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1 East, P. C. 257; R. v. Plumer, Kel. 109. Thus if a master assault another with malice prepense, and the servant, ignorant of his master's felonious design, take part with him, and kill the other, it is manslaughter in the servant, and murder in the master. 1 Hale, 466.

Where several persons are in company together, engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in his guilt, unless the act done was in some manner in furtherance of the common intention. Several soldiers employed by the messenger of the secretary of state to assist in the apprehension of a person, unlawfully broke open the door of a house where the person was supposed to be. Having done so, some of the soldiers began to plunder, and stole some goods. The question was, whether this was felony at all. Holt, C. J., observing upon this case, says, that they were all engaged in an unlawful act is plain, for they could not justify the breaking a man's house without first making a demand. Yet all those who were not guilty of stealing were acquitted, notwithstanding their being engaged in an unlawful act of breaking the door; for this reason, because they knew not of any such intent, but it was a chance opportunity of stealing, whereupon some of them did lay hands. Anon., 1 Leach, 7 (n); 1 Russ. Cri. 162 (j), 5th ed. See also, R. v. White, R. & R. 99; R. v. Hawkins, 3 C. &. P. 392, 14 E. C. L., post. Three men went out into a field to shoot, and placed a target in a tree eight feet from the ground. They laid down on the ground, and each fired at it in turn. Their rifles were sighted to shoot 950 yards, and would probably be deadly at a mile. A boy in an apple-tree 393 yards off was killed by one of the shots; but it was *uncertain which of the prisoners had shot him. They were all held to be guilty of manslaughter. Reg. v. Salmon, 6 Q. [*183 B. D. 79; 50 L. J., M. C. 25. It is, perhaps, open to doubt that if only one had fired his rifle all would have been equally guilty. Lord Coleridge, C. J., said, "the death resulted from the action of the three," and Stephen, J., said, "they unite to fire at the spot in question."

Where several are present, aiding and abetting, and the punishment of principals in the first and second degree is the same, an indictment may lay the fact generally as being done by all; 2 Hawk. c. 25, s. 4; even, as in cases of rape, where from the nature of the offence only one can be a principal in the first degree. And as in almost every case the punishment of all principals is the same, this is the course that is usually followed.

It has been long settled that all those who are present, aiding and abetting when a felony is committed, are principals in the second degree, and may be arraigned and tried before the principal in the first degree has been found guilty; 2 Hale, 223; and may be convicted, though the party charged as principal in the first degree is acquitted. R. v. Taylor, 1 Leach, 360; Benson v. Offley, 2 Show. 510; 3 Mod. 121; R. v. Wallis, Salk. 334; R. v. Towl, R. & R. 314; 3 Price, 145; 2 Marsh. 465.

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2 Stark. Ev. 9, 3rd ed. Where a man furnished a woman with corrosive sublimate at her request, which she took with intent to procure abortion, but he did not instigate her to take it, and his conduct was consistent with his having hoped that she would change her mind, it was held that he was not an accessory before the fact. R. v. Fretwell, 1 L. & C. 161; 31 L. J., M. C. 145. So a mere holder of stakes for a prize fight who is not present, but who afterwards paid over the stakes to the winner, was held not an accessory after the fact to the manslaughter of the man who was killed in the fight. R. v. Taylor, L. R. 2 C. C. 148; 44 L. J., M. C. 67.

Accessories before the fact in felonies-principal varying from orders given to him. With regard to those cases where the principal varies, in committing the offence, from the command or advice of the accessory, the following rules are laid down by Sir Michael Foster. If the principal totally and substantially varies: if, being solicited to commit a felony of one kind, he wilfully and knowingly commits a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. But if the principal in substance complies with the command, varying only in the circumstances of time, or place, or manner of execution, in these cases the person soliciting to the offence will, if absent, be an accessory before the fact, or if present, a principal. A. commands B. to murder C. by poison; B. does it by sword or other weapon, or by some other means; A. is accessory to this murder, for the murder of C. was the principal object, and that object is effected. So where the principal goes beyond the terms of the solicitation, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such order or advice will be an accessory to that felony. A. upon some affront given by B. orders his servant to waylay him and beat him. The servant does so, and B. dies of the beating; A. is accessory to this murder. A. solicits B. to burn the house of C.; he does so, and the flames catching the house of D., that also is burnt. A. is an accessory to this felony. The principle in all these cases is, that though the event might be beyond the original intention of the accessory, yet as in the ordinary course of things, that event was the probable consequence of what was done under his influence, and at his instigation, he is in law answerable for the offence. Foster, 369, 370; see also 1 Hale, P. C. 617; Hawk. P. C. b. 2, c. 29, s. 18. Where the principal wilfully commits a different crime from that which he is commanded or advised to commit, the party counselling him will not, as above stated, be guilty as accessory. But whether, where the principal by mistake commits a different crime, the party commanding or advising him shall stand excused, has been the subject of much discussion.1 It is said by Lord

1If W. lends A. a pistol and a short time afterwards A. kills M., and W. is present at the killing, and, just before the firing exclaims to A., "Shoot him!" and just afterwards, "Shoot him again!" then W. is an aider and abetter of the crime, even though W. supposed that A. was shooting at J. and not at M. Wynn v. State, 63 Miss. 260. One engaged in an unlawful purpose is liable for the acts of all the others engaged therein which are the natural result of such purpose. Weston v. Commonwealth, 1

Hale, that if A. commands B. to kill C., and B. by mistake kills D., or else in striking at C. kills D., but misses C., A. is not accessory to *the murder of D., because it differs in the person. 1 Hale, P. *185] C. 617, citing 3 Inst. 51; R. v. Saunders, Plow. Com. 475. The circumstances of Saunders' case, cited by Lord Hale, were these: Saunders, with the intention of destroying his wife, by the advice of one Archer, mixed poison in a roasted apple, and gave it to her to eat, and the wife having eaten a small part of it, and given the remainder to their child, Saunders making only a faint attempt to save the child, whom he loved, and would not have destroyed, stood by and saw it eat the poison, of which it soon afterwards died. It was held that though Saunders was clearly guilty of the murder of the child, yet Archer was not accessory to the murder.

Upon the law as laid down by Lord Hale, and upon R. v. Saunders, Mr. Justice Foster has made the following observations, and has suggested this case : B. is an utter stranger to the person of C., and A. therefore takes upon himself to describe him by his stature, dress, etc., and acquaints B. when and where he may probably be met with. B. is punctual at the time and place, and D., a person in the opinion of B. answering the description, unhappily coming by, is murdered under a strong belief on the part of B. that he is the man marked out for destruction. Who is answerable? Undoubtedly A.: the malice on his part egreditur personam. The pit which he, with a murderous intention, dug for C., D. fell into and perished. Through his guilt, B., not knowing the person of C., had no other guide to lead him to his prey than the description of A., and in following this guide he fell into a mistake, which it is great odds any man in his circumstances might have fallen into. "I therefore," continued the learned writer, "as at present advised, conceive that A. was answerable for the consequences of the flagitious orders he gave, since that consequence appears in the ordinary course of things to have been highly probable.' Foster, 370. With regard to Archer's case, the same learned author observes, that the judges did not think it advisable to deliver him in the ordinary course of justice by judgment of acquittal, but for example's sake kept him in prison by frequent reprieves from session to session, till he had procured a pardon from the crown. Id. 371. Mr. Justice Foster then proposes the following criteria, as explaining the grounds upon which the several cases falling under this head will be found to rest. Did the principal commit the felony he stands charged with, under the flagitious advice, and was the advent, in the ordinary course of things, a probable consequence of that felony? Or did he, following the suggestions of his own wicked heart, wilfully and knowingly commit a felony of another kind or upon a different subject? Foster, 372. See also Hawk. P. C. b. 2, c. 29, s. 22.

Accessories before the fact in felonies-how indicted. Before the Pa. Sup. Ct. Dig. 335. See Anarchists' case, 12 N. E. Rep. 865; s. c. 6 Am Crim. Rep. 570.

should be preferred against B. for manslaughter. R. v. Bubb, 4 Cox, C. C. 455. Where the grand jury have found a bill, the judge before whom the case comes on to be tried ought not to inquire whether the witnesses were properly sworn previously to their going before the jury; and it seems that an improper mode of swearing them will not vitiate the indictment, as the grand jury are at liberty to find a bill upon their own knowledge only. R. v. Russell, Carr. & M. 247, 41 E. C. L.1

As to the grand jury in Ireland, see the 1 & 2 Vict. c. 37; also O'Connell v. Reg., 11 Č. & F. 155.

If the bill be not found, a fresh bill may afterwards be preferred to a subsequent grand jury, 4 Bla. Comm. 305. And it would seem from Bacon's Abridgment, Indictment D., that where a bill for one offence, such as murder, is ignored by the grand jury, another bill against the same party, relating to the same subject-matter, but charging another offence, such as manslaughter, may be preferred to and found by the same grand jury; and this course is frequently adopted in practice.

But if the grand jury at the assizes or sessions have ignored a bill, they cannot find another bill at the same assizes or sessions, against the same person for precisely the same offence, and if such other bill be sent before them they should take no notice of it. R. v. Humphreys, Carr. &. M. 601, 41 E. C. L.; R. v. Austin, 4 Cox, C. C. 385.

Where a true bill has been found by the grand jury at quarter sessions for a rape, the person against whom the bill is found may be tried upon it at the assizes. R. v. Allum, 2 Cox, C. C. 62.

A grand jury ought not to ignore a bill on the ground of insanity, but if they believe that the acts done, if committed by a sane person, would have amounted to the offence charged, it is their duty to find the bill, otherwise the court cannot order the party to be detained in custody under the 39 & 40 Geo. 3, c. 94, s. 2 (infra, p. 199). R. v. Hodges, 8 C. & P. 195, 34 E. C. L.

By the Act to prevent vexatious indictments for certain misdemeanors, 22 & 23 Vict. c. 17, s. 1: "no indictment for perjury, subornation of perjury, conspiracy, obtaining by false pretences, keeping a gambling-house, keeping a disorderly house, or an indecent assault, is to be presented to, or found by any grand jury unless the person presenting it has been bound by recognizance to prosecute or give evidence against the accused, or unless the accused has been committed to, or detained in custody, or bound by recognizance to appear and answer to the indictment, or unless the indictment be preferred by the direction or with the consent in writing of a judge of one of the superior courts of law at Westminster, or of her Majesty's

1 Hearing and information are not necessary to support an indictment. Commonwealth v. Clarke, 1 Pa. Sup. Ct. Dig. 24. It is no defence upon the trial that the indictment was found by the grand jury on insufficient testimony. Cotton v. State, 43 Tex. 169. But on evidence that the grand jury was improperly influenced, the indictment will be set aside. Their affidavits to the contrary are not admissible. People v. Sellick, 4 N. Y. Crim. Rep. 329. As to the time of challenging the grand jury, see People v. Geiger, 49 Cal. 643.

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