Page images

law of the kingdom is not allowed to excuse any one that is of the Of law. age of discretion, and compos mentis, from its penalties when broken: on the ground that every such person is bound to know the law, and presumed to have that knowledge. (v) And it is no defence for a foreigner charged with a crime committed in England, that he did not know he was doing wrong, the act not being an offence in his own country. (w) But in some instances an ignorance Of fact. or mistake of the fact will excuse; which appears to have been ruled in cases of misfortune and casualty ; as if a man, intending to kill a thief or housebreaker in his own house, by mistake kills one of his own family, this will not be a criminal action. (x)


(n) i Hale 42. 4 Blac. Com. 27. igserantia juris, quod quisque tenetur scire, neminem ercusat, is a maxim as well of our own law as it was of the Roman. Plowd. 343. Ff. 22, 6, 9.

(&) Rex o. Esop, 7 C. & P. 456. Bosanquet and Vaughan, Js.

(1) Lcvett's case, Cro. Car. 538. 4 Blac, Com. 27. Hale, 42, 43.

(y) Before Somerville's case, 26 Eliz., and Somerset's case, A.D. 1615, I find no exception to the general rule that the coer. cion of the husband excuses the act of the wife. (See 27 Ass. 40, Stamf. P. C. 26, 27, 142. Pulton de Pace Regis. 130. Br. Ab. Coron. 108. Fitz. Ab. Coron. 130, 161, 199.) But after those cases I find the following exceptions in the Books :-Bac. Max. 57, excepts treason only. Dalton, c. 147, treason and murder, citing for the lacter Mar. Lect. 12 (which I cannot find, perhaps some reader of some Inn of Court). i Hale, P. C. p. 45, 47, treason, murder, and bomicide; and p. 434, treason, murder, and manslaughter. Kelyng 31, an obiter dictum, murder only. Hawk. b. 1, c. 1, s. ll, treason, murder, and robbery. BI. Com, vol. I, p. 444, treason and murder ; Vol. 4, p. 29, treason, and mala in se, as murder and the like. Hale, therefore, alone excepts manslaughter, and Hawkins introduces robbery, without any authority for so doing; and, on the contrary, in Reg. 6. Cruse, 8 C. & P. 545, a case is cited, wbere Burrough, J., held that the rule extended to robbery. It seems long to have been considered ihat the mere presence of

the husband was a coercion, (see 4 Bl. Com. 28) and it was so contended in Reg. v. Cruse; and Bac. Max. 56, expressly states that a wife can neither be principal nor accessory by joining with her husband in a felony, because the law intends her to have no will, and in the next page he says, “ If husband and wife join in committing

treason, the necessity of obedience doth “not excuse the wife's offence, as it does in

felony." Now if this means that it does not absolutely excuse, as he has stated in the previous page, it is warranted by Somerville's case, which shows that a wife may be guilty of treason in company with her husband, and which would be an exception to the general rule, as stated by Bacon. So also would the conviction of a wife with her husband for murder in any case be an exception to the same rule. Dalton cites the exception from Bacon without the rule, and Hale follows Dalton, and the other writers follow Hale; and it seems by no means improbable that the exceptions of treason and murder, which seem to have sprung from Somerville's and Somerset's case, and which were probably exceptions to the rule as stated by Bacon, have been continued by writers without adverting to their origin, or observing that the presence of the husband is no longer considered an absolute excuse, but only affords a primá facie presumption that the wife acted by his coercion." See note (6), p. 18 ante, and the learned argument of Mr. Carrington in Reg. v. Cruse, 8 C. & P. 541. C. S. G.




Where two or more are to be brought to justice for one and the same felony, they are considered in the light either,-1. of principals in the first degree; Il principals in the second degree; III. accessories before the fact; or, IV. accessories after the fact. And in either of these characters they will be felons in consideration of law; for he who takes any part in a felony, whether it be a felony at common law or by statute, is in construction of law a felon, ac

cording to the share which he takes in the crime. (a) Principals in I. Principals in the first degree are those who have actually and the first degree with their own hands committed the fact; and it does not appear

necessary to say anything in this place by way of explanation of the nature of their guilt, which will be detailed in treating of the

different offences in the course of the work. Principals in IL Principals in the second degree are those who were present, the second degree.

aiding and abetting at the commission of the fact. They are generally termed aiders and abettors, and sometimes accomplices : but the latter appellation will not serve as a term of definition, as it includes all the participes criminis, whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact. (6) The distinction between principals in the first, and principals in the second degree; or, to speak more properly, the course and order of proceeding against offenders founded upon that distinction, appears to have been unknown to the most ancient writers on our law, who considered the persons present aiding and abetting in no other light than as accessories at the fact. (c) But as such accessories they were not liable to be brought to trial till the principal offenders should be convicted or outlawed; a rule productive of much mischief, as the course of justice was frequently arrested by the death or escape of the principal, or from his remaining unknown or concealed. And with a view to obviate this mischief the judges by degrees adopted a different rule; and at length it became settled law that all those who are present, aiding and abetting when a felony is committed are princi

pals in the second degree. (d) How far a In order to render a person a principal in the second degree, or principal in

an aider and abettor, he must be present, aiding and abetting at the


(a) Fost. 417.
(6) Fost. 341.
(c) Fost. 347.

(d) Coalheaver's case. 1 Leach, 66.
And sce Fost. 428, and Rex. v. Towle &
others, Mich. T. 1816. Russ. & Ry. 314.

This law was by no means settled till after the time of Edw.3; and so late as the first of Queen Mary a chief justice of England strongly doubted of it, though indeed it had been sufficiently settled before that time.

present at


fact, or ready to afford assistance if necessary: but the presence the second deneed not be a strict actual immediate presence, such a presence as gres must the would make him an eye or ear witness of what passes,


be a time of the fact constructive presence. So that if several persons set out together, committed. or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each takes the part assigned him ; some to commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favour, if need be, the escape of those who are more immediately engaged; they are all, provided the fact be committed in the eye of the law, present at it; for it was made a common cause with them, each man operated in his station at one and the same instant, towards the same common end, and the part each man took tended to give countenance, encouragement, and protection to the whole gang, and to insure the success of their common enterprise. (e) But there must be There must be some participation; therefore, if a special verdict against a man as a some participaprincipal does not shew that he did the act, or was present when it was done, or did some act at the time in aid which shews that he was present, aiding and assisting, or that he was of the same party, in the same pursuit, and under

the same expectation of mutual de fence and support with those who did the fact, the prisoner cannot be convicted. So, if several are out for the purpose of committing a felony, and upon alarm and pursuit run different ways, and one of them maim a pursuer to avoid being taken, the others are not to be considered as principals in that maiming. (9) And it is not sufficient to make a man a principal in uttering a forged note, that he came with the utterer to the town where it was uttered, went out with him from the inn where they put up a little before he uttered it, joined him again in the street a short time after the uttering, and at a little distance from the place of uttering, and ran away when the utterer was apprehended. (h) This case has, however, been considered as having been decided upon the principle, that the circumstances which will amount to a constructive presence at common law will not be sufficient for the same purpose upon an indictment under a statute. (i) The general rule, however, applies to offences by statute as well as at common law, viz. that all present at the time of committing an offence are principals

, although one only acts, if they are confederates, and engaged in a common design, of which the offence is part. (j) And it has been considered, in a case where three per

. sons were charged with uttering a forged note, that other acts done by all of them

jointly, or by any of them separately, shortly before the offence, may be given in evidence to show the confederacy and common purpose, although such acts constitute distinct felonies. (1) And also that what was found upon each may be proved against each to make out such confederacy, although it were not found until some interval after the commission of the offence. (6)

Going towards the place where a felony is to be committed, in The party must

(e) Fost. 350. 2 Hawk. P. C. c. 29, $7,8. see Reg. o. Howell. 9 C. & P.437. Littledale, J.

) Rex v. Borthwick, Dougl. 207. 6) Rex v. White & Richardson, Hil. T. 1806. Russ & Ry. 99, post Book III.

MS. Bayley, J., and Russ. & Ry. 113.

(i) By Graham, B., in the case of Brady
and others, O. B., June 1813, 1 Stark.
Crim. Plead. 80, in the note.

Rex v. Tattersal, Sedgewick & Hodg-

East. T. 1801. MS. Bayley, J.
(k) Id. ibid.
(1) Id. ibid.

Chap. I.

() Rex o. Davis & Hall, East. T. 1806.

be so near as to order to assist in carrying off the property, and assisting accordbe able to assist ingly, will not make the party a principal if he was at such a disin

tance, at the time of the felonious taking as not to be able to assist
in it. The prisoner and J. S. went to steal two horses; J. S. left
the prisoner half a mile from the place in which the horses were, and
brought the horses to him, and both rode away with them. Upon :
a case reserved, the judges thought the prisoner an accessory only,

not a principal, because he was not present at the original taking. (m) Party receiving But where a man committed a larceny, in a room of a house, in goods thrown out of a window

which room he lodged, and threw a bundle containing the stolen is a principal. property out of the window to an accomplice who was waiting to

receive it, the judges came to a different conclusion. The accomplice was indicted and convicted as a receiver; and the learned judge before whom he was tried was of opinion, that as the thief stole the property in his own room, and required no assistance to commit the felony, the conviction of the accomplice as a receiver might have been supported, if the jury had found that the thief had brought the goods out of the house, and delivered them to the accomplice: but as the jury had found that the thief threw the things out of the window, and that the accomplice (whose defence was that he had picked up the bundle in the street) was in waiting to receive them, he thought the point fit for consideration. And the judges were of opinion that the accomplice in this case was a principal, and that the conviction of him as a receiver was wrong. (n)

When an offence is committed through the medium of an innooffence is com- cent agent, the employer, though absent when the act is done, is mitted by means of an in- answerable as a principal. Thus, if a child under years of discre

tion, a madman, or any other person of defective mind, is incited to the party em- commit a murder or other crime, the inciter is the principal ex necesploying the agent is the

sitate, though he were absent when the thing was done.(0) And if principal. a man give another a forged note that the other may utter it, if the

latter be ignorant of the note being forged, the uttering by the latter is, it seems, the utttering of the former, though the former were absent at the time of the actual uttering. (p) But if the person who received the note knew that it was forged, the


it would not, as it should seem, be punishable as a principal


For where a person having incited another to lay poison, is absent at the time of laying it, he is an accessory only, though he prepared the poison, if the person laying it is amenable as a principal; but is punishable as a principal if the person laying the poison is not so amenable. (9) Where poison is laid for å man, and all who were

a present and concurred in laying it are absent at the time it is taken by the party killed by taking it, all are principals ; otherwise all would escape punishment. (r)

It has been held, that to aid and assist a person to the jurors unknown to obtain money by the practice of ring-dropping is felony, if the jury find that the prisoner was confederating with the

person unknown to obtain the money by means of this practice. (s) And

Where an

nocent agent


person who

(m) Rex v. Kelly, Mich. T. 1820, MS. Bayley, J., and Russ. & Ry. 421. And see post, Book IV. chap. xxi. Of receiving stolen goods.

(n) Rex v. Owen, East. T. 1825. Ry & Mood. C. C. R. 96.

(0) Fost. 349. Kel. 52. post, Book III.

Chap. i.

(p) Rex v. Palmer & Hudson, 1 New Rep. 96. Post, Book IV. Chap. xxx.

(9) Fost. 349.
() Fost. 349. Kel. 52. 4 Co. 41 b.

Moore's case, I Leach, 314.


if several act in concert to steal a man's goods, and he is induced by fraud to trust one of them in the presence of the others with the possession of the goods, and then another of the party entice the owner away, in order that the party who has obtained such possession may carry the goods off, all will be guilty of felony, the receipt by one under such circumstances being a felonious taking by all. (t) So where a prisoner asked a servant, who had no authority to sell, the price of a mare, and desired him to trot her out, and then went to two men, and having talked to them, went away, and the two men then came up and induced the servant to exchange the mare for a horse of little value, it was held that if the prisoner was in league with the two men to obtain the mare by fraud and steal her he was a principal. (u)

If a fact amounting to murder should be committed in prosecution Murder by of some unlawful purpose, though it were but a bare trespass, all several in persons who had gone in order to give assistance, if need were, for secution of

some unlawful carrying such unlawful purpose into execution, would be guilty of purpose. murder. But this will apply only to a case where the murder was committed in prosecution of some unlawful purpose, some common design in which the combining parties were united, and for the effecting whereof they had assembled; for unless this shall appear, though the person giving the mortal blow may himself be guilty of murder, or manslaughter, yet the others who came together for a different purpose will not be involved in his guilt. (v) Thus where three soldiers went together to rob an orchard; two got upon a peartree, and the third stood at the gate with a drawn sword in his hand; and the owner's son coming by collared the man at the gate, and asked him what business he had there, whereupon the soldier stabbed him; it was ruled to be murder in the man who stabbed, but that those on the tree were innocent. It was considered that they came to commit a small inconsiderable trespass, and that the man was killed upon a sudden affray without their knowledge. But the decision would have been otherwise if they had all come thither with a general resolution against all opposers; for then the murder would have been committed in prosecution of their original purpose. (w)

For where there is a general resolution against all opposers, whe- Or where there ther such resolution appears upon evidence to have been actually is a general and explicitly entered into by the confederates, or may be reasonably against all collected from their number, arms, or behaviour, at or before the opposers. scene of action, and homicide is committed by any of the party,

( Rex o. Standley, East. T. 1816. MS. lawfully broke open the door of a house Bayley, J., and Russ. & Ry. 305. Rex v. where the person was supposed to be ; and County, MS. Bayley, J., post, Book IV. having done so, some of the soldiers began Chap. vi, s. I.

to plunder, and stole some goods. The (u) Reg. o. Sheppard, 9 C. & P. 121. question was, whether this was felony in Coleridge, J.

all; and Holt, C. J., citing the case, says, (c) Fost. 351, 352. 2 Hawk. P. C. “ That they were all engaged in an unlaw€ 29, s. 9. See Reg. o. Howell, 9 C. “ful act is plain, for they could not justify & P. 437, per Littledale, J.

“ breaking a man's house without making a (r) Fost. 353. Case at Sarum Lent demand first; yet all those who were not Assizes, 1697, US. Denton & Chapple, 2 guilty of the stealing were acquitted, notHawk.: P. C. c. 29, s. 8. And see Rex “ withstanding their being engaged in one c. Hodgson and others, 1 Leach, 6 : and an “ unlawful act of breaking the door; for Anon. case at the Old Bailey, in December " this reason, because they knew not of Sessions, 1664. 1 Leach, 7, note (a) where “ any such intent, but it was a chance opseveral soldiers, who were mployed the “ portunity of stealing, whereupon some of messengers of the Secretary of State to “ them did lay hands." assist in the apprehension of a person un


« PreviousContinue »