It was contended, that as Hall had been acquitted, Hughes must be so also; for the statute had only altered the form of pleading, and not the law, as to accessories before the fact; but it was held, that the statute had made the offence of the accessory before the fact a substantive felony, and that the old law which made the conviction of the principal a condition precedent to the conviction of the accessory, was done away by that enactment. Reg. v. Hughes, Bell, C. C. 242. In every case where there may be a doubt whether a person be a principal or accessory before the fact, it may be advisable to prefer the indictment under this section, as such an indictment will be sufficient, whether it turn out on the evidence that such person was a principal or accessory before the fact, as well as where it is clear that he was either the one or the other, but it is uncertain which he was. It may be well to observe, however, that there are cases in which it is not clear that an indictment under this section would suffice. Suppose for instance that the offence of the principal be local; e. g., a burglary committed in the county of Worcester, and that the accessory is indicted in the county of Stafford on the ground that the evidence shows that the acts, by which he became accessory, were done in the latter county, it may be questionable whether the accessory could be indicted and tried under this section in that county; for it only authorises the accessory to be indicted and tried as if he were a principal felon," and the principal could only be indicted and tried in Worcestershire. Possibly if such an objection were taken on the trial, it might be held that s. 7 of this Act authorised the indictment and trial in Staffordshire on the ground that the evidence showed the party to have become an accessory before the fact in that county. But supposing that to be so, the same question might be raised in arrest of judgment or on error, and on the face of the record all that would appear would be that the prisoner was indicted and tried as a principal in Staffordshire for a burglary committed in Worcestershire; but even here it might be held that the effect of the 11 & 12 Vict. c. 46, s. 1, is to make every indictment which charges a person as principal contain a charge of being accessory before the fact also, and consequently that there was nothing on the face of the record inconsistent with the facts having proved that the prisoner was such an accessory in Staffordshire. However, in any such case, it would be prudent to insert a count framed under the next section. In Reg. v. Chadwick, Stafford: Sum. Ass. 1850, MSS. C.S.G., the prisoner was indicted as a principal for murder by arsenic, and the jury found that he procured the arsenic, and caused it to be administered by another person; but was absent when it was administered; and thereupon it was objected that the 11 & 12 Vict. c. 46, s. 1, did not apply to murder; but Williams J., overruled the objection. The learned Judge afterwards communicated the decision to myself, and I pointed out that in the 7 Geo. 4, c. 64, ss. 9, 10, 11; 4 Geo. 4, c. 48, s. 1; 7 & 8 Geo. 4, c. 28, ss. 1, 2, 3, 5, 13; 4 & 5 Vict. c. 22, and other statutes, it was manifest that "felony" included murder; and the learned Judge, having given the matter full consideration, refused to reserve the point. My Lord Hale in commenting on the jurisdiction of Justices of the Peace, says (2 Hale, 45)" By the Statutes of 18 Ed. 3, c. 2; 34 Ed. 3, c. 1; 17 Rich. 2, c. 10; though they do only mention felonies, and do not expressly mention murders and manslaughters, and although the Commission of the Peace mentions not murders by express name, but only felonies generally, yet by these general words in these Statutes and this Commission, they have power to hear and determine murders and manslaughters, and thus it has been resolved 5 Ed. 6, Dy. 69, a. ; Pref. to 10 Co. Rep. against the opinion of Fitzherbert in his Justice of Peace, and 9 Hen. 4, 24, Coron. 437." This shows that the decision of Williams, J. was correct. before the fact may be substantive felons. 2. Whosoever shall counsel, procure, or command Accessories any other person to commit any felony, whether the same be a felony at Common Law or by virtue of indicted as any Act passed or to be passed, shall be guilty of such, or as 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 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 may thereupon be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished. Note.-This clause is taken from the 7 Geo. 4, As to accessories after the fact : after the substantive 3. Whosoever shall become an accessory after the Accessories fact to any felony, whether the same be a felony at fact may be Common Law or by virtue of any Act passed or to indicted as be passed, may be indicted and convicted either as such, or as an accessory after the fact to the principal felony, felons. 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 may thereupon be punished in like manner as any accessory after the fact to the same felony, if convicted as an accessory, may be punished. Note. This clause is taken from the 11 & 12 4. Every accessory after the fact to any felony Punish ment ries after the fact. of accesso- (except where it is otherwise specially enacted), whether the same be a felony at Common Law or by virtue of any Act passed or to be passed, shall be liable, at the discretion of the Court, to be imprisoned in the common gaol or house of correction for any term not exceeding two years, with or without hard labour, and it shall be lawful for the Court, if it shall think fit, to require the offender to enter into his own recognisances and to find sureties, both or either, for keeping the peace, in addition to such punishment: Provided that no person shall be imprisoned under this clause for not finding sureties for any period exceeding one year. Prosecution cipal has been con victed, but Note. This clause applies the ordinary punishment given by Peel's Acts to accessories after the fact, to all such accessories, except where it is otherwise specially provided by some other Act. As to accessories generally: 5. If any principal offender shall be in anywise of accessory convicted of any felony, it shall be lawful to proceed after prin- against any accessory, either before or after the fact, in the same manner as if such principal felon had been attainted thereof, notwithstanding such principal felon shall die, or be pardoned, or otherwise delivered before attainder; and every such accessory shall upon conviction suffer the same punishment as he would have suffered if the principal had been attainted. not attainted. Several may be in cluded in Note. This clause is taken from the 7 Geo. 4, c. 64, s. 11, and 9 Geo. 4, c. 54, s. 25 (I.). 6. Any number of accessories at different times accessories to any felony, and any number of receivers at different times of property stolen at one time, may be the same charged with substantive felonies in the same indictindictment ment, and may be tried together, notwithstanding although the principal felon shall not be included in the same indictment, or shall not be in custody or amenable to principal justice. Note.-This clause is taken from the 14 & 15 Vict. c. 100, s. 15, and the words in italics inserted. The Committee of the Commons who sat on the 14 & 15 Vict. c. 100, struck out those words, not perceiving that they were the only important words in the clause; for there never was any doubt that separate accessories and receivers might be included in the same indictment under the circumstances referred to in the clause; the doubt was, whether they could be compelled to be tried together in the absence of the principal where they separately became accessories, or separately received. It The marginal note was erroneously altered after the Bill went to the House of Lords. began "separate accessories," because the clause applies only to accessories at different times. "Several " persons may become accessories at one and the same time and place. felon not included. 7. Where any felony shall have been wholly com- Trial of mitted within England or Ireland, the offence of accessories. any person who shall be an accessory either before or after the fact to any such felony may be dealt with, inquired of, tried, determined, and punished by any Court which shall have jurisdiction to try the principal felony, or any felonies committed in any county or place in which the act by reason whereof such person shall have become such accessory shall have been committed: and in every other case the offence of any person who shall be an accessory either before or after the fact to any felony may be dealt with, inquired of, tried, determined, and punished by any Court which shall have jurisdiction to try the principal felony or any felonies committed in any county or place in which such person shall be apprehended or be in custody, whether the principal felony shall have been committed on the sea or on the land, or begun on the sea and completed on the land, or begun on the land and completed on the sea, |