tiorari, in which case it is said, that it ought to be arraigned on the crown-side. Sect. 5. FIFTHLY, That where a writ of appeal is abated, the prisoner shall not (1) be arraigned on the count at the suit of the (1) Style, 7. party, because the count depends upon the writ, and that being determined, all (m) falls to the ground. Yet it seems certain, (m) B. App. 44. that if the writ were good, the appellee may in many cases be 4 H. 6. 16. arraigned at the suit of the king upon the count, as hath been Sup. c. 23. s. 10. more fully shewn, Chapter twenty-three. (†) As to the second particular, viz. Whether the omission of an arraignment will be error. 66 66 (†) Sect. 6 to 14. (p) Co. Ent. $56. 358. 360. Sect. 6. It is said in the third (n) Modern Report, that an (n) 3 Mod. 265. attainder of high treason was reversed for this and other errors. Raymond, 408. Neither do I find any precedent of an attainder in Coke's Entries, 2 Hale,217,218. (0) Co. Ent. on an indictment of (0) treason or (p) felony, in which it is not 360, 361. expressed either in these words, "ad barram hic ductus in propriâ personâ suâ committitur mareschallo, &c. et statim de præ- 352. 354, 355, missis," in case of felony, or " de altis proditionibus," in case of high treason," ei superius impositis allocutus qualiter se velit inde acquietare dicit, &c." or in words (q) tantamount: and therefore (9) Rast. 42. it is certainly safest to express it in every record of such attainder, where the party appears and is condemned, whether fession or verdict, or standing mute, &c. Yet I find it wholly (r) Co. Ent. 53 omitted in every attainder upon an (r) appeal in Coke's Entries, (s) Rastal, 47 and much oftener (s) omitted than expressed (†) in such attainders to 55. 47. 52. in Rastal. 66 upon con As to the third particular, viz. Where a person shall be arraigned upon severalappeals or indictments. to 60. (t) Rast. 42. 53. Sect. 7. It seems, that by the common law, if a man be appealed of divers robberies at the suit of divers persons, he may be (u) 4 E. 4. 11. severally (u) arraigned on each appeal, and then severally tried on S. P. C. 66. 107. Summary, 212. each, that each appellant may be equally intitled to the restitution 160. of his goods, upon the conviction of the appellee. F. Cor. 26, 27. 2 Hale, 220. And in like manner at this day a person charged with several (x) indictments of robbery at the prosecution of several persons, (1) S. P. C. 66. may be severally arraigned and tried on each indictment; because Summary, 212. the prosecutor, since the statute of 21 Hen. 8. c. 11. is intitled to a restitution of his goods upon a conviction of such an indictment, in the same manner as the plaintiff is upon a conviction in an appeal. 212.258. And it is holden both by (y) Staundforde and (2) Hale, that (y) S. P. C. 66. even a person attainted of robbery at the suit of one person, may (2) Summary, be arraigned and tried at the suit of another, if such suit were (a) F. Cor. 379. commenced before the attainder: But quære; for of the autho- 7 H. 4. 31. rities cited for the maintenance of this opinion, two (a) seem to Ab. F. Cor. 81. (b) 4 Ed. 4. 11. be directly against it; and the (b) other, which seems most to Ab. F. Corone, the point, does not come up to it. 26, 27. Sect. See 44 Edw. 4. 44. Ab. F. Co. 95. See also c. 23. s. 53. and the chapter concerning the plea of Autrefoits Convict and Attaint. (c) S. P. C. 66. Sect. 8. It is made a quære by (c) Staundforde, whether a prisoner before his attainder shall answer to divers appeals of death or rape, in the same manner as in case of robbery. and 56. CHAP. XXIX. OF THE PRINCIPAL AND ACCESSARY. 1 Hale, c. 55 AND now I am in the second place to consider the nature of ARRAIGNMENT, so far as it particularly relates to PRINCIPALS Foster Disc. 3. and ACCESSARIES. 4 Com. c. 3. (d) Sum. 219. 3 Inst. 139. Keilway, 107. F. Corone, 80. (e) 7 H. 4. 27. F. Corone, 80. 176. 285. (f) Lamb. b.2. For the better understanding whereof, it may not be improper to consider. 1. In what cases, in judgment of law, a man shall be said to be a principal, and in what cases he shall be said to be an accessary. 2. Where he shall be adjudged an accessary before the fact. 3. Where an accessary after the fact. Sect. 1. And FIRST, For the better understanding in what cases a man shall be said to be a principal, and in what an accessary, having premised, that where a felony is committed by divers persons, the (d) same man may be a principal and accessary in it, and so charged in the (e) same indictment or appeal; as where A. commands B. to kill C. and afterwards actually joins with him in the fact and having also farther premised, that it is agreed by all the books, that the man may be an accessary after the fact, by F. Corone, 196. (f) receiving one who was an accessary before, as well as by reCrompton, 42. ceiving a principal; and that there seems to be the same (g) (g)Seethe books reason, that a man may be an accessary before the fact, by proabove cited, and curing another to be in such manner an accessary to the princiSummary, 219. pal: c. 7. f. 291. 26 Assize, 52. B. Corone, 104. S. P. C. 43. I shall endeavour to shew, 1. In what offences there can be no accessaries, but all must be principals, if any way guilty. 2. Where those who only abet a fact, shall be esteemed as much principals in it as those who actually do it. 3. Where those who are actually absent when a fact is committed may be esteemed principals in it. 4. Where one shall be adjudged a principal in an offence against a statute. 5. Whether the offence of an accessary can ever rise higher than that of the principal. As As to the first particular, viz. In what offences there can be no accessaries, but all must be principals, if any way guilty. Sect. 1. It seems to have been always an uncontroverted Foster, 341. maxim, that there can be no accessaries in (h) high treason, or (i) (h) 3 Inst. 20, trespass. Sum. 215. Hale, 613. 12 Coke, 81, 82. 2 Inst. 183. B. Trea. 19. 3 H. 7. 19 H. 6. 47. S. P. C. 3. 40. B. Cor. 135. Dalton, c. 108. Crompton, 42. (i) 12 Coke, 81, 82. 2 Inst. 183. B. Rape, 3. Coke Lit. 57. 1 Hale, 613. 21. 138. Dalison, 16. 10. F. Cor., 55. Coke Lit. 57. F. Corone, 8. 3 Inst. 158. Also it seems to have been always agreed, that whatsoever will make a man an accessary before in felony, will make him a prin- (k) 19 H. 6. 47. cipal in (k) high treason and trespass; as (1) battery, (m) riot, B. Treason, 9. rout, (n) forcible entry, and even in (o) forgery, (1) and (p) petit larceny. And therefore, wherever a man commands another to commit a trespass, who afterwards commits it in pursuance of such command, he (q) seems by necessary consequence to be as guilty of it, as if he had done it himself. From whence it follows, that being, in judgment of law, a principal offender, he may be tried and found (r) guilty before any trial of the person who actually did the fact. (2) (q) Moor, 787. Summary, 217. (m) Co Lit. 57. 1 Siderfin, 312. 2 Inst. 183. Plowden, 475. Con. Summary, 223. 1 Hale, 616. Dalton, c. 108. B. Treason, 19. B. Corone, 135. (u) Dyer, 296. 21. 824. Sect. 4. It seems (x) agreed, that whosoever agrees to a tres- (1) C. Eliz. pass on lands or goods done to his use, thereby becomes a prin- 38 Assize, 9. cipal in it; but that no one can become a principal in a trespass B. Disseis. 98. on the person of a man by any such agreement. Also it seems B. Eject. Cus (1) That is, in forgery at common law, which was but a trespass or misdemeanour. Vide vol. 1. tit. Forgery." (2) This rule requires distinction. In that species of treason touching the death of the king, &c. every accessorial agency is, independently and in its own nature, a complete overt act of compassing; and renders the offender guilty, though the fact itself should never be attempted. But in every other species of treason, the accessorial offence is of a derivative kind; some act must be done, to which act the offender must be accessary, and out of which his guilt must spring, before he can be converted, by this rule of law, into a principal offen agreed, todie, 8. B. Tres. 256. 38 E. 3. 18. Co. Lit. 180. F. Gard. 89. der. It seems therefore, that although in the event of the prosecution such an offender may be considered as a principal, yet in his progress towards conviction he ought, from a principle of natural justice, to be considered merely as in the nature of an accessary, before or after the fact; as, if under such a consideration he were tried before the person who actually did the fact, the absurdity might follow, that the accessorial agent may be convicted, and the principal who did the act, and on whic guilt the offence of the accessary must alone a pend, may be acquitted. Foster, 341 to 347. and 1 Hale, 613. 2 Hale, 223. 2 R. Abr. 75. (y) Poph. 134. (y) agreed, that no one shall be adjudged a principal in any common trespass, or inferior crime of the like nature, for barely receiving, comforting, and concealing the offender, though he know him to have been guilty, and that there is a warrant out against him, which by reason of such concealment cannot be executed. And if he cannot be punished as a principal, it is certain that he cannot be punished as an accessary; because in such offences, all who are punished as partakers of the guilt of him who did the fact, must be punished as principals in it, or not at all. Yet if a man knowing that there is a warrant against such offender, advise and persuade him to absent himself, (2) perhaps he may be indictable for a contempt of the law in hindering the due course of justice. (z) 2 R. Abr. 75. (a) Dalis. 16. 3 Inst. 20, 21. Crompton, S. P. C. 40. 42. (b) 12 Coke, 81. 82. C. Eliz. 750. 2 Inst. 183. (c) See the cita letter. Sect. 5. It is certain, that in (a) petit treason, and also in such felony as shall have (b) judgment of death, there may be accessaries both before and after the fact, who must be proceeded against as such, and not as principals, as shall be more fully shewn in the following part of this chapter. Also it seems, (c) that there may be accessaries before the fact tions to the next in mayhem, but that the appellant hath his (d) election to proceed against them either as principals, or as accessaries (e). But I find it no where holden, that there can be accessaries in mayhem after the fact. Con. B. Appeal, 154. (d) Sup. c. 23. s. 19. 22 Assize, 82. 1 Hale, 613. (f) S. P. C. 44. F. Corone, 11. 182. 215. 221. Con. 40. Assize, 1. B. Appeal. 71. 154. (e) Sup. s. 4. Sect. 6. I do not find it agreed, (ƒ) whether there can be any Dalton, c. 108. accessaries in pramunire? B. Præmunire, 4. 6. Plowden, 697. 1 Hale, 13. (g) Plowden, 99. F. Corone, 90. 216. 40. Assize, 8. & 25. B. Corone, 11. 40 Edw. 3. 42. 22. S. P. C. 48.41. 44 Edw. 3. 38. As to the second particular, viz. Where hose who only abet a fact shall be esteemed as much principals in it as those who actually do it. Sect. 7. It seems to have been (g) anciently the more prevailing opinion, that those only were to be adjudged principals in felony who actually did the fact; as in murder, those only who gave the mortal blow; in rape, those only who actually ravished the party, &c. and that those in the company who were only present and abetted and encouraged the doing it, were to be esteemed accessaries; or at most principals in the (h) second degree only. See Bract. b. 3. c. 12. s. 10, 11. 13. C. 19. s. 11. C. 21. s. 8. 10. 11. Lamb. b. 2. c. 7. s. 283. Statute of Westminster, 1. c. 14. Con. F. Cor. 433. (h) Plowden, 97. Foster, 347. (i) 11 H. 4. 13. See the cases cited to the other parts of But I take it to be settled at this day, that all those who (i) assemble themselves together with a felonious intent, the execution whereof causes either the felony intended, or any other to be committed, or with an intent to commit a (k) trespass, the execution whereof causes a felony to be committed, and continuing together abetting one another till they have actually put their de this and the next section, and Bk. 1. c. 13. s. 31. c. 14. s. 5. and c. 41. s. 6. c. 13. s. 46. Summary, 216, 217. F. Corone, 60. 314. 350. 433. B. Corone, 172. Kelynge, 47. Salkeld, 334. S. P. C. 40. sign (k) Bk. 1. Keilw. 161. Moor, 53. sign in execution; and also all those who are (1) present when a (1) See B. 1. felony is committed, and abet the doing of it; as by holding the c. 14. 5. 6. (m) party while another strikes him, or by (n) delivering a weapon 2 Institute, 182. to him that strikes him, or by moving (0) him to strike, are prin- 3 Institute, 133. cipals in the highest (p) degree, in respect of such abetment, 59. B. Appeal, 19. as much as the person who does the fact, which in judgment of 132. law is as (q) much the act of them all, as if they had all actually B. Cor. 19. 167. done it; (r) and if there were malice in the abettor, and none in 188. the person who struck the party, it will be murder as to the abettor, and manslaughter only as to the other. S. P. C. 40. 44. 41. (m) Summary, 216. 10 E. 4. 14. Summary, 215, Presence holden F. Cor. 135. S. P. C. 40. Plowden, 98. Foster, c. 1. 216. F. Cor. 99. 309. 433. Dalton, c. 108. Lamb. b. 2. c. 7. f. 283. 7 H. 4. 27. not to be necessary for this purpose. F. Cor. 60. 4 H. 7. 18. S. P. C. 40. 13 H. 7. 10. (n) Summary, 216. 2 Inst. 41. 82. Summary, 216. 4 H. 7. 18. B. Corone, 141. B. Appeal, 85. (p) Summary, 215, 216. Sup. c. 23. s. 76. c. 25. s. 64. and see the case of Rex v. Syms and Merryweather, (q) Plowden, 98. 100. F. Corone, 60. B. Corone, 141. B. Appeal, 85. 4 Hen. 7. 18. 9 Coke, 67 (r) Bk. 1. c. 13. s. 49, 54. in Plowden, 98. 217. Sect. 8. It doth not seem necessary to the making an abettor (3) But this a principal, that the person on whom the felony is committed seems required should be under any (s) terror from the abetment, and by reason (t) F. Cor. 60. thereof discouraged from making that defence which otherwise Summary, 216, he might have made. But it seems to be sufficient for this purpose, that the person who does the fact is encouraged and em- Salkeld, 334. boldened in it from the hopes of present and immediate assis- 335. tance from the abettor, whether he be within view of the fact, or (t) not. 4 H. 7. 18. 217. And upon this ground it hath been adjudged, (u) that where (u) See B. 1. persons combined together to stand by one another in the breach C. 13. s. 46. Summary, 216. of the peace, with a general resolution to resist all opposers, and in the execution of their design a murder is committed, all of the company are equally principals, though at the time of the fact some of them were at such a distance as to be out of view. B. Corone, 172. 335. 314. 350. 433. S. P. C. 40. Vide Kelynge, 47. Also upon the same reason it hath been adjudged, (x) that (1) Moor, 55. where a company of rogues assault a man in the highway, who S. P. C. 40. escapes from them, and then one of them rides from the rest, in the same highway, and robs another out of the view of his companions, and then returns to them, they are all of them equally principals. And the like hath been (y) adjudged in relation to all those (y) 11 H. 4. 13. who accompany one another with an intent to commit a burglary, 30. in the execution whereof some stand to watch only in the adjacent places, and the rest actually break and enter the house. Sect. 9. But (2) where divers persons accompany one another in the doing of a lawful act, and one of them happens to kill a man, he that gives the wound is only guilty of the homicide, and the rest of the company shall neither be esteemed principals nor accessaries. Moor, 53. (2) Keil. 161. Also if the act intended, (a) though unlawful, were a bare tres- (a) Kelynge, pass, and one of the company be guilty of larceny, it is a felony 47. |