"after the fact, in the same manner as if such principal felon had "been attainted thereof, notwithstanding such principal felon shall die or be admitted to the benefit of clergy, or pardoned, or other"wise delivered before attainder; and every such accessory shall "suffer the same punishment, if he or she be in any wise convicted, as he or she should have suffered if the principal had been at"tainted."(p) 66 An acccessory before the fact to the crime of self murder was not triable at common law, because the principal could not be tried; and such an accessory is not now triable under the 7 Geo. 4, c. 64, s. 9, which does not make accessories triable except in cases where they might have been tried before. Russell was tried on an indictment which charged Sarah Wormsley with murdering herself with arsenic, and Russell with inciting her to commit the said murder. It appeared that Wormsley, who was about four months advanced in pregnancy, but not quick with child, died from taking arsenic, which she had received from Russell, for the purpose of procuring a miscarriage, and that she knowingly took it with intent to procure a miscarriage, in the absence of Russell. It was objected that there was no evidence to prove that she was felo de se: that the 9 Geo. 4, c. 31, s. 13, did not apply to a woman administering poison to herself, and that assuming her to have taken arsenic knowingly, and with intent to procure miscarriage, she was not guilty of any offence; and, consequently, if there were no principal there could be no accessory. Secondly, that the 7 Geo. 4, c. 64, s. 9, did not apply to the case of a principal who was felo de se. Upon a case reserved it was held that she was felo de se: that Russell was an accessory before the fact, but that he could not be tried as an accessory under the 7 Geo. 4, c. 64, s. 9, as he could not have been tried at all before that statute, which was to be considered as extending to those persons only, who, before the statute, were triable either with or after the principal, and not to make those triable who before could never have been tried. (q) Where an accessory is indicted alone before his principal has been convicted, the indictment should be for a substantive felony; for if the indictment first charge the principal with the felony, and then the accessory as accessory, as is usual when principal and accessory are tried together, and the principal does not appear to take his trial, the accessory is not bound to plead. An indictment charged Ashmall with feloniously using an instrument with intent to procure a miscarriage, and Tay with procuring Ashmall to commit the said felony. Ashmall did not appear to take his trial, and it was held that Tay was not compellable to plead to this indictment, although he might have been to an indictment for a substantive felony..(r) Where the proceedings are against the accessory alone for receiving stolen goods, the name of the principal need not be stated. (s) So where the proceedings are against both principal and accessory, the indictment may contain counts for a substantive felony in receiving stolen goods without naming the principal, and upon such an indictment the receivers may be convicted, although the principals be (p) See 7 & 8 G. 4, c. 29, s. 54, as to receivers of stolen goods, vol. ii. (q) Rex v. Russell, R. & M. C. C. R. 356. Reg. v. Leddington, 9 C. & P. 79. Alderson, B. (r) Reg. v. Ashmall, 9 C. & P. 237. Gurney, B., and Patteson, J. (s) Rex v. Jervis, 6 C. & P. 156. Tindal, C. J. Rex v. Wheeler, 7 C. & P. 170. Coleridge, J. Reg. v. Caspar, 2 M. C. C. R. 101; S. C. 9 C. & P. 289. acquitted. (t) But an indictment alleging that a certain evil disposed person feloniously stole, and that before the said felony was done the prisoner did feloniously incite the said evil-disposed person to commit the said felony, is bad. (u) A count charging a person with being accessory before the fact may be joined with a count charging the same person with being accessory after the fact to the same felony, and the prosecutor cannot be compelled to elect upon which he will proceed, and the party may be found guilty upon both. (v) A case has occurred, in which a party was indicted for receiving stolen goods, and also for receiving, harbouring and comforting the felons, and the prisoner was convicted. (w) An indictment against an accessory should state that the principal committed the offence; and it is not sufficient merely to state, that he was indicted for the offence, as the indictment is only an accusation, and it does not follow that he really committed the offence, because he was indicted for it. (x) Formerly, if a man had been indicted as accessory in the same felony to several persons, he could not have been arraigned till all the principals were convicted and attainted: but it was afterwards settled, that if a man were indicted as accessory to two or more, and the jury found him accessory to one, it was a good verdict, and judgment might pass upon him (y) If A. be indicted as principal, and B. as accessory, and both be acquitted, or if B. only be acquitted, yet B. may be indicted as principal in the same offence, and his former acquittal is no bar. (*) So if A. be indicted as principal and acquitted, he may be afterwards indicted as accessory before the fact. (a) So if a man be indicted as principal and acquitted, he may be indicted as accessory after the fact; and so if he be indicted as accessory before the fact and acquitted, he may be indicted as accessory after the fact. (b) The late statute, as we have seen, enacts, that no person who shall be once duly tried for any offence of being an accessory, shall be liable to be again indicted or tried for the same offence. (c) every A man may be arraigned as accessory to principals as are convicted. such of the Former acquittal, when indictment. a bar to a fresh The accessory Where the principal and accessory are tried together upon the same indictment, there is no doubt but that the accessory may enter into the full defence of the principal, and avail himself of matter of fact and every point of law tending to his acquittal; for the accessory is in this case to be considered as particeps in lite : and this sort of defence necessarily and directly tends to his own acquittal. And where the accessory is brought to his trial after the conviction of the principal, and it comes out in evidence upon the trial of the accessory that the offence of which the principal was convicted did not amount to felony in him, or not to that species of 4. that taking the felony with which he was charged, the accessory may avail himself offs as proved in (t) Reg. v. Pulham, 9 C. & P. 280. Gurney, B. Rex v. Austin, 7 C. & P. 796. Parke and Bolland, Bs. (u) Reg v. Caspar, supra, note (s) (v) Rex v. Blackson, 8 C. & P. 43. Parke, B., and Patteson, J., after full consideration. (w) Ibid, per Parke, B. (z) Lord Sanchar's case, 9 Co. 117 a. (y) Fost. 361. 9 Co. 119. 1 Hale, 624. 2 Hawk. P. C. c. 29, s. 46. Plowd. 98, 99. Fost. 361. ་་ case they did not in lave amoun (z) 1 Hale, 625. Rex v. Winifred & that specar's of Thomas Gordon, 1 Leach, 515. S. C. 1 (a) Rex v. Birchenough, R. & M. felony with wh to C. C. R. 477, overruling 1 Hale, 626, 2 this, and ought to be acquitted. (d) For though it is not necessary upon such trial on the part of the prosecution to enter into a detail of the evidence on which the conviction was founded, and the record of the conviction is deemed sufficient evidence against the accessory to put him upon his defence; (e) yet the presumption raised by the record that everything in the former proceeding was rightly and properly transacted must, it is conceived, give way to facts manifestly and clearly proved; and that as against the accessory the conviction of the principal will not be conclusive, being as to him res inter alios acta. (f) This was the opinion of Mr. Justice Foster; and upon this opinion the court, in a case at the Old Bailey, permitted the counsel for a prisoner indicted as an accessory to controvert the propriety of the conviction of the principal by vivá voce testimony, and to shew that the act done by the principal did not amount to a felony, and was only a breach of trust. (g) And in a later case, in the same court, it was also admitted that the record of the conviction of the principal was not conclusive evidence of the felony against the accessory, and that he has a right to controvert the propriety of such conviction. (h) But how far an accessory can defend himself in point of fact, by shewing that the principal was totally innocent, has been considered as a question of more difficulty, and one which should be handled with caution; because facts for the most part depend upon the credit of witnesses; and when the strength and hinge of a cause happen to be disclosed, as they may be by one trial, daily experience convinces us that witnesses for very bad purposes may be too easily procured. Upon this point, however, Mr. Justice Foster cites some authorities, which he apprehends to be strong, to shew that the accessory may insist upon the innocence of the principal; and then gives his own opinion. He says, " if it shall manifestly appear, in "the course of the accessory's trial, that in point of fact the principal "was innocent, common justice seems to require that the accessory "should be acquitted. A. is convicted upon circumstantial evi"dence, strong as that sort of evidence can be, of the murder of B.; "C. is afterwards indicted as accessory to this murder; and it comes "out upon the trial, by incontestible evidence, that B. is still living; (Lord Hale somewhere mentions a case of this kind). Is C. to be "convicted or acquitted? The case is too plain to admit of a "doubt. Or, suppose B. to have been in fact murdered, and that "it should come out in evidence, to the satisfaction of the court and jury, that the witnesses against A. were mistaken in his person, (a case of this kind I have known) and that A. was not, nor could "possibly have been, present at the murder.” (i) 66 66 Upon an indictment against an accessory, a confession by the || (d) Fost. 365. Rex v. M'Daniel and (e) But see Rex v. Turner, post, note (k). (g) Smith's case, 1 Leach, 288. (h) Prosser's case, (mentioned in a note to Smith's case, 1 Leach, 290.) Cor. Gould, J., who is considered to have been a very accurate crown lawyer. Rex v. Blick, 4 C. & P. 377. S. P. Bosanquet, J. And see Rex v. M'Daniel and others, 19 St. Tri. 806. (i) Fost. 367, 368; and see 3 Esp. R. 134, (in the case of Cook v. Field,) where it was stated by Bearcroft, and assented to by Lord Kenyon, that where the principal has been convicted, it is nevertheless on the trial of the accessory competent to the defendant to prove the principal innocent. And see Rex v. M'Daniel and others, 19 St. Tri. 806. sible to prove the accessory. principal is not admissible to prove the guilt of the principal; it by the princimust be proved aliunde, especially if the principal be alive, and pal not admiscould be called as a witness; and it seems that even the conviction of the principal's the principal would not be admissible to prove the guilt of the prin- guilt against cipal. The prisoner was indicted for receiving sixty sovereigns, which had been stolen by Sarah Rich. A confession by S. Rich, made before a magistrate in the presence of the prisoner, in which she stated various facts implicating the prisoner, was tendered in evidence. Mr. J. Patteson refused to receive anything that was said by S. Rich respecting the prisoner, but admitted what she said respecting herself only. S. Rich had been found guilty on another indictment, but had not been sentenced, and might have been called as a witness. Upon a case reserved, the judges (except Lord Lyndhurst, C. B., and Taunton, J.) (j) were unanimously of opinion that Rich's confession was no evidence against the prisoner; and many Quare whether of them appeared to think that had Rich been convicted, and the the conviction indictment against the prisoner stated not her conviction, but her of the principal guilt, the conviction would not have been any evidence of her guilt, against the which must have been proved by other means. (k) And upon the accessory? authority of this case, where an accessory before the fact to a murder was tried after the principal had been convicted and executed, Parke B., ordered the proceedings to be conducted in the same manner as if the principal was then on his trial, and the evidence against the accessory was not gone into until the case against the principal was concluded. (1) Where two persons were indicted together, one for stealing and the other for receiving, and the principal pleaded guilty, Wood, B., refused to allow the plea of guilty to establish the fact of the stealing by the principal as against the receiver. (m) (j) Who were absent. (k) Rex v. Turner, R. & M, C. C. R. 347. 1 Lewin, 119. (1) Ratcliffe's case, 1 Lewin, 121. (m) Anonymous, cited in Rex v. Turner, supra. be evidence CHAPTER THE THIRD. Felony defined. What words in a statute cre ate a felony. OF INDICTABLE OFFENCES. OFFENCES which may be made the subject of indictment, and are below the crime of treason, may be divided into two classes, felonies and misdemeanors. The term felony appears to have been long used to signify the degree or class of crime committed, rather than the penal consequence of forfeiture occasioned by the crime, according to its original signification. The proper definition of it, however, as stated by an excellent writer, recurs to the subject of forfeiture, and describes the word as signifying-an offence which occasions a total forfeiture of either lands or goods, or both, at the common law; and to which capital or other punishment may be superadded according to the degree of guilt. (a) Capital punishment does by no means enter into the true definition of felony: but the idea of felony is so generally connected with that of capital punishment, that it is hard to separate them; and to this usage the interpretations of the law have long conformed. Therefore, formerly, if a statute made any new offence felony, the law implied that it should be punished with death as well as with forfeiture, unless the offender prayed the benefit of clergy, which all felons were entitled once to have, unless the same was expressly taken away by statute. (b) With regard to felonies created by statute, it seems clear that not only those crimes which are made felonies in express words, but also all those which are decreed to have or undergo judgment of life and member by any statute, become felonies thereby, whether the word "felony" be omitted or mentioned. (c) And where a statute declares that the offender shall, under the particular circumstances, be deemed to have feloniously committed the act, it makes the offence a felony, and imposes all the common and ordinary consequences attending a felony. (d) But where a statute only says that an offence, previously a misdemeanor, "shall be deemed and construed to be a felony," instead of declaring it to be a felony in distinct and positive terms, the offence is not thereby made a felony. (dd) (a) 4 Bla. Com. 95, and see 1 Hawk. c. 25, s. 1" The higher crimes, rape, robbery, "murder, arson, &c., were called felony ; "and being interpreted want of fidelity to "his lord, made the vassal lose his fief." 2 Hume, App. ii., p. 129. As to the derivation of the word felony, from feah, or fee, the fief or estate, and lon, the price or value; and ascribing to it the meaning of pretium feudi, see Spelm. Gloss. Felon, 4 Bla. Com. 95. (b) 4 Bla. Com. 98. Rex v. Johnson, 3 |