Where a servant receives money in one county, and de- Venue. nies or conceals the receipt in another, it seems he may be indicted in either. (o) Indictment against a clerk or servant for embezzlement. That A. B. late of, &c. at, &c. being then and there employed as Indictment clerk (or "servant," as the fact may be) to C. D. did, by virtue of against a clerk such his employment as such clerk, and while he was so employed or servant for as such clerk as aforesaid, receive and take into his possession cer- embezzlement. tain money to a certain amount, to wit, the amount of five pounds, for, and in the name, and on the account of the said C. D. his master as aforesaid, and the said money did then and there unlawfully, fraudulently, and feloniously (p) embezzle; and the jurors, &c. do say that the said A. B. then and there the said last mentioned money so received by him the said A. B. for and in the name and on the account of the said C. D. his master as aforesaid, and the property of the said C. D. (q) from the said C. D. in manner and form aforesaid, feloniously and fraudulently did steal, take, and carry away, against the form of the statute, &c. and against the peace, &c. ment. When it is proposed to charge two or three distinct acts Mode of chargof embezzlement under the 48th section of the statute, they ing two or three should be stated separately in different counts; and the acts of embezzlesecond and third counts should introduce each charge by alleging it to be "within six calendar months from the time of committing the said offence in the first count of this indictment charged." Strictly speaking, perhaps, this is not necessary, as the objection to charging several distinct acts of felony in an indictment is never an objection which can be taken to the record, where every count always professes to charge a separate offence; but merely the ground of an application to the Court to compel the prosecutor to elect on which charge he will proceed. But it is safer to insert it. It is also discreet always to add a Count at comcount for larceny at common law; and, indeed, as the mon law. statute provides that the offender "shall be deemed to have fraudulently stolen" the chattel or money, it is by no means clear that this count would not in all cases suffice. case the prosecutor consented to give such information as was desired; no order was, therefore, made, and the prisoner was acquitted on the merits. (0) The King v. Hobson, Russ. and Ry. 56; the King v. Taylor, Russ. and Ry. 63. (p) The insertion of the word "feloniously " here is not necessary if it be introduced at the conclusion, that he "feloniously stole ;" but it cannot prejudice; the King v. Crighton, Russ. and Ry. 62. (q) This is absolutely necessary; the King v. Macgregor, Russ, and Ry. 23. Who are accessaries. Indictment against an accessary before the fact jointly with the princicipal. § 10. OF ACCESSARIES BEFORE AND AFTER THE FACT TO LARCENIES. An accessary is he who is not the chief actor in an offence, nor present at its performance, but is in some way concerned therein, either before or after the fact committed. (r) All parties who are present at the fact, concurring therein, are principals, whether they assist by manual exertion or only by co-operation and encouragement. An accessary before the fact is he who, being absent at the time of the commission of the offence, procures, counsels, or commands, the principal felon to commit the crime; (s) as if several plan a theft which one is to execute; or if a person incites a servant to embezzle the goods of his master. An accessary after the fact is one who, knowing a crime to have been committed, receives, relieves, comforts, or assists, the principal, with a view to his escape. (4) In treasons and misdemeanors there are no accessaries, but in felonies only. Nor were there any accessaries in petty larceny until the 7 and 8 Geo. 3. c. 29. abolished the distinction between grand and petty larceny, and rendered the law of grand larceny applicable to all cases of theft, however trifling in value. A guilty receiver of stolen goods does not come within the definition of an accessary after the fact at common law; but his offence was made punishable as that of an accessary and otherwise by several statutes, which were consolidated by 7 and 8 Geo. 3. c. 29. and which, as constituting a substantive offence, will be noticed in the next section. Except in the case of receiving, which may now be treated as a substantive felony, no accessaries before or after the fact can be convicted, unless either with the principal or after his conviction or outlawry; and the acquittal of the accessary is always necessarily involved in that of the principal. Indictment against an Accessory before the fact to a felony jointly with the principal. After concluding the indictment as against the principal, in the usual form, proceed And the jurors, &c. do further present, that one E. F. late of, &c. before the felony aforesaid, by the said A. B. (the principal) done and committed, that is to say, on, &c. at, &c. feloniously and wilfully did stir up, move, counsel, and procure the said A. B. to do and commit the felony aforesaid, in manner and form aforesaid, against the peace, &c. (r) 4 Bla. Com. 35 (s) 1 Hale, 613. (t) 1 Hale, 618. After concluding the indictment as against the principal, proceed And the jurors, &c. do further present, that E. F. late of, &c. Indictment well knowing the said A. B. to have done and committed the said against an acfelony in manner and form aforesaid, afterwards, to wit, on, &c. at, cessary after the &c. him the said A. B. did feloniously receive, aid, and comfort, fact jointly against the peace, &c. accessaries. with the principal. Punishment. The punishment of accessaries for of Punishment of fences partaking of the nature of larceny is prescribed by 7 and 8 Geo. 4. c. 29. s. 61. which enacts, that, in the case of every felony punishable under that act, every accessary before the fact shall be. punished in the same manner as the principal in the first degree is punishable; and every accessary after the fact to any felony punishable under that act, shall on conviction be liable to be imprisoned for any term not exceeding two years, which imprisonment, by section 4, may be solitary or with hard labour, at the discretion of the court. § 11. OF FELONIOUSLY RECEIVING EMBEZZLED GOODS. STOLEN AND Several provisions have been made with a view to the punishment of receivers of stolen goods, without making their conviction dependant on that of the principal offender. Much confusion, however, prevailed in these enactments, and much difficulty arose in construing them; but the law is now concisely settled by 7 and 8 Geo. 4. c. 29. s. 54. which, it will be observed, applies not only to the receipt of goods, monies, and securities, where the principal offender is guilty of larceny, but to all cases of embezzlement made felony by the statute. This section enacts, “That if any person shall receive any chattel, money, Where the orivaluable security, or other property whatsoever, the steal- ginal offence is felony, the reing or taking whereof shall amount to a felony, either at ceivers of stolen common law or by virtue of this act, such person know- property may be ing the same to have been feloniously stolen or taken, tried either as every such receiver shall be guilty of felony, and may be indicted and convicted either as an accessary after the substantive fact, or for a substantive felony; and, in the latter case, felony. whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice; and every such receiver, howsoever convicted, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years nor less than seven years, or to be imprisoned for any term not exceeding three years; and if a male to accessaries after the fact, or for a Nature of offence. Venue. Indictment against a receiver, as accessary after the fact, jointly with the principal felon. Indictment for receiving as for a substantive felony. be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment; provided always, that no person, howsoever tried for receiving as aforesaid, shall be liable to be prosecuted a second time for the same offence." - The guilty knowledge is, of course, the very essence of this offence. Of this, except in cases of confession, direct proof cannot be given; but it may be inferred from circumstances, as the low price at which the goods, if purchased, were bought-facts, tending to show a connection between the thief and the receiver-the time and secrecy of the transfer, and other facts, which are always peculiarly for the consideration of the jury. A receiver must take the goods, in some sense, to his own use; and, therefore, a person merely employed by the principal to convey them to a place in which the alleged receiver has no interest, though he may be aware of the theft, is not thus liable. (u) A party charged as receiver may controvert the guilt of his principal; and if he shows that the goods were not stolen of course will be entitled to an acquittal. (v) Venue. By 7 and 8 Geo. 4. c. 29. s. 56. a receiver may be indicted in any place where he shall have the property in his possession, or in any place where the principal might have been tried for the original felony. Indictment against receiver as accessory jointly with principal. Frame indictment against the original felon in the common form, then add And the jurors, &c. that C. D. late of &c. on, &c. at, &c. the said gold ring, &c. (describing the property as in the former part of indictment) of the value aforesaid, the goods and chattels above mentioned so as aforesaid feloniously stolen, taken, and carried away, feloniously did receive, he the said C. D. then and there well knowing the said goods and chattels to have been feloniously stolen, taken, and carried away as aforesaid, against the form of the statute, &c. and against the peace, &c. Indictment against a receiver of stolen goods as for a substantive felony. That A. B. late of &c. at, &c. one gold ring of the value of one pound, one pocket book of the value of five shillings, and two pieces of current golden coin of this realm called sovereigns, of the value of two pounds, of the goods and chattels of C. D. by a cer (u) The King v. Rogers and Brace, O. B. 1817. tain evil-disposed person to the jurors aforesaid unknown, then lately before feloniously stolen, taken, and carried away, of the same evil disposed person feloniously did receive, he the said A. B. then and there well knowing the said goods and chattels to have been feloniously stolen, taken, and carried away, against the form of the statute, &c. and against the peace, &c. § 12. OF FELONIES RARELY PROSECUTED AT SES SIONS. We have seen that capital felonies, except in particular jurisdictions, are never prosecuted at the Quarter Sessions. There are many other felonies which may be sometimes prosecuted at sessions, but which, either from their aggravated nature, or from the nicety of the questions which may arise on the trial, are most usually and properly remitted to the assizes by the committing magistrates. Such are larceny from the persons; assaults with intent to Aggravated commit robbery; sending letters containing menacing larcenies. demands of money; breaking buildings not within the curtilage so as to make the offence capital, and stealing therein; breaking a shop and warehouse and stealing therein; stealing goods in the process of manufacture; and stealing goods from vessels in rivers, canals, or docks; which are all by 7 and 8 Geo. 4. c. 29. made punishable with transportation for life, at the discretion of the court before whom they may be tried. If, indeed, the prosecutor of any of these offences, which include larceny, think fit to indict for simple larceny at common law, he may do so with the concurrence of the committing magistrate; and, in that case, the trial may be well had at sessions. It seems, therefore, better in a work of this limited extent to omit the particular consideration of provisions, which will so rarely be found applicable to sessions' cases, and the introduction of which in full, with appropriate precedents, would inconveniently extend this volume. For a similar reason it has seemed better to omit any Malicious particular consideration of malicious injuries to property, injuries. consolidated by 7 and 8 Geo. 4. c. 30; and of malicious and felonious injuries to the person, consolidated by 9 Geo. 4. c. 31. Offences amounting to felony, which are prompted by malice, are necessarily much rarer than those which are instigated by the desire of acquisition, and, from their nature and importance, can rarely be fit subjects of inquiry at the Sessions of the Peace. M |