In the next place, he must receive, relieve, comfort, or assist the felon. And generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessory. furnishing him with a horse to escape his pursuers, money or victuals to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him (x). So likewise to convey instruments to a felon to enable him to break gaol, or to bribe the gaoler to let him escape, makes a man an accessory to the felony. But to relieve a felon in gaol with [*38] clothes or other necessaries (unless this be done in breach of the prison regulations), is no offence; for the crime imputable to this species of accessory is the hindrance of public justice, by assisting the felon to escape the vengeance of the law (y). * The felony must be complete at the time of the assistance given; else it makes not the assistant an accessory. As if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent: this does not make him accessory to the homicide; for, till death ensues, there is no felony committed (z). But so strict is the law where a felony is actually complete, in order to do effectual justice, that the nearest relations are not suffered to aid or receive one another. (630) If the parent assists his child, or the child his parent, if the brother receives the brother, the master his servant, or the servant his master, or even if the husband receives his wife, having any of them committed a felony, the receiver becomes an accessory ex post facto (a). But a feme-covert cannot become an accessory by the receipt and concealment of her husband; for she is presumed to act under his coercion, and therefore she is not bound, neither ought she, to discover her lord (b). It is now enacted (c) that an accessory after the fact to any felony, whether at common law or by the statute law, "may be indieted and convicted either as an accessory after 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 like manner as any accessory after the fact to the same felony, if convicted as an accessory, may be punished. (631) [*39] It is clear that one acquitted as principal may be indicted as an accessory after the fact; since that is an offence involving a different species of guilt, and is subsequent in its commencement to the other (d). (x) Ibid. 317, 318. (y) 1 Hale, P. C. 620, 621. (2) 2 Hawk. P. C. 320. (a) 3 Inst. 108; 2 Hawk. P. C. 320. (b) 1 Hale, P. C. 621. A man, by helping the accessory before the fact to elude justice, may become an accessory after the fact, the same as by helping the principal felon. See The State v. Payne, 1 Swan (Tenn.), 383; and such accessory after the fact is deemed an accessory to the principal felon. Wright v. The State, 5 Yerg. (Tenn.) 154; Cassels v. The State, 4 id. 149. (630) In Massachusetts this rule is changed to some extent by statute. See Rev. Stat. chap. 133, § 6. (631) See ante, page 351, note 622. As to the punishment of an accessory after the fact to any felony, whether at common or by the statute law, it is enacted (e) that every such accessory shall (unless otherwise specially provided) be liable to be imprisoned 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." As to accessories generally, it has been enacted as follows:Proceedings against acces- 1. If any principal offender be convicted of felony, it shall be sories generally. lawful to proceed against an accessory, before or after the fact, in the same manner as if such principal felon had been attainted thereof, notwithstanding the principal 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 (ƒ). 2. Any number of accessories at different times to any felony may be charged with substantive felonies in the same indictment, and may be tried together, notwithstanding the principal felon be not included in the same indictment, or be not in custody or amenable to justice (g). 3. Where a felony has been wholly committed within England, the offence [* 40] of any accessory, before or after the fact, to such felony may be dealt with, and punished by any court having 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 was committed; and in every other case the offence of an accessory, before or after the fact, to a felony may be dealt with, inquired of, tried, determined, and punished by any court having jurisdiction to try the principal felony or any felonies committed in any county or place in which such person was apprehended or is in custody, whether the principal felony were 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, and whether within her majesty's dominions or without, or partly within and partly without such dominions (h). (632) (632) The jurisdiction of the offense of an accessory before or after the fact is in the county where the offense was committed, although the offense of the principal was committed in another county. People v. Hodges, 27 Cal. 340. The principal is chargeable in the particular venue for his acts done in it, notwithstanding his non-residence at the time. Com. v. Gillespie, 7 Serg. & R. (Penn.) 469; Adams v. People, 1 N. Y. (1 Comst.) 173; S. C., 3 Denio, 190; U. S. v. Davis, 2 Sumn. C. C. 482; 1 Whart. Crim. Law, § 210, m. CHAPTER IV. [*41] THE NATURE AND CLASSIFICATION OF INDICTABLE Ntaure of an indictable offence. OFFENCES. THE main ingredients in an act criminal and indictable are two in number: 1st, the act must be such as affects and prejudices the public; 2ndly, subject to some few and peculiar exceptions, of which the more important will hereafter be duly noticed, it must have proceeded from a guilty mind-it must have been done with a criminal intent. A crime involves some degree of moral turpitude, because it involves a violation of our law, which every subject of the crown is presumed to know. Thus much will partially appear, if a brief and rapid survey be taken of acts which are criminal and indictable. may be direct nature.. I. A criminal act may be direct and simple in its nature: for instance, treason, murder, burglary, robbery, assault, and breach of the peace. Such I. A criminal act an act is specially characterised by force and violence it is done and simple in its in invitum. If the prosecutor on a charge of highway robbery is shown to have connived at it, and to have parted with his goods or money in virtue of an agreement, it cannot be said in legal construction that he was robbed at all, since it is of the essence of robbery that the goods or money be taken against the will of their owner (a). And, again, it is by no means unusual on a trial for a criminal assault that the case for the prosecution breaks down on evidence forthcoming of consent; for consent neutralises as it were the trespass. Yet this reason does not always hold good so *as to exonerate from punishment when applied to an act primá facie constituting an assault; for should such act be a breach of the [*42] public peace, and so affect and prejudice the public, it may be indictable. For instance, the parties engaged in a prize-fight are indictable for a misdemeanor, and persons present at and sanctioning a prize-fight may, if it terminate fatally, be convicted of manslaughter (b). II A criminal II. A criminal act may be indirect, and composite in its nature, containing in itself perhaps no element of force or violence, but characterised by the ingredient of fraud, malice, or negligence. In cases falling act may be indi- within this class we can have little difficulty in discerning the site in its existence of the two qualities of an indictable act above-mentioned. 1st. That it concerns and prejudices the public. 2ndly. That it originated from a guilty mind, or was done with a wrong intent. rect and compo nature: 1. Fraud, where indictable, is such as directly affects, or is calculated to affect, the public. A fraud by a government official upon the revenue of the country is indictable (c); it is directly levelled at, and exclusively affects the public. characterised by fraud; Indictable fraud may prejudice and cause damage to an individual, and at the same time may indirectly affect the public, as being aimed indifferently at (a) Per sir W. Foster, M'Daniel's Case, 19 St. Tr. 103. (b) R. v. Murphy, 6 C. & P. 103. every member of the community chancing to come within its influence; of this species of indictable fraud various instances will hereafter be adduced (d). 2. Malice has been defined as "the doing of a wrongful act intentionally, without just cause or excuse" (e), or more generally, as "consisting in a conscious violation of the law to the prejudice of another" (ƒ). Malice accompanying a direct injury may aggravate and [*43] intensify it; ex. gr., may raise manslaughter, i. e., felonious homicide, into murder (g). Malice may also be a material ingredient, in a criminal act, which, if this ingredient were absent, might be dispunishable (h). malice; * Oftentimes the ingredient of malice is implied and discerned by our law where there is none ostensible and express; proof that an act was done illegally may suffice to show that it was done maliciously. For example, a justice of the peace, acting under the advice of counsel, improperly refused to grant a beer licence. There was no proof that he had been actuated by any malicious intention in refusing it; but, on the contrary, it sufficiently appeared that he had meant to do in the matter what was right. Nevertheless, the act being illegal, was held to be the subject of an indictment (i). If the governor of an island dependent on this crown-though possibly governed by laws differing from those which here prevail-inflict on one brought lawfully into his custody an illegal punishment, or employ illegal means as the infliction of torture, for extracting a confession, albeit this be done through misapprehension of his powers and misconception of the law, the person so acting may expose himself to a criminal prosecution (k), as having "unlawfully and maliciously" done an act oppressive and grievous to the prosecutor. The existence of a malicious, as of a fraudulent, intention, where not necessarily inferred or implied by law, must be collected by the jury from facts established by the evidence (7). [*44] *3. An act may be criminal and indictable as involving a breach of duty evidenced by negligence; and such breach of duty, may be commissive or permissive-may consist in some sort of mis or negligence. feasance, or malfeasance, or in nonfeasance (m). It might not be possible to enumerate all legal duties, though they do admit of being classified more or less elaborately by reference to the matters whereto they have relation, and the persons by and to whom respectively they are owing. Perpetually, as new combinations of circumstances present themselves, do (d) Post, chap. 13. (e) Arg. Mitchell v. Jenkins, 5 B. & Ad. 590. (f) Per Lord Campbell, Ferguson v. Earl of Kinnoull, 9 Cl. & F. 321. (g) Post, chap. 13. (h) Post, chap. 14. (i) R. v. Young, 1 Burr. 557. (k) Picton's Case, 30 St. Tr. 225. (2) At the trial of Sir Samuel Barnardiston on an information for libel (9 St. Tr. 1333, 1349), C. J. Jefferies says, in answer to a remark of counsel for the defendant, that ought to be proved, "How shall any man prove another man's malice, which is a thing that lies only in a man's mind?" "How should it be known that any man is malicious against the government but by his actions?" And again it has been judicially observed (Rex v. Dover, 6 St. Tr. 547) that there are some things which a jury are not to expect evidence of, which it is impossible to know but by the act itself. (m) Nonfeasance is the omitting to do that which there is a legal obligation-or it may be an obligation by contract-to perform. Misfeasance is the doing in an improper manner of that which it was a man's duty to do, or which he had a right to do. Malfeasance is the wrongful or unjustifiable doing of an act which the party had no right to do, or had contracted not to do. Chitty's Gen. Pr. L. I. 9. THEIR NATURE. legal duties novel to the practitioner become disclosed. Sometimes the legislature by express enactment creates and defines a legal duty owing to the public, or to some section of it; sometimes our customary law, by that inherent power of accommodating itself to new facts which pre-eminently distinguishes it, declares, as it were, such a duty, when an apt occasion arises for so doing. For exemplifying our present subject, it will suffice, however, to specify one ordinary form of breach of duty constituted by negligence. The negligent doing of an act may afford ground for an indictment. Thus, a body corporate will be indictable for negligently executing works entrusted to them to the detriment of the public, the object of the proceeding in such a case being the abatement or suppression of the nuisance (n). concerning [*45] Again, by s. 36 of the statute hereafter noticed malicious injuries to property (0), "Whosoever, by any unlawful act, or by any wilful omission or neglect, shall obstruct, or cause to be obstructed, any engine or carriage using any railway," will be indictable. Here we have exemplified commissive and permissive breach of duty-breach of duty evidenced by an unlawful act, and breach of duty evidenced by wilful omission,and the reason why such commission or omission is by statute made indictable is this the breach of duty prejudices the public, or is calculated to do so, and therefore ought to be repressed. The main ingredients in an indictable act which have been thus concisely touched upon, will be illustrated in the ensuing pages, and to avoid repetition we will here conclude, in the words of a learned writer (p), that all treasons and felonies, all misprisions and concealing of treason or felony, all inferior crimes of a public nature, unless summarily punishable; all disturbances of the peace, oppressions, and misdemeanors of a public, evil example, and in violation of the customary law, may be indicted. And that wherever a statute prohibits a matter of public grievance to the liberties and security of the subject, or commands a matter of public convenience, an offender against such statute is punishable by way of indictment, for his contempt of the statute, unless such method of proceeding do manifestly appear to be excluded by the words or spirit of the enactment. Classification of indictable offences. Definition of felony. Indictable offences are by our customary law subdivided into felonies and misdemeanors. Felony, in the general acceptation of English law, comprised every species of crime, which occasioned at common law the forfeiture of lands or goods. (633). This most frequently happened in those (n) See, for instance, Att.-Gen. v. Sheffield Gas Co., 3 De G. M. & G. 304. (0) 24 & 25 Vict. c. 97. (633) In many of the States of the Union, felony, by statute, is construed to mean an offense for which the offender, upon conviction, shall be liable by law to be punished by death, or by imprisonment in a State prison. See People v. Steenburgh, 1 Park. 39; State v. Mayberry, 48 Me. 218; Weingorpflin v. The State, 7 Blackf. (Ind.) 186; Wilson v. The State, 1 Wis. 184; People v. Brigham, 2 Mich. 550; Buford v. Com., 14 B. Monr. (Ky.) 24. In the absence of a statutory definition, the common-law classification obtains. Ward v. People, 3 Hill, 395; Drennan v. People, 10 Mich. 169; The State v. Rohfrischt, 12 La. Ann. 382; Adams v. Barrett, 5 Ga. 404. See Shay v. People, 22 N. Y. (8 Smith) 317. Under the criminal code of Ohio the word felonious, though occasionally used, expresses a signification no less vague and indefinite than the word criminal. Mathews v. State, 4 Ohio St. 542. VOL. II.-46 |