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(n) Prea. Ann.

9.

(0) B. App. 19.

B. Corone, 86. 7 H. 4. 27.

Sect. 41. It seems to have been in a great measure settled (n) before the statute of 1 Ann. c. 9. notwithstanding the great variety of opinions in the old books concerning this matter, that wherever the attainder of the principal was prevented by his (0) death, or (p) standing mute, or challenging (q) peremptorily above the number allowed him by law, or being admitted (r) to the benefit of clergy, or (s) pardoned, whether before or after his conviction, Summary, 221. the accessary should not be arraigned.

F. Corone, 378.

Conspi. 4.
Respond. 35.
F. N. B. 115.

44 E. 3. 7.

33 H. 6. 12.

Eliz. 541.

Cromp. 43, 44.

101. 132. 138.

21 H. 7. 31. 15. 22 Assize, 40.

Cor. 58. 53. 270. 466.
47 H. 48. (s) Sum. 221.
B. Corone, 18.
Qu. Cromp. 42.

(p) Summary, 221. 2 Inst. 284. Con. F. Cor. 58. Qu. S. P. C. 47. (q) Stat. 1 Aunæ, c. 9. Qu. S. P. C. 47. F. Corone, 51. SH. 7. 12. (r) C. 4 Coke, 43, 44. Summary, 221. 3 Inst. 114. 139. 3 H. 7. 1. C. Car. 556, 557. Raymond, 477. F. Corone, 145. 176. 193. 252. 376. 450. B. Cor. 18. 70, 71. 83. 18 Assize, 13. 26 Assize, 27. 5 Assize, 5. 7 H. 4. 16. B. Clergy, 15. Con. F. Crompton, 42. 10 H. 4. 15. B. Corone, 158. Qu. 3 H. 7. 12. S. P. C. F. N. B. 115. C. Eliz. 541. F. Cor. 53. F. Conspi. 4. 33 H. 6. 1. 3 Inst. 139. Cromp. 44. 3 H. 7. 12. 7 H. 4. 16. Raymond, 477. Con. F. Cor. 151. 260. B. Cor. 70. 3 Ass. 14. Vide Dyer, 88. Sect. 42. But it seems to have been generally agreed, (t) that after the principal is actually attainted, whether after a conviction by verdict, or by (u) outlawry, &c. his death or pardon, &c. subsequent, will no way avail the accessary.

(t) C. Eliz. 541. 4 Coke, 43, 44, Summary, 221. Raymond, 477.

Con. F. Cor. 450.

(u) 4 Coke, 43.

B. Corone, 16. 5.

4 Coke, 43, 44.
S. P. C. 47.

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Dyer, 120. F. Cor. 58. 93. 40 Assize, 8. 43 E. 3. 17. 3 H. 7. 1.
B. Mainprize, 58. Con. as to abjuration, 7 H. 4. 16. B. Corone, 18.

9 H. 4, 8, 9.

Sect. 43. By 1 Ann. sess. 2. c. 9. s. 1." If any principal of"fender shall be convicted of any felony, or shall stand mute, or "shall peremptorily challenge above the number of twenty persons, returned to serve on the jury, it shall and may be lawful "to proceed against any accessary either before or after the fact, "in the same manner as if such principal felon had been attainted thereof, notwithstanding any such principal felon shall be "admitted to the benefit of his clergy, pardoned, or otherwise "delivered before his attainder; and such accessary shall suffer "the same punishment, if he or she shall be convicted, or shall "stand mute, or peremptorily challenge above the number of twenty persons returned to serve on the jury, as he or she should "have suffered if the principal had been attainted."

Sect. 44. By 1 Ann. sess. 2. c. 9. s. 2. which recites, " that the buyers and receivers of stolen goods had oftentimes conveyed away and concealed the principal felons, so that they could not be convicted of such principal felony, and thereby such buyers and receivers had escaped all manner of punishment, which had greatly encouraged the buying and receiving of such stolen goods," it is enacted, "That it shall and may be lawful to prosecute and punish every such person or persons buying or receiving any "stolen goods knowing the same to be stolen, as for a misdemeanor, to be punished by fine and imprisonment, although "the principal felon be not convicted before of the said felony, "which shall exempt the offender from being punished as accessary, if the principal shall be afterwards convicted."

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+ By 5 Ann. c. 31. s. 6." If any such principal felon cannot "be taken so as to be prosecuted and convicted, it shall and may "be lawful to prosecute and punish every such person and persons, buying or receiving any goods stolen by any such principal

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"felon,

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"felon, knowing the same to be stolen, as for a misdemeanor, "to be punished by fine and imprisonment, or other such corporal punishment as the court shall think fit to inflict, although the principal felon be not before convict of the said felony, which "shall exempt the offender from being punished as accessary, if "such principal felon shall be afterwards taken and convicted." (1)

As to the SECOND POINT, viz. Whether the accessary shall in any case be arraigned or tried before any principal hath appeared.

20. 118.
Fort. 374.

143.

Sect. 45. Notwithstanding the numerous (x) authorities in the (1) B. Cor. 11. old books, that an accessary shall not be compelled to answer before the principal have appeared and answered, I take the con- 9 H. 7. 19. trary opinion to be in a great measure (y) settled at this day. Bract. 128. And yet it seems to have been always agreed, (2) that his plea 159, 142, 1 cannot be tried before such appearance or attainder, (a) unless he desires it himself; in which case it is agreed, that he may be tried without the principal, according to the rule, that quilibet potest renunciare juri pro se introducto.

F. Cor. 33.
82. 90. 135,
156. 216. 350.

is

44 Edw. 3. $8. 9 Edw. 4. 48. 40 Edw. 3. 42. 44 Edw. 3. 7. 25 Edw. 3. 44. 40 Assize, 8. 25. B. App. 9. 189. 2 Rich. 3. 21. B. Mainprize, 58. S. P. C. 46. It is said that the law was so anciently, but that it now changed. Yet Dalton, c. 108. seems to be for the old opinion. (y) Summary, 222. 9 Hen. 4. 3. F. Cor. 77. B. Appeal, 28. S. P. C. 46. () Summary, 222. 1 Hale, 623. 2 Hale, 223, 224. B. Appeal, 28. 9 Hen. 4. 3. F. Corone, 77. S. P. C. 46. 1 And. 199. (a) F. Corone, 12. 124. 463. S. P. C. 46.

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Besides the cases above stated, s. 43. by 22 Geo. 3. c. 58. “In "all cases whatsoever, where any goods or chattels (except lead, iron, copper, brass, bell metal and solder,) (b) shall have been "feloniously taken and stolen, whether the offence shall amount "to grand larceny or some greater offence, or to petty larceny "only (except where the felon shall have been already convicted "of grand larceny, or some greater offence), every person who "shall knowingly buy or receive any such goods and chattels, may

(1) There is a case of the King v. Pollard and another, in 2 Lord Raymond, 1370, in which it is said that the prosecutor has his election whether he will prosecute for the felony or the misdemeanor, But this is denied to be law by Mr. J. Foster, (3 Discourse on Accomplices,) who says that the only election the prosecutor has, is either to prosecute for the misdemeanor if the principal is not amenable to justice, or to wait until he can be apprehended, and then prosecute for the felony. But that if the principal felon be forthcoming, the accessary ought to be prosecuted for the felony. And he observes, that there was another point in the case of the King v. Pollard, namely, it was objected that the indictment did not aver that the principal felon could not be taken, which it was contended was a necessary averment in that form of indictment. This objection, he observes, had never been taken before, and if allowed, would have overset every former judgment on the statute, and that might have been the true ground of the court's decision. This averment, that the principal cannot be taken, or an averment that he has not been convicted, have been both held not to be necessary

"be

Sum. 222.

(b) This is pro

vided for by 29

Geo. 2. c. 30. Vol. 1. p. 220.

averments in an indictment against a receiver (Rex v. Baxter, 5 Term Rep. 83.) It is there said, it being a negative averment, it is matter for the defendant to prove and not for the prosecutor.

But it is sufficient to sustain an indictment for the misdemeanor, if at the time of the prosecution, the principal felon is not amenable to justice, although before that time he might have been apprehended. In the case of one Wilkes who was convicted on the stat. 3 W. & M. c. 9. s. 4. and 5 Anne, c. 31. s. 6. for receiving stolen goods, as for a misdemeanor, it appeared that the prosecutor, some months previous, had had an opportunity of apprehending the principal felon, but suffered him to go at large. Judgment was respited on a doubt whether, as the prosecutor might once have apprehended the principal felon, it came within the meaning of the act, which speaks of cases where the principal felon "cannot" be taken. But a majority of the judges, seven against four, held that the word "cannot" in the statute, must be ap-. plied to the time of the prosecution, if the principal felon was then, without collusion, out of custody, as was then the case.

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"be prosecuted for a misdemeanor, and shall be punished by "fine, imprisonment, or whipping, as the court of quarter ses"sions, or any other court shall think fit to inflict; although the "principal felon or felons be not before convicted of the said "felony, and whether he, she, or they is or are amenable to justice or not (2).-And in cases where the felony actually com"mitted shall amount to grand larceny, or to some greater of"fence, and where the person or persons actually committing such "felony shall not be before convicted, such offender or offenders "shall be exempted from being punished as accessary or acces"saries, if such principal felon or felons shall be afterwards convicted. Provided, par. 6. that this act shall not repeal any "former law against this offence, and that offenders punished "under this act shall be exempted from punishment under any "other act for the like offence.'

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As the former statutes applied only to the receiving goods and chattels either generally or of a particular description, and not to securities for money, the statute of 3 Geo. 4. c. 24. s. 3. extended the offence to receiving securities for money, (3) by s. 3. enacts, "That in all cases where the offence of any person re"ceiving or buying stolen goods or chattels, or any such stolen "order, tally, bill, bond, warrant, debenture, or note, knowing "the same to have been stolen, shall be deemed and construed "to be felony, such offender shall and may be tried and convicted "of such felony, as well before as after the trial of the principal felon, and whether the said principal felon shall have been apprehended, or shall be amenable to justice, or not.” (4)

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And by the same statute 3 Geo. 4. c. 24. s. 4. in order effectually to reach the incitors to thefts, it is enacted," for the due "punishment of accessaries before the fact to burglary, robbery, " and larceny, in cases where the principal offender shall not have "been discovered, or shall be concealed, or not be amenable to "justice;" it is enacted, "That if any person or persons shall

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counsel, hire, procure, or command any other person or persons "to commit any burglary, robbery, or larceny whatsoever, of the "degree of grand larceny, then and in any such case (except "where the person or persons actually committing any such "felony as aforesaid shall have been actually convicted thereof) "the person or persons so counselling, hiring, procuring, or commanding as aforesaid, shall be held and deemed guilty of "and may be prosecuted for a misdemeanor, and being convicted "thereof shall be liable to be imprisoned only, or to be imprisoned "and kept to hard labour, in the common gaol, house of correction, or penitentiary house, for any term not exceeding two years, although the principal felon or felons be concealed or be conveyed away, or be not before convicted of any such felony

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46

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(2) The principal felon may be an evidence against the receiver upon this act. Adjudged by all the judges in the case of Rex v. Haslam, 26 Geo. 3. (3) Vide vol. 1. p. 236.

(4) This clause seems wholly inoperative; for with respect to orders, tallies, bills, bonds, war

66 as

rants, debentures, or notes, the receiving or buying them, before the passing of this act, was no felony, and therefore could not be deemed and construed to be felony. And therefore it is presumed as to them the act is wholly inoperative.

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66 as aforesaid, and whether he, she, or they is or are amenable to justice or not; any law or statute to the contrary notwithstand"ing" Provided always, "That any such offender, after having been prosecuted and convicted under this act, shall not for the same offence be afterwards punished, or liable to be punished, as an accessary before the fact, if the principal felon or felons shall be afterwards convicted."

As to the THIRD POINT, viz. Whether a person charged as accessary to more than one principal, may be tried before all of them have appeared.

98,99.

Sect. 46. It seems to be holden by Sir (c) Matthew Hale, (c) Sum. 222. agreeably to what seems to be the stronger (d) opinion in Plow- 1 Hale, 624. (d) Plow. den, that if a man be indicted as accessary to more than one, and one of the principals appear and be convict, the court may, if they please, try the accessary, as being accessary to such principal, and also condemn him, if the issue be found against him; and if it be found for him, may afterwards arraign and try him as accessary to the others when they shall appear.

See the books

7 Hen. 4. 36.

But the contrary opinion is certainly supported by great (g) (g) S. P. C. 46. authorities; neither do I find any instance in the books wherein cited to section the Court hath actually proceeded to the trial of an accessary in 47. such a case before all the principals have either appeared or been 7 H. 4. 36. B. App. 22. attainted and (h) unless there be some very particular circum-Hen. 4. 36. stances in the case, it cannot be doubted but that it will be a Keilw. 107. weighty motive to induce the court in discretion to respite the (h) Plow. 99. trial of an accessary, to shew that some of those to whom he is charged as an accessary, are neither attainted, nor have appeared; for it must be owned, that it is a strong objection against the trying him immediately, as accessary to those who do appear, that thereby the country may be subject to the trouble of attending two trials where one might do as well; and the person tried may be subject to the hardship and hazard of two trials for his life; which is contrary to the general course of the law (as shall be more fully shewn under the chapter concerning the plea of auterfois acquit); whereas if the trial should be deferred till all the principals be attainted or appear, he would be tried but once.

(i) But if there be several principals, and a person be charged as (i) S. P. C. 46. accessary to one of them only, it seems clear, that it is no objec- Foster, 361. tion against his being tried as accessary to such a principal, that

the others have not yet appeared, nor are attainted, &c.

As to the FOURTH POINT, viz. Whether the principal and accessary may be both tried by the same inquest, and in what manner they are to be tried.

Sect. 47. It seems (k) to be settled at this day, that if the principal and accessary appear together, and the principal plead the general issue, the accessary shall be put to plead also; and that

if

() Sum. 222. 1 Hale, 624. Dyer, 120.

2 Hale, 222,223

2 Inst. 184. 28 E. 3. 94. F. Corone, 10, 11. S. P. C. 46. Rastal, 50. 52. 53. F. Exigent, 4. B. Mainprise, 3. Con. Bract. 128. 139. 142. 148. 40 E. 3. 7. F. Corone, 82. 90. 135. 216. 350. F. Trespass, 199. 40 E. 3. 42. 25 E. 3. 44. 40 Assize, 25. 44 E. 3. 8. B. Appeal, 9. F. Corone, 11. 118. F. Mainprise, 58. 2 R. 3. 21. In all which books it seems to be holden, that the accessary is not compellable to answer till all the principals be convict.

(1) See the

books cited to letter k. Con.

if he likewise plead the general issue, both may be tried by (7) one inquest; but that the principal must be (m) first convicted; F. Cor. 10.77. and that the jury shall be charged, that if they find the principal not guilty, they shall find the accessary not guilty.

82.

96 H. 4. 3.

7 H. 4. 36.

9 Co. 117.

Dyer, 120. S. P. C. 46. (m) Summary, 222. F. Corone, 10. Rastal, 50, 51, 52. 54.

(n)B.Perem.42.

2 Inst. 184.

S. P. C. 46.

Foster, 360 to 368.

(0) 14 Assize,

16.

43 E. 3. 17.21. 34.

B. Cor. 93. B. Cor. 125. 45 Assize, 9.

B. Appeal, 80. and S. P.C. 63. to be cited with

This case seems

some doubt.
(p) 3 Hen. 7.

12.

Dyer, 38,39,40. 7 Coke, 2.

But F. Cor. 93.

B. Cor. 125.

But it seems agreed, that if the principal plead a plea in abatement or to the writ, the accessary shall not (n) be driven to answer till such plea be determined (1).

As to the FIFTH POINT, viz. In what manner the accessary shall be tried, where his offence arises in a different county from that of the principal.

Sect. 48. It seems to have been (0) agreed anciently, that by the common law, if a town extend into more than one county, and a felony be committed in that part of it which lies in one county, and there were accessaries in that part of it which lies in another county, an appeal may be brought against the accessaries as well as the principals, in that county in which the principal felony was committed; and where the counties are at a distance, it seems that it may be probably argued, (p) that an appeal may be brought in like manner against all in the county wherein the principal felony was committed; because in an appeal the trial may be by a jury returned from each county. But where one of the counties cannot join with any other in taking an inquest, as that of London, &c. it (q) hath been adjudged, that an appeal against the accessary cannot be brought in either.

B. Appeal, 7. 45 Assize, 9. and S. P. C. 63. seem to be contrary. In S. P. C. 65. there is an opinion, that in this case there shall be several appeals in the several counties. But now one appeal is sufficient, in the case of murder, by force of 2 & 3 Edw. 6. 24. set forth more at large in the next section. Summary, 188. Qu. 44. Assize, 16. 43 E. 3. 17. 21. 34. (9) Dyer, 38, 39, 40. 7 Co. 2.

() Finch, 411. B. 1. c. 13. s. 13.

Also, because there can be no (r) joinder of counties for the finding of an indictment, it seems to have been very doubtful (2)at the common law, where the offence of the accessary arose in a different county from that of the principal, whether it could be indicted at all; because the county in which it arose could not take conusance of the principal felony arising in another county, without which they could not find that of the accessary.

(1) Where the principal and accessary are tried by the same inquest, the accessary may enter into the full defence of the principal, and avail himself of every matter of fact, and of every point of law tending to his acquittal; and when the accessary is tried after the conviction of the principal, if it shall come out in evidence that the offence of which the principal was convicted did not amount to felony in him, or not to that species of felony with which he was charged; or if it shall manifestly appear in point of fact that he was innocent, the accessary ought to be acquitted. M'Daniel's Case, Foster, 121. 10 State Trials, 417. Foster's Third Discourse, 365. and Smith's Case, Cases in Cro. L. 237.-It is also said, that the production of the record of conviction of the principal is sufficient to put the accessary upon his defence. Foster, 363. But it seems that some additional evidence is necessary for that purpose, in order to apply and

Sect.

connect it with the case of a prisoner indicted as accessary; for a bare unqualified record can only be evidence against those who are parties to it. O. B. 1784. p. 474. Foster, 365.

(2) Keilw. 67. The accessary in such case is said to be indictable in the county in which the principal felony was committed. But in the Year Book of 9 Edw. 4. 48. 1. abridged F. Cor. 33. and B. Indict. 52. the accessary was indicted in the county in which he was accessary, and the court wrote to the justices of the county wherein the principal felony was committed, to certify whether the principal was indicted before them. And in S. P. C. 90. this case is holden to be law. See also 3 Inst. 49. 135. But in S. P. C. it is said, that there was no remedy at common law against the accessary where his offence was in a different county from that of the principal. See 1 Hale, 623.

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