to the crime actually committed.1 But if the principal totally and substantially departs from his instructions, as if, being solicited to burn a house, he moreover commits a robbery while so doing, he stands single in the latter crime, and the other is not held responsible for it as accessory.2 § 45. If the accessory repents and countermands the order before it is executed, and yet the principal persists and commits the crime, the party is not chargeable as accessory. But if, though repenting, he did not actually countermand the principal before the fact was done, he is guilty.3 § 46. By the common law, an accessory cannot be put upon his separate trial, without his consent, until conviction of the principal; for the legal guilt of the accessory depends on the guilt of the principal; and the guilt of the principal can only be established in a prosecution against himself. But an accessory to a felony committed by several, some of whom have been convicted, may be tried as accessory to a felony committed by these last; but if he is indicted and tried as accessory to a felony committed by them all, and some of them have not been proceeded against, it is error. If the principal be dead, the accessory cannot, by the common law, be tried at all. The conviction of the principal is sufficient, without any judgment, as primâ facie evidence of his guilt, to warrant the trial of the accessory; but the latter may 11 Hale, P. C. 617; 1 Russ. on Crim. 36; Foster, 370, 371, 372. 2 1 Hale, P. C. 616, 617; Foster, 369. 3 1 Hale, P. C. 618. 4 1 Hale, P. C. 623; Phillips's case, 16 Mass. 423; 2 Burr's Trial, 440; 4 Cranch, App. 502, 503. By stat. 7, Geo. 4, ch. 64, § 9, the accessory before the fact, is deemed guilty of a substantive felony, for which he may be indicted and tried, whether the principal has or has not been previously convicted. Similar statutes have been passed in several of the United States. 5 Stoops's case, 7 S. & R. 491. 6 Phillips's case, 16 Mass. 423. On a similar question, Hullock, B. doubted; but would not stop the case; but the party being acquitted, the point was no farther considered. Quinn's case, 1 Lewin, Cr. Cas. 1. rebut it by showing, clearly, that the principal ought not to have been convicted.1 And it seems that in every case of the trial of an accessory, he may controvert the guilt of the principal. He may also require the production of the record of his conviction, notwithstanding he has himself pleaded to the indictment; for the waiver of a right, in criminal cases, is not to be presumed.3 If the principal is indicted for murder, and another is indicted as accessory to that crime after the fact; and upon trial, the offence of the principal is reduced to manslaughter, the other may still be found guilty of being accessory to the latter crime.4 § 47. Accessories after the fact, by the common law, are those who, knowing a felony to have been committed by another, receive, relieve, comfort, or assist the felon. If one opposes the apprehension of a felon, or voluntarily and intentionally suffers him to escape, or rescues him, he becomes an accessory after the fact. So, if he receives or aids an accessory before the fact, it is the same as if he received or aided the principal felon. But the felony must have been completed at the time, or the party is not an accessory after the fact. Thus, if the aid is given after the infliction of a mortal stroke, but before death ensues, he is not accessory to the death. There must be evidence that the party charged did some act personally, to assist the felon; but it is suffi 1 Knapp's case, 10 Pick. 484; Williamson's case, 2 Virg. Cas. 211; Foster, 364-368; Cook v. Field, 3 Esp. 134. 2 Foster, 367, 368; Macdaniel's case, 19 Howell, St. Tr. 808; 1 Russ. on Crim. 39, 40. 3 Andrews's case, 3 Mass. 132, 133. And see Briggs's case, 5 Pick. 429. 4 Greenacre's case, 8 C. & P. 35. 5 1 Hale, P. C. 618, 622; 4 Bl. Comm. 37. So, if he employs another to receive and assist the principal felon. Rex v. Jarvis, 2 M. & Rob. 40. 61 Hale, P. C. 619; 2 Hawk. P. C. ch. 29, § 27; Rex v. Greenacre, 8 C. & P. 35. 7 2 Hawk. P. C. ch. 29, § 1; 1 Hale, P. C. 622. 8 1 Hale, P. C. 622; 2 Hawk. P. C. ch. 29, § 35; 4 Bl. Comm. 38. 9 Regina v. Chapple, 9 C. & P. 355. cient, if it appear that he did so by employing another person to assist him.1 § 48. A feme covert cannot be an accessory after the fact for receiving her husband; for it was her duty not to discover him. But it is generally said that the husband may be an accessory after the fact, by the receipt of his wife. And though this has been questioned, because the obligations of husband and wife are reciprocal, the husband owing protec tion to the wife; yet it seems that it is still to be received as the rule of law. If the wife receive stolen goods, or receive a felon, of her own separate act, and without the knowledge of the husband; or if he, knowing thereof, abandon the house, refusing to participate in the offence, she alone is guilty as an accessory. And if she be guilty of procuring the husband to commit a felony, this, it seems, will make her an accessory before the fact, in the same manner as if she were sole. So, also, the wife may sometimes commit the principal felony, and the husband be accessory before the fact; as, if she utter forged documents, in his absence, but by his direction." § 49. In the indictment of an accessory before the fact, it does not seem necessary to state the manner of committing the offence; it is sufficient to charge generally, that he "feloniously abetted, incited, and procured" the principal to com 1 Rex v. Jarvis, 2 M. & Rob. 40. The reason on which the common law makes the party in these cases criminal, is, that the course of public justice is hindered, and justice itself evaded, by facilitating the escape of the felon. Therefore, to buy or receive stolen goods, knowing them to be stolen, does not, at common law, make the party accessory to the theft, because he receives the goods only, and not the felon; but he is guilty of a misdemeanor. 4 Bl. Comm. 38. 2 1 Hale, P. C. 621; 4 Bl. Comm. 38. 3 Ibid.; 2 Hawk. P. C. ch. 29, § 34. 4 1 Deacon's Cr. L. 15. 5 1 Russell on Crimes, 21; 1 Hale, P. C. 621. 6 2 Hawk. P. C. ch. 29, § 34. See also 1 Hale, P. C. 516. 7 Rex v. Morris, Russ. & Ry. 270. mit it. In the case of an accessory after the fact, it is sufficient, after stating the principal offence, to charge that he did afterwards" feloniously receive, comfort, harbor and maintain" the principal offender. And in either case, if he is 1 2 Hawk. P. C. ch. 29, § 17. "To cause," says Ld. Coke, "is to procure or counsel ―: To assent, is to give his assent or agreement afterwards to the procurement or counsel of another: To consent, is to agree at the time of the procurement or counsel; and he in law is a procurer." 3 Inst. 169. 21 Deacon's Cr. Law, 17; 2 Chitty, Cr. L. 5; Archb. Crim. Pl. 820. In the indictment of an accessory, whether before or after the fact, the charge against the principal felon is first stated, with all the formality necessary in charging him alone; after which the offence of the accessory is alleged. The body of the indictment at common law is usually after the following man ner: 1. Against an accessory to a larceny before the fact. The Jurors for the (State or Commonwealth) aforesaid, upon their oath present, that (naming the principal felon,) of· county of in said county of on the " one silver day of -, in the year of the value of in the at dollars, of the goods and chat tels of one (naming the owner), then and there in the possession of the said (owner) being found, feloniously did steal, take, and carry away, against the peace of the (State or Commonwealth) aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that (naming the accessory) of in the county of before the committing of the larceny aforesaid, to wit, on the day of in the year at -9 in the county aforesaid, did knowingly and feloniously incite, move, procure, aid, abet, counsel, hire, and command the said (principal felon) to do and commit the said felony and larceny, in manner and form aforesaid, against the peace of the (State or Commonwealth) aforesaid. The words "and against the form of the statute, (or statutes) in that case made and provided," are necessary to be added only when the indictment is founded upon a statute; otherwise, they are mere surplusage, in the case of offences at common law. 2 Hale, P. C. 190; 1 Chitty, Crim. Law, p. 289, (Perkins's ed.) 2. Against an accessory to any felony after the fact. [The indictment is first framed in the usual form against the principal felon, after which it proceeds to charge the accessory as follows.] And the Jurors aforesaid, upon their oath aforesaid, do further present, indicted as accessory to two or more, and is found guilty of being accessory to one only, the conviction is good. If, being indicted as accessory before the fact, the proof is that he was present, aiding and abetting, he cannot be convicted of the charge in the indictment; for the proof is of a different crime, namely, of the principal felony.2 But if two are indicted together, one being charged with larceny, and the other with the substantive felony of receiving the same goods, the latter may be convicted, though the former is acquitted.3 And if two are indicted together, the one of murder, and the other as accessory after the fact, and the former be convicted of manslaughter only, the latter may also be convicted as accessory to the latter offence.4 § 50. In proof of the offence of being accessory before the in the county of — day of that [naming the accessory,] of well knowing the said (principal felon,) to have done and committed the felony and (murder, or robbery, &c., as the case may be,) aforesaid, in manner and form aforesaid, afterwards, to wit, on the in the year at, in the county aforesaid, him the said (principal felon) did then and there knowingly and feloniously receive, harbor, conceal, and maintain, in the felony and (murder, &c.) aforesaid, against the peace of the (State or Commonwealth) aforesaid. 3. Against joint accessories to a murder, before the fact. [After alleging the murder, in the usual form, against the principal, the indictment proceeds thus:— -] And the Jurors (&c.) do further present, that J. K., of at &c. and were accessory G. C. of, &c., before the said felony and murder was committed, in manner and form aforesaid, to wit, on thereto before the fact, and feloniously, wilfully, and of their malice aforethought, did counsel, hire, and procure the said (naming the principal felon) the felony and murder aforesaid, in manner and form aforesaid, to do and commit, against the peace of the (State or Commonwealth) aforesaid. See Commonwealth v. Knapp, 9 Pick. 496; 10 Pick. 477. 1 Ld. Sanchar's case, 9 Co. 119; 1 Hale, P. C. 624. 2 Rex v. Winifred Gordon & al., 2 Leach, Cr. Cas. 581; 1 East, P. C. 352; 1 Russ. on Crim. 30, 31. 3 Regina v. Pulham, 9 C. & P. 280. This, it is supposed, can arise only where, by statute, the offence of receiving is made a substantive felony. 4 Per Tindal, C. J., in Rex v. Greenacre, 8 C. & P. 35. |