And all the other Justices above mentioned, after advising thereof for two days, held clearly enough that they might proceed with the prisoners now at the bar, without any inconvenience arising from it. For they said that when many come to do an act, and one only does it, and the others are present abetting him or ready to aid him in the fact, they are principals to all intents as much as he that does the fact. For the presence of the others is a terror to him that is assaulted, so that he dare not defend himself. For if a man sees his enemy and twenty of his servants coming to assault him, and they all draw their swords and surround him, and only one strikes him so that he dies thereof, now the others shall with good reason be adjudged as great offenders as he that struck him. For if they had not been present, he might probably have defended himself and so have escaped. But the number of the others being present and ready to strike him also, shall be adjudged a great terror to him, so as to make him lose his courage and despair of defending himself; and by this means they are the occasion of his death. And then inasmuch as both together, viz. the wounds and the presence of the others, who gave no wounds at all, are adjudged the cause of his death, it follows that all of them, viz. those that strike and the rest that are present, are in equal degree; and each partakes of the deed of the other. For which reasons it seemed to them that the prisoners now present might be arraigned. And afterwards BROMLEY and all the Court agreed to it. And therefore they were arraigned; and pleaded, not guilty.

And note (reader) that a case in 40 Ass. proves that the law anciently was that those who were present and abetting were not principals, but accessories; as the Lord Bromley said before. For the book is, that four were appealed as principals, and the others of Presence, Force and Aid. But of late time the law has been held contrary in this point; for now they are taken to be principals by all the sages of the law.

[Principals in first and second degree.]

REGINA v. SWINDALL AND OSBORNE.

STAFFORD ASSIZES. 1846.

2 CARRINGTON AND KIRWAN 230.

The prisoners were indicted for the manslaughter of one James Durose. The second count of the indictment charged the prisoners with inciting each other to drive their carts and horses at a furious

and dangerous rate along a public road, and with driving their carts and horses over the deceased at such furious and dangerous rate, and thereby killing him. The third count charged Swindall with driving his cart over the deceased, and Osborne with being present, aiding and assisting. The fourth count charged Osborne with driving his cart over the deceased, and Swindall with being present, aiding and assisting.

Upon the evidence, it appeared that the prisoners were each driving a cart and horse, on the evening of the 12th of August, 1845. The first time they were seen that evening was at Draycott toll-gate, two miles and a half from the place where the deceased was run over. Swindall there paid the toll, not only for that night, but also for having passed with Osborne through the same gate a day or two before. They then appeared to be intoxicated. The next place at which they were seen was Tean Bridge, over which they passed at a gallop, the one cart close behind the other. A person there told them to mind their driving: this was 990 yards from the place where the deceased was killed. The next place where they were seen was forty-seven yards beyond the place where the deceased was killed. The carts were then going at a quick trot, one closely following the other. At a turnpike gate a quarter of a mile from the place where the deceased was killed, Swindall, who appeared all along to have been driving the first cart, told the toll-gate keeper, "We have driven over an old man"; and desired him to bring a light and look at the name on the cart; on which Osborne pushed on his cart, and told Swindall to "hold his bother," and they then started off at a quick pace. They were subsequently seen at two other places, at one of which Swindall said he had sold his concern to Osborne. It appeared that the carts were loaded with pots from the potteries. The surgeon proved that the deceased had a mark upon his body which would correspond with the wheel of a cart, and also several other bruises; and, although he could not say that both carts had passed over his body, it was possible that both might have done so.

Greaves, in opening the case to the jury, submitted that it was perfectly immaterial in point of law, whether one or both carts had passed over the deceased. The prisoners were in company, and had concurred in jointly driving furiously along the road; that that was an unlawful act, and, as both had joined in it, each was responsible for the consequences, though they might arise from the act of the other. It was clear that they were either partners, master and servant, or at all events companions. If they had been in the same cart, one holding the reins, the other the whip, it could not be doubted that they would

be both liable for the consequences; and in effect the case was the same, for each was driving his own horse at a furious pace, and encouraging the other to do the like.

At the close of the evidence for the prosecution, Allen, Serjt., for the prisoners, submitted that the evidence only proved that one of the prisoners had run over the deceased, and that the other was entitled to be acquitted.

POLLOCK, C. B. I think that that is not so. I think that Mr Greaves is right in his law. If two persons are in this way inciting each other to do an unlawful act, and one of them runs over a man, whether he be the first or the last he is equally liable. The person who runs over the man would be a principal in the first degree, and the other a principal in the second degree.

Allen, Serjt. The prosecutor, at all events, is bound to elect upon which count he will proceed.

POLLOCK, C.B. That is not so. I very well recollect that in Regina v. Goode there were many modes of death specified, and that it was also alleged that the deceased was killed by certain means to the jurors unknown. When there is no evidence applicable to a particular count, that count must be abandoned; but if there is evidence to support a count, it must be submitted to the jury. In this case the evidence goes to support all the counts.

Allen, Serjt., addressed the jury for the prisoners.

POLLOCK, C.B. (in summing up). The prisoners are charged with contributing to the death of the deceased, by their negligence and improper conduct. If they did so, it matters not whether he was deaf, or drunk, or negligent, or in part contributed to his own death; for in this consists a great distinction between civil and criminal proceedings. If two coaches run against each other, and the drivers of both are to blame, neither of them has any remedy against the other for damages. So, in order that one ship-owner may recover against another for any damage done, he must be free from blame: he cannot recover from the other if he has contributed to his own injury, however slight the contribution may be. But in the case of loss of life, the law takes a totally different view--the converse of the proposition is true. For there each party is responsible for any blame that may ensue, however large the share may be; and so highly does the law value human life, that it admits of no justification wherever life has been lost, and the carelessness or negligence of any one person has contributed to the death of another person. Generally, it may be laid down that, where one by his negligence has contributed to the death of another, he is responsible; therefore, you are to say, by your verdict, whether you

are of opinion that the deceased came to his death in consequence of the negligence of one or both of the prisoners. A distinction has been taken between the prisoners: it is said that the one who went first is responsible, but that the second is not. If it is necessary that both should have run over the deceased, the case is not without evidence that both did so. But it appears to me that the law as stated by Mr Greaves is perfectly correct. Where two coaches, totally independent of each other, are proceeding in the ordinary way along a road, one after the other, and the driver of the first is guilty of negligence, the driver of the second, who had not the same means of pulling up, may not be responsible. But when two persons are driving together, encouraging each other to drive at a dangerous pace, then, whether the injury is done by the one driving the first or the second carriage, I am of opinion that in point of law the other shares the guilt. Verdict, Guilty.

[Principals in first and second degree.]

REX v. WILLIAM MASTIN AND JOHN MASTIN.

GLOUCESTER ASSIZES. 1834.

6 CARRINGTON AND PAYNE 396.

The first count of the indictment charged that the prisoner, William Mastin, rode against the horse of John Secker, the deceased, whereby he was thrown to the ground and killed; and it then went on to charge John Mastin as a principal in the second degree. There was also a count charging that the prisoners were racing on the highway, and that the horse of the deceased thereby became frightened, and threw him.

It appeared that, on the evening of the 14th of September, the prisoners, who were brothers, were on horseback, and were riding at a very rapid pace along a rather unfrequented highway, leading from Burford to Widford, and that the deceased was also on horseback. It further appeared that the deceased drew off as far from the middle of the road as the situation of the place would allow; and that John Mastin passed by him without any accident, but that the horse of William Mastin and the horse of the deceased came into collision, when both the deceased and William Mastin were thrown, and the deceased killed.

Justice, for the prisoner John Mastin. I submit that the evidence does not affect my client at all. Two persons were riding, and at a rapid rate, and one goes by and does no mischief; he certainly cannot be guilty of manslaughter, because another, who comes up a little afterwards, kills a person. The aiding which is charged in this indictment is the aiding in some act which caused the death of the deceased.

Curwood, for the prosecution. As both the prisoners were racing, the act of one is the act of both.

PATTESON, J. I think that if two are riding fast, and one of them goes by without doing any injury to any one, he is not answerable because the other, riding equally fast, rides against some one and kills him.

His Lordship directed the acquittal of John Mastin.

[Principal or Accessory before the fact.]

THE QUEEN v. MANLEY.

SOMERSET ASSIZES. 1844.

1 Cox 104

Indictment for larceny. The facts, as proved by the prosecution, were, that the prisoner was an apprentice of the prosecutor: that he had induced the son of the prosecutor, a child of the age of nine years, to take money from his father's till, and give to him. On crossexamination, it further appeared that the child had done the like for other boys.

Cox, for the prisoner, submitted that the evidence did not sustain the indictment. The prisoner was charged with stealing money as principal, the evidence showed him to be either an accessory or a receiver. If an offence be committed through the medium of an innocent agent, the employer, though absent when the act was done, is answerable as a principal. (Rex v. Giles, 1 Moody, C. C. 166; Reg. v. Michael, 2 Moody, C. C. 120; 9 C. and P. 356.) But if the instrument be aware of the consequences of his act, he is the principal in the first degree; and the employer, if he be absent when the fact is committed, is an accessory before the fact. (Rex v. Stewart, R. and R. 363.) In this case, the evidence had shewn, beyond doubt, that the child was