4 Bl. Com. 37. Ibid. 38. or assists the felon, or accessory before the fact.* Therefore, to make an accessory after the fact, it is in the first place requisite that he knows of the felony committed In the second place, he must receive, relieve, comfort, or assist him. And generally, any assistance whatever, given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessory; as furnishing him with a horse to escape his pursuers, money or food to support him, a house or other shelter to conceal him, or open force and violence to rescue or protect him. To buy or receive stolen goods, knowing them to be stolen, falls under none of these descriptions; it was, therefore, at common law, a mere misdemeanor, and made not the receiver accessory to the theft, because he received the goods only, and not the felon. However, by the statutes of 3 & 4 W. & M. c. 9, and 5 Ann. c. 31, such offenders were made accessories to the theft and felony. And now, by a statute of our own, it is enacted, that if Mass. Stat. March 16, any person shall knowingly harbour, conceal, or maintain 1805,ac 19, sect. 10. any principal felon, or accessory before the fact, in any robbery or larceny, or shall receive, or shall aid in concealing any money, goods, or other articles stolen, knowing the same to have been so stolen, every such offender, upon due conviction of either of said offences, shall be deemed an accessory after the fact, to the same robbery or larceny, and shall be punished, &c. 4 Bl, Com. 38. Ibid. The felony must be complete at the time of the assistance given; else it makes not the assistant an accessory. As if one wounds another mortally, and after the wound given, but before death ensues, a person assists or receives the delinquent, this does not make him accessory to the homicide; for, till death ensues, there is no felony committed. But so strict is the law, where a felony is actually complete, that, in order to do effectual justice, the nearest relations are not suffered to aid or receive one another. If the parent assists his child, or the child his parent, if the brother receives his brother, the master his servant, or the *See Mass. Statutes; for, at common law, a person cannot be an accessory after the fact, by receipt of an accessory before the fact. servant his master, or even if the husband relieves his wife, who have any of them committed a felony, the receivers become accessories after the fact. 4 Bl. Com. 39. But a wife cannot become accessory by the receipt and concealment of her husband; for she is presumed to act under his coercion, and therefore she is not bound, neither 1 Hal. P.C. 621. ought she, to discover him. If B commits a felony, and comes to the house of A, be fore he be arrested, and A suffers him to escape without 1 Hal. P. C. 619. arrest, knowing him to have committed a felony, this doth not make A an accessory: But if he take money of B to suffer him to escape, this makes him an accessory. And so it is if A shut the fore door of his house, whereby the pursuers are deceived, and the felon hath opportunity Ibid. to escape, this makes A accessory; for here is not a bare mission, but an act done by A to accommodate his escape. IV. Of the prosecution and trial of accessories. By the old common law, the accessory could not be arraigned till the principal was attainted; unless he chose it; for he might wave the benefit of the law: And therefore principal and accessory might, and may still, be arraigned, and plead, and also be tried together. But otherwise, if the principal had never been indicted at all, had stood mute, had challenged above the legal number of jurors peremptorily, had obtained a pardon, or had died before attainder; the accessory, in any of these cases, could not be arraigned. For it did not appear whether any felony was committed or not, till the principal was attainted; and it might so happen, that the accessory should be convicted one day, and the principal acquitted the next, which would be absurd. 4 Bl. Com. 323. 4 Bl. Com. 323. Andrews, 3 Mass. However, this absurdity could only happen, where it was possible that a trial of the principal might be had subsequent to that of the accessory : And therefore the law Commonwealth v. still continues, that the accessory shall not be tried, so long as the principal remains liable to be tried hereafter. But 4 Bl. Com. 324. by statute 1 Ann. c. 9, if the principal be once convicted, and before attainder, (that is, before he receives sentence of death or outlawry) he is delivered by pardon, or otherwise; or if the principal stands mute, or challenges 4 Bl. Com. 132. Mass. Stat. March 16, peremptorily above the legal number of jurors, so as never to be convicted at all; in any of these cases, in which no subsequent trial can be had of the principal, the accessory may be proceeded against, as if the principal felon had been attainted; for there is no danger of future contradiction. It has already been observed, that the receiving of stolen goods, knowing them to be stolen, was a misdemeanor only, at common law, but that by statute, the offender was made accessory after the fact to the theft. But because the accessory cannot, in general, be tried, unless with the principal, or after the principal is convicted, the receivers, by that means, frequently eluded justice. To remedy which, the statute 1 Ann. c. 9, and 5 Ann. c. 31, enacted, that such receivers may still be prosecuted for a misdemeanor, though the principal felon be not before taken, so as to be prosecuted and convicted. And now, by a statute of our own, the same provision is 1805, act 19,sect. 11. made, as in the English statutes above quoted, and the receiver of stolen goods is made liable by it to a prosecution for a misdemeanor. But after prosecution for such misdemeanor, the person charged shall not be liable to be prosecuted as an accessory after the fact in the same larceny. Jac. Dict. tit. Acces. 1 Hal. P. C. 624. Ibid. 625. Ibid. 626. If the principal and accessory appear together, and the principal plead the general issue, the accessory shall be put to plead also; and if he likewise plead the general issue, both may be tried by one inquest: But the principal must be first convicted, and the jury shall be charged, that if they find the principal not guilty, they shall find the accessory not guilty. But if the principal plead a plea in bar, or abatement, or a former acquittal, the accessory shall not be forced to answer till that plea be determined. If A be indicted as principal, and B as accessory before or after the fact, and both be acquitted, yet B may be indicted as principal, and the former acquittal, as accessory, is no bar. But if A be indicted as principal, and acquitted, he cannot be indicted as accessory before the fact, and if he be, he may plead his former acquittal in bar, for it is in substance the same offence. don, 2 Leach's C. L. À person, indicted as an accessory before the fact, can- Rex v. W. & T. Gornot be convicted of that charge upon evidence proving him 581. to have been present, aiding, and abetting. I Hal, P. C. 623. If a man were accessory before or after the fact, in another county, than where the principal felony was committed, it was, at common law, dispunishable; but by statute 2 & 3 Edward VI. c. 24, the accessory is indictable in that county where he was accessory, and shall be tried there, as if the felony was committed in the same county. Upon the trial of the accessory, as well after as before the trial of the principal, it seems to be the better opinion, and founded on the true spirit of justice, that the accessory 4 Bl. Com. 324. is at liberty to controvert, if he can, the guilt of his supposed principal, and to prove him innocent of the charge, as well in point of fact, as in point of law. Foster. 365, &c. Rex v. Smith, And it is now a settled and established principle, that an accessory may controvert the guilt of the principal by viva i Leach's C. L. 323. voce testimony, notwithstanding the record of his conviction. V. How accessories are punished. Accessories before the fact, and principals in the second degree, are punished with the same degree of severity as principals in the first degree. Accessories after the fact are less severely punished. ACCESSORIES AFTER THE FACT, then, are punished, Mass. Stat. March 15, 1. In MURDER. By solitary imprisonment, not exceeding six months, and by confinement afterwards to hard 1805, at 21, scc. 2. labour, not exceeding ten years. 2. In MANSLAUghter. Our statute is entirely silent respecting accessories after the fact, in manslaughter, both Ibid. sect. 3. as it regards the offence and the punishment. This is an offence which, as has already been observed, does not admit of an accessory before the fact; but it admits of an accessory after the fact. 1806, act 6, sec. 3. Ibid. act 2, sect. 2. 3, 4. In BURGLARY and RAPE. By solitary imprison- Mass. Stat. March 13, ment, not exceeding three months, and afterwards by confinement to hard labour, not exceeding ten years. Mass. Stat. March 16, 5. In ROBBERY. By solitary imprisonment, not exceeding six months, and afterwards by confinement to hard 1805, act 19, sect. 10. labour, not exceeding three years; or by fine, not exceed VOL. I. PART I. G 1805, act 7, sect. 5. ing five hundred dollars, and by imprisonment in the common gaol, not exceeding three years; or either, as the court shall order. 6, 7. In ARSON, and other MALICIOUS BURNINGS. By Mass. Stat. March 16, solitary imprisonment, not exceeding one month, and afterwards by confinement to hard labour, not exceeding five v. years or by fine, not exceeding one thousand dollars, and by imprisonment in the common gaol, not exceeding one year, at the discretion of the court. See 3 Mass. T.R. 254. 1805, act 19, sect. 2. 8. In LARCENY. A person, duly convicted, before a Mass. Stat. March 16, justice of the peace, of any larceny, either as principal or accessory, before or after the fact, shall be punished by such fine, not exceeding five dollars, and imprisonment in the common gaol, for such term, not exceeding twenty days; either, or both, as the justice, before whom the conviction shall be, may sentence, according to the aggravation of the offence. For the punishment, where the offender is convicted by a higher tribunal, the student is referred to the same statute of March 16. Sect. 2 & 10. Ibid. sec, 10. Ibid. sect. 13. 9. RECEIVER OF STOLEN GOODS. This offender is made an accessory after the fact, and is punished by solitary imprisonment, not exceeding six months, and by confinement afterwards to hard labour, not exceeding three years; or by fine, not exceeding five hundred dollars, and by imprisonment in the common gaol, not exceeding three years; or either of them, at the discretion of the court. It ought here to be noticed, that towards this last description of accessories after the fact, the receiver of stolen goods, our legislature has conditionally relaxed the punishment, by enacting, that when any person, convicted for the first offence,* as a receiver of stolen goods, or as accessory after the fact, in any simple larceny, and not adjudged to be a common receiver of stolen goods, shall make satisfaction term, he be convicted to the party injured by such larceny, to the full amount of By same stat. sect. 12, if the offender has been before convicted of the same offence, or if, in the same as a receiver, &c. in three distinct acts of the money, goods, or articles, stolen and not restored, the receiving; in such case, the punishment is solitary imprison- justices of the court, before whom the conviction may be, ment, not exceeding one year, afterwards shall exempt such receiver and accessory from the penalty less than three, and of confinement to hard labour. to hard labour, not not more than ten, years. Thus much as to the punishment of accessories. |