within the summary jurisdiction, it is not to be upon oath unless the particular act so requires where a summons is to be issued; but where a warrant is issued in the first instance for an offence (and not for a civil matter, as for wages, &c., wherein it can only be granted on the disobedience of a summons), it is to be upon oath (11 & 12 Vict. c. 43, ss. 1, 2, 10). In charges of indictable offences the information may be without oath and by parol where a summons is issued; but if a warrant is issued it must be in writing and upon oath (11 & 12 Vict. c. 42, ss. 1, 8). Therefore, a justice cannot legally administer an oath in all cases on the making of an application or complaint when he issues a summons, unless it be authorized by the general or special act.

c. 42. Information may be re

By 11 & 12 Vict. c. 42, s. 4,-" any justice or justices of the 11 & 12 Vict. peace may grant or issue any warrant as aforesaid or any "search warrant on a Sunday as well as on any other day." The charge may, therefore, be preferred and an information ceived on a in writing and on oath taken on that day.

Sunday.

When infor

mation to be in writing and on oath.

By sect. 8,-" in all cases where a charge or complaint for Sect. 4. any indictable offence shall be made before such justice or "justices as aforesaid, if it be intended to issue a warrant in "the first instance against the party or parties so charged, an "information and complaint thereof (A) in writing on the " oath or affirmation of the informant, 6 or of some witness or Sect. 8. "witnesses in that behalf, shall be laid before such justice or "justices;-provided always, that in all cases where it is in"tended to issue a summons instead of a warrant in the first "instance, it shall not be necessary that such information and "complaint shall be in writing, or be sworn to or affirmed in manner aforesaid, but in every such case such information "and complaint may be by parol merely, and without any "oath or affirmation whatsoever to support or substantiate "the same ;-provided also, that no objection shall be taken No objection "or allowed to any such information or complaint for any to form.

6 Who to prefer Charge.] Any person it appears may prefer the charge, but this section contemplates that the informant or witness must know something of the facts of the case from his own knowledge. A constable would be the proper party to prosecute, if the owner of property stolen be unwilling to do so, and in that case the owner might be summoned as a witness. But the approved practice is to take an information in the form of a deposition (of course, upon oath) in the first person, stating shortly the facts, and not an information of the offence couched in the technical language of an indictment or commitment. See Note 5, supra.

Form of oath.

Requisites of the informa

tion.

The offenders:

Infants.

Lunatics.

alleged defect therein in substance or in form, or for any "variance between it and the evidence adduced on the part "of the prosecution before the justice or justices who shall "take the examination of the witnesses in that behalf as "hereinafter mentioned." [A similar provision is contained in sect. 9, post, as to the summons or warrant.]

The form of oath, on receiving the information and complaint, is in Vol. I., p. 139; and oaths of persons of different religious persuasions are given, Vol. I., pp. 85-89.

Although the same strictness is not required in the form and manner of stating an indictable offence as on summary convictions, the information must show, in substance, the offence in respect of which the charge is made ;7 but a technical description of the offence should appear on the warrant, of which we have treated in a subsequent section of this chapter.

The general rule is, that all persons are responsible for their acts done in violation of the law; but to this rule there are exceptions in favour of infants, insane persons, persons under coercion, as married women and others, and irresponsible agents. In some cases also the accused, although interested in the property with respect to which the offence was committed, is liable to be convicted (see Reg. v. Moody, 1 Leigh & Cave, C. C. 173; Reg. v. Smith, Id. 168; 6 Law T., N. S. 300; Reg. v.. Burgess, 32 L. J. (N. S.) M. C. 185; 1 Leigh & Cave, C. C. 299; and tit. "Fraudulent Trustees," in Chap. II. of this Part).

it

An infant under seven years of age is not criminally responsible, the law considering the mental capacity of a child of such tender years to be too immature to enable it to form a sufficient judgment of right and wrong; but above seven and under fourteen they are criminally responsible for their acts, if appear that they had sufficient discretion (R. v. Owen, 4 C. & P. 236); but there is an exception in charges of rape, and assault with intent to commit that crime (R. v. Phillips, 8 C. & P. 736). In the case of a lunatic, the law presumes the offence to have been committed in a lucid interval, unless it appear to have been committed in the time of his distemper (1 Hale, 33, 34; 1 Hawk. P. C. pp. 2, 3); and where persons supposed to be lunatic are charged before a justice with an indictable offence, the course to take is to secure their appear

7 See Note 6, supra.

ance at the trial, in order that, if they be insane, they may be confined under the acts 1 & 2 Vict. c. 14, and 27 & 28 Vict. c. 29 (see tit. "Lunatics," Chap. II. of Part III.). A wife Wife. cannot be convicted of any larceny, burglary, wounding, forgery, or for uttering forged notes, if the offence be committed in the presence of her husband, and with his coercion and participation; 8 but in treason, murder, perjury and robbery, the presence and coercion of her husband will not avail her; or where the wife was the more active party, or her husband was incapable of constraining her to commit. the offence. A wife is not guilty of larceny with respect to her husband's goods; but if her adulterer receives them knowingly he would be guilty, and likewise if he took them in company with the wife; 9 but if the property be the wearing apparel of the wife, he could not be convicted of stealing those articles. 10 If an offence be committed through the Through instrumentality of an irresponsible agent, as an idiot, a irresponsible lunatic, an infant or child without legal discretion, or a postmaster (in the case of letters), as well as procured to be done by artifice, the employer or procurer is answerable alone, and as principal, even although he was absent when the act was done.11 Likewise, if done by an agent in the course of business, as the presenting of forged documents or the like, the principal is responsible for the uttering wherever it takes place.

agents.

With respect to crimes committed in this country by foreigners, Aliens. it may be stated generally, that they, being resident here, under the protection of our laws, and therefore subject to them (Cal

8 R. v. Hughes, 1 Lewin, C. C. 229; Reg. v. Smith and Wife, 27 L. J. (N. S.) M. C. 204; Rex v. Archer, 1 Moo. C. C. 143; R. v. Brooks, Dears. C. C. R. 184; Reg. v. Wardroper, 1 Bell, C. C. 249; 1 Law T., N. S.

416.

9 R. v. Tollfree, Ryan & M. C. C. R. 243; Reg. v. Berry, 28 L. J. (N. S.) M. C. 70; 32 Law T. 286, 323; Reg. v. Avery, 28 L. J. (N. S.) M. C. 185; 1 Bell, C. C. 150; Reg. v. Mutters, 34 L. J. (N. S.) M. C. 54; 1 Leigh & Cave, C. C. 511; Reg. v. M'Athey, 32 L. J. (N. S). M. C. 35; 1 Leigh & Cave, C. C. 250; Reg. v. Deer, 32 L. J. (N. S.) M. C. 33; 1 Leigh & Cave, C. C. 240; Reg. v. Prince, 11 Cox, C. C. 145; Reg. v. Cohen, Id. 99; Reg. v. Halford, Id. 88.

10 Reg. v. Fitch, 1 Dears. & B. C. C. 187.

11 1 Greaves's Russell, 4th ed. pp. 32, 53; R. v. Michael, 9 C. & P. 356; Hammond's Case, 1 Leach, 447; and see R. v. Bleasdale, 2 C. & K. 765. As to the postmaster being considered the agent of the accused, see Reg. v. Jones, 1 Den. C. C. 551; 19 L. J. (N. S.) M. C. 162; Leech's Case, 3 Dears. C. C. 642; 25 L. J. (N. S.) M. C. 77; Reg. v. Cryer, 26 L. J. (N. S.) M. C. 192; 29 Law T. 268.

Accessories

vin's Case, 7 Co. Rep. 6), are punishable here in the same way as natural-born British subjects would be; and if indicted, it is no excuse whatever that the act charged against them is no offence by the laws of their native country.12 As regards offences here with respect to foreign states, see post.

As to accessories and principals in the second degree in and principals felonies, 13 the enactments in the Criminal Law Acts, 1861, may be thus arranged:

in the second degree in felonies.

-Before the fact.

Accessories before the Fact.]-By the Accessories and Abettors Act, 1861, 24 & 25 Vict. c. 94, s. 1, "whosoever shall become an 24 & 25 Vict. accessory before the fact to any felony, whether the same be a felony at common law or by virtue of any act passed or to be passed, may be indicted, tried, convicted and punished in all respects as if he were a principal felon."

c. 94, s. 1.

How accessories before the fact may be indicted. Sect. 2.

By sect. 2, "whosoever shall counsel, procure, or command any other person to commit any felony, whether the same be a felony at common law or by virtue of any act passed or to be passed, shall be 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 substantive felony whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished." [This provision contemplates that a felony shall have been committed, and to solicit and incite a person to commit a felony, though no felony be in fact committed, is a misdemeanor, notwithstanding this enact

12 R. v. Esop, 7 Car. & P. 456. See the Naturalization Act, 1870, 33 Vict. c. 14, s. 10 (given in tit. “Aliens," in Chap. 2 of Part III., post), as to the status of married women, and R. v. Manning, 2 C. & K. 887; 19 L. J. (N. S.) M. C. 1. Foreigners under our protection abroad seem also to be treated as British subjects (R. v. Azzopardi, 2 Mood. C. C. 228; 1 C. & K. 203).

13 Who are Accessories and Principals in the Second Degree.] By the common law an accessory before the fact is he who, being absent at the time of the felony committed, doth let, procure, counsel, command or abet another to commit a felony (1 Hale, 616). An accessory after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts or assists the felon, whether he be a principal or an accessory before the fact merely (Id. 617). See Reg. v. Huntley, 1 Bell, C. C. 238; 29 L. J. (N. S.) M. C. 70; Reg. v. Hughes, 1 Bell, C. C. 242; 29 L. J. (N. S.) M. C. 70, 71; 1 Law T., N. S. 450. As to principals as distinguished from accessories, they are divided into principals in the first degree and principals in the second degree, the former being the actual perpetrators of the crime, the latter those who are present or near, either actually assisting or ready to do so if occasion requires. The punishment being the same, the indictment makes no distinction between these two kinds of principals (Davis, Cr. L. Acts, pp. 98, 99).

ment (Reg. v. Gregory, 36 L. J. (N. S.) M. C. 60; 16 Law T., N. S. 24 & 25 Vict. 388).]

By the Larceny Consolidation Act, 1861, 24 & 25 Vict. c. 96, s. 98, the Malicious Injuries Consolidation Act, 1861, 24 & 25 Vict. c. 97, 8. 56, the Forgery Act, 1861, 24 & 25 Vict. c. 98, s. 49, the Coinage Offences Act, 1861, 24 & 25 Vict. c. 99, s. 35, and the Offences against the Person Act, 1861, 24 & 25 Vict. c. 100, s. 67, in felonies punishable thereunder, every principal in the second degree, and every accessory before the fact, is punishable in the same manner as the principal in the first degree is by those acts punishable.

c. 94.

Sect. 3.

how may be

indicted.

Accessories after the Fact. 14]—By 24 & 25 Vict. c. 94, s. 3, "who- -After the soever shall become an accessory after the fact to any felony, whether fact; the same be a felony at common law or by virtue of any act passed or to be passed, may be indicted and convicted either as an accessory after 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 substantive felony whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in like manner as any accessory after the fact to the same felony, if convicted as an accessory, may be punished."

of accessories after the fact.

Sect. 4.

By sect. 4, " every accessory after the fact to any felony (except Punishment where it is otherwise specially enacted), whether the same be a felony at common law or by virtue of any act passed or to be passed, shall be liable, at the discretion of the court, to be imprisoned in the common gaol or house of correction for any term not exceeding two years, with or without hard labour,—and it shall be lawful for the court, if it shall think fit, to require the offender to enter into his own recognizances and to find sureties, both or either, for keeping the peace, in addition to such punishment: provided that no person shall be imprisoned under this clause for not finding sureties for any period exceeding one year."

By the Larceny and the other acts and sections mentioned infra, every accessory after the fact (except receivers of property, and to murder, which are specially enacted) is to be punished by imprisonment not exceeding two years, with or without hard labour and solitary confinement; and fine and sureties for keeping the peace.

Accessories generally.]—By 24 & 25 Vict. c. 94, s. 5, "if any prin- Prosecution of cipal offender shall be in anywise convicted of any felony, it shall accessories be lawful to proceed against any accessory either before or after the fact, in the same manner as if such principal felon had been attainted

14 An accessory after the fact should be indicted as such, as he cannot be convicted upon an indictment charging the commission of the felony only (Reg. v. Fallon, 32 L. J. (N. S.) M. C. 66; 1 Leigh & Cave, C. C. 217).

generally after conviction, but not attainder of principal. Sect. 5.