« AnteriorContinuar »
evidence it appear that B. gave the stroke, and A. was abetting, both shall be convict of murder; for both are equally murderers, and the indictment is true as to both; viz. that of their malice aforethought they did kill and murder. But it has been decided, that where a statute creates a new felony, enacting, that all who are guilty of
not be sufficient upon an indictment under a statute. A case under this statute occurred before me at Derby. Two perSons went in concert to utter a forged note; one went into a shop to utterit, whilst the other. remained at some little distance in the street; it was objected that the latter was not liable as a principal. I saved the point, and the judges were of opinion that the utterer only was liable." See R. v. Soares, East, P. C. 974, where one uttered à forged note at Gosport, whilst the others waited for him at Portsmouth; and all the judges were of opinion, that the latter were not guilty as principals. And in the case of Stewart v. Dickens, Cor. Garrow, B. Warwick. Sp. Ass. 1818. where the witness had bargained with the prisoners for the purchase of forged notes, and they pointed out to the witness
person from whom the witness received the notes in pursuance of the agreement, in a
few minutes afterwards, but it did not appear that the prisoners were in sight at the time; it was held by the judges, that the prisoners could not be convicted as principals.
It seems to be very doubtful whether the legislature, in framing the stabbing act, ever intended it to apply to a person aiding and abetting; for the main intention was to ensure the punishment of murderers in particular cases, where malice propense could not be easily proved, except from the means of destruction used, 1 Hale, 456. Fost. 298. 1 Kel. 55.; but the inciting and assisting of another to stab a third person, is such an unequivocal act of malice, as to render the aid of the statute unnecessary; yet Mr. Serjeant Hawkins observes, that the cruelty and bloody mind of him who gives the stab, is peculiar to himself, 2 Haw. c. 33. s. 98. and in that way explains the exemption of principals in the second degree.
the thing prohibited by it shall be adjudged felons, without benefit of clergy, by necessary implication it makes all the procurers and abettors of it accessories or principals, upon the same circumstances which will make them such in a felony by the common law, and therefore makes all, who are present aiding and abetting, principals in the second degree (b).
It seems to be advisable, in such cases, to describe the abettor as a principal in the first degree; for at all events any objection to the indictment itself is by this means avoided; and if the penal clause include an aider and abettor, though not named, it includes him as a principal by construction of law, and he is properly described as such; and if the clause does not extend to an aider and abettor, he cannot be made liable by the form in which he is charged.
Where a statute specifically mentions aiders and abettors, it seems to be sufficient to charge them as principals in the first degree (c).
If one maliciously aid and abet another who strikes the blow, they may be charged in the same indictment with different degrees of homicide,-the abettor with murder, the party who struck with manslaughter (d). But if the bill charge two with murder, and the jury find it only manslaughter in one, a new bill for that offence should be preferred against him (e).
(b) The Coalheavers' case, Leach, 76. R. v. Midwinter and Sims, Leach, 78. in the notes. Fost. 416, 2 Haw. c. 33. 6. 98.
(c) R. v. Mouncer, Leach, 3d ed. 645, East, P. C. 638, 9.
Ld. Hale was of opinion that aiders and abettors might be charged generally.
(d) 2 Haw. c. 29. s. 7.
(e) 2 Hale, 162, 2 Roll, R. 408. 1 Sid. 230, 3 Buls, 206.
As to the form of charging defendants as aiders and abettors.
After alleging the offence of the principal with its circumstances, the indictmeut may allege generally, that E. F. &c. was feloniously present, aiding and abetting at the felony and murder (as the case is) committed in manner and form aforesaid (f).
And the averment that the party was present aiding and abetting, cannot be supplied by any argument, implication, or intendment (g). A person may indeed be an abettor to a felony, though he be not actually present; for if several set out together, or in small parties, upon one common design, whether of murder, or felony, or for any other unlawful purpose, and each takes the part assigned to him,-some to commit the fact, and others to watch, &c. they are all, provided the fact be committed, in the eye of the law present at it (h).
But without attempting to define what does in law amount to such a presence as will constitute the party an abettor, suffice it to observe, that in all cases where a person is either actually or constructively present, aiding and abetting in the commission of a felony, his offence may be averred by the general words already mentioned. In indictments for homicide, it is safer to allege the abetment generally; but if it be laid specially, it should be applied to the stroke, and not to the death (i). And it seems to be proper in such cases to aver, that the principal and abettors jointly made the felonious assault of malice prepense; and to aver, in conclusion, that they all murdered the deceased (k). But where the stroke and death are on
4 Co. 42. Heydon's case. (g) 4 Co. 42.
(h) Fost. 350.
(i) 4 Co. 42. 2 Haw. c. 29.
(k) See the Ind. Mackally's case, 9 Co. 62.
different days, it would be repugnant to allege, that the party was present aiding and abetting at the felony and murder the first day; because the felony was not complete before the death, and a man cannot be made a felon by a fictitious relation of the death to the time of the stroke ().
(2) Heydon's case, 4 Co. 42. And therefore the year, within which an appeal must be brought, is to be computed from the death, and not from the stroke. 4 Co. 42. 2 Ins. 320. Staunf. 63. contra. But if a man, non compos, strike
himself, and afterwards become sane, and die of the blow, he shall forfeit nothing; for the death shall have relation to the stroke. 22 E. 3. Corone, 244. 3 Ins. 54. 4 Co. 42, 2 Ins. 318.
Of setting forth the Means and Manner of committing the Offence, with the Circumstances immediately connected therewith. And of Overt Acts in Indictments for Treason.
I. Forcible Means, &c.
II. Fraudulent Means, &c.
III. Illegal Solicitations, Attempts, and Endeavours.
V. Illegal Combinations and Conspiracies.
WHERE the particular means, which are used to effect a criminal object, are essential to the constitution of the offence, it seems to be a general rule, that such means must be described on the record, to enable the court to see that the jury have formed their conclusion upon proper premises. In an indictment, therefore, for obtaining money by false pretences, it is necessary to specify the pretences, that they may judicially appear to have been such as fall within the purview of the statute. And the same reason applies to all indictments for publishing libels, or uttering profane and blasphemous or seditious words, for forgery, perjury, and the sending of threatening letters. For in all these cases, and many others, matters of fact are so mixed up with questions of law, as to render it necessary to describe the means and manner of committing the offence upon the record, in order to subject them to judicial examination.
There is besides a degree of particularity and preci