cessory to the murder, though at the time of the advice, the child being not 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. Haw. B. 2. c. 29. s. 18.

III. OF ACCESSORIES AFTER THE FACT.

An accessory after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. 4 Bl. Com. 37.

Knowing a felony to have been committed It is necessary that the receiver have notice of the felony, either express or implied; and the indictment against an accessory after the fact must charge, that he know that the person received by him had committed the principal felony. Haw B. 2. c. 29. s. 32.

A felony. This holds place only in felonies, and in those felonies, where, by the law, judgment of death regularly ought to ensue; and therefore not in petit larceny (1 Hale 618) So, neither in trespass, or other inferior crime. Haw. B. 2. c. 29. s. 4.

Relieves, comforts, or assists the felon.

(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 the description, and make him accessory 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. Haw. B. 2. c. 29. s. 26.

(2) But if a man knows that a person hath committed a felony, but doth not discover it, this doth not make him an accessory after, 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 sees another commit a felony, but consents not, nor yet takes care to apprehend him; this is a neglect punishable by fine and imprisonment, but it doth not make him an accessory after. Ibid.

(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 accessory; but if he take money of the felon to suffer him to escape, this makes him an accessory: and so it is if he use any stratagem, by which the pursuers of the felon are deceived, and he hath an opportunity to escape, this makes him an accessory; for here is not a bare omission, but an act done by him to facilitate the felon's escape. Ibid 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 accessory to the felony. Haw. B. 2. c. 29. s. 27.

(6) But to relieve a felon in jail with clothes, or other necessaries, is no offence: for the crime imputable to this species of accessory is

the hindrance of public justice, by assisting the felon to escape the vengeance of the law. 4 Bl. Com. 38.

(7) The same observations will apply to the case of a person bailed on suspicion of felony. Ibid.

(8) If a person speaks or writes in favour of a felon, or advises witnesses not to appear, he is not an accessory to the felony; but the last is a high contempt. 1 Hale 621.

(9) But to convey instruments to a felon in jail to facilitate his escape, or to bribe the jailor to let him escape, makes the party an accessory. Ibid.

(10) A man may be accessory to an accessory, by the receiving of him, knowing him to be an accessory to a felony. Ibid. 622.

(11) If a man hath goods stolen, and he receives 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 accessory; but if he take money of him to favour him, whereby he escapes, this makes him an accessory. 1 Hale 619.

(12) 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. 4 Bl. Com. 38.

(13) But so strict is the law where a felony is actually complete, in order to do effectual justice, that 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 the brother, the master his servant, or the 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 (Ibid.) But a feme-covert cannot become an 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 ought she to discover her lord. Ibid. 39.

(14) But if the wife alone, the husband being ignorant of it, do receive any other person, being a felon, the wife is accessory, 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. Ibid.

IV. HOW THEY ARE TO BE PROCEEDED AGAINST.

Anciently the accessory could not be tried, unless the principal were attainted; ( Hale 625) but this is remedied by statute.

1. If the principal be convicted, or stand mute, or peremptorily challenge more than twenty of his jury, the accessory may be tried, as if the principal had been attainted; and this, though the principal be admitted to his clergy, pardoned, or otherwise delivered before

attainder; and such accessory, if he be convicted, stand mute, or challenge as aforesaid, shall suffer as if the principal had been attainted. 1 Rev. Code 206. (From 1 Ann. stat. 2. c. 9. s. 1.)

2. Persons buying or receiving stolen goods, knowing them to be stolen, may be prosecuted and punished, as for a misdemeanor, to be punished by fine and imprisonment, though the principal be not before convicted, which shall exempt them from punishment as accessory, if the principal be afterwards convicted Ibid. (Ibid.) And buying the goods at an under value is presumptive evidence that they were known to have been stolen. 1 Hale 619.

3. So, to buy or receive a stolen horse, knowing him to be stolen, or to harbour or conceal a horse-stealer, knowing him to be such, makes the offender an accessory to the felony, and formerly subjected him to the punishment of death; (Rev. Code, vol. i. p. 179) but now to confinement in the penitentiary, for not less than one, nor more than ten years. Ibid. p. 402.

But if such principal cannot be taken and convicted, every such person buying or receiving any horses stolen, knowing them to be so, may be prosecuted as for a misdemeanor, to be punished by fine and imprisonment, or other corporal punishment, although the principal be not before convicted; which shall exempt the offender from punishment as accessory, if the principal be afterwards convicted. Ibid.

p. 179.

4. If a person be stricken or poisoned in one county, and die in another, the offender shall be tried by the court where the stroke was given, or the poison administered. Ibid. p. 104.

5. An accessory to a murder or felony shall be examined and tried in the court of the county, in which he became accessory.

Ibid.

6. If any be accused as principal, those accused as accessory shall be taken also, and kept in custody, till the principal be attainted or delivered. Ibid. p. 126.

7. A slave convicted and executed shall not be paid for, if, in the perpetration of the crime, his owner was either principal or accessory. Rev. Code, vol. ii. p. 97.

8. The accessory may be indicted in the same indictment with the principal, and that is the best and most usual way; but he may be indicted in another indictment, but then such indictment must contain the certainty and kind of the principal felony. 1 Hale 623.

9. The accessory may be put to answer before the principal hath appeared; but his plea cannot be tried before such appearance, unless he desires it himself. Haw. B. 2. c. 29. s. 45.

But it seems necessary in such case to respite judgment until the principal be convicted; for if the principal be after acquitted, that conviction of the accessory is annulled, and no judgment ought to be given against him but if he be acquitted of the accessory, that acquittal is good, and he shall be discharged. 1 Hale 623-4.

10. 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 also. But if the principal plead a plea in bar, or to the writ, the accessory shall not be driven to answer, until that plea be determined: for if it be found for the principal, the accessory is discharged; if against the principal, yet he shall after plead over to the felony, and may be acquitted Haw. B. 2. c. 29. s. 47. 1 Hale 624.

11. Where a person is charged as accessory to more than one principal, there are strong objections to trying him on the conviction of one, before all of them have appeared; because thereby he may be subjected to the hardship and hazard of two trials for his life for the same offence, which is contrary to the general course of the law. Haw. B. 2. c. 29. s. 46.

If a man be indicted as accessory to two or more, and the jury find him accessory to one, it is a good verdict, and judgment may pass upon him. And therefore the court, in their discretion, may arraign him as accessory to such of the principals who are convicted; and if he be found guilty as accessory to them, or any of them, judgment shall pass upon him. But, on the other hand, if he be acquitted, that acquittal will not discharge him as accessory to the others. And when they come in and are convicted and attainted, or if judgment of outlawry passeth against them, he may be arraigned de novo as accessory likewise to them. Although it is the safer course, according to lord Hale, to respite the arraignment of the accessory, until all appear, or are outlawed. Fost. 361.

12. If the principal be erroneously attaint, the accessory shall be put to answer, and shall not take advantage of the error in that attainder; but the principal reversing the attainder, reverseth the attainder of the accessory. 1 Hale 625.

13. If the principal and accessory are joined in one indictment and tried together, which seems to be the most eligible course where both are amenable, the accessory may enter into the full defence of the principal, and avail himself of every matter of fact and every point of law tending to his acquittal. For the accessory is in this case to be considered as a partner in the suit, and this sort of defence necessarily and directly tendetl: to his own acquittal. Fost. 365.

14. When the accessory is brought to trial after the conviction of the principal, it is not necessary to enter into the evidence on which the conviction was founded. Nor doth the indictment aver that the principal was in fact guilty. It is sufficient if it reciteth, with proper certainty, the record of the conviction. This is evidence against the accessory sufficient to put him upon his defence. For it is founded on a legal presumption, that every thing in the former proceeding was rightly and properly transacted. But a presumption of this kind must give way to facts manifestly and clearly proved. As against the accessory, the conviction of the principal will not be conclusive; it is as to him a thing done among others. Ibid.

And therefore if it shall come out in evidence upon the trial of the accessory, as it some times hath, and frequently may, that the offence of which the principal was convicted did not amount to felony in him,

or not to that species of felony with which he was charged, the accessory may avail himself of this, and ought to be acquitted. Ibid.

15. And as in point of law, so also in point of fact, if it shall manifestly appear in the course of the accessory's trial, that the principal was innocent, common justice seemeth to require that the accessory should be acquitted. As, suppose a man is convicted upon circumstantial evidence, strong as that sort of evidence can be, of murder; another is afterwards indicted as accessory to this murder; and it cometh out upon the trial, by incontestible evidence, that the person who was supposed to be murdered is still living; in this case surely the person indicted as accessory to this murder shall be acquitted. Or suppose the person to have been in fact murdered, and that it should come out in evidence, to the satisfaction of the court and jury, that the witnesses against the principal were mistaken in his person, that the person convicted as principal was not nor could possibly have been present at the murder. Ibid. 367-8.

16. If one be indicted as principal, and another as accessory, and both be acquitted, yet the person indicted as accessory may be indicted as principal, and the former acquittal as accessory is no bar. 1 Hale

625.

17. But if a person be indicted as principal, and acquitted, he shall not be indicted as accessory before; and if he be, he may plead his former acquittal in bar, for it is in substance the same offence. 1 Hale

626.

But, on this point, sir Michael Foster expresses strong doubts. See Fost. 362.

18. So, if a man be indicted as principal, and acquitted, he may be indicted as accessory after, for they are offences of several natures. 1 Hale 626.

19. And so it is if he be indicted as accessory before, and acquitted; yet for the same reason he may be indicted as accessory efter. Ibici. NOTE....For the punishment of accessories, see title "PENITENTIARY," and the respective heads under which the crimes are classed. In the act" to amend the penal laws of this commonwealth, passed the fifteenth of December, 1796 (1 Rev. Code 355) the punishment of accessories before the fact was in general prescribed, but not of accessories after the fact: they consequently either fall within the provisions of the thirteenth section of that act, which declares that every person convicted of any felony heretofore deemed CLERGYABLE, shall undergo an imprisonment in the penitentiary for any time not less than six months, and not more than two years; or they come within the purview of the act of the twenty-fifth of January, 1800 (1 Rev. Code 402) which provides, that if any free person shall be convicted (either as principal or accessory) of any felony or offence whatsoever, not already provided for, by the first mentioned act, the punishment where of, by the laws in force at and before the commencement of that act, may amount to death, WITHOUT THE BENEFIT OF CLERGY, such offender shall be imprisoned in the penitentiary for not less than one, nor more than ten

years.