A Synopsis of the Law relating to Indictable Offences, etc

EVIDENCE.

Prove being against willinterest in real or personal estate, or heirship, or of kin to one having such interest-lucre, from declarations of such objects, no previous acquaintance, needy circumstances-intent to marry or defile from the circumstances.-Rosc. Cr. Ev. 2 ed. 237; Arch. 8 ed. 472.

Prec. of Indict. Arch. 472; Matt. C. L. 417.

OBSERVATIONS.

The object of the statute is to protect from both force and fraud. Inveigling by confederates; consent at first, if afterwards withdrawn, has been held a taking against her will, under the former stat. 3 Hen. vii. c. 2 (a). The woman is a good witness, for, or against the defendant, although a marriage take place (b); and this though she may have cohabited with the defendant from the day of the marriage (c). If the offence

is begun in one county and completed in another, it may be tried in either (d).

(a) 1 Russ. 571; 1 East. P. C. 454; 1 Hawk. P. C. c. 41, s. 7; Wakefield's case, Murray's ed.

(b) 1 Hale, 661; 5 St. Tr. 246; Vent. 243; Wakefield's case, ante.

(d) 7 Geo. iv. c. 64, s. 12.

Prove her under sixteen and unmarried-the taking away from parent, or person having lawful charge, without their consent. Rosc. Cr. Ev. 2 ed. 239; Arch. 8 ed. 473.

Prec. of Indict. Arch. 473; Matt. C. L. 418.

An intent to marry or defile, or motives of lucre, are not made constituent parts of this offence. An illegitimate child was within the repealed statute, (a); of which it was said, that it was intended to prevent children from being seduced from their parents or guardians by flattering or enticing words, promises or gifts, and married in a secret way to their disparagement (b); and it was held to be no excuse for a defendant, that he made use of no other seduction than the common blandishments of a lover (c). A mother, married again, unless the father has otherwise disposed of the custody of his daughter, is the party having lawful charge of her; the assent of the second husband is not material (d). It is doubtful, whether after consent of the parent, though afterwards withdrawn, a subsequent taking could be held to be against the will of the parent (e); and also whether it is an offence to take away a girl against the consent of the parent, but with that of one who has the temporary care of her (ƒ).

(a) 4 & 5 P. & M.; 2 Str. 1162; 1 East, P. C. 457.

(b) Hicks v. Gore, 3 Brod. 84. (c) Twisleton's case, 1 Lev. 257; 1 Hawk. c. 41, s. 10; 1 Russ. 579.

(d) Ratcliffe's case, 3 Rep. 39.

(e) Calthorpe v. Astell, 3 Mod. 169; 1 Hawk. c. 41, s. 13.

(f) 1 East, P. C. 457.

(A) So much of 7 & 8 Geo. iv. c. 29, as relates to the punishment of offences under part of s. 12, and the whole of s. 25, is repealed; see 1 Vict. c. 90, s. 1. In the substituted punishments by the latter statute, accessaries before the fact are impliedly included, but accessaries after the fact seem still punishable, under ss. 4, 61, of 7 & 8 Geo. iv. c. 29; qualified by 1 Vict. c. 90, s. 5 ('), Also by sect. (1) Rosc. Cr. Ev. 2 ed. pp. 334, 384-6; Matt. C. L. App. pp. 16, 75.

EVIDENCE.

Prove the actual administration by the defendant-intent to procure miscarriage by some poison or other noxious thing, or use of such means as may be stated. Rosc. Cr. Ev. 2 ed. 242; Arch. 8 ed. 434. Prec. of Indict. Arch. pp. 434, 5; Matt. C. L. App. 130.

OBSERVATIONS.

The distinction made in the former statutes, whether the woman was 'quick with child,' or not quick, is not in the present. Proof of pregnancy therefore is not now necessary. If instruments have been the means used, the fact must be so laid and proved. A mere delivery to the woman of a poisoned cake is not an administering within the meaning of the statute (a). Perhaps proof of any other substance or thing, ejusdem generis, with that mentioned in the indictment, would be sufficient (b). If proof of the intent fails, the prisoner may be convicted of an assault (c). An accessary before the fact, indicted with the principal, and who appears to take his trial, but the principal does not, is not compellable to plead (d).

(a) Cadman's case, 1 Mood. C.C. 114.

(b) Philips' case, 3 Camp. 74; Coe's case, 6 C. & P. 403; Arch, 8 ed. 434.

As to accessaries before the fact, where the principal and accessary are tried together Prove guilt of principal, that the accessary procured, hired, advised, or commanded the principal. Rosc. Cr. Ev. 2 ed. 203; Arch. 8 ed. 682.

Prec of Indict. Arch. 679; Matt. C. L. 419.

Where the principal does not appear to take his trial, but the accessary does, the latter is not compelled to plead (a). If the general issue be pleaded, the jury shall be charged to inquire

(a) Ashmall's case, 9 C. & P. ·

236.

(b) Hale, 347; Fost. 341; 4 Bl. Com. 35.

(d) Ashmall's case, 9 C. & P. 236.

In high treason and misdemeanours, all are principals. Accessaries are in felonies only; there cannot be an accessary in manslaughter (b). An accessary before the fact, is one who being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime (c).

actual or constructive presence makes the defendant a principal (d). The bare concealment of a felony to be committed, will not make the party concealing it an accessary before

2, of 1 Vict. c. 90, so much of 7 & 8 Geo. iv. c. 29, as relates to the punishment of offences in ss. 14, 15, 16, 17, is repealed; and as in 1 Vict. c. 90, accessaries are not mentioned, it may be doubtful how far ss. 4, 61, of 7 & 8 Geo. iv. c. 29, are applicable, as in terms s. 61 applies only to offences punishable under that act (2).

(2) Rosc. Cr. Ev. 2 ed. pp. 391, 574; Matt. C. L. App. p. 19.

OFFENCE.

ACCESSARIES-continued.

Before the fact, in BURNING or destroying buildings, or ships, agricultural produce, etc. (F).

7 W. IV. and1 V. c. 89, s. 11.
After the fact.
Id. ss. 11, 12,

Before the fact, in offences
relating to the CorN. (F).
2 W. IV. c. 34, s. 18.
After the fact.
Id. ss. 18, 19.

Before the fact, in MALICIOUS INJURIES to property. (F).

7 & 8 Geo. IV. c. 30, s. 26. After the fact.

Id. ss. 26, 27 (a).

PUNISHMENT.

out solitary confinement; the latter for not more than ONE month at a time, or THREE months in one year.

Same as Principals.

(See the title ARSON.)

Same as in BURGLARY, supra.

BEFORE THE FACT.
Same as Principals.
(See the respective Titles.)

AFTER THE FACT. Imprisonment for not more than Two years, with or without hard labour, and with or without solitary confinement; the latter qualified by 1 Vict. c. 90, s. 5 (ante, p. 3).

(A) By 1 Vict. c. 90, s. 2, so much of the 7 & 8 Geo. iv. c. 30, as relates to the punishment of persons convicted of any of the offences in ss. 16, 18, is repealed, and as accessaries after the fact are not mentioned in 1 Vict. c. 90, it may be doubtful how far ss. 26, 27, at present apply as to such, as these sections in terms apply only to felonies punishable under that act.

(B) Accessaries before the fact are not mentioned in the 7 Wm. iv. and 1 Vict. c. 84, s. 1, but are impliedly included, and subject to the same punishment as is thereby inflicted on principals. The various

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