J. W., late of the parish aforesaid, in the county aforesaid, laborer, well knowing the said J. S. to have done and committed the (felony and larceny) aforesaid, after the same was committed as aforesaid, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, him the said J. S. did feloniously receive, harbor, and maintain, against the peace, &c. (as in ordinary cases).(e)

(101) Against accessary before the fact generally in Massachusetts. (Charge the offence against the principal in the usual form, and proceed): And the jurors aforesaid upon their oath aforesaid, do further present, that A. B., of in the County of yeoman, before the said felony and murder (or burglary, &c.) was committed, in manner and form aforesaid, to wit, on at was accessary thereto before the fact, and feloniously and maliciously (in murder say, "and of his malice aforethought," instead of maliciously), did counsel, hire and procure the said C. D. (the principal) the felony and murder aforesaid, in manner and form aforesaid, to do and commit; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. (ƒ)

(102) Indictment against an accessary before the fact, in murder, at common

law.

(Frame the indictment against the principal in the usual form, alleging the nature of the murder, and then proceed as follows): And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B. of County of

in the

laborer, before the said felony and murder was committed, day of in the year of our Lord with force and arms, at

in the

in form aforesaid, to wit, on the one thousand eight hundred and county aforesaid, was accessary thereto before the fact, and did feloniously and maliciously incite, move, procure, aid, counsel, hire and command the said C. D. to do and commit the felony and murder aforesaid, in manner and form aforesaid. (g) (Conclude as in precedents for murder, postea.)

(103) Accessaries before the fact in Massachusetts.

(After alleging the murder against the principal, in the usual form, upon the first section of the statute of Massachusetts, 1804, c. 123, § 1, the indictment proceeds): And the jurors aforesaid, upon their oath aforesaid, do further present, that J. J. Knapp, of, &c., and George Crowninshield, of, &c., before the said felony and murder was committed, in manner and form aforesaid, to wit, on at were accessary thereto before the fact, and feloniously,

(e) Arch. C. P. 820.

(f) The Rev. Stat. c. 133, s. 1 and 2, provide: "Every person, who shall be aiding in the commission of any offence which shall be a felony, either at common law, or by any statute now made, or which shall hereafter be made, or who shall be accessary thereto before the fact, by counselling, hiring, or otherwise procuring such felony to be committed, shall be punished in the same manner, which is or which shall be prescribed for the punishment of the principal felony.

"Every person, who shall counsel, hire, or otherwise procure any offence to be committed which shall be a felony, either at common law, or by any statute now made, or which shall hereafter be made, may be indicted and convicted as an accessary before the fact, either with the principal felon, or after the conviction of the principal felon, or he may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been convicted, or shall or shall not be amenable to justice, and in the last mentioned case may be punished in the same manner as being convicted of being an accessary before the fact."

The form in the text is based on the above statute, and is in conformity with those given by Mr. Davis under it. It is the same with that given by Train & Heard, p. 17. (g) Cr. C. P. 124; 2 Chit. C. L. 5; ib. 124.

wilfully and of their malice aforethought, did counsel, hire and procure the said J. J. Knapp (the principal) the felony and murder aforesaid, in manner and form aforesaid, to do and commit; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. (h)

(104) Against an accessary for harboring a principal felon in murder. (Frame the indictment, against the principal felon, according to the facts in the case, and in the usual form; then go on): And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B., late of in the County of laborer, well knowing the said C. D. to have done, committed and perpetrated the felony and murder in manner and form aforesaid, afterwards, to wit, on the in the year of our Lord

force and arms, at

day of

with aforesaid, in the county aforesaid, was accessary thereto, and him the said C. D. did then and there feloniously receive, harbor, comfort, conceal and maintain, &c. (i) (Conclude as above.)

(105) Against an accessary to a burglary, after the fact.

(Draw the indictment against the principal according to the precedents in burglary (see "Burglary," post), and then proceed): And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B., of

at

in the well

County of laborer, afterwards, to wit, on knowing the said C. D. to have done and committed the felony and burglary aforesaid, in manner and form aforesaid, him the said C. D. did then and there knowingly harbor, conceal, maintain, and assist.(j) (Conclude as in book 1, chap. 3.)

(106) Against principal and accessaries before the fact, in burglary. (Draw the indictment against the principal according to the precedents in burglary (see “Burglary," post), and then proceed): And the jurors aforesaid, upon their oath aforesaid, do further present that A. B., of County of aforesaid, in manner aforesaid, to wit, on the of our Lord one thousand eight hundred and the county aforesaid, was accessary thereto before the fact, and did feloniously and maliciously incite, move, counsel, hire, and procure, aid, abet, and command the said C. D. to do and commit the said felony and burglary, in manner and form aforesaid. (k) (Conclude as in book 1, chap. 3.)

in the laborer, before the committing of the felony and burglary

day of

at

in the year aforesaid, in

(107) Accessary before the fact to suicide. First count against suicide as principal in the first degree, and against party aiding him as principal in the second degree.

The jurors, &c., upon their oaths present, that C. D., of on the

day of

now last past, at

laborer,

aforesaid, in the County

(h) This was the indictment, as we are informed by Mr. Davis, used against the accessaries before the fact, in Com. v. Knapp, 9 Pick. 496, as principal, "in the horrid and most diabolical murder of Joseph White; upon which J. J. Knapp was tried, convicted and executed. The words used in the English precedents are 'feloniously and maliciously counsel him,' &c., not using the allegation in the following precedent, 'feloniously, wilfully and of their malice aforethought.' This indictment was drawn by the attorney-general of Massachusetts ;" Davis' Precedents 41.

As there has been no change made by the Revised Statute in the language of the law under which the above form was drawn, it may be presumed to be still good.

(k) 3 Ch. C. L. 1101; Cro. C. P. 124.

of aforesaid, in and upon himself did make an assault; and that he the said C. D., with a rope, about the neck of himself, the said C. D., then and there feloniously, wilfully, and of his malice aforethought did put, fasten, and bind; and that he the said C. D., with the said rope, about the neck of him the said C. D., then as aforesaid put, fastened, and bound, himself the said C. D. then and there feloniously, wilfully, and of his malice aforethought did choke and strangle; of which said choking and strangling the said C.D. then and there instantly died.

And so the inquest aforesaid, on their oath aforesaid, do say that the said C. D., in manner and form aforesaid, himself, the said C. D., feloniously, wilfully, and of his malice aforethought, did kill and murder, against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. And that one E. F., late of said laborer, before

the said self-murder, by the aforesaid C. D. in manner and form aforesaid done and committed, that is to say, on the day and year aforesaid, him the aforesaid C. D., at aforesaid, in the County of aforesaid, to do and commit the felony and murder of himself aforesaid, in manner and form aforesaid, maliciously, feloniously, voluntarily, and of his malice aforethought did stir up, move, abet, counsel, and procure, against the peace of the said commonwealth, and contrary to the form of the statute in such case made and provided.

(108) Second count against defendant for murdering suicide.

And the jurors aforesaid, on their oath aforesaid, do further present, that the said E. F., on the day and year aforesaid, at aforesaid, in the

county aforesaid, in and upon the said C. D. did make an assault; and that he, the said E. F., a rope about the neck of the said C. D. then and there feloniously and of his malice aforethought did put, fasten, and bind; and that he, the said E. F., with the said rope about the neck of him the said C. D., then as aforesaid put, fastened, and bound, him the said C. D. then and there feloniously, wilfully, and of his malice aforethought did choke and strangle; of which choking and strangling he the said C. D. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said E. F., in manner and form aforesaid, him the said C. D. feloniously, wilfully, and of his malice aforethought did kill and murder; against the peace of the said commonwealth, and contrary to the form of the statute in such case made and provided. (7)

(1) This is in general construction the same with the indictment in Com. v. Bowen, 13 Mass. 357. The deceased, a convict in the Northampton prison, being under sentence of death, the defendant, who was in an adjoining apartment, advised him the day before the intended execution to make away with himself, and thereby to elude the penalties of the law. The advice was taken, and the experiment being successful, the defendant was indicted in the first count, as a principal in the second degree in the homicide, and in the second count, as its sole cause. The jury returned a verdict of not guilty, but in the charge of the chief justice no doubt is expressed but that both the counts were proper. The law was declared to be, that if the persuasions of the defendant were the cause of the death of the deceased, the former was as much responsible for it as if he had himself struck the blow.

The inclination in England is to declare the law in the same way; see Wh. C. L. § 118-25; though of late the doctrine has been qualified by the position that at common law there can be no accessaries to suicide. Thus in R. v. Leddington, 9 C. & P. 79, where the indictment charged that Ann Burton murdered herself by poisoning herself with arsenic, and that the prisoner did feloniously incite and procure the said Ann Burton the said felony and murder to do and commit, Alderson, B., said to the jury: "You have no authority to inquire into this charge; this is a case of suicide, and the prisoner is charged with inciting it; that is a case that by law we cannot try. The prisoner must be acquitted." In the case of R. v. Russell, 1 M. C. C. 356, it was held by the fifteen judges that an accessary before the fact to the crime of self-murder

(109) Against a defendant in murder who is an accessary before the fact in one county to a murder committed in another.(m)

That Robert Carliel, late, &c., and James Irweng, late, &c., as, &c., at, &c., not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, with force and arms, at aforesaid,

in the county aforesaid, in and upon one John Turner, in the peace of God and our said lord the king, then and there being, feloniously and of their malice aforethought, did make an assault, and that the aforesaid Robert Carliel, with a certain gun, called a pistol, of the value of five shillings, then and there charged with gunpowder and one leaden bullet, which gun the said Robert Carliel, in his right hand, then and there had and held in and upon the aforesaid John Turner, then and there feloniously, voluntarily, and of his malice aforethought, did shoot off and discharge, and the aforesaid Robert Carliel, with the leaden bullet aforesaid, from the gun aforesaid, then and there sent out, the aforesaid John Turner, in and upon the left part of the breast of him the said John Turner, then and there feloniously struck, giving to the said John Turner then and there, with a leaden bullet as aforesaid, near the left pap of him the said John Turner, one mortal wound of the breadth of half an inch and depth of five inches, of which mortal wound the aforesaid John Turner at London aforesaid, in the parish and ward aforesaid, instantly died; and that James Irweng feloniously, wilfully, and of his malice aforethought, then and there was present, aiding, assisting, abetting, comforting and maintaining the aforesaid Robert Carliel to do and commit the felony and murder aforesaid, in form aforesaid; and so the aforesaid Robert Carliel and James Irweng, him the aforesaid John Turner, at London aforesaid, in the parish and ward aforesaid, in manner and form aforesaid, feloniously, voluntarily, and of their aforethought malice, killed and murdered; against the peace of our lord the now king, his crown and dignity; and that one Robert Creighton, late of the parish of St. Margaret, in Westminster, in the County of Middlesex, Esq., not having the fear of God before his eyes, but being seduced by the instigation of the devil, before the felony and murder aforesaid, by the aforesaid Robert Carliel and James Irweng, in manner and form aforesaid done and committed, that is to say, on the tenth day of May, in the tenth year of the reign of our lord James, by the grace of God, &c., the aforesaid Robert Carliel, at the aforesaid parish of St. Margaret, in

was not triable at common law, because the principal could not be tried, and that he is not now triable for a substantive felony under the stat. 7 Geo. IV. c. 64, s. 9, as that statute was to be considered as extending to those persons only who before the statute were liable either with or after the principal, and not to make those liable who before could never have been tried. And it was also held, that if a woman takes poison with intent to procure a miscarriage, and dies of it, she is guilty of self-murder, whether she was quick with child or not, and that the person who furnished her with the poison for that purpose will, if absent when she took it, be an accessary before the fact only, and as such not punishable. Where, however, the surviving party was actually aiding in the suicide, he becomes a principal therein, and as such is clearly indictable for murder; R. v. Dyson, R. & R. 523; R. v. Allison, 8 C. & P. 523; R. v. Russell, 1 Mood. C. C. 356; Starkie C. P. 420; and case in text. See Wh. C. L. § 118-25.

(m) This, we are informed by Mr. Starkie, was the indictment used against Lord Sanchar, upon which he was convicted and executed. A full account of the proceedings upon that occasion appears in 9 Co. 117. It is observable, that though the indictment is founded upon the stat. 2 and 3 E. 6, c. 24, it does not conclude against the form of the statute, nor does this appear to be necessary, for though, before the statute, an accessary in one county to a murder in another, could not have been indicted in either, that was for want of the authority in the jurors to inquire, and the statute merely remedies the defect without making any alteration either in the nature of the offence or in the measure of punishment, which remained at common law. It was deemed necessary, says Mr. Starkie, expressly to allege the perpetration of the murder in the true county.

Westminster, in the County of Middlesex aforesaid, (n) to do and commit the felony and murder aforesaid, in manner and form aforesaid, maliciously, feloniously, voluntarily, and of his aforethought malice, did stir up, move, abet, counsel and procure, against the peace of our said lord the king that now is, his crown and dignity.

(110) [For other forms of indictments against accessaries in homicide, see post, chap. "Murder."]

(111) Larceny. Principal and accessary before the fact.

in the County of

laborer, on the

day of

at

That A. B., of in the year of our Lord one thousand eight hundred and one silver cup, of the value of ten dollars, of the goods and chattels of one C. D., then and there in the possession of the said C. D. being found, feloniously did steal, take and carry away, against, &c.

in the County of

And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F., late of laborer, before the committing of the felony and larceny aforesaid, to wit, on the day of in the year last aforesaid, at aforesaid, in the county aforesaid, did knowingly and feloniously incite, move, procure, aid, abet, counsel, hire and command the said A. B. to do and commit the said felony and larceny, in manner and form aforesaid, against, &c. (o)

(112) Against accessary for receiving stolen goods.

(State the offence against the principal felon, as above, and then proceed as follows):

And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B., of in the County of laborer, afterwards, to wit, on the day of now last past, at B. aforesaid, in the county aforesaid, the goods and chattels aforesaid, to wit, one pair of shoes, of the value of two dollars (here state all the articles found upon the accessary, their value, &c.) so as aforesaid feloniously stolen, taken, and carried away, by the said A. B., in manner aforesaid, feloniously did receive and have, and did then and there feloniously aid in concealing the same; he the said C. D. then and there, well knowing the same goods and chattels to have been feloniously stolen, taken, and carried away as aforesaid, against, &c.(p)

(113) Against accessary for receiving the principal felon.

(State the offence against the principal felon as in the next preceding precedent, and then proceed as follows):

And the jurors aforesaid, upon their oath aforesaid, do further present, that C. D., of in the County of yeoman, well knowing the said A. B.

(n) By stat. 4 and 5 Ph. & M. c. 4, all persons that shall maliciously command, hire, or counsel any person to commit petit treason, wilful murder, &c., every such offender being attainted or who shall stand mute, &c., or challenge peremptorily above twenty, &c., shall be excluded from the benefit of clergy. Though it is proper to introduce the words of the statute into the indictment, yet an indictment has been holden sufficient which wholly drops the words of the statute; Starkie C. P. 421.

(0) 2 Stark. C. P.; Cro. C. C. 124; Davis' Prec. 36.

(p) 2 Stark. C. P. 457; this form is given by Mr. Davis, as good under the Massachusetts statute; Precedents 38. When the principal has been convicted in one county, and the stolen goods received in another, the form will be the same as in this precedent, the conviction of the principal being alleged conformably to the record in the county where it was had.