consisting of the prisoners and Williams, attacked a gamekeeper, beat him, and left him senseless upon the ground, but Williams returned, and whilst the gamekeeper was insensible upon the ground, took from him his gun, pocket-book, and money, Park, J, held, that this was robbery in Williams only. R. v. Hawkins, 3 C. & P. 392. The purpose must also be unlawful; for, if the original object be lawful, and be prosecuted by lawful means, should one of the party in the prosecution of it kill a man, although the party killing, and all those [ 6 ] who actually aid and abet him in the act, may, according to circumstances, be guilty of murder or manslaughter, yet the other persons who are present, and who do not actually aid and abet, are not guilty as principals in the second degree. Fost. 354, 355; 2 Hawk. c. 29, s. 9.

A mere participation in the act, without a felonious participation in the design, will not be sufficient. 1 East, P. C. 258; R. v. Plummer, Kel, 109. Thus, if a master assault another with malice prepense, and the servant, ignorant of his master's felonious design, take part with him, and kill the other, it is manslaughter in the servant, and murder in the master. 1 Hale, 446. So, on an indictment under the statute 1 Vict. c. 85, s. 2, charging A. with the capital offence of inflicting a bodily injury dangerous to life, with intent to commit murder, and B. with aiding and abetting him, it was held to be essential, to make out the charge as against B., that he should have been aware of A.'s intention to commit murder. Reg. v. Cruse, 8 C. & P. 541.

In the case of murder by duelling, in strictness both of the seconds are principals in the second degree; yet Lord Hale considers, that, as far as relates to the second of the party killed, the rule of law in this respect, has been too far strained; and he seems to doubt whether such second shall be deemed a principal in the second degree. 1 Hale, 422, 452. However in a late case it was holden by Patteson, J., that all persons present at a prize-fight, having gone thither with the purpose of seeing the prize-fighters strike each other, were principals in the breach of the peace; R. v. Perkins, 4 C. & P. 537: see R. v. Murphy, 6 C. & P. 103; and, upon the same principle the seconds in a duel, being participators in an unlawful act, would both be guilty of murder, if death were to ensue; and so the law was laid down in Reg. v. Young, 8 C. & P. 645, and in Reg. v. Cuddy, 1 C. & K. 210. If the principal were insane at the commission of the act, no person can be convicted as an aider and abettor of his act. Reg. v. Tyler, 8 C. & P. 616. See post, p. 12.) But where an insane person collected together a number of persons, who armed themselves with a common purpose of resisting the lawful authorities, and in their presence he shot a peace officer who came to apprehend him under a warrant, it was held that they were guilty of murder as principals in the first degree; and that no apprehension of personal danger to

themselves from him furnished any excuse to him for assisting in his illegal acts. Id.

Aiders and abettors were formerly defined to be accessaries at the fact, and could not have been tried until the principal had been convicted or outlawed. Fost. 347. But this doctrine is exploded; and it is now settled, that all those who are present aiding and abetting when a felony is committed, are principals in the second degree, and may be arraigned and tried before the principal in the first degree has been found guilty; 2 Hale, 223; and may be convicted, though the party charged as principal in the first degree is acquitted. R. v. Taylor, 1 Leach, 360: Benson v. Offley, 2 Show. 510; 3 Mod. 121: R. v. Wallis, Salk. 334: R. v. Towle, R. & R. 314; 3 Price, 145; 2 Marsh. 465.

In treason, and offences below felony, and in all felonies in which the punishment of principals in the first degree and of principals in the second degree is the same, the indictment may charge all who are present and abet the fact as principals in the first degree, 2 Hawk. c. 25, s.

64, (see Mackally's case, 9 Co. 67 b), provided the offence [ *7 ] *permit of a participation; Fost. 345; or specially as aiders and abettors; Reg. v. Crisham, C. & Mar. 187. But where by particular statutes the punishment is different, then principals in the second degree must be indicted as aiders and abettors. 1 East, P. C. 348, 350; R. v. Sterne, 1 Leach, 473. If indicted as aiders and abettors, an indictment charging that A. gave the mortal blow, and that B., C., and D. were present, aiding and abetting, will be sustained by evidence that B. gave the blow, and that A., C., and D. were present, aiding and abetting; and even if it appear that the act was committed by a person not named in the indictment, the aiders and abettors may, nevertheless, be convicted. R. v. Borthwick, Doug. 207: 1 East, P. C. 350. Where a prisoner was convicted upon an indictment which charged him with a rape as principal in the first count, and as an aider and abettor in the second, it was holden, that the conviction upon the first count was good. R. v. Folkes, 1 Mood. C. C. 354: R. v. Gray, 7 C. & P. 164. See Reg. v. Crisham, supra.

Accessaries before the fact.]—An accessary before the fact is he who, being absent at the time of the felony committed, doth yet procure, counsel, command, or abet another to commit a felony. 1 Hale, 615.

If the party be actively or constructively present when the felony is committed, he is, as we have seen, (ante, p. 4), an aider and abettor, and not an accessary before the fact; for it is essential, to constitute the offence of accessary, that the party should be absent at the time the offence is committed. 1 Hale, 615: R. v. Gordon, 1 Leach, 515; 1 East, P. C. 352.

The procurement may be personal, or through the intervention of a third person; Fost. 125; Earl of Somerset, 19 St. Tr. 804: R. v. Cooper, 5 C. & P. 535; it may also be direct, by hire, counsel, command, or conspiracy; or indirect, by evincing an express liking, approbation, or assent to another's felonious design of committing a felony ; 2 Hawk. c. 29, s. 16; but the bare concealment of a felony to be committed will not make the party concealing it an accessary before the fact; 2 Hawk. c. 29, s. 23; nor will a tacit acquiescence, or words which amount to a bare permission, be sufficient to constitute this offence. Hale, 616. The procurement must be continuing; for if the procurer of a felony repent, and, before the felony is committed, actually countermand his order, and the principal, notwithstanding, commit the felony, the original contriver will not be an accessary. 1 Hale, 618. So,

1

if the accessary order or advise one crime, and the principal intentionally commit another; as, for instance, to burn a house, and instead of that he commit a larceny; or, to commit a crime against A., and instead of so doing he commit the same crime against B.-the accessary will not be answerable; 1 Hale, 617; but if the principal commit the same offence against B. by mistake, instead of A., it seems it would be otherwise. Fost. 370 et seq. ; but see 1 Hale, 617; 3 Inst. 51. But it is clear that the accessary is liable for all that ensues upon the execution of the unlawful act commanded; as, for instance, if A. command B. to beat C., and he beat him so that he dies, A. is accessary to the murder. 4 Bl. Com. 37; 1 Hale, 617. Or, if A. command B. to burn the house of C., and in doing so the house of D. is also burnt, A. is accessa. ry to the burning of D.'s house. R. v. Saunders, Plowd. 475. So, if the offence commanded be effected, although by different means from those commanded; as, for instance, if J. W. hire J. S. to poison A. *and, instead of poisoning him, he shoot him, J. [ *8 ] W. is, nevertheless, liable as accessary. Fost. 369, 370. Where the procurement is through an intermediate agent, it is not necessary that the accessary should name the person to be procured to do the act. R. v. Cooper, 5 C. & P.5 35.

Several persons may be convicted on a joint charge against them as accessaries before the fact to a particular felony, though the only evidence against them is of separate acts done by each at separate times and places. Reg. v. Barber, 1 C. & K. 442.

It may be necessary to observe, that it is only in felonies that there can be accessaries; in high treason, every instance of incitement, &c., which in felony would make a man an accessary before the fact, will make him a principal traitor; Fost. 341; and he must be indicted as such. I Hale, 235. Also, all those who in felony would be accessaries before the fact, in offences under felony are principals, and must be indicted as

.

such. 4 Bl. Com. 36; Reg. v. Clayton, 1 C. & K. 128: Reg. v. Moland, 2 Mood. C. C. 276. In manslaughter, however, there can be no accessaries before the fact, for the offence is sudden and unpremeditated; and, therefore, if A. be indicted for murder, and B. as accessary, if the jury find A. guilty of manslaughter, they must acquit B. 1 Hale, 347, 450, 616.

Formerly, an accessary could not, without his own consent, unless tried with the principal, be brought to trial until the guilt of his principal had been legally ascertained by conviction (1 Anne, st. 2, c. 9) or outlawry. Fost. 360; 1 Hale, 623. But now, accessaries before the fact to any felony, whether at common law or by statute made or to be made, shall be deemed guilty of felony, and may be indicted as accessaries before the fact with the principal, or after the conviction (7 G. 4. c. 64, s. 11) of the principal, or for a substantive felony, whether the principal shall or shall not have been convicted, or shall or shall not be ainenable to justice, and may be punished in the same manner as if convicted as accessaries to the felony. 7 G. 4, c. 64, s. 9. But this statute only applies where the accessary might at common law have been indicted with, or after the conviction of, the principal; and, therefore, where a defendant was indicted as an accessary before the fact to the murder of S. W., she having, by his procurement, killed herself, it was holden that the statute did not apply. R. v. Russell, 1 Mood. C. C. 356: Reg v. Leddington, 9 C. & P. 79. Where the principal and accessary are tried together, (which is in general the best and most usual way), if the principal plead otherwise than the general issue, the accessary shall not be bound to answer, until the principal's plea be first determined. 9 H. 7, c. 19; 1 Hale, 624; 2 Inst. 184. So also, where the principal does not appear to take his trial, but the accessary does, the latter is not compellable to plead. Reg. v. Ashmall, 9 C. & P. 236. But if the general issue be pleaded, then the jury shall be charged to inquire first of the principal, and, if they find him not guilty, then to acquit the accessary. 1 Hale, 624; 2 Inst. 184. Where the principal was indicted for burglary and larceny in a dwelling-house, and the accessary was charged in the same indictment as accessary before the fact to the said "felony and burglary," and the jury acquitted the principal of the burglary, but found him guilty of the larceny it seems the judges were of opinion that the accessary should have been acquitted; for the indictment charged him as accessary to the burglary only, and the principal being acquitted of that, the accessary should have been acquitted also. R. v. Donelly and Vaughan, R. & R. 810; [ 9 ] *2 Marsh. 171. Where three persons were charged with a others as accessaries, in one count, and the latter were also charged separately in other counts with substantive felonies,

larceny, and two

it was held that, although the principals were acquitted, the accessaries might be convicted on the latter counts. Reg. v. Pulham, 9 C. & P. 281.

If a man be indicted as accessary in the same felony to several persons, and he found accessary to one, it is a good verdict, and judgment may be passed upon him. R. v. Lord Sanchar, 9 Co. 189; Fost. 361; 1 Hale, 624. But no person, who shall be once duly tried, whether as an accessary before the fact, or as for a substantive felony, or for any offence of being accessary, shall be liable to be again indicted or tried for the same offence. 7 G. 4. c. 64, s. 9.

Accessaries after the fact.]-An ascessary after the fact is one who, knowing a felony, to have been committed by another, receives, relieves, comforts, or assists the felon. 1 Hale, 618; 4 Bl. Com. 37; 2 Hawk. c. 29, s. 1; 3 P. Wms. 475. Any assistance given to one known to be a felon, in order to hinder his apprehension, trial, or punishment, is sufficient to make a man an accessary after the fact; as, for instance, that he concealed him in the house; Dalt. 530, 531; or shut the door against his pursuers, until he should have an opportunity of escaping; 1 Hale, 619; or took money from him to allow him to escape; 9 H. 4, 1; or supplied him with money, a horse, or other necessaries, in order to enable him to escape; Hale's Sum. 218; 2 Hawk. c. 29, s. 26; or that the principal was in prison, and J. W. bribed the gaoler to let him escape, or conveyed instruments to him to enable him to break prison and escape. 1 Hale 621.

But merely suffering the principal to escape will not make the party an accessary after the fact; for it amounts at most but to a mere omission. 9 H. 4, 1; 1 Hale, 619. So, if a person supply a felon in prison with victuals or other necessaries for his sustenance; 1 Hale, 620; or relieve and maintain him if he be bailed out of prison; Id.; or if a physician or surgeon professionally attend a felon sick or wounded, although he know him to be a felon; 1 Hale, 332; or if a person speak or write in order to obtain a felon's pardon or deliverance; 26 Ass. 47; or advise his friends to write to the witnesses not to appear against him at his trial, and they write accordingly; 3 Inst. 139; 1 Hale, 620; or even if he himself agree, for money, not to give evidence against the felon, Moor, 8, or know of the felony and do not discover it; 1 Hale, 371, 618: none of these acts would be sufficient to make the party an accessary after the fact. He must be proved to have done some act to assist the felou personally. See Reg. v. Chapple, 9 C. & P. 355. But if he employ another person to do so, he will be equally guilty as if he harboured or relieved him himself. R. v. Jarvis, 2 M. & Rob. 40.

A wife is not punishable as accessary for receiving, &c. her husband, although she know him to have committed felony; 1 Hale, 48, 621; for