commits the murder or manslaughter upon one of the other party, or upon those that came to appease or part them, or by due course of law to disperse them.

And therefore I have always taken the law to be, that if A. and B. have a design to fight one with another upon premeditation or malice, and A. takes C. for his second, and B. take D. for his second, A. kills B. in this case C. is principal, as present, aiding, and abetting, but D. is not a principal, because he was of the part of him, that was killed, and yet I know, that some have held, that D. is principal as well as C. because it is a compact, and rely much upon the book of 22 E. 3. Coron. 262. before-mentioned, but, as I think, the law was strained too far in that case, and so it is much more in making D. a principal in the death of B. that was his friend, tho it be, I confess, a great misdemeanor, yet I think it is not murder in D.

And the books in all the instances of this nature say, that it is murder or manslaughter in that party, that abetted him,(*) and consented to the act, that D. never abetted A. to kill B. but abetted B. indeed to have killed A.[2]

2. It must be a killing in pursuit of that unlawful act, that they were all engaged in, as in the case of the lord Dacre before-mentioned, they all came with an intent to steal the deer, and consequently the law presumes they came all with intent to oppose all that should hinder them in that design, and consequently when one killed the keeper, it is presumed to be the act of all, because pursuant to that intent: but suppose, that A. B. and C. and divers others come together to commit a riot, as to steal deer, or pull down inclosures, and in their march upon their design, A. meets with D. or some other with whom he had a former quarrel, or that by reason of some collateral provocation given by D. to A. A. kills him without any abetting by any of the rest of his company,.this doth not make all the

(*) Viz. who committed the homicide.

[2] When upon a previous agreement, and after there has been time for the blood to cool, two persons meet with deadly weapons, and one of them is killed, the party who occa. sions the death is guilty of murder, and the seconds also are equally guilty; and with respect to others shown to be present, the question is, did they give their aid and assistance by their countenance and encouragement of the principals in the contest? Mere presence will not be sufficient; but if they sustain the principals, either by advice or assistance, or go to the ground for the purpose of encouraging and forwarding the unlawful conflicts, although they do not say or do any thing, yet, if they are present assisting and encouraging by their presence at the moment when the fatal shot is fired, they are, in law, guilty of the crime of murder. Reg. v. Young, 8 Car. & P. 644.

If two persons deliberately fight a duel, and one of them be killed, the other and his second are guilty of murder. 1 Hawk. c. 31. s. 31. Rex v. Onely, 2 Strange, 776. No matter how grievous the provocation, or by which party given. The second of the deceased also is now deemed guilty of murder, as being present, aiding and abetting; and although Lord Hale seems to think the rule of law, as to principals in the second degree, too far strained in that case, yet in several late cases it has been laid down that both the seconds are guilty, if they are present assisting and encouraging. See Smith v. The State, 1 Yerger, 228. Tavernie's case, 3 Bulstrode, 171-2. 1 Roll. Rep. 361. Rex v. Murphy, 6 C. & P. 103. Reg v. Cuddy, 1 Car. & P. 210. Foster, 297. 4 Bl. Com. 191. 3 Inst. 51. Rex v. Rice, 3 East, 581, post, 453.

party of A. tho present, to be therefore aiding and abetting, and consequently principals in this murder or manslaughter, which was accidental, and not within the compass of their original intention.

But if, when they had come to steal the deer, or throw down the inclosure, any had opposed them in it, either by words or actual resistance, and A. had killed him, it had been murder in all the rest of the company, that came with the intent to do that unlawful act, tho there were no express intention to kill any person in the first enterprize, because the law presumes they come to make good their design against all opposition.

And this is the reason of the book 3 E. 3. Coron. 350. where many came to commit a disseisin, and one was killed, and all that were of the company were arraigned as principals, and the fact found and they were condemned, tho the jury said they did nothing (de male volunt) of malice, but were of the company; tho possibly, as the circumstances of that case were, it was only manslaughter, as in the case of Drayton Basset, because it was upon a sudden, and upon a pretense of title.

3. Again, altho if many come upon an unlawful design, and one of the company kill one of the adverse party in pursuance of that design, all are principals; yet if many be together upon a lawful account, and one of the company kill another of an adverse party without any particular abetment of the rest to this fact of homicide, they are not all guilty that are of the company, but only those, that gave the stroke, or actually abetted him to do it.

There is a common nuisance committed in the highway by A. B. C. D. in the vill of M. and E. F. G. H. J. &c. and twenty more of the inhabitants of M. come to remove the nuisance, A. B. C. and D. oppose, F. strikes A. suddenly, and kills him, F. is guilty of manslaughter, but the rest of the party of F. are not therefore guilty, barely upon this account that they were of the company, but only such of the company, as did actually assist or abet F. to strike or kill A. But if in truth it were no nuisance, but an act that was lawfully done by A. and then A. had been killed by F. all the rest of the party and company of F. had been guilty, that came with design to remove that which they thought a nuisance, but [445] was not, because it was a riotous and unlawful assembly.

If A. hath a good title to his house, or hath been in possession thereof for three years, (in which case he may detain it with force by the statute of 8 H. 6. cap. 9.) if any person come to rob him or kill him, and he shoot and kill him, it is not felony, nor doth he forfeit his goods, as in case of homicide se defendendo. 11 Co. Rep. 82. b. 5 Co. Rep. 91. b.

But if A. comes to enter with force, and in order thereunto shoots at his house, and B. the possessor, having other company in his house, shoots and kills A. this is manslaughter in B. and so it is ruled 5 Eliz. in Harcourt's case, Crompt. 29. a. Dalt. cap. 78. p. 105.(m) Ibid. cap. 98. p. 250.(n)

(m) New Edit. cap. 127. p. 427.

(n) cap. 150. p. 483.

And in this case, if B. shoot out of his house, and killeth A. I think it plain, that it is not felony in the rest of the household, nay, tho he had hired extraordinary company to help to guard his house upon such an occasion, (as by law it seems he may do, notwithstanding the opinion of Crompton, fol. 70. a. to the contrary, vide 21. H. 7. 39. a. 5 Co. Rep. 91. b. Seaman's case, 11 Co. Rep. 82. b. Lewes Bowle's case) yet this is not manslaughter in the rest of the company, because the assembly was lawful and justifiable.

And therefore in that case, no others of the company, that are in the house, shall be said guilty, but only such as actually abet him to do the fact; and these indeed will be principals by reason of actual abetting, but not barely upon the account of being in the house, and of the same company, because the assembly to defend the house by lawful means was lawful.

But in the case of a riotous assembly to rob, or steal deer, or do any unlawful act of violence, there the offense of one is the offense of all the company; as in the case of the lord Dacre, and of the house of Drayton Basset, where there was first a riotous and unlawful entry, and keeping possession by those that shot.

4. If there be many, that are present, abetting, aiding, [446] and assisting, tho all may, as in the cases afore shewn, be

guilty of homicide, yet upon different circumstances some may be guilty of homicide, and not of murder, others may be guilty of murder; vide the case of Salisbury before, Plowd Com. 101. a. The master assaults with malice prepense, the servant being ignorant of the malice of his master, takes part with his master, and kills the other, it is manslaughter in the servant, and murder in the master.

Upon a sudden falling out between A. and B. in the street, A. gathers many of his friends together to assault B. and B. doth the like, the constable, and some in his aid, come to part the affray, and keep the peace. A. hath notice, that he is the constable, but divers of his company know it not, nor could reasonably or probably know it, A. kills the constable, this is murder in A. but the rest of his company, that knew it not, are not guilty of the murder.

But such of them, as knowing it to be the constable, yet abetted A. to kill him, are guilty of murder, those that knew it not, and yet abetted A. to kill him, are guilty of manslaughter; and those, that neither knew him to be the constable, nor did actually abet nor assist A. to kill him, are not guilty, as it seems, because this was a new emergency, and out of the bounds and verge of the quarrel, wherein they were before engaged, and such whereunto these were not privy; quod tamen quære.[S)

See Foster 121-131. and his discourse III. p. 341.-per tot. 4 Blacks. Com. ch. 3. p. 34-40. See Index to 1 Hawk. P. C. tit. Accessary.

[3] One who procures, counsels, or commands another, but is absent when the crime is consummated, is an accessary before the fact. Post, 612. 615, 616. Dyer, 186. 3 Inst. 108. 139. 2 Hawk. P. C. 315-19. Foster, 73. 125.361. 1 Moody C. C. 417. 7 C. & P. 836. 4 Bl. Com. 35. 40.323.

If several persons meet together for the prosecution of some unlawful design, and in

furtherance of that design a man be killed, the guilt of the killing will attach to all present, whether it be murder or manslaughter. Foster, 261. Macklin's case, 2 Lew. 225. As to what will excuse persons otherwise liable as accessaries, see ante 52 et seq. Rex v. Sawyer, 1 Russ. 424. Rex v. Dyson, R. & R. C. C. 523. Reg. v. Tyler, 8 C. & P. 616.

On indictment for murder against several, one cannot be convicted of an assault committed on the deceased in a previous scuffle, such assault not being in any way con. nected with the cause of death. Reg. v. Phelps, 2 M. C. C. R. 240.

All present at the time of committing an offence are principals, although one only acts, if they are confederated and engaged in a common design, of which the offence is part. Rex v. Tattersall, 1 Russ. 22. Rex v. Dyson, R. & R. C. C. 523.

All those who assemble themselves together, with an intent, even to commit a tres pass, the execution whereof causes a felony to be committed, and continue together, abetting one another till they have actually put their design into execution, and also, all those who are present when a felony is committed, and abet the doing of it are principals in felony. Reg. v. Howell, 9 Car. & P. 437.

Where persons combine to stand by one another in a breach of the peace, with a general resolution to resist all opposers, and in the execution of their design a murder is committed; all of the company are equally principals in the murder, though at the time of the fact some of them were at such a distance as to be out of view. Reg. v. Howell,

cited supra.

If several are out for the purpose of committing a felony, and upon an alarm run dif ferent ways, and one of them maim a pursuer, to avoid being taken, the others are not to be considered principals in such act. Rex v. White, R. & R. C. C. 99.

If a charge against an accessary is, that the principal felony was committed by persons unknown, it is no objection that the same grand jury have found a bill imputing the principal felony to another person. Rex v. Bush, R. & R. C. C. 372.

It is not essential that there should have been any direct communication between an accessary before the fact and the principal felon. It is enough if the accessary direct an intermediate agent, to procure another to commit a felony, and it will be sufficient even if the accessary does not name the person to be procured, but merely directs the agent to employ some person. Rex v. Cooper, 5 Car. & P. 535. Rex v. Morris, 2 Leach C. C. 1096. Rex v. Giles, R. & M. 166. Rex v. Badcock, R. & R. C. C. 249. Rex v. Stewart, R. & R. C. C. 363.

If A. is charged in the indictment as principal, and B. as accessary, and the jury find B. to be the principal and A. the accessary, the indictment is sustained. State v. Mairs, Coxe, N. J. 453.

The crime of an accessary before the fact to a murder is murder. Mather, 4 Wend. 229.

The People v.

An accessary in a capital felony cannot be tried without his own consent when the principal has died before conviction. Commonwealth v. Phillips, 16 Mass. 423. But he must answer to an indictment charging him as accessary to two principals, one of whom only has been convicted, the other having died. Commonwealth v. Knapp, 10 Pick. 477. Conviction of the principal is prima facie evidence of his guilt, on the trial of an accessary, and throws the burden of proof, as to his innocence, on the accessary; but the accessary is not restricted to the proof of new facts. Idem.

The charge of KING, P. in the case of Daily (4 Penna. Law J., 155, Philadelphia, 1845,) contains an excellent summary of the common law doctrine of the responsibility of persons engaged in unlawful combinations resulting in death. "When divers persons, (says Judge King) resolve generally to resist all officers in the commission of a breach of the peace, and to execute it in such a manner as naturally tends to raise tumults and affrays, and in doing so happen to kill a man, they are all guilty of murder, for they must at their peril abide the event of their actions, who unlawfully engage in such bold disturbances of the public peace in opposition to, and in defiance of the justice of the nation. Malice in such a killing is implied by law, in all who were engaged in the unlawful enterprise; whether the deceased fall by the hand of the accused in particular, or otherwise, is immaterial. All are responsible for the acts of each, if done in pursuance and furtherance of the common design. This doctrine may seem hard and severe, but has been found necessary to prevent riotous combinations committing murder with impunity. For when such illegal associates are numerous, it would scarcely be practicable to establish the identity of the individual actually guilty of the homicide. When, however, a homicide is committed by one or more of a body unlawfully associated, from causes having no

connexion with the common object, the responsibility for such homicides attaches exclusively to its actual perpetrators."

If several persons combine to commit murder, and before the killing is actually effected, one of them withdraws from the combination and leaves the others, doing nothing to aid or encourage them in any way, he is not responsible for their acts, although they carry out the object of the original combination by committing murder. Commonwealth v. Haughey, M. S. before the Oyer and Terminer for Philadelphia county, March, 1845. KING, President. See also, U.S. v. Cornell, 2 Mason, C. C. R. 91. U. S. v. Ross, 1 Gallison, C. C. R. 524.

He who kills another upon his desire or command is, in the judgment of the law, as much a murderer as if he had done it merely of his own head. 1 Hawk. c. 27, s. 6; Sawyer's case, O. B. 1815, MS. 1 Russ. 485.

If two persons mutually agree to commit suicide together, and the means employed to produce death only take effect on one, the survivor will, in point of law, be guilty of the murder of the one who died. R. v. Alison, 8 Car. & P. 418.

If one counsel another to commit suicide, and the other, through the influence of the advice, kill himself, the adviser is guilty of murder as principal. The presumption of law in such case is, that the advice had the effect intended by the adviser, unless the contrary be shown. Commonwealth v. Bowen, 13 Mass. 359. See Rex v. Dyson, R. & R. C. C. 523. 1 Hawk. P. C. c. 27, s. 4.

But ALDERSON, J. in Regina v. Leddington, 9 C. & P. 79, ruled that a person cannot be tried for inciting another to commit suicide, although that other commit suicide.

CONCERNING THE DEATH of a person uNKNOWN, AND THE PROCEEDINGS THEREUPON.

BECAUSE this chapter as well concerns murder as manslaughter, before I come to examine the particular offenses themselves, I shall subjoin a few words touching this title.

Antiently there was a law introduced by Canutus the Dane, that if any man were slain in the fields, and the manslayer were unknown, and could not be taken, the township, where he was slain, should be amerced to sixty-six marks,(*) and if it were not sufficient to pay it, the hundred should be charged, unless it could be made appear before the coroner, upon the view of the body, that the party slain were an Englishman, and this making it appear was various, according to the custom of several places, but most ordinarily it was by the testimony of two males of the part of the father of him that was slain, and by two females of the part of his mother.

And this amercement was usually called murdrum; and the presentment and proof, that the party slain was an Englishman, was called Englesbury, and presentment of Englesbury.

And this was therefore provided to avoid the secret murder of the Danes, who were hated by the English, and oftentimes privily mur

(*) See the laws of Edward the confessor, Lib. XV. & XVI. by which it appears the amerciament was XLVI. marks, and not LXVI. marks, as Bracton says, which mistake might probably be occasioned, as Wilkins observes in his notes ad Leg. Anglo-Sax. p. 280. by the transposition of the numeral letters L and X.