EVIDENCE.

Prove the felony to have been committed, and then the guilt of the defendant. Rosc. Cr. Ev. 2 ed. 206; Arch. 12 ed. 771.

Prec. of Indict. Arch. 769; Matt. C. L. 420.

Where the principal is unknown, the indictment may charge the offence as by some person or persons to the jurors aforesaid unknown (a); otherwise if he be known (b).

OBSERVATIONS.

It was formerly necessary to try an accessary before the fact, either after the principal had been convicted or upon the same indictment with him, and the latter was the usual course (c); but now, by 7 Geo. IV. c. 64, s. 9, such may be indicted and convicted either as an accessary 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 by 14 & 15 Vic. c. 100, s. 15, any number of accessaries or receivers may be charged with substantive felonies, although the principal is not included in the indictment, or is not in custody or amenable to justice. Sect. 9 of 7 Geo. IV. c. 64, provides also for the place of trial, venue, etc. This statute only applies where the accessary might at common law have been indicted with or without the conviction of the principal; and therefore where a defendant was indicted as accessary before the fact to the murder of S. N., she having by his procurement killed herself, it was holden that the statute did not apply (d). By 7 Geo. IV. c. 64, ss. 9, 10, accessaries to felonies committed upon the high seas, may be tried by any court that may try the principal felon. [See note (B).] Several may be convicted on a joint charge as accessaries before the fact, the only evidence being the separate acts done by each at separate times and places (e).

(a) 2 East P. C. 656, 781.

(b) Rex v. Walker, 3 Camp. 264; Rex. v. Hayman, 2 Leach, 925: and see Caspar's case, 9 C. & P. 289; 2 Mood. C. C. 101.

(c) 1 Russ. 36.

(d) Russell's case, 1 Mood. C. C. 356; Leddington's case, 9 C. & P. 79. (e) Reg. v. Barker, 1 C. & K. 442.

provisions are made by the Larceny Act, 7 & 8 Geo. IV. c. 29, s. 77; by the Malicious Injuries Act, 7 & 8 Geo. IV. c. 30, s. 43; the Act providing for offences against the person, 9 Geo. IV. c. 31, s. 32, and the statutes of 11 Geo. IV. and 1 Wm. IV. c. 66, s. 27; 7 Wm. IV. and 1 Vic. c. 85, s. 10; 7 Wm. IV. and 1 Vic. c. 86, s. 10; 7 Wm. IV. and 1 Vic. c. 87, s. 13, and 7 Wm. IV. and 1 Vic. c. 89, s. 14.

The rules upon the subject of the Admiralty jurisdiction are to be found in 3 Inst. 113; 2 Hale, 17; 2 East. P. C. 804; 1 Russ. 108; see 3 T. R. 315; 1 Russ. & Ry. 234; 1 Lewin C. C. 242.

Trial of the above offences is now had before the Judge of Oyer and Terminer, by 7 & 8 Vic. c. 2, s. 1. Arch. C. L. 24, 12 ed. And by s. 2, the venue is to be laid where the trial is had, and the facts shall be averred to have taken place on the "High Seas." (R. v. Jones, 1 Den C. C. 101; 2 C. & K. 165). S. 3, regulates the commitment for trial of such offenders; and s. 4, saves the jurisdiction of the Central Criminal Court. By sect. 22 of the 4 & 5 Wm. IV. c. 36, establishing the Central Criminal Court, the Justices and Judges of that Court may deliver the gaol of Newgate of all persons committed for offences on the high seas within the jurisdiction of the Admiralty of England, and may order the payment of costs as prescribed by 7 Geo. IV. c. 64, s. 27.

(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

EVIDENCE.

Prove the felony to have been committed, and then the guilt of the defendant. Rosc. Cr. Ev. 2 ed. 206; Arch. 12 ed. 771.

Prec. of Indict. Arch. 769; Matt. C. L. 420.

may

Where the principal is unknown, the indictment charge the offence as by some person or persons to the jurors aforesaid unknown (a); otherwise if he be known (b).

OBSERVATIONS.

It was formerly necessary to try an accessary before the fact, either after the principal had been convicted or upon the same indictment with him, and the latter was the usual course (c); but now, by 7 Geo. IV. c. 64, s. 9, such may be indicted and convicted either as an accessary 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 by 14 & 15 Vic. c. 100, s. 15, any number of accessaries or receivers may be charged with substantive felonies, although the principal is not included in the indictment, or is not in custody or amenable to justice. Sect. 9 of 7 Geo. IV. c. 64, provides also for the place of trial, venue, etc. This statute only applies where the accessary might at common law have been indicted with or without the conviction of the principal; and therefore where a defendant was indicted as accessary before the fact to the murder of S. N., she having by his procurement killed herself, it was holden that the statute did not apply (d). By 7 Geo. IV. c. 64, ss. 9, 10, accessaries to felonies committed upon the high seas, may be tried by any court that may try the principal felon. [See note (B).] Several may be convicted on a joint charge as accessaries before the fact, the only evidence being the separate acts done by each at separate times and places (e).

(a) 2 East P. C. 656, 781. (b) Rex v. Walker, Camp. 264; Rex. v. Hayman, 2 Leach, 925: and see Caspar's case, 9 C. & P. 289; 2 Mood. C. C. 101.

(c) 1 Russ. 36.

(d) Russell's case, 1 356; Leddington's case, (e) Reg. v. Barker,

Mood. C. C. 9 C. & P. 79. C. & K. 442.

provisions are made by the Larceny Act, 7 & 8 Geo. IV. c. 29, s. 77; by the Malicious Injuries Act, 7 & 8 Geo. IV. c. 30, s. 43; the Act providing for offences against the person, 9 Geo. IV. c. 31, s. 32, and the statutes of 11 Geo. IV. and 1 Wm. IV. c. 66, s. 27; 7 Wm. IV. and 1 Vic. c. 85, s. 10; 7 Wm. IV. and 1 Vic. c. 86, s. 10; 7 Wm. IV. and 1 Vic. c. 87, s. 13, and 7 Wm. IV. and 1 Vic. c. 89, s. 14.

The rules upon the subject of the Admiralty jurisdiction are to be found in 3 Inst. 113; 2 Hale, 17; 2 East. P. C. 804; 1 Russ. 108; see 3 T. R. 315; 1 Russ. & Ry. 234; 1 Lewin C. C. 242.

Trial of the above offences is now had before the Judge of Oyer and Terminer, by 7 & 8 Vic. c. 2, s. 1. Arch. C. L. 24, 12 ed. And by s. 2, the venue is to be laid where the trial is had, and the facts shall be averred to have taken place on the "High Seas." (R. v. Jones, 1 Den C. C. 101; 2 C. & K. 165). S. 3, regulates the commitment for trial of such offenders; and s. 4, saves the jurisdiction of the Central Criminal Court. By sect. 22 of the 4 & 5 Wm. IV. c. 36, establishing the Central Criminal Court, the Justices and Judges of that Court may deliver the gaol of Newgate of all persons committed for offences on the high seas within the jurisdiction of the Admiralty of England, and may order the payment of costs as prescribed by 7 Geo. IV.c. 64, s. 27.

OFFENCE.

PUNISHMENT.

ADMIRALTY [See Note B., p. 18.] (See titles PIRACY, SHIPS).

AFFRAY (M).

COM. LAW.

Fine, or imprisonment, or

both.

AIDERS and ABETTORS (A)-(See ACCESSARIES).

AIDING Prisoners to escape.-(See ESCAPE).

ALLEGIANCE. (See MUTINY).

ARREST. (See ASSAULT.)

Of a clergyman while performing Divine service, or going to or returning from the performance thereof. (M.)

9 Geo. IV. c. 31, s. 23.

Fine, or imprisonment, or both.

(A) All who are present, aiding, and abetting, where a felony is committed, are principals in the second degree (1). There must be a participation in the felonious act; mere presence, with the doing of any act in concert, is not sufficient (2). So also, where, although there is a participation in the act, yet not in the felonious design (3). To render a party guilty as a principal in the second degree, the presence must be such as to afford aid and assistance to the principal in the first degree (4). But presence during the whole transaction is not necessary (5). In the case of murder by duelling, in strictness, both of the seconds are principals in the second degree (6). Where several are together, an

case, Id. 332; M'Makin's case, Id. 333, n.; Kelley's case, Id. 421; Stewart's case, Id. 363; Manner's case, 7 C. & P. 801.

(5) Bingley's case, R. & R. 256; Dade's case, 1 Mood. C. C. 307; Kirkwood's case, Id. 304; see 2 East, P. C. 768.

(6) Perkins's case, 4 C. & P. 537; Murphy's case, 6 C. & P. 103; Young's case, 8 C. & P. 645. But see Lord Hale's doubts as to the second of the party killed. 1 Hale, 442, 452.

offence by one, without the knowledge or consent of the others, does not make the latter also guilty, unless the act was done in furtherance of a common intention (7). If the principal were insane at the time of the commission of the act, no person can be convicted as an aider and abettor of the act (8).

Aiders and abettors, it has long been settled, may be tried before the principal in the first degree has been found guilty (9); and may be convicted though the latter is acquitted (10). The rules with regard to the punishment of aiders and abettors (11), where no provision had been made for that purpose, are now rendered of little importance, as the modern statutes usually provide that principals in the second degree shall be punishable in the same manner as principals in the first degree (12). As to the mode of charging the principal in the second degree, see Arch. 12 ed. 764; Matt. C. L. 419.

(7) Anon. 1 Leach, 7, n.; 1 Russ. 24; see also White's case, R. & R. 99; Hawkins's case, 3 C. & P. 392. (8) Tyler's case, 8 C. & P. 616. (9) 2 Hale, 223.

(10) Taylor's case, 1 Leach, 360: Benson v. Offley, 2 Show, 510; 3 Mod. 121; Wallis's case, Salk. 334; Towles's

case, R. & R. 314; 3 Price, 145; 2 Marsh. 465.

(11) See Arch. 12 ed. 765.

(12) 7 & 8 Geo. IV. c. 29, s. 61; 7 & 8 Geo. IV. c. 30, s. 26; 7 Wm. IV. and 1 Vic. c. 85, s. 7; 7 Wm. IV. and 1 Vic. c. 86, s. 6; 7 Wm. IV. and 1 Vic. c. 87, s. 9; 7 Wm. IV. and 1 Vic. c. 89, s. 11, etc.