(A) By 1 Vic. 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 c. 30, as relates to the punishment of persons convicted of any of the offences in ss. 16, 18, is repealed, and as accessaries after the fact are not mentioned in 1 Vic. 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 Vic. c. 84, s. 1, but are impliedly included, and subject to the same punishment as is thereby inflicted on principals. The various punishments inflicted by 11 Geo. IV. and1 Wm. c. 66, and other statutes, for forgeries not made punishable EVIDENCE. manded the principal. Rosc. Cr. Ev. 2 ed. 203; Arch. 12 ed. 771. Prec. of Indict. Arch. 769; Matt. C. L. 419. Separate accessaries and receivers may be included in the same indictment in the absence of the principal felon (a). Defendant may show that he advised a different crime from that which was committed, by which he will stand exeused; or that he had countermanded the order he had given (b). An accessary may avail himself of every matter both of law and of fact, to controvert the guilt of his principal, and the record of the conviction of the principal is not conclusive against him (c). OBSERVATIONS. 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 (d). An actual or constructive presence makes the defendant à principal (e). The bare concealment of a felony to be committed, will not make the party concealing it an accessary before the fact (f). The procurement must be continuing; for if before the commission of the offence by the principal, the accessary countermands him, and yet the principal proceeds to the commission of the offence, he who commanded him will not be guilty as an accessary (g). It may be direct, by hire, command, counsel, or conspiracy; or indirect, by expressing liking, approbation, or assent to the felonious designs of another (h). The accessary is liable for all that ensues upon his unlawful command (); and that though the offence be effected by different means from those commanded (k). A man may be indicted as accessary to one of several principals, or to all; and if indicted as accessary to all, may be convicted as accessary to some or one of them (4). An accessary before the fact in misdemeanour, though absent at the commission of the offence, may be indicted and convicted as a principal (m). As to when an accessary before the fact may be tried, place of trial, venue, etc.; see post. (h) 2 Hawk. c. 29, s. 16. (i) 1 Hale, 617; 4 Bl. Com. 37; Rex v. Saunders, Plowd. 475. (k) Fost. 369, 370. Lord Sanckar's case, 9 Rep. 119; Fost. 361; 1 Hale, 624. (m) Rex. v. Greenwood, 21; S. J. M. C. 127. with death, still continue as affixed by the respective statutes, qualified as to solitary confinement by 1 Vic. c. 90, s. 5, (ante, p. 3). See title FORGERY, post. ACCESSARIES.-continued. 11 Geo. IV. and 1 Wm. IV. c. 66, ss. 25, 26 (a). Before the fact, in POST-OFFICE Offences. (F.) 7 Wm. IV. and 1 Vic. c. 36, ss. 35, 42. After the fact, except only receivers. Id. stat. ss. 35, 42 (B). Before the fact, to MURDER. (F.) 9 Geo. IV. c. 31, s. 3. After the fact. Id. Before the fact, in offences relating to the PERSON. (F.) 9 Geo. IV. c. 31, s. 31, and 7 Wm. IV. and 1 Vic. c. 85, s. 7. After the fact. 9 Geo. IV. c 31, s. 31, and 7 Wm. IV. and 1 Vic. c. 85, ss. 7,8 (c). If now under 9 Geo. IV. c. 31; see note (A), ante, p. 14. If under 1 Vic. c. 85, same as principals. (See the respective Titles) If now under 9 Geo. IV. c. 31; see note (A), ante, p. 14. If under 1 Vic. c. 85, imprisonment for not more than Two years, with or without hard labour, and with or without solitary confinement; the latter for not more than ONE month at a time, or THREE months in one year. (4) Accessaries after the fact seem still punishable under 11 Geo. IV. and 1 Wm. IV. c. 66, ss. 25, 26, qualified by 1 Vic. c. 90, s. 5. (B) And by sect. 37, it would seem that every accessary before or after the fact to any offence mentioned in that section, if the same be a felony or high crime, may be dealt with, indicted, tried and punished as if he were a principal. (c) By 7 Wm. IV. and 1 Vic. c. 85, the ss. 11, 12, 14, of 9 Geo. IV. c. 31 EVIDENCE. After the fact, indicted with the principal. After proving guilt of principal, prove that defendant knew of the felony (a), and afterwards received, relieved, comforted, or assisted the principal. Rosc. Cr. Ev. 2 ed. 238; Arch. 12 ed. 775. Prec. of Indict. Arch. 774; Matt. C. L. 420. If indicted, the principal being convicted.-Prove the conviction by the record, or an examined copy, and then the guilt of accessary, as supra. Rosc. Cr. Ev. 207; Arch. 12 ed. 776. Prec. of Indict. Arch. 776; Matt. C. L. 420. OBSERVATIONS. An accessary after the fact may be, where a person knowing a felony to have been committed, receives, relieves, comforts, or assists the felon (b). The defendant must be proved to have done some act to assist the felon personally (c); but if he employ another person to do this, he is equally guilty as though he did it himself (d). A woman cannot be an accessary by the receipt and concealment of her husband (e); but this is the only relationship which will excuse such an act (ƒ). The place of trial, venue, etc., as to accessaries after the fact is now regulated by 7 Geo. IV. c., 64, s. 10. See also s. 11, as to the mode of procedure against an accessary either before or after the fact, where the principal felon has died after conviction, or been pardoned, or otherwise delivered before attainder. And see 14 & 15 Vic. c. 100, s. 15, as to trial of several accessaries and receivers. Accessaries after the fact can now be tried before the conviction of their principal, without their consent: by 11 & 12 Vic. c. 46, and see 7 Geo. IV. c. 64, s. 11. (a) See R. v. Burridge, 3 P. Wms. 430. (b) 1 Hale, 618; 4 Bl. Comp. 37. As to what is sufficient to bring a man within this description: see 2 Hawk. 317; Lee's case, 6 C. & P. 536. (c) Chappel's case, 9 C. & P. 355. (d) Jervis's case, 2 M. & Rob. 40. (e) Hale, 48, 621; 4 Bl. Com. 38. Reg v. Brooks, 22 S. J. M. C. 121. (f) 2 Hawk. c. 29, s. 34. are repealed, and accessaries before and after the fact as to offences comprised in the repealed sections are now punishable by 1 Vic. c. 85, ss. 7, 8. Sect. 31, of the 9 Geo. IV. c. 31, continues to regulate the punishment of accessaries in all other offences within that Act, and for which no punishment is otherwise by that Act provided. (A) Where no specific punishment is provided by the particular statutes, accessaries either before or after the fact in offences punishable as for felonies, may be transported for seven years, or imprisoned for any term not exceeding two years, with or without hard labour, for the whole or any part of the imprisonment, and with or without solitary confinement; the latter qualified by 1 Vic. c. 90, s. 5 (ante, p. 3); and if a male, may be once, twice, or thrice publicly or privately whipped, in addition to such imprisonment, if the Court shall think fit. 7 & 8 Geo. IV. c. 28, ss. 8, 9. As to the punishment of accessaries in felonies at common law, and in felonies by statute, but where no mention is made of accessaries; see 3 Inst. 59; 1 Hale, 235-6, 328; 2 Hawk. c. 29, s. 14. (B) By 39 Geo. III. c. 37, s. 1, extending the provisions of 28 Hen. VIII. c. 15, "all and every offence and offences which, after the passing of that Aet, shall be committed upon the high seas, out of the body of any county of this realm, shall be, and they are declared to be of the same nature respectively, and to be liable to the same punishment respectively, as if they had been committed upon the shore, and shall be inquired of, heard, tried, and determined, and adjudged in the same manner as treason, felonies, murders, and confederacies are directed to be tried by the 28 Hen. VIII. c. 15." Similar |