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indictment for perjury, under the statute of Elizabeth, for want of the word wilful, which is used in the act, was holden to be vicious (i), though in an indictment for perjury, at common law, the word would not be essential. In an indictment for perjury at common law, the term wilfully is included in the terms falsely, maliciously, wickedly, and corruptly. The necessity of adhering strictly to the terms or phrases used by a penal statute, will hereafter be more fully considered; for the present it may suffice to observe, that in framing an indictment, it is in all cases prudent and advisable to make use of the same language which the legislature has thought fit to select and adopt.
In every indictment, whether technical words be essential or not, the act of the defendant must be directly and plainly, and singly charged; it is insufficient, therefore, to allege the offence, by way of recital, prefacing the description with the words, " for that whereas" (k). So it is to allege that A. discharged a gun at B. giving him a mortal wound, without directly averring that he struck B. has been holden to be insufficient (1). So it is improper to allege an offence in the disjunctive, as by averring that the defendant forged or caused to be forged, for the judgments are different (m); and the indictment would be defective, even though the judgments for the two offences, disjunctively stated, be the same; as if the indictment allege that the defendant verberavit vel verberari causavit (n); and the
(i) Leach, 82.
(k) 2 Haw. c. 25, s. 60.
Salk. 371. 3 Mod. 53.
Ray. 1363. Burr. 400.
(1) Long's case, 5 Co. 122.
Buls. 124. tamen qu. et vid.
(m) 5 Mod. 137. R. v. Stocker, Salk. 342, 371. 8 Mod. 32. Str. 747, 900.
(n) 5 Mod. 137.
defect would be fatal, either upon demurrer, or upon motion in arrest of judgment (o).
2ndly. Aguinst principals in the second degree.
Where several are concerned in the committing of the same crime, or in procuring it to be committed, they are either principals or accessories before the fact.
It will be considered here, how the offence ought to be charged against those whom the law considers to be principals.
In treason, petit larciny, and misdemeanors below felony, the distinction between principals and accessories is not admitted, and all advisers, contrivers, and procurers, are equally principals with those who commit the offence, though they be absent at the time of its commission; and in such cases it seems to be a general rule, that all such principals may be charged to have committed the offence jointly, provided the nature of the offence admit of such participation (p). But where a person becomes a traitor, by harbouring and receiving another who has committed treason, the indictment must be specially framed for the receipt, and not for the principal treason (9).
And in general, where A. and B. are present, and A. commits an offence in which B. aids and assists him, the indictment may either allege the matter according to the fact, or charge them both as principals in the first de
(o) See Index, tit, Defective An indictment for a trespass has Indict. been held to be sufficient, although in some parts of the charge, the defendant was represented to be an accessory only. R. v. Tracy, 6 Mod. 31, (q) Fost. 345.
(p) Vide supra, tit. Joinder, and see 6 Mod. 289. Where the offence procured to be committed is several in its nature, the procurer must be specially indicted for the subornation.
gree (r), for the act of one is the act of the other (s). And upon such an indictment, B. who was present aiding and abetting, may be convicted, though A. is acquitted (t). So A. and B. if present aiding and abetting, may be convicted, though C., a person not named in the indictment, committed the act (u). Again, if an indictment for murder charge that A. gave the mortal stroke, and that B. was present aiding and abetting, both A. and B. may be convicted, though it turn out that B. struck the blow, and that A. was present aiding and abetting (x). To go one step further, upon a similar indictment charging A. as a principal in the first degree, and B. as present aiding and abetting, B. may be convicted though A. be acquitted. This was expressly decided in the case of Wallis (y), who was tried before Lord Hale, C. J. who observed, "who actually did the murder is not material; the matter is, that a murder was committed, and the other is but a circumstance, and all are principals in this case; therefore if a murder be proved it is well enough."
In a much later case (2) the same point arose, and the majority of the judges were of opinion, that the conviction was proper; but it appears that the judges were not unanimous, and the prisoner was not executed.
(r) Fost. 351, 425. 2 Haw. e. 23. s. 76. 2 Hale, 344.
(s) 2 Haw. c. 23. s. 76. R. v. Young and others, 3 T. R. 105.
(t) Fost. 351. 1 Hale, 437, 463. 2 Hale, 185, 292, 344, 5. 2 Haw. c. 46. s. 195. 9 Co. 67. (u) R. v. Borthwick, Doug. 207. Kel. 109. Saund. 109.
(x) Banson v. Offley, 2
Show. 510. 3 Mod. 121. Fost. 351. 1 Hale, 437, 463. 2 Hale, 344, 5.
(y) Salk. 334. 1 Haw. c. 31. s. 46, 47.
(z) R. v. Taylor and Shaw, Leach, 398.
If a statute oust a person who does a particular act of his clergy, and be silent as to aiders and abettors, the indicment will not oust an offender of his clergy unless it allege that he did the act; and it will be insufficient to describe him as being present aiding and abetting. Thus, if an indictment under the statute of stabbing, allege that A. made the thrust, aad that B. and C. were present aiding and abetting, if it turn out that A. gave not the stroke, but B., and that A. and C. were aiding and abetting, not only A. and C. who gave not the stroke, would have their clergy, but B. also; because though the case of B. is within the statute, yet as to him the indictment brings him not within the statute (a).
(a) 2 Hale, 344. Al. 43. Styles, 86. Salk. 542. 1 Hale, 468. 2 Ld. Ray. 842. See the very learned and elaborate argument of Mr. Justice Foster, in the case of Midwinter and Sims, Fost. 415. The prisoners were indicted on the stat. 9 G. 1. c. 22. for feloniously killing a mare. It appeared in evidence, that Sims held the mare by means of a girdle buckled round her neck, whilst Midwinter, with a large sharp hook, called a bill, inflicted a deep wound in her belly, of which she died. The doubt was, whether the words of the act, "if shall unany person lawfully and maliciously kill, &c. any cattle, &c. every person so offending, being thereof
"And therefore," says
lawfully convicted, shall be adjudged to be guilty of felony, and shall suffer death without benefit of clergy," ousted Sims of his clergy. Upon the first consideration of this case, Ld. C. Baron Parker and Mr. J. Burnet, were of opinion, that the prisoner was ousted; Mr. J. Foster differed from them, and Justices Wright and Denison inclined to the opinion of Mr. J. Foster; but they afterwards agreed with the Chief Baron and Mr. J. Burnet, and the same construction of the statute was adopted by the judges in the coalheaver's case, Leach, 76. Mr. Justice Foster's main argument is derived from a supposed analogy of the case to those under the stabbing act,
Lord Hale," the case differs from an indictment for murder, where, though it be laid that A. gave the stroke and that B. was present aiding and abetting, yet, if upon
Al. 43. Styles, 86. of secret larciny from the person, 1 Hale, 529. and of robbing in a dwelling house, under the stat. 39 Eliz. c. 15. R. v. Evans and Finch, Cro. Car. 473. 1 Hale, 526, 528, 537; in all of which cases it had been decided, that a mere aider and abettor, who did not come within the express words of the statute, was not ousted of his clergy. But, with great veneration for the talents of so distinguished a proficient in criminal law, I venture to observe, that in those cases the plain literal construction of the several acts was adhered to, and not violated, by confining their operation to principals in the first degree, to the exclusion of aiders and abettors; but it seems impossible to conceive, by what rule of construction the descriptive words of this or any statute can apply to an aider and abettor for one purpose and not for another, that is, so far as to render him a principal felon, and yet not so far as to subject him to the punishment in the
same breath, denounced against such a felon. For it was admitted on all hands, that an aider and abettor was a principal felon under the act. And it would introduce a most mischievous degree of subtlety into legal construction, so to interpret the legislative definition of an offence, as to hold that a .person falling within that description, should not be subject to the penalty of the statute; on the other hand, it is no strained argument to suppose that the legislature, in framing the statute, considered, that by the operation of the common rule of construction, an aider and abettor would be treated as a principal offender, and consequently intended by such words to subject him to the penalties of the statute.
At the Old Bailey Sessions, June, 1813, upon the trial of Brady and others, for forging and uttering a check, Mr. Baron Graham said, "it has frequently been held, that what would amount to a constructive
presence at common law, will