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Indictment against an Accessary after the Fact, the Principal being convicted.

Proceed as in the precedent, ante, p. 691, to the asterisk; and then thus]:-And the jurors aforesaid, upon their oath aforesaid, do further present, that J. W., late of the parish aforesaid, in the county aforesaid, labourer, well knowing the said J. S. to have done and committed the [felony and larceny] aforesaid, after the same was so committed as aforesaid, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, him the said J. S. did feloniously receive, harbour, and maintain, against the peace, &c. &c. as in ordinary cases. conviction of the principal, as directed ante, p. 691; and the guilt of the accessary, as directed ante, p. 692.

Prove the

Indictment for Soliciting a person to commit an Offence.

Middlesex, to wit:-The jurors for our lady the Queen upon their oath present, that J. S. late of the parish of B., in the county of M., labourer, on the third day of August, in the fourth year of the reign of our sovereign lady Victoria, falsely, wickedly, and unlawfully, did solicit and incite one J. W., a servant of one J. N., to take, embezzle, and steal a large quantity, to wit, one hundred pouuds weight of cotton twist, of the value of, of the goods and chattels of his master, the said J. N., to the great damage of the said J. N., to the evil example of all others in the like case offending, and against the peace of our lady the Queen, her crown and dignity.

Misdemeanor, fine or imprisonment, or both. R. v. Higgins, 2 East, 5.

Evidence.

Prove the soliciting or inciting, as alleged in the indictment. Prove it in the same manner as you would prove the offence of accessary before the fact, with the exception of proving the larceny or embezzlement committed; if it appear that J. W. actually committed the offence to which he was incited by J. S., J. S. must be acquitted; for the misdemeanor in that case would be merged in the felony. See R. v. Higgins, 9 East, 5.

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7 & 8 G. 4, c. 28, s. 11.]-And whereas it is expedient to provide for a more exemplary punishment of offenders who commit felonies after a previous conviction for felony, whether such conviction shall have taken place before or after the commencement of this act: be it therefore enacted, that if any person shall be convicted of any felony, not punishable with death, committed after a previous conviction for felony, such person shall, on such subsequent conviction, be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and, if a male, to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit), in addition to such imprisonment; and in any indictment for any such felony committed after a previous conviction for felony, it shall be sufficient to state that the offender was at a certain time and place convicted of felony, without otherwise describing the previous felony; and a certificate containing the substance and effect only (omitting the formal part) of the indictment and conviction for the previous felony, purporting to be signed by the clerks of the court, or other officer having the custody of the records of the court where the offender was first convicted, or by the deputy of such clerk or officer, (for which certificate a fee of six shillings and eight pence, and no more, shall be demanded and taken), shall, with proof of the identity of the person of the offender, be sufficient evidence of the first conviction, without proof of the signature or official character of the person appearing to have signed the same; and if any such clerk, officer, or deputy, shall utter a false certificate of any indictment and conviction for a previous felony, or if any person other than such clerk, officer, or deputy, shall sign any such certificate as such clerk, officer, or deputy, or shall utter any such certificate with a false or counterfeit signature thereto, every such offender shall be guilty of felony; and, being lawfully convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not

exceeding two years; and, if a male, to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit), in addition to such imprisonment.

6 & 7 W. 4, c. 111-Course of Proceeding]-Enacts, that it shall not be lawful on the trial of any person for any subsequent felony to charge

the jury to inquire concerning such person's conviction, until [ *695] *after they shall have inquired concerning such subsequent felony, and shall have found such person guilty of the same; and whenever in any statement such person's conviction shall be stated, the reading of such statement to the jury as part of the indictment shall be deferred until after such finding as aforesaid: provided nevertheless, that if upon the trial of any person for any such subsequent felony as aforesaid, such person shall give evidence of his or her good character, it shall be lawful for the prosecutor, in answer thereto, to give evidence of the indictment and conviction of such person for the previous felony before such verdict of guilty shall have been returned, and the jury shall inquire concerning such previous conviction for felony at the same time that they inquire concerning the subsequent felony.

Indictment for a subsequent Felony after a prior Conviction for Felony.

Middlesex, to wit:-The jurors for our lady the Queen upon their oath present, that heretofore, to wit, at &c., [describing the court where the defendant was tried and convicted], on the day of, in the eighth year of the reign of our sovereign lady Victoria, J. S. was then and there convicted of felony, and which said conviction is still in full force, strength, and effect, and not in the least reversed, annulled, or made void. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S., late of the parish of B., in the county aforesaid, labourer, being so convicted of felony as aforesaid, afterwards, on the third day of August, in the ninth year of the reign of our sovereign lady Victoria, with force and arins, at the parish last aforesaid, in the county last aforesaid, [three pairs of shoes of the value of twelve shillings, one shirt of the value of four shillings, and one waistcoat of the value of seven shillings], of the goods and chattels of J. N., then and there being found, then and there feloniously did steal, take, and carry away; [describing some felony not punishable with death, as in the precedents, ante, passim]: against the form of the statute in that case made and provided, and against the peace of our lady the Queen, her crown and dignity. It is sufficient to state that the defendant was at a certain time and place convicted of felony, without otherwise describing the previous felony. 7 & 8 G. 4, c. 28, s. 11: nor is it necessary to state the judgment. Reg. v. Spencer, 1 C. & K. 159,

Transportation for life or for not less than seven years, or imprisonment, (with or without hard labour, for the whole or any part of the imprisonment and with or without solitary confinement, 7 & 8 G. 4, c. 28, s. 9, (ante, p. 554), such confineinent not exceeding one month at any one time, nor three months in any one year, 7 W. 4, and 1 Vict. c. 90, s. 5, (ante, p. 169)), not exceeding four years; and, if a male, to be once, twice, or thrice publicly or privately whipped, in addition to the imprisonment, if the court shall think fit. 7 & 8 G. 4, c. 28, s. 11.

Evidence.

The allegations, in the order in which they occur in the indictment, are, 1. The previous conviction, which is proved by a certificate, (see ante, p. 126), with evidence of the identity of the defendant.

And in order to prove the identity, it is not essential to call ] *696 ] a witness who was present at the trial to which the certificate refers; it is sufficient to prove that the defendant is the person who underwent the sentence mentioned in the certificate. Reg. v. Crofts, 9 C. & P. 219. The certificate must state that judgment was given for the previous felony; it is not sufficient for it to state a conviction. Reg. v. Ackroyd, 1 C. & K. 158. And, 2. The subsequent felony, which is prov

ed as in other cases. See the different tilles. Considerable difficulty formerly existed as to the course to be pursued under this statute. A prejudice was created in the minds of the jurors by a knowledge of the previous conviction, and yet in strictness that circumstance could not be withheld from their knowledge. To remedy this, the stat. 6 & 7 W. 4, c. 111, was passed, and now the prisoner must be arraigned, and the jury must be charged, and the evidence proceed, as if the indictment did not contain the averment of a previous conviction; and this allegation must not be opened to the jury, or their verdict taken upon it, until after they have found the prisoner guilty of the subsequent felony, and then the prosecutor must prove the previous conviction and identity of the defendant, and upon this likewise the jury must deliver their verdict. If, however, the defendant call witnesses to character, (or if, by the cross-examination of the witnesses for the prosecution, evidence to character be elicited, Reg. v. Gadbury, 8 C. & P. 676), the previous conviction may be proved in reply, and the compound question will, in that case, be left to the jury in the first instance.

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