Case of Donally and Vaughan. Objection on behalf of an accessary, that as the jury had acquitted the principal of burglary, and found him in another place, or in another sort than was commanded or counselled, yet here such person commanding or counselling shall be accessary. As if he doth counsel to kill a man by poison, and he kills him with a dagger; or to kill him by the highway, and he kills him in his house; or to kill him one day, and he kills him on another day; in these and the like cases he shall be accessary to the murder. Id. (4) Those offences, which in the construction of law are sudden and unpremeditated, cannot have any accessaries before. As killing a man by misadventure in his own defence, or manslaughter; for in such case there can be no procuring, counselling, cominanding, or abetting. 1 Hale, 616. (5) It seems to be generally agreed, that he who barely con· ceals a felony which he knows to be intended, is guilty only of a misprision of felony, and shall not be adjudged an accessary; for this is not procuring, counselling, or abetting. 2 Haw. c. 29. § 23. (6) Also, if a man counsel or command another to kill a person, and before he hath killed him, he who counselled or commanded it, repents and countermands it, charging him not to kill him, and yet after he doth kill him; here such person countermanding shall not be adjudged accessary to the murder; for, generally, the law adjudgeth no man accessary to a felony before the fact, but such as continue in that mind at the time that the felony is done and executed. Dalt. c. 161. p. 369. (7) But if a person advise a woman to kill her child as soon as it shall be born, and she kill it in pursuance of such advice; he is an accessary to the murder, though at the time of the advice, the child not being born, no murder could be committed of it; for the influence of the felonious advice continuing till the child was born, makes the adviser as much a felon, as if he had given his advice after the birth. 2 Haw. c. 29. § 18. John Donally and George Vaughan were tried at the 0. B. Sept. Sess. 1816. Donally being indicted for a burglary in the house of a Mr. Poole, and Vaughan as accessary before the fact to the said felony and burglary." It appeared, that by a previous concert between Donally and Vaughan, and a person named Barrett, Donally accompanied three other men, who went to rob Mr. Poole's house, Vaughan and Barrett watching in a passage on the opposite side of the street; and the purpose of Donally, Vaughan, and Barrett, clearly being to procure a burglary to be committed guilty only of by the three other men, and afterwards to apprehend and convict stealing in the them, in order to get shares of the reward, Mr. Poole's house was robbed; the three men who accompanied Donally were almost immediately apprehended by Vaughan and Barrett, and had been tried at a former sessions at the Old Bailey for burglary, but were convicted only of stealing in the dwelling-house to the amount of 40s., in consequence of Mr. Poole's evidence, as to its being possible at the time the robbery was committed, to see a person's face by the light of the day. house, they but that they they had negatived the burglary. 1 Russ. 40. 2 Marsh. 571. Upon the present indictment against Donally and Vaughan, the jury acquitted Donally of the burglary, but found him guilty of stealing in the dwelling-house to the amount of 40s., and they found Vaughan guilty as an accessary to the "said felony and burglary," the charge stated in the indictment. Upon this finding, Curwood, after taking an objection that this could not be larceny in Donally, because not done animo furandi, further objection on behalf of the prisoner Vaughan, that as the indictment was against him as accessary to a burglary committed by Donally, and as the jury had acquitted the principal of the burglary, the charge against the accessary must necessarily fail. That the offence of an accessary, though distinct, is yet derivative from that of the principal, and may be considered as the shadow of a substance. That by the reversal of an attainder against a principal, the attainder against the accessary, which depends upon the attainder of the principal, is ipso facto utterly defeated and annulled. And that though the charge against the accessary in this indictment, of which the jury had found him guilty, is as accessary to the "said felony and burglary," yet, that the word felony, as thus used, is only descriptive of the character of the burglary, and by no means applies to any other or different offence. That in an indictment against an accessary to a murder, the charge would be laid against him as accessary to the "said felony and murder," but would not import two crimes, or any other crime than that which the law denominates murder. That upon the whole, therefore, the charge against Vaughan could only be considered as a charge of being accessary to a supposed burglary by Donally; and that as the jury had negatived such burglary, they ought consequently to have acquitted Vaughan. Mr. Baron Graham, who tried the prisoners, respited the judg- 1 Russ. 41. (n.) ment upon these objections, which, in the following Michaelmas Term, were argued before the twelve judges in the Exchequer Chamber, by Curwood for the prisoners, and Bolland for the crown. The opinion of the judges was not formally communicated; but it is understood to have been unanimous in favour of the objection on behalf of Vaughan; and in the proportion of ten to two in favour of the objection on behalf of Donally. III. Of Accessaries after the Fact, and Receivers. Accessary after the fact is, where a person, knowing the felony Accessary after. to be committed by another, relieves, comforts, or assists the felon Knowing the felony to be committed.] There can be no doubt, The receiver but that it is necessary that the receiver have notice of the felony, must have either express or implied; and it must be laid in the indictment, that the receiver knew that the person received by him had committed the principal felony. 2 Haw. c. 29. § 32. The felony.] This, as hath been said, holds place only in felonies, and in those felonies, where by the law judgment of death regularly ought to ensue; and therefore ought not in petit larceny. 1 Hale, 618. And it seems if a person do barely receive, comfort, or conceal an offender guilty of any common trespass, or inferior crime of the like nature, though he knew him to have been guilty, and that there is a warrant out against him, (which by reason of such concealment cannot be executed,) yet he is not an accessary to the offence; but perhaps in such case he may be indictable for a contempt of the law, in hindering the due course of justice. 2 Haw. c. 29. § 4. Relieves, comforts, or assists the felon.] In the explication of these words several things are considerable : notice. (1) Generally, any assistance whatsoever given to one known to be a felon, in order to hinder his being apprehended, or tried, or suffering the punishment to which he is condemned, is sufficient to bring a man within this description, and make him accessary to the felony; as where one assists him with a horse to ride away with, or with money or victuals to support him in his escape. 2 Haw. c. 29. § 26. 2) But if a man know that a person hath committed a felony, but doth not discover it, this doth not make him an accessary, but it is a misprision of felony, for which he may be indicted, and upon his conviction fined and imprisoned. 1 Hale, 618. (3) Also if a man see another commit a felony, but consents not, nor yet takes care to apprehend him, or to levy hue and cry after him, or upon hue and cry levied doth not pursue him; this is a neglect punishable by fine and imprisonment, but it doth not make him an accessary. I Hale, 618. (4) In like manner, if one commit a felony, and come to a person's house before he be arrested, and such person suffer him to escape without arrest, knowing him to have committed a felony, this doth not make him accessary; but if he take money of the felon to suffer him to escape, this makes him accessary: And so it is if he shut the fore-door of his house, whereby the pursuers are deceived, and the felon hath opportunity to escape, this makes him an accessary; for here is not a bare omission, but an act done by him to accommodate the felon's escape. 1 Hale, 619. (5) Also it seems to be settled at this day, that whosoever rescues a felon from an arrest for the felony, or voluntarily suffers him to escape, is an accessary to the felony. 2 Haw. c. 29. § 27. (6) But if a felon be in prison; he that relieves him with necessary meat, drink, or clothes, for the sustentation of life, is not accessary. 1 Hale, 620. (7) So if he be bailed out; it is lawful to relieve and maintain him, for he is quodammodo in custody, and is under a certainty of coming to his trial. 1 Hale, 620. (8) But if a felon be in gaol; for a man to convey instruments to him to break prison to make an escape, or to bribe the gaoler to let him escape, makes the party an accessary: for though common humanity allows every man to afford such persons necessary relief, yet common justice prohibits all unlawful attempts to cause their escapes. 1 Hale, 621. (9) The sending a letter in favour of a felon, or advising to labour witnesses not to appear, makes no accessary; but it is a high contempt. Hale's Sum. 219. (10) A man may be accessary to an accessary, by the receiving of him, knowing him to be an accessary to felony. 1 Hale, 622. (11) If a man have goods stolen, and he receive his goods again, simply, without any contract to favour the felon in his prosecution, this is lawful; but if he receive them upon agreement not to prosecute, or to prosecute faintly, this is theftbote, punishable by imprisonment and ransom, but yet it makes him not an accessary; but if he takes money of him to favour him, whereby he escapes, this makes him accessary. 1 Hale, 619. (12) And if any person shall receive or buy stolen goods, knowing them to be stolen, or shall receive, harbour, or con ceal the thieves, he shall, where the original offences admitted of accessaries, be deemed an accessary, and be transported for fourteen years. 3 W. 3. c. 9. § 4. 1 Ann. st. 2. c. 9. 5 Ann. c. 31. § 5. 4 G. 1. c. 11. And buying the goods at an under-value, is a presumptive evidence, that the buyer knew they were stolen. 1 Hale, 619. (13) It seems agreed, that the law hath such a regard to that duty, love and tenderness, which a wife owes to her husband, as not to make her an accessary to felony by any receipt given to her husband. Yet if she be any way guilty of procuring her husband to commit it, it seems to make her an accessary before the fact, in the same manner as if she had been sole. Also it seems agreed, that no other relation besides that of a wife to her husband will exempt the receiver of a felon from being an accessary to the felony; from whence it follows, that if a master receive a servant, or a servant a master, or a brother a brother, or even a husband a wife, they are accessaries in the same manner as if they had been mere strangers to one another. 2 Haw. c. 29. § 34. (14) But if the wife alone, the husband being ignorant of it, do receive any other person being a felon; the wife is accessary, and not the husband. 1 Hale, 621. (15) But if the husband and wife both receive a felon knowingly, it shall be adjudged only the act of the husband, and the wife shall be acquitted. Id. No accessaries in petit larceny. Case of A. Evans. Fost. 75. There can be no accessaries in petit larceny. 12 Rep. 81. 1 Hale, 530. Not even under the stat. Will. and Ann. J. Avery and A. Evans were indicted (at the O. B. May, 1749), Avery for privately stealing from the person of Sir G. Payne one silk handkerchief, value 12d.; and Evans for feloniously receiving the same, knowing it to have been stolen. Avery was found guilty of stealing to the value of 10d., and was ordered to be transported for seven years. Evans was likewise convicted of receiving the goods knowing them to be stolen; but judgment was respited as to him, upon a doubt whether sentence of transportation could be given against him upon the stat. of the Geo. 1. c. 11. in regard that the principal felon was found guilty of petit larceny only.. And the judges were all of opinion that no judgment could be given against Evans on this verdict. For though the act is express, that persons convicted of buying or receiving stolen goods, knowing them to be stolen, shall be transported for 14 years, yet still it must mean persons legally convicted, persons convicted as accessaries after the fact under the stat. 3 W. and M. c. 9. and 5 Ann. c. 31. But this man ought to have been acquitted, the principal felon being convicted of petit larceny only. And indeed the indictment against Avery being for petit larceny, Evans ought not to have been put upon his trial; for the acts, which make receivers of stolen goods knowingly accessaries to the felony, must be understood to make them accessaries in such cases only where by 1 Hale, 616. law an accessary may be; and there can be no accessary to petit larceny. Accordingly at the next sessions Evans was discharged. But now see stat. 22 Geo. 3. c. 58. under which the receiver of stolen goods of any value (except in certain cases) may be Accessaries, able. prosecuted as for a misdemeanor. Vide post. As to Receivers, see also the following section. IV. How Accessaries and Receivers are to be proceeded against. By 3 Ed. 1. c. 15. Those who are accused of the receipt of now far bail- felons, or of commandment, or force, or of aid in felony done, shall be bailable; but this seemeth to be only where it stands indifferent whether the party be guilty or innocent; for if there be strong presumptions of guilt, it seemeth that he is not bailable. 2 Haw. c. 15. § 53. In what county to be tried. 43 G.3.c. 113. Where acces saries before tried. How acces saries and receivers are to be proceeded against. Where a person is feloniously stricken or poisoned in one county, and dies thereof in another county, the accessary may be indicted in the county where the death shall happen. 2 & 3 Ed. 6. c. 24. § 2, 3. Also, by 4, where a murder' or felony is committed in one county, and the person is accessary in another county, the accessary may be indicted in the county where he was accessary: And the judges of assize, or two of them, of the county where the offence of the accessary shall be committed, on suit to them made, shall write to the keeper of the records where the principal shall be convicted, to certify them whether such principal be attainted, convicted, or otherwise discharged; which he shall certify under his seal. By 43 Geo. 3. c. 113. § 5. After reciting that whereas it is convenient that accessaries to felonies committed within the body of the fact may be any county within the realm should be by law liable to be tried as well in the county wherein the principal felony was committed as in the county in which they so became accessaries, and also that accessaries to felonies committed upon the high seas should be by law liable to be tried by such court and in such manner as by the act made in the 28th of Henry the 8th is directed in respect to felonies done upon the high seas, it is therefore enacted, That from and after the 16th of July, 1803, in all cases in which any person shall hereafter procure, direct, counsel, or command any other person to commit, or shall abet any other person in committing any felony whatsoever, or shall in any wise whatsoever become an accessary before the fact to any felony whatsoever, whether such principal felony be committed within the body of any county, or upon the high seas, and whether such procuring, &c. or otherwise becoming accessary before the fact shall have been committed within the body of any county, or upon the high seas, in all such cases the offence of the person or persons so procuring, &c. such felony, or so in any wise becoming accessary before the fact to such felony, shall and may be inquired of, tried, determined, and adjudged, in case such principal felony shail have been committed within the body of any county, by the course of the common law, either within such county wherein the said principal felony shall have been committed, or within the county wherein the said offence in procuring, &c. or otherwise becoming accessary before the fact shall have been committed; and in case the said principal felony shall have been committed upon the high seas, then the said offence, in procuring, &c. such felony, or of so becoming an |