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CHAPTER III.

OF PRINCIPALS AND ACCESSARIES.

A Principal Is either the actual perpetrator of the crime, or a person present aiding and abetting.–1 Hale, P.C. 615.

But in some cases a man may be a principal without being present, viz. cases where no person, or no guilty person, is present, and where, therefore, there would be no principal unless he were to be so considered, e. g. where poison is laid by a person not present when it is taken ; and, generally, whenever murder is committed in the absence of the murderer, or of any other guilty party, by means prepared beforehand.—1 Hale, P. C. 617; 2 Hawk. c. 31, s. 7.

A principal in the first degree is the actual perpetrator; a principal in the second degree is a person present aiding and abetting.

The presence must be sufficiently near to give assistance. -Fost. 350; R. & R. 363.

The aiding and abetting must involve some participation. Mere presence without opposition will not suffice, if no act whatever is done in concert, and no confidence intentionally imparted by such presence to the perpetrators.1 Hale, P. C. 439; Fost. 350.

In case of duelling both of the seconds are, in strictness, principals in the second degree, though Lord Hale doubts as to the second of the party killed.-1 Hale, P.C. 422, 452.

All principals in the second degree may be arraigned and tried with, before, or after the principal in the first degree; and may be convicted, though the party charged as principal in the first degree be acquitted.—2 Hale, P. C. 223; 1 Leach, 360; R. & R. 314.

So they may be indicted in general as principals in the first degree, provided the offence permit of participation; or they may be indicted specially as aiders and abettors.--2 Hawk. c. 25, s. 64; Fost. 345.

But where by particular statutes the punishment of principals in first and second degree is different, they must be indicted as aiders and abettors.-1 East, P. C. 348, 350 ; 1 Leach, 473.

If a person be actually present aiding and abetting, he cannot be indicted as an accessary.—1 Hale, P. C. 615; 1 Leach, 515.

In general the punishment of principals in the first and second degrees is the same, and it is expressly so provided as to larceny, and certain other offences connected therewith, by 7 & 8 Geo. IV. c. 29, s. 61; as to offences of malicious injury to property, by 7 & 8 Geo. IV. c. 30, s. 26; as to offences against the coin, by 2 Will. IV. c. 34, s. 18; and as to forgery, 11 Geo. IV. and 1 Will. IV. c. 66, s. 25, and 2 & 3 Will. IV. c. 123; and provisions applicable to principals in the second degree are contained in most of the sections of 9 Geo. IV. c. 31, relating to offences against the person.

But upon the wording of particular statutes it has been held that none but principals in the first degree are punishable with death upon those statutes, and that principals in the second degree are not so punishable; as where the statute imposes the punishment of death upon the persons committing an offence, and not on the offence itself by name. -Fost. 356, 357.

In cases, however, where principals in the second degree, upon construction of the statute, are not punishable with death, they are punishable (unless otherwise provided) under 7 & 8 Geo. IV. c. 28, s. 8, 9, viz. by transportation for seven years, or imprisonment, with or without hard labour, and with or without solitary confinement; and if a male, the offender may be once, twice, or thrice publicly or privately whipped, in addition to the imprisonment. Arch.516. An Accessary Is a person not present, but concerned in some manner with a felony, either before or after its commission.4 Bl. C. 35.

Accessaries before the fact are persons absent at the time of the felony committed, who do yet procure, counsel, command, or abet another to commit a felony.—1 Hale, P. C. 615, 616; 7 Geo. IV. c. 64, s. 9.

Mere concealment of a felony to be committed, or mere tacit acquiescence, does not make a man accessary, though he is guilty of misprision of felony, and a misdemeanor.1 Hale, P. C. 616.

The procurement must be continuing up to the time of felony committed. If previously countermanded, he is not accessary.-1 Hale, P. C. 618.

If A. advise one crime, and B. intentionally commit another, or advise a crime as to one person or object, and B. intentionally commit a crime as to another person or object, A. is not accessary. But if A. advise a crime, and B. commit the crime in substance, though varying in circumstances, (e. g. on a command to poison, shoots,) A. is accessary.—1 Hale, P. C. 617; Fost. 370.

Accessaries before the fact may be indicted as such with the principal, or after the conviction of the principal, or for a substantive felony, whether the principal shall or shall not have been convicted, or shall or shall not be amenable to justice.—7 Geo. IV. c. 64, s. 9.

When principal and accessary are tried together, (which is the most usual way,) if the principal plead any thing but the general issue, the accessary shall not answer till the principal's plea is determined.-1 Hale, P. C. 624; 2 Inst. 184.

If the general issue is pleaded, the jury shall be charged to inquire first of the principal, and if they find him not guilty, then to acquit the accessary; but if they find him guilty, then to inquire of the accessary.-1 Hale, P. C. 624; 2 Inst. 184.

In crimes under the degree of felony accessaries before the fact are properly principals, and must be indicted as such.-1 Hale, P. C. 347, 450, 613. And see 7 & 8 Geo. IV. c. 29, s. 61, and c. 30, s. 26, as to misdemeanors under those acts.

And the same in treason.--Fost. 341; 1 Hale, P.C. 238. | Accessaries before the fact to murder shall suffer death as felons.-9 Geo. IV. c. 31, s. 3.

Accessaries before the fact to offences against the person, under 9 Geo. IV. c. 31, not otherwise punishable under that act, may be transported, for not more than fourteen years nor less than seven, or imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding three years; and every person counselling, &c. any misdemeanor under the act shall be punishable as principal.—9 Geo. IV. c. 31, s. 31.

Accessaries before the fact to larceny and other offences under 17 & 8 Geo. IV. c. 29, shall be punishable with death, or otherwise in the same manner as the principal.-17 & 8 Geo. IV. c. 29, s. 61.

Accessaries before the fact to offence of malicious injury to property, under 7 & 8 Geo. IV. c. 30, are punishable with death, or otherwise, in the same manner as the principal.17 & 8 Geo. IV. c. 30, s. 26.

Accessaries before the fact to offence against the coin, and to forgery, are punishable in the same manner as the principal.--2 Will. IV. c. 34, s. 18; 11 Geo. IV. & 1 Will. IV. c. 66, s. 25; and 2 & 3 Will. IV. c. 123.

Accessaries before the fact, in cases where not otherwise provided for, are punishable under 7 & 8 Geo. IV. c. 28, s. 8, 9, viz. may be transported for seven years, or imprisoned for any term not exceeding two years, and if a male may be once, twice, or thrice publicly or privately whipped, (if the Court think fit,) in addition to the imprisonment; and the imprisonment may be with hard labour or solitary confinement, or both.–Arch. 520.

Accessaries after the fact are persons who, knowing a felony to have been committed by another, receive, relieve,

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of attainder of the cannot be tried before they

comfort, or assist the felon, whether such felon be principal or accessary before the fact.

But the relieving must be in some way that hinders public justice, as by assisting to escape.

So merely suffering to escape makes not an accessary.

Accessaries after the fact cannot be tried before the conviction or attainder of their principal.-1 Hale, 623; 2 Hawk. c. 29, s. 45.

Unless they consent.—Ibid.
But may be tried with their principal.-1 Hale, 623.

Or separately, after the principal has been convicted or attainted.—7 Geo. IV. c. 64, s. 11; Arch. 524.

Receivers of goods, feloniously stolen, may be indicted either as accessaries after the fact to felony, or for a substantive felony. In other cases, receivers may be indicted for a misdemeanor, or may be punished upon summary conviction.-7 & 8 Geo. IV. c. 29, s. 54, 55, 60.

In crimes under felony there are no accessaries after the fact, though a rescue, or the like, is indictable as a misdemeanor.- 1 Hale, P. C. 613; 2 Hawk. c. 29, s. 4.

In treason there are no accessaries after the fact so far as regards punishment, for they are punishable as principals; but they must be indicted specially for the receipt, &c., and not as principals.- 1 Hale, P. C. 238.

Accessaries after the fact to murder are not guilty of capital felony, but may, at the discretion of the Court, be transported for life, or imprisoned, with or without hard labour, in the common gaol or house of correction for any term not exceeding four years.-9 Geo. IV. c. 31, s. 3.

Accessaries after the fact to other felonies against the person under the same act are punishable by imprisonment, with or without hard labour, for a term not exceeding two years.-S. 31.

Accessaries after the fact to larceny and other felonies under 7 & 8 Geo. IV. c. 29, s. 61, (except receivers of stolen property,) are punishable by imprisonment for a term not exceeding two years.

Accessaries after the fact to malicious injuries under

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