punished as if he alone and independently had committed the felony, although any other party to the crime may have been acquitted.

4 ARTICLE 45.

ACCESSORIES AFTER THE FACT.

Every one is an accessory after the fact to felony who knowing a felony to have been committed by another, receives, comforts, or assists him, in order to enable him to escape from punishment;

or rescues him from an arrest for the felony;

or having him in custody for the felony, intentionally and voluntarily suffers him to escape;

or opposes his apprehension;

Provided that a married woman who receives, comforts

1 [Foster, 369, s. 1.]

2S. D. Art. 44.

3 [24 & 25 Vict. c. 94, s. 2, as explained by R. v. Hughes, Bell, C. C. 242. The section referred to applies only to cases in which a felony has been committed, and does not affect the common law offence of inciting to commit a felony (Art. 50). R. v. Gregory, L. R. 1 C. C. R. 77.] See R. S. C. c. 145, ss. 1, 2, 3; 11 & 12 Vict. c. 12, s. 8; 24 & 25 Vict. c. 96, s. 98, c. 97, s. 56, c. 98, s. 49, c. 99, s. 35; c. 100, s. 67. See also The Post Office Act (R. S. C. c. 35) s. 110 (4) where it is provided that not only accessories before the fact but accessories after the fact to any felony defined in the Act may be tried as principals.

4S. D. Art. 45.

[1 Russ. Cr. 171-4; 1 Hale, P. C. 618-20; 2 Hawk. P. C. Bk. II, c. 29; Draft Code, s. 73. As to the addition of these words, see 2 Hawk. P. C. Bk. II. c. 29, ss. 28-9].

[or relieves her husband, knowing him to have committed a felony, does not thereby become an accessory after the fact].

1 ARTICLE 46.

PUNISHMENT OF ACCESSORIES AFTER THE FACT.

Every one who becomes an accessory after the fact to any felony, whether the same is a felony at common law or by virtue of any Act, 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 has or has not been convicted, or is or is not 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.

3 Every accessory after the fact to any felony (except when it is otherwise specially enacted), whether the same is a felony at common law, or by virtue of any Act, shall be liable to imprisonment for any term less than two years.

ARTICLE 47.

WHERE PRINCIPAL FELON HAS BEEN CONVICTED BUT NOT

ATTAINTED.

*If any principal offender is, in any wise, 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, notwithstanding such principal felon dies or is pardoned or otherwise delivered before such attainder; and every such accessory

18. D. Art. 46.

2 R. S. C. c. 145, s. 4; 24 & 25 Vict. c. 94, s, 3. R. v. Fallon L. & C. 217.

R. S. C. c. 145, s. 5;

24 & 25 Vict. c. 94, s. 4.

4R. S. C. c. 145, s. 6;

24 & 25 Vict. c. 94, s. 5. See Art. 15 note (3.)

E