Staundforde to be law, that the receipt of a felon after attainder in the same county, made a person accessory without notice, because he is bound at his peril to take notice that he was attainted; for it oftentimes lies as little in the knowledge of many persons who are convict of felony or treason, as whether a man be guilty of it (u)."

And Lambard (r), in commenting on this doctrine, observes, "Bracton very reasonably requires a right and direct knowledge in the parties, to make them accessory in the one case as well as in the other, for albeit a record, and especially the pronunciation of an outlawry, be so notorious, that every man may easily come to know the same; yet were it an over great extremity that each man should, at the peril of his own life, inform himself and take understanding of it."

And Lord Hardwicke, in the case of the King v. Berridge (y), observes, the reasoning of Lambard appears to be very judicious, and upon the whole of this point we all think that the true way of understanding these books is, that an outlawry or attainder in a particular county may, as the case may happen to be circumstanced, be some evidence of notice to an accessory in the same county; but that it cannot, with any reason or justice, create an absolute legal presumption of notice, so as to excuse the not charging the fact to be done sciens or scienter, in the indictment.

In an indictment for carrying a person, ill of the smallpox, from one parish to another, it was holden to be necesary to aver that defendant knew that the party so carried had the small-pox (≈).

(u) 1 Hale, 323. Vide Dyer,

355.

(x) p. 293.

(y) 3 P. Wms. 496.

(z) Andr. 162.

And in general, wherever a statute makes a guilty knowledge part of the definition of an offence, the knowledge is a material fact which must be expressly averred (a). But where a statute prohibits generally, and is silent as to intention, it appears clear, that a pleader need not aver knowledge upon the face of the indictment; how far, in such case proof that the defendant's mind was free from all guilty knowledge, would go towards his exculpation, is a question which need not here be considered (b).

Therefore, under the stat. 23 G. 3. c. 13. against seducing artificers, it is unnecessary to allege that the defendant knew the person to be an artificer (c).

How the knowledge must be averred.

No express form of words is essential to this averment. It has been holden, that an indictment averring that J. S. scienter receptavit such a one being a felon, was insufficient, for want of an express averment that J. S. knew the person, so received by him, to have been a felon (d). But this, as observed by Serjeant Hawkins, is contradicted by a number of later decisions, in which it has been holden, that the word scienter, in such a case, shall be construed to go through the whole sentence (e).

Upon an indictment for attempting to seduce a soldier, under the stat. 37 Geo. 3. c. 70. (ƒ) it was holden that the word advisedly contained a sufficient averment of knowledge; and it was holden, in the same case, that an averment of knowledge is virtually included in the averment that the defendant endeavoured to seduce (g).

(a) R. v. Jukes & al. 8 T.

R. 536.

(d) 7 H. 6. 42.

(e) 2 Haw. c. 25. s. 67. 2

(b) See R. v. Bell, Fost. 430, Lev. 208. 8 Ed. 4. 3. Str. 73.

and also Fost. 439.

(c) R. v. Myddleton, 6 T. R. 739.

904.

(f) R. v. Fuller, Leach, 916.

(g) Ib.

II. From the situation of others.

An indictment charging a constable with having voluntarily and feloniously suffered a person arrested by him, on suspicion of felony, to escape, without shewing what the nature of the felony was, and that it was actually committed, is void, both for want of shewing that any offence had actually been committed by the person arrested, and also for not specifying what the felony was; for, unless the arrest were for a felony, the suffering the escape would not be felonious (h).

So in an indictment for a rescous, the indictment ought to shew, that the party rescued was in legal custody, and, as it is said, should set out the writ and warrant (i).

So in an indictment against an innkeeper for not receiving a sick person, it must be averred that the latter was a traveller (k).

A prisoner was indicted, under the stat. 10 G. 2. c. 31. for having conveyed instruments into the prison of the Poultry Counter, with intent to aid and assist the escape of Henrietta Lake, he well knowing the said Henrietta to have been lawfully committed to the said prison, upon suspicion of forging a promissory note of 100l. with intent to defraud one Elizabeth Whitelock, &c. The act on which this indictment was founded, makes the offender guilty where the prisoner" was committed to, or detained in, any gaol, for treason or felony expressed in the warrant of commitment or detainer." The judges were unanimously of opinion, that a commitment upon suspi

(h) 2 Haw. c. 25. s. 66. Cro. Eliz. 752. Str. 12. 26. 1268. 3 P. Wms. 497. 3 H. 6. f. 2.

(i) R. v. Westbury, 8 Mod. 357. R. 1. Freeman, Str 1226.

(k) 112 Mod. 455.

cion essentially differed from a commitment for treason or felony clearly and plainly expressed, which can never be the case where the commitment is upon suspicion only (1).

An accessory after the fact can only become so from his criminal conduct in respect of another, who has before that time committed a felony (m). The charge, therefore, against a criminal of this decription, consists of two parts: first, of the felonious situation of the principal, and, se condly, of the guilty knowledge and conduct of the accessory. In the first place, it is an invariable rule, that the guilt of the principal must be averred upon the record. This may be done in different ways, according as the principal and accessory are indicted together, or as the acces sory is separately indicted, after the conviction of the principal. In the first case, the indictment first charges the principal with the commission of the felony, and then avers, that the said C. D. well knowing the said A. B. to have done and committed the said felony, in manner and form aforesaid, afterwards, to wit, on, &c. at, &c. did fe loniously receive, comfort, harbour, and maintain the said A. B.; or, that he did such other act, in respect of the principal felon, as makes him an accessory. Where the accessory is indicted after the conviction of the principal, and in the same county, the indictment may either allege, that the principal committed the felony, and then charge the accessory, as in the former case, or may set out the record of the conviction of the principal, averring that he was in due form of law convicted of such felony, and then

(1) R. v. Walker, Leach,

114.

(m) 3 Ins. 138. Hale, 218. Bracton, c. 13. s. 1 & 2. R. v. Berridge, 3 P. Wms. 439.

proceed to charge the accessory as in other cases (n); and the indictment need not allege that the principal has been attainted (o).

But where a person is indicted in one county, as accessory to a felony committed in another, it seems to be necessary to allege, positively, the commission of the felony in the second county: this was expressly holden (p) by the judges, who consulted upon the mode of proceeding against Lord Sanchar, as an accessory before the fact, and the reason which they gave, seems to be equally applicable to the case of an accessory after the fact (q).

In an indictment against one for a misdemeanor, in receiving stolen goods, it is unnecessary to allege the original felony with either time or place (r); nor is it necessary to state the name of the principal offender, for the great object of the statutes relating to this offence, was to bring the receivers to justice in cases where the principal offender cannot easily be discovered (s).

A defendant may be indicted for receiving stolen property, if it remain the same in substance, though its name be changed; and, therefore, a principal may be indicted for the stealing of a live sheep, and the accessory with receiving twenty pounds of mutton (t).

In an indictment against a receiver as accessory, it must appear the value of the property stolen and received exceeded one shilling, for in petit larceny there are no accessories.

(n) Fost, 365. 8 E. 4. 3. Fitz. Ind. 16. Keil. 194. R. v. Berridge, 3 P. Wms. 439.

(0) Ib. and Hyman's case, East. P. C. 781.

(p) Lord Sanchar's case, 4 Co.

(q) See p. 130.

(r) R. v. Stott, East, P. C.

781.

(s) R. v. Thomas, East, P. C. 781.

(t) R. v. Cowell and Green, East. P. C. 781.