of timber. They saw a man, at the same time, come running from the wood pile, and, as deceased got up, he struck him with a stick, knocking him down, and again struck him on the head, and then the man ran off to the north. One of them identified this man as M., but the other did not know him. One witness, B., swore that, about six on that evening, deceased left his office with R. and his wife, and that, about twenty minutes after, he saw the prisoner, with M. and another, go into the vacant lot where the wood pile was, M. having a stick in his hand, and heard M. say to the others, "Let us go for him." It was also proved by others that, before the affray, the three were together near the wood pile in question, and were also in a saloon together about nine o'clock afterwards. The prisoner was convicted on this evidence, and a rule nisi was obtained for a new trial on his behalf, on the ground that there was no evidence to go to the jury sufficient to justify his conviction. The rule was made absolute, for there was no direct proof that the prisoner was present when the blows were struck, or when the affray began, and no evidence whatever that he and the others were together with any common unlawful purpose, and the expression used by M. "Let us go for him," in the absence of evidence that M. was alluding to the deceased, or that the prisoner and M. were aware that the deceased was at the wood pile, was unimportant per se, as indicating the intention of the parties, and was obviously susceptible of different applications. (x) Whenever a joint participation in an act is shewn, or there is a general resolution against all opposers, each per son is liable for every act of the others, in furtherance of the common design. (y) And if a number of persons are (x) Reg. v. Curtley, 27 U. C. Q. B. 613. (y) Reg. v. Slavin, 17 U. C. C. P. 205; Russ. Cr. 56. confederated for an unlawful purpose, and in pursuit of their object commit felony, any person present in any character, aiding and abetting, or encouraging the prosecution of the unlawful design, is involved in a share of the common guilt. (a) But this doctrine will apply only to cases where the act intended to be accomplished is unlawful in itself. For if the original purpose is lawful and prosecuted by lawful means, if one of the party commit a felonious act, the others will not be involved in his guilt, unless they actu ally aided or abetted him in the fact. (b) In other words, a felonious act committed by one person in prosecution of a common unlawful purpose is the act of all, but if the purpose is lawful, the person committing the act will alone be liable. By an unlawful purpose is meant such as is either felonious, or if it be to commit a misdemeanor, then there must be evidence to shew that the parties engaged intended to carry it out at all hazards. (c) The act must also be committed in prosecution of the unlawful purpose, and be the result of the confederacy. (d) A prisoner was convicted of unlawfully attempting to steal the goods of one J. G. It appeared that he had gone with one A. from Toronto to Cooksville, and examined J. G.'s store, with a view of robbing it; and that afterwards A. and three others having arranged the scheme with the prisoner, started from Toronto, and made the attempt, but were disturbed, after one had gone into the store through a panel taken out by them: the prisoner saw them off from Toronto, but did not go himself: Held that as those actually engaged were (a) Reg. v. Lynch, 26 U. C. Q. B. 208; see also Reg. v. McMahon, 26 U. C. Q. B. 195. (b) Russ. Cr. 56. (c) Reg. v. Skeet, 4 F. & F. 931; see also Reg. v, Luck, 3 F. & F. 483; Reg. v. Craw, 8 Cox 335. (d) Reg. v. White, R. & R., 99; Arch. Cr. Pldg., 950. guilty of an attempt to steal, and as the evidence established, the prisoner had counselled and procured the doing of that act, and as such attempt was a misdemeanor, being an attempt to commit a felony, the pri soner, under the 31 Vic., c. 72, s. 9, was properly convicted. (a) This statute is clear, that if the prisoner was accessory before the act, he could be indicted as if he were personally present. (b) J. and T. were driving a trap along the turnpike road for a lawful purpose. J. got out of the trap, and went into a field and shot a hare, which he gave to T., who had remained in the trap. J. having been convicted of trespass in pursuit of game, an information was laid under the 11 & 12 Vic., c. 43, against T., charging him with being present aiding and abetting. On a case stated by the justices, it was held that there was abundant evidence on which the justices might have come to the conclusion that both were engaged in a common purpose, and that T. was guilty. (c) "Upon an indictment against E., H., and another for stealing and receiving, it was proved that H. was walking by the side of the prosecutrix, and E. was seen just previously following her. The prosecutrix felt a tug at her pocket, and found her purse gone, and, on looking round, saw H. walking with E. in the opposite direction, and saw H. handing something to him. The jury were directed that if they did not think from the evidence that E. was participating in the actual theft, it was open to them on these facts to find a verdict of receiving. The jury found H. guilty of stealing, and E. of receiving: Held that upon the finding of the jury, E. was not a principal in the second degree, as the jury had not found (a) Reg. v. Esmonde 26 U. C. Q. B. 152. (b) Tb., per Hagarty, J. (c) Stacey v. Whitehurst, 13 W. R. 384. that he was acting in concert with the other prisoner in the theft, and that the conviction was right as well as the direction to the jury. It was objected, that upon the facts proved the jury should have been told to find E. guilty of stealing or of no offence. Upon the facts he was a principal in the second degree, aiding and abetting, present, and near enough to afford assistance. Williams, J.: that is not enough to constitute a principal in the second degree; there must be a common purpose and intention. Wightman, J., thought that the jury might very well have inferred concert, but they had not done so. (a) A count alleging that A. and B., on the day and year aforesaid, and at the village of A. unlawfully, fraudulently, and knowingly were present, aiding, abetting, and assisting the said C., the misdemeanor aforesaid to commit, discloses an indictable offence, and is good in law, and charges A. as a principal in the second degree. (b) Accessories before and after the fact.-An accessory before the fact, is he who, being absent at the time of the felony committed, doth yet procure, counsel, command, or abet another to commit a felony. (c) An accessory after the fact is one who knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon. (d) It is only in felonies that there can be accessories, for in misdemeanors all are principals. (e) By the 31 Vic., c. 72, s. 9, aiders and abettors in misdemeanors are liable to be indicted, tried, and punished as principal offenders. There may be acces sories to a new statutory felony, in the same manner as (a) Reg. v. Hilton, 5 U. C. L. J. 70 Bell 24; 28 L. J. (M. C) 28. (b) Reg. v. Connor, 14 U. C. C. P. 529. (c) Arch. Cr. Pldg. 11. (d) Ib. 14. (e) Reg. v. Tisdale, 20 U. C. Q. B. 273, per Robinson, C. J.; Reg. v. Campbell, 18 U. C. Q. B. 417, per Robinson, C. J.; Reg. v. Benjamin, 4 Ü. C. C. P. 189, per Macaulay, C. J. to felony at common law (a); for, if a statute creates a felony or misdemeanor, it, by implication, forbids counselling, aiding, or abetting the offence; and the common law alone supplies a remedy. But, in addition to this, the Act respecting accessories, (b) expressly extends to felonies, by virtue of any Act to be passed. (c) There can be no accessories to a felony unless a felony has been committed. (d) Ordinarily, there can be no accessories before the fact in manslaughter, for the offence is sudden and unpremeditated. (e) Where, however, the prisoner procured and gave a woman poison, in order that she might take it, and so procure abortion, and she did take it in his absence and died of its effects, it was held that he might be convicted as an accessory before the fact to the crime of manslaughter. (f) There may, however, be accessories after the fact in manslaughter. (g) The offence of an accessory is distinguishable from that of a principal in the second degree: the latter must be actually or constructively present at the commission of the fact. But it is essential to con. stitute the offence of accessory that the party should be absent at the time the offence is committed. (h) On an indictment charging a man as a principal felon only, he cannot be convicted of the offence of being an accessory after the fact. (i) The principle of law, both in civil and criminal cases, is that a person is liable for what is done under his pre Dwarris 518. (b) 31 Vic., c. 72. (c) Reg. v. Jesse Smith, L. R. 1 C. C. R. 266, per Bovill, C. J. (d) Reg. v. Gregory, L. R. 1 C. C. R. 77; 36 L. J. (M. C.) 60. (e) Russ. Cr. 59. (f) Reg. v. Gaylor, 1 Dears & B. C. C. 288; see also Reg. v. Smith, 2 Cox 233, per Parke, B. (g) Russ. Cr. 59, n. ; see Rex v. Greenacre, 8 C. & P. 35. |