kind. (i) He is however accessory to the stealing. (j) But if the principal complies in substance with the instigation of the accessory, varying only in circumstances of time or place, or in the manner of execution, the accessory will be involved in his guilt: as if A. command B. to murder C. by poison, and B. does it by a sword or other weapon, or by any other means, A. is accessory to this murder; for the murder of C. was the object principally in contemplation, and that is effected. (k) And it seems that if A. counsels B. to steal goods in C.'s house, but not to break into it, and B. does break into it, A. is accessory to the breaking. (1) And where the principal goes beyond the terms of the solicitation, yet if, in the event, the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessory to that felony. As if A. advise B. to rob C., and in robbing him B. kills him, either upon resistance made, or to conceal the fact, or upon any other motive operating at the time of the robbery: or if A. solicit B. to burn the house of C., and B. does it accordingly, and the flames taking hold of the house of D., that likewise is burnt. In these cases A. is accessory to B. both in the murder of C. and in the burning of the house of D. The advice, solicitation, or orders, were pursued in substance, and were extremely flagitious on the part of A.; and the events, though possibly falling out beyond his original intention, were, in the ordinary course of things, the probable consequences of what B. did under the influence and at the instigation of A. (m)

woman to

selled to mur

ders C.

Where A. counselled a pregnant woman to murder her child Counselling a when it should be born, and she murdered it accordingly, A. was pregnant held to be accessory to the murder: the procurement before the murder her birth being considered as a felony continued after the birth, and child. until the murder was perpetrated by reason of that procurement. (n) But more difficult questions arise where the principal by mistake A. being councommits a different crime from that to which he was solicited by the der B. muraccessory. It has been said, that if A. orders B. to kill C., and he by mistake kills D., or aiming a blow at C. misses him and kills D., A. will not be accessory to this murder, because it differs in the person. (0) And in support of this position Saunders' case (p) is cited; who, with the intention of destroying his wife, by the advice of one Archer, mixed poison in a roasted apple, and gave it her to eat; and the wife having eaten a small part of it, and having given the remainder to their child, Saunders (making only a faint attempt to save the child whom he loved, and would not have destroyed) stood by and saw it eat the poison, of which it soon afterwards died. And it was held, that though Saunders was clearly guilty of the murder of the child, yet Archer was not accessory to that murder. But Mr. Justice Foster thinks that this case of Saunders does not support the position (which he calls a merciful opinion) to its full extent; and he proposes the following case as worthy of consideration :-" B. is an utter stranger to the person of 'C.; A. therefore takes upon him to describe him by his stature,

66

(1) Plowd. 475.

(j) 1 Hale, 617.

(4) Fost. 369, 370. 2 Hawk. P. C. c. 29, s. 20.

(1) Bac. Max. Reg. 16.

(m) Fost. 370.

(n) Rex v. Parker, Dy. 186, a. pl. 2.
(0) 1 Hale, 617. 3 Inst. 51.

(p) Plowd. 475. 1 Hale, 431

Criteria in such cases.

Accessory repents and

countermands the principal.

Of accessories

66

"dress, age, complexion, &c., and acquaints B. when and where he may probably be met with. B. is punctual at the time and place; "and D., a person possibly in the opinion of B. answering the description, unhappily comes by and is murdered, upon a strong "belief on the part of B. that this is the man marked out for de"struction. Here is a lamentable mistake;-but who is answerable "for it? B. undoubtedly is; the malice on his part egreditur 66 personam. And may not the same be said on the part of A.? "The pit which he, with a murderous intention, dug for C., D. through his guilt fell into and perished. For B., not knowing the person of C., had no other guide to lead him to his prey than the description A. gave of him. B. in following this guide fell into a "mistake, which it is great odds any man in his circumstances might "have fallen into. I therefore, as at present advised, conceive that "A. was answerable for the consequence of the flagitious orders he gave, since that consequence appears, in the ordinary course of "things, to have been highly probable." (q).

66

66

66

66

Mr. Justice Foster then proposes the following criteria, as explaining the grounds upon which the several cases falling under this head will be found to turn. "Did the principal commit the felony "he stands charged with under the influence of the flagitious "advice; and was the event, in the ordinary course of things, a pro"bable consequence of that felony? or did he, following the suggestions of his own wicked heart, wilfully and knowingly "commit a felony of another kind, or upon a different subject." (r) A. commands B. to kill C., but before the execution thereof repents and countermands B., yet B. proceeds in the execution thereof; A. is not accessory, for his consent continues not, and he gave timely countermand to B.: but though A. had repented, yet if B. had not been actually countermanded before the fact committed, A. had been accessory. (s)

IV. An accessory after the fact is a person who, knowing a after the fact. felony to have been committed by another, receives, relieves, comforts, or assists the felon. (t) And it seems to have been agreed, that any assistance given to one known to be a felon, in order to hinder his being apprehended or tried, or suffering the punishment to which he is condemned, is a sufficient receipt to make a man an accessory of this description: as where one assists a felon with a horse to ride away, or with money or victuals to support in his escape, or where one harbours and conceals in his house a felon under pursuit, by reason whereof the pursuers cannot find him; and much more where one harbours in his house and openly protects such a felon, by reason whereof the pursuers dare not take him. (u)

him

Where a lad robbed a banking house, in which he was clerk, and the same evening went to the room of the prisoner, a man, where he stayed twenty minutes, and both of them proceeded together that evening, by coach, to Bristol, and thence to Liverpool, where they were apprehended before they set sail for America, whither the prisoner

(q) Fost. 370, 371.

(r) Fost. 372.

(s) 1 Hale, 617.

(t) 1 Hale, 618. 4 Blac. Com. 37. So one who receives stolen property, knowing

it to have been stolen, is an accessory after the fact.

(u) 2 Hawk. P. C. c. 29, s. 26. 1 Hale, 618, 619. 4 Blac. Com. 38.

had said they were going; it was held that this was evidence to go to the jury, upon an indictment charging the prisoner with harbouring, receiving, and maintaining the boy, although the places in the coaches were paid for by the boy. (x) So a man who employs another person to harbour the principal may be convicted as an accessory after the fact, although he himself did no act of relieving or assisting the principal. (y)

Also whoever rescues a felon from an arrest for the felony, or voluntarily and intentionally suffers him to escape, is an accessory to the felony: (2) and it has been said, that those are in like manner guilty who oppose the apprehending of a felon. (a) It is agreed, by all the books, that a man may be an accessory after the fact by receiving one who was an accessory before, as well as by receiving a principal. (b) And it has been holden, that a man may make himself an accessory after the fact to a larceny of his own goods, or to a robbery on himself by harbouring or concealing the thief, or assisting in his escape. (c)

In order to support a charge of receiving, harbouring, comforting, assisting, and maintaining a felon, there must be some act proved to have been done to assist the felon personally; it is not enough to prove possession of various sums of money derived from the disposal of the property stolen. (d)

statute.

Where an act of parliament enacts an offence to be felony, though In offences it mentions nothing of accessories, yet virtually and consequentially created by those that knowingly receive the offender are accessories after. (f) It has, however, been said, that if the act of parliament that makes the felony in express terms, comprehend accessories before, and make no mention of accessories after, it seems there can be no accessories after; the expression of procurers, counsellors, abettors, all which import accessories before, making it evident that the Legislature did not intend to include accessories after, whose offence is of a lower degree than that of accessories before. (g) But by others it is considered to be settled law, that in all cases where a statute makes any offence treason, or felony, it involves the receiver of the offender in the same guilt with himself, in the same manner as in treason or felony at common law, unless there be an express provision to the contrary. (h) And although it be generally true, that an act of parliament creating a felony renders consequentially accessories before and after within the same penalty, yet the special penning of the act sometimes varies the case: thus the 3 Hen. 7, c. 2, (now repealed) for taking away women, made the taking away, the procuring and abetting, and also the wittingly receiving, all equally felonies and excluded from clergy. So that acts of parliament may diversify the offences of accessory or principal according to their various penning, and have done so in many cases. (i)

(z) Rex v. Lee, 6 C. & P. 536, Williams, J.

(y) Rex v. Jarvis, 2 M. & Rob. 40, Gurney, B.

(z) 2 Hawk. P. C. c. 29, s. 27. 1 Hale, 619: but not the merely suffering him to escape, where it is a bare omission. 1 Hale, 619. 2 Hawk. P. C. c. 29, s. 29. (4) 2 Hawk. P. C. c. 29, s. 27. (6) 2 Hawk. P. C. c. 29, s. 1.

(c) Fost. 123. Cromp. Just. 41 b, pl. 4 and 5.

(d) Reg. v. Chapple, 9 C. & P. 355.
Law, R., after consulting Littledale, J., and
Alderson, B.

(ƒ) 1 Hale, 613. Ante, p. 34.
(g) 1 Hale, 614.

(h) 2 Hawk. P. C. c. 29, s. 14.
(i) 1 Hale, 614.

The accessory must know of the felony committed,

and the felony

must be complete.

Feme covert.

Prosecutions

against accessories after the fact at common law

not frequent.

Felonies not

able under the

acts, if any relating thereto, otherwise under the 7 &

3. 8.

There is no doubt but that it is necessary for a receiver to have had notice, either express or implied, of the felony having been committed, in order to make him an accessory by receiving the felon; (k) and it is also agreed, that the felony must be complete at the time of the assistance given, else it makes not the assistant an accessory. So that 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 to the homicide, for till death ensues there is no felony committed. (1)

The law has such a regard to the duty, love, and tenderness, which a wife owes to her husband, that it does not make her an accessory to felony by any receipt whatever which she may give to him; considering that she ought not to discover her husband. (m)

It is not thought necessary to discuss further the general principles of law relating to accessories after the fact, since prosecutions against such persons grounded on the common law are seldom instituted at the present time; nor do they appear to have been frequent for many years past, nor to have had any great effect. (n) It should seem, however, that the enactment of 7 & 8 Geo. 4, c. 28, will apply to accessories after the fact, where no punishment is specially provided for their felony. The eighth section enacts," that every percapital punish-❝son convicted of any felony not punishable with death, shall be punished in the manner prescribed by the statute or statutes specially relating to such felony, and that every person convicted of "any felony for which no punishment hath been or hereafter may be 8 Geo. 4, c. 28, "specially provided, shall be deemed to be punishable under this act, "and shall be liable, at the discretion of the Court, to be transported "beyond the seas for the term of seven years, or to be imprisoned for "any term not exceeding two 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." The late consolidation acts, 7 & 8 Geo. 4, c. 29, 7, & 8 Geo. 4, c. 30, and 9 Geo. 4, c. 31, make accessories after the fact to felonies punishable under those acts respectively, liable to imprisonment for any term not exceeding two years. The principal and accessory may be indicted in the same indictment, and tried together, which is the best and most usual course. Formerly the accessory could not, without his own consent, have been brought to trial till the guilt of the principal was legally ascertained by conviction or outlawry, unless they were tried together. (o) And an accessory could not in such case have been tried, unless the principal had been attainted, so that if the principal stood mute of malice, or challenged peremptorily above the legal number of jurors, or refused to answer directly to the charge, the accessory could not have been put upon his trial. (p)

Of the proceedings against accessories.

(k) 2 Hawk. P. C. c. 29, s. 32.

(1) 2 Hawk. c. 29, s. 35. 4 Blac. Com. 38, but I apprehend it would make him accessory to the felony of maliciously wounding. C. S. G.

(m) 2 Hawk. c. 29, s. 34. 1 Hale, 621, ante, p. 23. But this applies to no other relation besides that of a wife to her husband and the husband may be an accessory for the receipt of his wife. 1 Hale,

621.

:

(n) Fost. 372.

(0) 1 Hale, 623. 2 Hawk. c. 29, s. 45. Fost. 360.

(p) Fost. 362, where the doctrine is reprobated; and see 1 Hale, 625, where it is said that it was for this reason that Weston, the principal actor in the murder of Sir Thomas Overbury, could not for a long while be prevailed upon to plead, that so the Earl and Countess of Somerset, who were the movers and procurers might escape. 1 St. Tr. 314.

But the 7 Geo. 4, c. 64, has made the following salutary provisions

for the effectual prosecution of accessories.

s. 9. How

"Sec. 9, for the more effectual prosecution of accessories before the 7G. 4, c. 64, fact to felony, enacts, " that if any person shall counsel, procure, or accessories "command any other person to commit any felony, whether the same before the fact "be a felony at common law, or by virtue of any statute or statutes may be tried. "made or to be made, the person so counselling, procuring, or com'manding 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 the conviction of "the principal felon, or may be indicted and convicted of a substan"tive felony, whether the principal felon shall or shall not have been "previously convicted, or shall or shall not be amenable to justice, "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; and the offence of the person so counselling, procuring, "or commanding, howsoever indicted, may be inquired of, tried, de"termined, and punished by any Court which shall have jurisdiction "to try the principal felon, in the same manner as if such offence had "been committed at the same place as the principal felony, although "such offence may have been committed either on the high seas, or "at any place on land, whether within his Majesty's dominions or "without; and that in case the principal felony shall have been com- If offences "mitted within the body of any county, and the offence of counsel- committed in ❝ling, procuring, or commanding, shall have been committed within ties, acces"the body of any other county, the last mentioned offence may be sories may be "inquired of, tried, determined, and punished, in either of such tried in either. "counties: provided always, that no person who shall be once duly Only one trial. "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."

different coun

S. 10. How

accer the fact may be tried.

accessory

Sec. 10, for the more effectual prosecution of accessories after the fact to felony, enacts, "that if any person shall become an accessory "after the fact to any felony, whether the same be felony at com"mon law, or by virtue of any statute or statutes made or to be made, "the offence of such person 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 where"of such person shall have become an accessory, had been com"mitted at the same place as the principal felony, although such act "may have been committed either on the high seas or at any place "on land, whether within his Majesty's dominions or without; and If offences be "that in case the principal felony shall have been committed within committed in "the body of any county, and the act by reason whereof any person ties, accessory "shall have become accessory shall have been committed within the may be tried in "body of any other county, the offence of such accessory may be in"quired of, tried, determined, and punished in either of such coun"ties: provided always, that no person who shall be once duly tried One trial only. "for any offence of being an accessory, shall be liable to be again "indicted or tried for the same offence.

different coun

either.

prosecuted af

Sec. 11, in order that all accessories may be convicted and punished S. 11. Accesin cases where the principal felon is not attainted, enacts, "that if sory may be "any principal offender shall be in any wise convicted of any felony, ter conviction "it shall be lawful to proceed against any accessory, either before or of principal