But yet it seems to me, that if B. had come himself to C. and delivered him the goods to keep for him, C. knowing that they were stolen, and that B. stole them, or if C. receives the goods to facilitate the escape of B. or if C. knowingly receives them upon agreement to furnish B. with supplies out of them, and accordingly supplies him, this makes C. accessary; (g) and with this seems to agree the preamble of the statute of 2 & 3 E. 6. cap. 24. Crompt. 41. b. for it is relieving and comforting...

But the bare receiving of stolen goods, knowing them to be stolen, makes not an accessary; for he may receive them to keep for the true owner, or till they are recovered or restored by law; and so it seems are the books to be intended of 27 Assiz. 69. 25 E. 3. 39.,(h) 9 H. 4. 1. a.

If a felon be in prison, he that relieves him with necessary meat, drink, or clothes for the sustentation of life, is not accessary.

So if he be bailed out till the next sessions, &c. it is law[ 621] ful to relieve and maintain him, for he is quodammodo in custody, and is under a certainty of coming to his trial. Crompt. 42. b. Dalt. p. 286.(i)

And therefore it is not treason thus to relieve a traitor, while he is in custody or under bail, and therefore the statute of 27 Eliz. cap. 2. that makes it felony to relieve a Jesuit, hath yet this qualification, being at liberty and out of hold.

But if a felon be in gaol, for a man to convey instruments to him

(g) But because this was difficult to prove, the confederates of such thieves frequently disposing of such goods to the owners for a reward, under the notion of helping them again to their stolen goods, it is provided by 4 Geo. I. cap. 11. "That whosoever shall take a reward under the pretence of helping any one to stolen goods, shall suffer as a felon, as if he himself had stolen the said goods, unless he cause such felon to be appre hended and brought to trial, and give evidence against him;" upon this clause the famous Jonathan Wild was convicted and executed. 10 Geo. I.See statute 6 Geo. I. ch. 23. for pretending to help one to stolen goods. Receivers of linen goods stolen from the bleaching grounds, are by the statute 18 Geo. II. declared felons, without benefit of clergy. (h) In the last edition of the year-books, which is in this place mispaged, it is 25 E. 3. 82. b.

(i) New Edit. p. 530.

them charging each of the receivers separately with a substantive felony, in separately receiving a portion of the stolen goods. The principals were acquitted, but the receivers were convicted on the last two counts of the indictment. Reg. v. Pulham, 9 Car. § P. 280. A lad stole a brass weight from his master, and after it had been taken from him in his master's presence, it was restored to him again with his master's consent, in order that he might sell it to a man, to whom he had been in the habit of selling similar articles, which he had stolen before. The lad did sell it to the man, and the man being indicted for receiving it of an evil disposed person, well knowing it to have been stolen, was convicted, and sentenced to be transported for seven years. Reg. v. Lyons, 1 C. & Mar. 217. Where six £100 notes were stolen, and the party was indicted for receiving them, it appeared that the notes had been changed by the thief for £20 notes, which latter notes had been received by the accused; it was held, that he could not be convicted on the indictment, as he did not receive the notes which were stolen. Rex v. Walkeley, 4 C. & P. 132.

A person may be indicted for receiving stolen property, if it remain the same in substance, though the name be changed, and therefore a principal may be indicted for stealing a live sheep, and the accessary with receiving twenty pounds of mutton. Rex v. Cowell, 2 East, P. C. 781; and see R. v. Puckering, R. & M. C. C. 242.

to break prison to make an escape, or to bribe the gaoler to let him escape makes the party an accessary, for tho common humanity allows every man to afford them necessary relief, yet common justice prohibits all men unlawful attempts to cause their escapes.

If A. speak or write in favour of a prisoner for his favour and deliverance, this makes him not an accessary. 26 Assiz. 47.[3]

To instruct a felon to read thereby to save him by his clergy makes not an accessary. M. 7 R. 2.,(k) Co. P. C. cap. 64. p. 139.

If A. be committed for felony, and B. an attorney advise the friends of A. to write to the witnesses not to appear against him, who writes accordingly, this makes neither B. nor the friends accessary, but is a misdemeanor punishable by fine and imprisonment. Co. P. C. ubi supra.

A feme covert cannot be an accessary for the receipt of her husband, for she ought not to discover him.

But the husband may be an accessary for the receipt of his wife. Stamf. P. C. Lib. I. cap. 19. fol. 26. a.

If the wife alone, her husband being ignorant, do knowingly receive B. a felon, the wife is accessary and not the husband. 15 E. 2. Coron. 383.

But if the husband and wife both receive a felon knowingly, it shall be judged only the act of the husband, and the wife acquitted. M. 37 E. 3. Rot. 34. in dors. Rex Coram Rege.(1)

To make an accessary to felony there must be a felony [622] committed, by him, to whom he is accessary.

A. gives B. a mortal stroke, C. receives or relieves A. or helps him to escape, and then B. dies, C. shall not be an accessary to the felony, because when he received him no felony was done.[4]

(k) Rot. 30. Rex Cant.

(1) This was the case of Richard Day and Margery his wife, (vide supra p. 47.) who had been indicted before the sheriff of Lincoln pro receptamento felonum; the indictment was sent coram rege: Richard surrendered himself and alleged, that he had been tried and acquitted on the said indictment before the justices of gaol-delivery at Lincoln, and was admitted to bail; after which the judge of gaol-delivery sent the record of Richard's acquittal; Margery the wife pleaded, that she also had been tried and acquitted, and was also bailed, but afterwards she not appearing, a Capias was awarded against her and her bail: upon this her husband and one John Hode two of her bail came into court, Et petunt ipsos admitti ad finem cum domino rege occasione prædictâ faciendum, & admittun tur; sometime afterwards the said John Hode came into court and alleged, that he had. been unjustly fined, "Quia prædictum indictamentum super prædictam Margeriam factum minus sufficiens est, eo quod prædicta Margeria tempore, quo ipsa dictos felones receptasse seu eis consentire debuisset, fuit cooperta prædicto Ricardo viro suo, & adhuc est & omnino sub potestate sua [ejus], cui ipsa in nullo contradicere potuit, and ex quo non inseritur in indictamento prædicto, quod ipsa aliquod malum fecit, nec eis consentivit, seu ipsos felones receptavit ignorante viro suo, petit judicium, si ipsa vivente viro suo de aliquo receptamento in præsentia viri sui occasionari possit." The court took time to consider of this plea, and in Michaelmas term, anno 4to gave the following judg. ment. "Viso & diligenter examinato indictamento prædicto super præfatam Margeriam facto videtur curiæ, quod indictamentum illud minus sufficiens est ad ipsam inde ponere responsuram. Ideo cessit processus versus eam omnino. See Co. P. C. p. 108.

[3] But advising witnesses not to appear, though it does not make an accessary, is a - misdemeanor. Hale's Sum. 219.

[4] 2 Hawk. c. 29, s. 35, 4 Bl. Com. 38.

But a man may be accessary to an accessary by the receiving of him knowing him to be an accessary to felony. Stamf. P. C. cap. 46. f. 43. b. 22 Assiz. 52.[5]

There can be no accessary in receipt of a felon, unless he know him to have committed a felony: vide Stamford's P. C. 41. b.

But yet it hath been held, that if the party be attaint of felony by outlawry or otherwise in the county of A. if any one of that county receive him, he is accessary, whether he had notice or not, because he is a felon by matter of record, whereof all in the same county ought to take notice. 12 E. 2. Coron. 377. Stamf. P. C. cap. 46. fol. 41. b.

But it seems to me necessary to make an accessary after, that there be notice, altho the felon were attaint in the same county, for presumption shall not make men criminal, where the punishment is capital.[6]

See antea, 612. ch. 55.

[5] 3 P. Wms. 475; 2 Hawk. c. 29, s. 1.

[6] But some particular evidence is necessary. Com. Dig. Justices, t. 2 Hawk. c. 29, 8, 33, c. 25, s. 67; R. v. Thompson, 2 Lev. 308; 3 P. Wms. 496.

The punishment of accessaries after the fact is at common law trivial, they being in most cases allowed the benefit of clergy. Fost. 372. There are several legislative pro visions pointing out the punishment in different offences. Thus, in abduction, biga. my, assaults, child stealing, rape, and unnatural crimes, the 9 Geo. IV. c. 31. s. 31. provides, "that every accessary after the fact to any felony punishable under this act, (except murder) shall be liable to be imprisoned with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years; and every person who shall counsel, aid, or abet the commission of any misdemeanor punishable under this act, shall be liable to be indicted and punished as a principal offender." In murder, 9 Geo. IV. c. 31. 8. 3. "every accessary after the fact to murder, shall be liable at the discretion of the court, to be transported beyond the seas for life, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding four years."

Accessaries after the fact to offences within the 7 & 8 Geo. IV. c. 29. c. 30; 11 Geo. ĮV. & 1 Will. IV. c. 66; 2 Will. IV. c. 34; 7 Will. IV. & 1 Vict. c. 36; c. 85; c. 86; c. 87; c. 88, and c. 89, respectively, may be imprisoned not exceeding two years, with or without hard labour, and with or without solitary confinemement, such confinement not exceeding one month at any one time, nor three months in any one year. Where accessaries after the fact are punishable as for a felony, but no specific punishment is provided by the particular stutute, they may be transported for seven years, or imprisoned, with or without hard labour, for the whole or any part of the imprisonment, and with or without solitary confinement; (7 & 8 Geo. IV. c. 28. s. 9.) such confinement not exceeding one month at any one time, nor three months in any one year; (7 Will. IV. & 1 Vict. c. 90. s. 5,) and if a male, may be once, twice, or thrice publicly or privately whipped, in addition to the imprisonment, if the court shall think fit. 7 & 8 Geo. IV. c. 28. s. 8.

CHAPTER LVII

CONCERNING THE ORDER OF PROCEEDING AGAINST ACCESSARIES.[1]

THE accessary may be indicted in the same indictment with the principal, and that is the best and most usual way; but he may be indicted in another indictment, but then such indictment must contain the certainty and kind of the principal felony.

If a man were accessary before or after in another county, than where the principal felony was committed, at common law it was dispunishable, but now by the statute of 2 & 3 E. 6. cap. 24. the accessary is indictable in that county, where he was accessary, and shall be tried there, as if the felony had been committed in the same county; and the justices, before whom the accessary is, shall write to the justices, &c. before whom the principal is attainted, for the record of the attainder.

This writing is to be by writ in the king's name under the teste of the justice so sending it. Dy. 253. b.

If the accessary be indicted either alone or together with the principal, process of outlawry shall not go against the accessary till the principal be attainted or outlawed, neither shall he be put to plead till the principal appear, but shall be bailed till the principal appear; vide Westm. 1. cap. 14.(a) [2]

(a) 2 Co. Instit. 183. This is now alterd by 1 Ann. cap. 9.

[1] See statutes 7 & 8 Geo. IV. c. 64, s. 9. On the construction of this statute, see Rex v. Russell, Mood. C. C. 356; Reg. v. Leddington, 9 Car. & P. 79. This provision in this statute with respect to attainder, is substituted for that of 1 Ann. St. 2. c, 9, s. 1, which is repealed.

[2]· Ry. v. Ashmell, 9 C. & P. 236; Whitehead v. The State, 4 Humphreys, 278. By the common law an accessary cannot be put upon trial against his consent until the principal is convicted. Hence if the principal be dead before conviction the accessary cannot be tried. Commonwealth v. Phillips, 16 Mass. 423. The guilt of the principal must be established before the accessary can be tried, 2 Burr's Trial, 440. An accessary to a felony committed by several, may be tried as accessary to those who have been convicted; but if tried as accessary to all, and some have not been proceeded against, it is error. Stoops v. Commonwealth, 7 S. & R. 491. After conviction of an accessary, it is not ground for arresting judgment that the indictment does not allege that the principal had been convicted. Harty v. The State, 3 Blackf. 386.

By statute a receiver of stolen goods may be tried, though the principal is not convicted. State v. S. L. 2 Tyler, 249; Commonwealth v. Andrews, 2 Mass. 14; Common-wealth v. Frye, 1 Virg. Cases, 18; Butler v. State, 3 McCord, 384.

But in North Carolina he cannot be tried before the principal, except "when the latter escapes and eludes the process of law." State v. Gross, 1 Murph. 270; State v. Goode, 1 Hawks, 463.

But conviction of a principal without judgment warrants the trial of the accessary. Commonwealth v. Williamson, 2 Virg. Cases, 211.

A verdict that the defendant indicted as accessary to a murder is guilty, without

The accessary shall not be constrained to answer to his indictment, till the principal be tried, 9 E. 4. 48. a. but if he will wave that benefit, and put himself upon his trial before the principal be tried he may, and his acquittal or conviction upon such trial is good. Stamf. P. C. Lib. I. cap. 49. f. 46. b..

But it seems necessary in such case to respite judgment till the principal be convicted and attaint, for if the principal be after ac

quited, that conviction of the accessary is annulled, and no [624] Judgment ought to be given against him; but if he be acquitted of the accessary, that acquittal is good, and he shall be discharged. 8 H. 5. 6. b, Coron. 463.

If A. B. and C. be indicted as principals, and D. is indicted as accessary to them all, D. shall not be arraigned till all the principals be attaint or outlawed, for if A. and B. be tried, and acquit or attaint, yet D. may be accessary to C. and not to A. nor B. but if A. B. and C. be indicted as principals, and D. indicted as accessary to A. only, there if A. be attaint, tho B. and C. be not, yet D. shall be arraigned. 40 Assiz. 25. Coron. 216. 7 H. 4. 36. b. Stamf.ubi supra.

stating whether accessary to the murder in the first or second degree, is erroneous. Ib.

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, Core, 453.

The court may, in its discretion, permit an accessary to be tried separately from the principal. State v. Yancey, 1 Const. Rep. 241.

If the principal in murder has absconded, and process of outlawry is seasonably commenced, but there is not time to finish it at the second term, the accessary, who has refused to be tried without the principal, although he has been two terms under indict. ment, is not entitled to be discharged on habeas corpus. Commonwealth v. Sheriff, 16 S. & R. 304.

Whatever constitutes one as an accessary in a capital offence, makes him liable as principal in a misdemeanor. State v. Westfield, 1 Baily, 132.

The record of the conviction of a slave as principal in a felony, is evidence against a free man as accessary before the fact; so of the slave's confession of his own guilt as principal. State v. Sims, 2 Baily, 29; State v. Crank, ib. 66.

The records of the principal's conviction must be produced on trial of the accessary, unless they are tried together, or the latter has consented to be tried before the former, or the former is dead or has been pardoned before trial. But if the indictment charge the accessary with being present, aiding and abetting, the principal's guilt may be proved by parol evidence, though the principal has been convicted. State v. Crank, 2 Baily, 66.

Where the principal and accessary are joined in an indictment and tried separately, the records of the principal's conviction is prima facie evidence of his guilt upon the trial of the accessary, and as the burden of proof is on the accessary, he must show clearly that the principal ought not to have been convicted. Commonwealth v. Knapp, 10 Pick. 481.

But the accessary in such case is not restricted to proof of facts that were not shown on the former trial, and which are incompatible with the guilt of the principal. Ib.

If an indictment allege a burglarious entry with intent to steal, and then and there stealing, it is only the offence of burglary, and a count charging one as accessary to "the offence aforesaid," is good. Stoops v. Commonwealth, 7 S. & R. 491.

In an indictment against an accessary before the fact in felony, it is not necessary to set forth the conviction or execution of the principal. State v. Crank, 2 Baily, 66; State v. Sims, ib. 29.

Where one was indicted as accessary to a murder committed by a slave, it was held sufficient to describe the slave by his own name, without setting out that of his master. State v. Crank, 2 Baily, C6.