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when Salisbury, who was a servant to one of them, seeing the affray and fighting on both sides, joined with his master, but knew nothing of his master's design. A servant of Dr. Ellis, who supported his master, was killed. The Court told the jury that malice against Dr. Ellis would make it murder in all those whom that malice affected, as the malice against Dr. Ellis would imply malice against all who opposed the design against Dr. Ellis: but, as to Salisbury, if he had no malice, but took part suddenly with those who had, without knowing of the design against Dr. Ellis, it was only manslaughter in him. The jury found Salisbury guilty of manslaughter and three others of murder, and the three were executed. (8)

It has been decided that if the person charged as principal be acquitted, a conviction of another charged in the indictment as present aiding and abetting him in the murder, is good for (by Holt, C. J.) though the indictment be against the prisoner for aiding, assisting, and abetting A., who was acquitted, yet the indictment and trial of this prisoner is well enough, for all are principals, and it is not material who actually did the murder.' (t) And though anciently the person who gave the fatal stroke was considered as the principal, and those who were present aiding and assisting, only as accessories; yet it has long been settled that all who are present aiding and assisting are equally principals with him who gave the stroke whereof the party died, though they are called principals in the second degree. (u) So that if A. be indicted for murder, or manslaughter, and C. and D. for being present and assisting A., and A. appears not, but C. and D. appear, they shall be arraigned; and if convicted shall receive judgment, though A. neither appear nor be outlawed. (v) And if A. be indicted as having given the mortal stroke, and B. and C. as present, aiding and assisting, and upon the evidence it appears that B. gave the stroke, and A. and C. were only aiding and assisting, it maintains the indictment, and judgment shall be given against them all; for it is only a circumstantial variance, and in law it is the stroke of all that were present aiding and abetting. (w)

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Where the first count charged Downing as principal in the first degree in the murder of W. Cooper by shooting him with a gun, and Powys as being present aiding and abetting Downing, and the second count charged Powys as principal in the first degree, alleging that he 'afterwards' assaulted the said W. Cooper,' &c., and Downing as being present aiding and abetting Powys; and the jury found both guilty, but added that they were not satisfied which of the prisoners fired the gun, but were satisfied that one of them fired the gun, and that the other was present aiding and abetting: it was thereupon submitted that, the prisoners being charged differently in the two counts, the jury must be instructed to find them guilty on one or the other of the counts only; but Coltman, J., thought that, as the

(s) R. v. Salisbury, Plowd. 97.

(t) R. v. Wallis, Salk. 334. R. v. Taylor, 1 Leach, 360. 1 East, P. C. c. 5, s. 121, p. 351. (u) 1 Hale, 437. Plow. Com. 100 a.

(v) 1 Hale, 437. Gythin's case.

(w) 1 Hale, 438.

Plow. Com. 97, 100.

Plow. Com. 98, a. 9 Co. 67, b. R. v. Mackally, 1 East, P. C. c. 5, s. 121, p. 350. Turner's case, 1 Lew. 177, Parke, B. R. v. Phelps, C. & M. 180.

evidence equally supported either count, it was not necessary to give any such direction, and therefore told them that if they were satisfied that one of the two fired the gun, and that the other was present aiding and abetting, they were both liable to be found guilty, and the jury returned a general verdict of guilty; and, upon a case reserved, the conviction was held right, for both counts substantially related to the same person killed and to one killing. (x)

Where a count charged Thom with murder, and Tyler and Price with being present aiding and abetting in the commission of the murder, and it appeared that Thom was insane at the time of committing the murder, it was held that Tyler and Price could not be convicted on this count. (y) Where a count charged Tyler and Price as principals in the first degree with a murder, and it appeared that Thom, an insane person, collected a number of persons together, who armed themselves, having a common purpose of resisting the lawfully constituted authorities, Thom having declared that he would cut down any constables who came against him, and a constable having come with his assistants, and a warrant to apprehend Thom, Thom, in the presence of Tyler and Price, who were two of his party, shot one of the assistants; it was held that the prisoners were guilty of murder as principals in the first degree, and that it was no ground of defence that Thom and his party had no distinct or particular object in view when they assembled together and armed themselves; because, if their object was to resist all opposers in the commission of any breach of the peace, and for that purpose the parties assembled together and armed themselves with dangerous weapons, however blank the mind of Thom might be as to any ulterior purpose, and however the minds of the prisoners might be unconscious of any particular object, still, if they contemplated a resistance to the lawfully constituted authorities of the country, in case any should come against them while they were so banded together, there would be a common purpose, and they would be answerable for anything which they did in the execution of it. (z)

He that counsels, commands, or directs the killing of any person, and is himself absent at the time of the fact being done, is an accessory to murder before the fact. (a) And though the crime be done. by the intervention of a third person, he that procures it to be committed is an accessory before the fact; so that if A. bid his servant to hire somebody, no matter whom, to murder B. and furnish him with money for that purpose, and the servant procure C., a person whom A. never saw or heard of, to do it, A. is an accessory before the fact. (b)

If A. advise B. to kill another, and B. does it in the absence of A., in such case B. is principal, and A. is accessory in the murder. And this holds, even though the party killed be not in

(x) R. v. Downing, 1 Den. C. C. 52, Maule, J., diss. See 2 C. & K. 382, for the indictment. Now the proper course in such cases would be simply to allege that the prisoners murdered according to the 24 & 25 Vict. c. 100, s. 6; post, p. 156.

(y) R. v. Tyler, 8 C. & P. 616. Lord Denman, C. J. Sed quære. (z) R. v. Tyler, ibid. (a) 1 Hale, 435. (b) Fost. 125.

rerum naturâ at the time of the advice given; so that if a man advise a woman to kill her child as soon as it shall be born, and she kills it when born in pursuance of such advice, he is an accessory to the murder. (c)

If A. commands B. to beat C., and B. beat him so that he dies, A. being absent, B. is guilty of murder as principal, and A. as accessory; the crime having been committed in the execution of a command which naturally tended to endanger the life of another. (d) And à fortiori, therefore, if a man command another to rob any person, and he in robbing kill him, the person giving such command is as much an accessory to the murder, as to the robbery which was directly commanded: and it is also said, that if one command a man to rob another, and he kill him in the attempt but do not rob him, the person giving such command is guilty of the murder, because it was the direct and immediate effect of an act done in execution of a command to commit a felony. (e)

Where an indictment charged certain persons with the murder of N. Batty at Paris, and the prisoner as accessory before the fact, and it appeared that when the Emperor and Empress of the French arrived at the opera-house in the Rue Lepelletier, Paris, the street being full of people, as the carriage approached the entrance two grenades were first thrown and exploded, and a third about a minute afterwards, and that Batty was one of the Gardes de Paris on duty at the time, and that he died of wounds caused by the explosion; Lord Campbell, C. J., told the grand jury, as to the objection that the prisoner could have had no intention that those who were killed by the explosion of the grenades should be put to death, it may be observed that such a question can only arise where the principal does not act in strict conformity with the plans and instructions of the accessory. But here, if the prisoner was privy to the plot, the other persons in throwing the grenades as they did must be considered as having acted strictly in conformity with his plans and instructions, and he is answerable as accessory for the consequences.' And his Lordship added: The approved test is, the event alleged to be the crime to which the accused is charged to be accessory, a probable consequence of the act he committed?" (h)

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But if the crime committed be not the direct and immediate effect of the act done in pursuance of the command, or if the act done varies in substance from that which was commanded, the party giving the command cannot be deemed an accessory to the crime. Thus if A. persuade B. to poison C., and B. accordingly give poison to C., who eats part of it, and gives the rest to D., who is killed by it, A. is guilty of a great misdemeanor only in respect of D., but is not an accessory to his murder: because it was not the direct and immediate effect of the act done in pursuance of the command. (i) And if A. counsel or command B. to beat C. with a small wand or

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rod, which would not in all human reason cause death, and B. beat C. with a great club, or wound him with a sword, whereof he dies, it seems that A. is not accessory; because there was no command of death, nor of anything that could probably cause death; and B. departed from the command in substance, and not in circumstance. (j) But if the crime committed be the same in substance with that which was commanded, and vary only in some circumstantial matters; as where a man advises another to kill a person in the night, and he kills him in the day; or to kill him in the fields, and he kills him in the town; or to poison him, and he stabs or shoots him; the person giving such command is still accessory to the murder; for the substance of the thing commanded was the death of the party killed, and the manner of its execution is a mere collateral circumstance. (k)

An accessory after the fact, in murder, as in any other felony, may be where a person, knowing a murder to have been committed, receives, relieves, comforts, or assists the offender; as to which kind of accessory some points are noticed in a former volume. (1) And the question for the jury in such a case is, whether such person, knowing the offence had been committed, was either assisting the murderer to conceal the death, or in any way enabling him to evade the pursuit of justice. (m) It may be here observed, however, 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 such person accessory to the homicide; for till death ensues there is no felony committed. (n)

SEC. XII.

Of the Indictment, Trial, &c.

Indictment. — Although the prisoner may be charged with murder by the inquisition of the coroner, it is usual also to prefer an indictment against him. And it is said to be proper to frame an indictment for the offence of murder in all cases where the degree of the offence is at all doubtful; (0) and unquestionably where there is any reasonable ground for supposing that the facts, as they will be given in evidence, may lead to the conclusion of the higher offence having been committed, it will be culpable not to prefer an indictment for murder.

By the 24 & 25 Vict. c. 100, s. 6 (see post, p. 156), in any indictment for murder or manslaughter it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in any indictment

(j) 1 Hale, 436.

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(k) 2 Hawk. P. C. c. 29, s. 20. 4 Blac. Com. 37.

(1) Vol. i. p. 176; and see R. v. Good, 1 C. & K. 184, vol. i. p. 159, as to a wife being accessory after the fact to her husband.

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(m) R. v. Greenacre, 8 C. & P. 35, Tindal, C. J., Coleridge and Coltman, JJ.

(n) 4 Blac. Com. 38. 2 Hawk. P. C. c. 29, s. 35. But it should seem that he is accessory to the maliciously wounding. C. S. G. (0) 1 East, P. C. c. 5, s. 105, p. 340.

for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased, and it shall be sufficient in any indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased.'

From this it would seem that it is unnecessary for the indictment to contain allegations of time and place. If a time is laid it would seem that the date of the striking the blow should be given. If from the evidence it appear that the deceased died more than a year and a day from this date the prisoner will be entitled to be acquitted, (p) and in this sense no doubt the date is material.

With respect to the place in which the indictment is to be preferred, it will be necessary to state some of the legislative enactments by which trials for murder are regulated.

Murder, like all other offences, must regularly, according to the common law, be inquired of in the county in which it was committed. It appears, however, to have been a matter of doubt at the common law, whether, when a man died in one county of a stroke received in another, the offence could be considered as having been completely committed in either county: (q) but by the 2 & 3 Edw. 6, c. 24, s. 2, it was enacted, that the trial should be in the county where the death happened. That statute was, however, repealed by the 7 Geo. 4, c. 64, s. 12.

And now, therefore, the prisoner may be sued either in the county where the injury was given or in that in which the death took place.1 The venue, as stated in the margin, will, it seems, be sufficient allegation of the place. (r)

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Duty of coroner. By the Coroners Act, 1887 (50 & 51 Vict. c. 71), s. 3, Where a coroner is informed that the dead body of a person is lying within his jurisdiction, and there is reasonable cause to suspect that such person has died either a violent or an unnatural death, or has died a sudden death of which the cause is unknown, or that such person has died in prison or in such place or under such circumstances as to require an inquest in pursuance of any Act, the coroner, whether the cause of death arose within his jurisdiction or not, shall, as soon as practicable, issue his warrant for summoning not less than twenty-three good and lawful men to appear before him at a specified time and place, there to inquire into the death of such person as aforesaid.'

Jury disagreeing. - By sec. 4 (5), ' In case twelve at least of the jury do not agree on a verdict, the coroner may adjourn the inquest to the next sessions of oyer and terminer or gaol delivery held for the county or place in which such inquest is held, and if, after the jury have heard the charge of the judge or commissioner holding such sessions, twelve of them fail to agree on a verdict, the jury may be discharged by such judge or commissioner without giving a verdict.' By sec. 6, power is given to the High Court of Justice, on the appli

(p) 1 Hawk. P. C. c. 23, s. 90.

(r) 14 & 15 Vict. c. 100, s. 23. See R. v.

(q) 2 Hawk. P. C. c. 25, s. 36. 1 East, Ripley, 17 Cox, C. C. 120.

P. C. c. 5, s. 128, p. 361.

AMERICAN NOTE.

1 This is so also in America. Riley v. S., 9 Kemp, 646. Nash v. S., 2 Greene, 286.

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