where several persons were out for the purpose of committing a felony, but, upon an alarm, ran different ways, and one of them, to avoid being taken, wounded a man who was pursuing him it was holden that the others could not be deemed principals in this offence. R. v. White, R. & Ry. 99. So, where two persons were riding their horses violently along the road, seemingly racing, and the first of them passed a man on horseback without injuring him, but the last rode against him, threw him, and he was killed: Patteson, J. held that the first of the two could not be deemed a principal in the homicide. R. v. Martin et al., 6 Car. & P. 396.

The law, however, recognizes no difference between the offence of the principal in the first degree, and of the principal in the second; both are equally guilty. And so immaterial is the distinction considered in practice, that if a man be indicted as principal in the first degree, proof that he was present aiding and abetting another in committing the offence, although his was not the hand which actually did it, will support the indictment; 2 Hawk. c. 34, s. 64; and on the other hand, if he be indicted as principal in the second degree, proof that he was not only present, but committed the offence with his own hand, will support the indictment. Therefore if A. be indicted for being present aiding and abetting B. in committing a felony, A. may be convicted, although B. is acquitted. See R. v. Phelps et al., Car. & M. 180. So when an offence is punishable by a statute which makes no mention of principals in the second degree, such principals are within the meaning of the statute as much as the parties who actually commit the offence; and therefore in the case of rape, a person may be convicted on an indictment charging him with being present aiding and abetting another who actually committed it. R. v. Crisham, Car. & M. 187. So, for the same reason, principals in the second degree are always punishable in the same manner as principals in the first degree: this is sometimes expressly mentioned in the statutes relating to the offences, as in Peer's Acts for Larceny, &c., 7 & 8 G. 4, c. 29, s. 61, and for malicious injuries, 7 & 8 G. 4, c. 30, s. 26, in the statute relating to forgery, 1 W. 4, c. 66, s. 25, and in the statute relating to counterfeiting the coin, 2 W. 4, c. 34, s. 18, and others; but such express enactment appears to have been unnecessary from what has been above observed as to the identity of the offence of the principal in the second degree with that of principal in the first degree.

But although a principal in the second degree may be convicted and punished upon an indictment charging him as having committed the offence, yet, as a grand jury, ignorant of this rule of law, may by mistake imagine in such a case that the evidence does not support the indictment, and ignore the bill, it may be thought convenient in some cases to indict the aider and abettor in felony, as such.

The following may be the form of an

Indictment against a Principal in the second Degree. Berks, The jurors for our lady the Queen upon their to wit: oath present, that A. B., on the day ofin the year of our Lord, 1851, [&c., stating the offence of the principal in the first degree; and then, before the conclusion adding]: And the jurors aforesaid on their oath aforesaid do further present, that C. D., on the day and year aforesaid, feloniously was present, aiding, abetting, and assisting the said A. B., the felony aforesaid to do and commit. Against [the form of the statute in such case made and provided,] and against the peace of our lady the Queen, her crown and dignity.

Where a man was indicted for murder, the indictment stating the wound to have been given on the 27th May, and the death to have been on the 29th, and two others were indicted as principals in the second degree, the indictment stating that they on the day and year first aforesaid were present aiding, &c.: it was objected that this was repugnant and bad, as the offence was not completed until the death, on the 29th; but the judges held it to be correct. R. v. O'Brian et al., 2 Car. § K. 115.

2. Accessories before the Fact.

Who, and in what cases] An accessory before the fact to a felony, is one who counsels, incites, moves, procures, hires or commands another to commit it, but is not himself present aiding or abetting in the commission of it. 2 Hawk. c. 29, 8. 16. R. v. Gordon, 1 Leach, 515. 1 East, P. C. 352. And see R. v. Tuckwell et al., Car. & M. 215. And if the felony afterwards committed, be the same in substance with that counselled or commanded, the party who counselled or commanded it will be deemed an accessory to it, although there be some variance in time, place, manner, or other circumstance between the advice or command and the execution of it as where a person advises a man to kill another in the day, and he kills him in the night,—or to kill him in the fields, and he kills him in the town,-or to poison him, and he stabs or shoots him,-in these cases he is as much an accessory, as if his advice or command had been strictly pursued. 2 Hawk. c. 29, s. 20. But if the execution vary in substance from the advice or command,—as if a man advise another to kill A., and he kills B., -or to burn the house of A., and he burns the house of B.,-or to steal an ox, and he steals a horse,-or to steal a particular horse, and he steals another,—or to commit a felony of one kind, and he commits another of quite a different nature,―in these and the like cases, the party who advised or

commanded, &c., cannot be deemed an accessory before the fact to the felony actually committed. 2 Hawk. c. 29, s. 21. There cannot however be an accessory before the fact to manslaughter; for that offence, in its nature, cannot be premeditated. 1 Hale, 616. The doctrine as to accessories, also, is confined entirely to felonies; for in treason and misdemeanors, those who, by counsel or incitement, &c., would be accessories before the fact in felony, are deemed principals, and prosecuted and punished accordingly. Thus, where a woman advised and encouraged a man to set fire to a malthouse, and he attempted to do so, but she was not present at the time, it was holden that both of them might be jointly indicted as principals for the attempt. R. v. Clayton et al., 1 Car. & K. 128. It is not necessary, in order to constitute the offence of accessory, that there should be any direct communication between him and the principal; the procurement may be through the intervention of an agent. R. v. Cooper, 5 Car. & P. 534. And if managed through an agent, it is not necessary that the principal should be named by the accessory; if the latter desire the agent to procure some person to commit the offence, without naming him, and the agent accordingly procure a person, wholly unknown to the accessory, to commit it, it will be sufficient to constitute the offence of accessory before the fact. Id. If the principal felon be unknown, the indictment of the accessory may state it accordingly; and if it afterwards turn out that he is known, although this formerly would be a fatal variance, R. v. Walker, 3 Camp. 264, yet now it seems the court may order the indictment to be amended, according to the fact. See 14 § 15 Vict. c. 100, 8. 1.

When, and how tried and punished.] Formerly accessories before the fact could only be tried with the principal or after the principal was convicted; and they were punishable in various ways by several statutes. See 2 Hawk. c. 29. But now, by stat. 7 G. 4, c. 64, s. 9, if any person shall counsel, procure, or command any other person to commit any felony, whether the same be a felony at common law or by statute, the person so counselling, procuring, or commanding shall be deemed 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 his conviction, 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 be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished; and the offence of the person so counselling, procuring, or commanding, howsoever indicted, may be inquired of, tried, determined, and punished, by any

court which shall have jurisdiction to try the principal felon, in the same manner as if such offence had been committed at the same place as the principal felony, although such offence may have been committed on the high seas or at any place on land, whether within His Majesty's dominions or without; and that in case the principal felony shall have been committed within the body of any county, and the offence of counselling, procuring, or commanding shall have been committed within the body of any other county, the last-mentioned offence may be inquired of, tried, determined, and punished in either of such counties.

In order to amend the law still further, by stat. 11 & 12 Vict. c. 46, s. 1, after reciting that it was expedient that an accessory before the fact to felony should be liable to be indicted, tried, convicted, and punished, in all respects like the principal, as was then the case in treason and in all misdemeanors,-it was enacted, that "if any person shall become an accessory before the fact to any felony, whether the same be a felony at common law or by virtue of any statute or statutes made or to be made, such person may be indicted, tried, convicted, and punished in all respects as if he were a principal felon."

In all cases of felony, therefore, the accessory is punishable in the same manner precisely as the principal felon; and he may now be indicted either as a principal, that is, he may be charged in the indictment with having actually committed the offence as principal in the first degree, or he may be indicted as accessory as for a substantive felony, or he may be indicted as accessory with the principal, at the option of the prosecutor. The following may be a form of an

Indictment of an Accessory before the Fact, with the
Principal.

Yorkshire, The jurors for our lady the Queen upon to wit: their oath present, that A. B., on the day of- in the year of our Lord -, [&c., stating the offence against the principal; and then, before the conclusion, stating the offence of the accessory thus:] And the jurors aforesaid upon their oath aforesaid do further present that C. D., before the committing of the said felony by the said A. B. as aforesaid, to wit, on the day and year aforesaid, feloniously did counsel, procure, and command the said A. B. the said felony in manner and form aforesaid to commit: [against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity.

It is not necessary in this indictment to conclude "against the form of the statute," unless the offence of the principal

require it. But in an indictment against an accessory alone, as for a substantive felony, the conclusion ought to be so. In other respects the indictment against the accessory as for a substantive felony, is the same in form as the above. The indictment against the accessory as a principal, is of course in the same form as an ordinary indictment against the person who actually committed the principal felony. There is an inconvenience, however, in indicting in the latter form alone, as the grand jury, perhaps, not knowing the law upon the subject, may ignore the bill. In order to avoid this, it may be advisable to add a count as accessory, in the above form.

And lastly, by stat. 14 & 15 Vict. c. 100, s. 15, reciting that it often happens that the principal in a felony is not in custody or amenable to justice, although several accessories to such felony, or receivers at different times of stolen property the subject of such felony, may be in custody and amenable to justice : -for the prevention of several trials, it is enacted that any number of such accessories or receivers may be charged with substantive felonies in the same indictment, notwithstanding the principal felon shall not be included in the same indictment, or shall not be in custody or amenable to justice. It is not stated whether by the word accessories here is meant accessories before the fact, or after the fact, or both; probably as the word is coupled with "receivers," it will be understood to mean accessories after the fact. It does not appear also whether it was intended that the section should extend to accessories in all felonies, or in larceny only; probably the latter. It is also not stated whether there may be several counts against each accessory or receiver; probably it will be holden that there may.

3. Accessories after the Fact.

Who, and in what cases.] After a felony has been committed, if any person receive, harbour, or assist the principal felon, knowing him to have committed the felony, he is deemed an accessory after the fact; in law, any assistance whatever given to him, in order to hinder his being apprehended or tried, or to prevent his suffering the punishment to which he is liable, rescuing him, allowing him to escape, opposing his apprehension, or the like,-the party knowing at the time that he had committed a felony, makes such party guilty as accessory after the fact to the felony. 2 Hawk. c. 29, ss. 26, 27. Upon the trial of a man as principal in the second decree to a larceny, it appeared that a person, having stolen goods from a warehouse, carried them along the street for about thirty yards, and then fetched the prisoner, who was apprised of the robbery, but not at all acting in it, and he assisted in carrying away the property: it was holden that he was not a principal, but an accessory