such indictment, except where the offence shall relate to any chattel, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security; and such allegation, so far as regards the description of the property, shall be sustained, if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved; or if he shall be proved to have embezzled any piece of coin or valuable security or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, and such part shall have been returned accordingly (i). The correct course of indicting with reference to this section is to put each of the three charges in a separate count (k).

Venue.]-Where a servant receives money in one county, and denies or conceals the receipt of it in another, it seems he may be indicted for the embezzlement in either (); but if a receipt given by him is produced

(i) This provision, while it removes the great difficulties under which the prosecutor formerly laboured, may oppose too great obstacles to the defence of an innocent prisoner, by giving him no satisfactory information of the specific charges of embezzlement to be made at the trial; accordingly, in R. v. Hodgson, 3 C. & P. 422, Vaughan, B., inclined, at the request of the prisoner, to order him to be furnished with at least a particular of the persons from whom money is alleged to have been received, if not also of the sums and dates which the prosecutor intended to apply to the accusation, as in the case of a general indictment for barratry. In that case the prosecutor consented to give such information as was desired; no order was therefore made, and the pri soner was acquitted on the merits. Mr. Justice Littledale made an order to the same effect in R. v. Bootyman, 5 C. & P. 300, ante, and the same course is now followed in indictments for not repairing highways and for nuisances, where the counts are numerous and the charges multifarious, R. v. Downshire (Marquis), 4 Ad. & El. 698; R. v. Curwood, 3 Ad. & E. 816. This enactment is in substance repeated in 3 W. IV. c. 4, s. 3, as to embezzlement by servants of the crown.

(k) Reg. v. Purchase (Geo.), C. & Mar. 617, cor. Patteson and Cresswell, Js. Indictment for embezzlement charged in one count that within six calendar months prisoner received three sums (laying a separate day to the receipt of each) and that "on the several days aforesaid" the prisoner embezzled these sums. Held bad on demurrer for not showing that the sums were embezzled within six months of each other. Quære, whether three acts of embezzlement can be charged in one count? S. C.

(1) The prisoner was servant of a person who lived in Staffordshire, and having received money for his master from B. in Shropshire, afterwards told his master in Staffordshire that he had not received any. Being sent to Shrewsbury to B., he desired B. to search the room where they had been together; but B. refused. The judges held the prisoner properly indicted in Shropshire where he received the money, though he might have been also indicted in Staffordshire, where he embezzled it, by not accounting for it to his master; for, as by the act (39 G. III. c. 85, then in force) the receiving property and embezzling it, amounts to a larceny, the offence is made a felony in the county where the property was first taken: so

to show payment of money to, and receipt of it by him, it cannot be received in evidence unless stamped according to law (m).

Indictment against a Clerk or Servant for Embezzlement.

That A. B. late of, &c. on, &c. at, &c. being then (n) and there employed as clerk [or “servant,” &c. in the words of the statute, as the fact may be] to C. D. did by virtue of such his employment as such clerk, and while he was so employed as aforesaid (0), then and there receive and take into his possession certain money to a large amount, to wit, the amount of five pounds (p), for, and in the name, and on the account of the said C. D. his said master and employer (q), and the said money did then and there unlawfully, fraudulently, and feloniously (») embezzle; and so 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 and employer as aforesaid, and then and there being the property of the said C. D. (s) from the said C. D. in manner and form aforesaid, felo. niously and fraudulently did steal, take, and carry away, against the form of the statute, &c. and against the peace, &c.

Mode of Charging two or three Acts of Embezzlement.]—When it is

that the offender might be indicted in
that or any other county into which he
carried the property, R. v. Hobson, R.
& Ry. 56; 1 East's P. C. Addenda xxiv. ;
2 Leach, C. C.975 (a.d. 1803.)Lawrence,
J., contra, held that embezzling being
the offence, there was no evidence of it
in Shropshire. In a subsequent case, a
servant who had received money in
Surrey for the use and on account of
his master who lived in Middlesex, re-
turned to his master's house soon after,
but when asked for the money, denied
having received it, and never afterwards
accounted for it. Held that he might
be indicted in Middlesex for embezzle-
ment; and semb. that had he been
proved to have spent the money in
Surrey, that would not have confined
the trial to that county, the embezzle-
ment not being completed till he had
refused to account, R. v. Taylor, 3 B.
& P. 596; 2 Leach, 974; R. & Ry. C. C.
63. Mr. Starkie, 2nd Evid. 451, cites
this case, adding, that the prisoner had
probably possession of the embezzled
money in Middlesex; and a qu. whether
it is not necessary that the prisoner
should have had possession of the goods,
&c. in the county where he is indicted,
as in common larceny.

(m) R. v. Hall, 3 Stark. R. 67, 68.
(n) See R. v. Somerton, 7 B. & C.

463, cited 8 M. & W. 368; Cotton's case, Cro. El. 738, relied on in Reg. v. Brownlow, 11 Ad. & E. 127.

(0) It seems the words, "while he was so employed," are necessary, Reg. v. Lovell, 2 M. & Rob. 336 (on 2 W. IV. c. 4, s. 1).

(p) The exact sum laid need not be proved, if money or a note of the kind alleged in the indictment is proved to have been embezzled, R. v. Carson, R. & Ry. 303; nor since 7 & 8 G. IV. c. 29, s. 48, need the coin or security embezzled be stated specifically in the indictment, as in R. v. Furneaux, R. & Ry. 335; R. v. Flower, 8 D. & R. 512; R. v. Tyers, R. & Ry. 402, was held to be requisite; but any "chattel" embezzled must be described as in larceny.

(1) Unnecessary to state from whom he received it, R. v. Beacall, 1 C. & P. 313; R. v. Wellings, id. 454.

(r) 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, R. v. Crighton, R. & Ry. 62.

(s) This is absolutely necessary, R. v. Macgregor, R. & Ry. 23. And if the property be erroneously laid, that variance will be fatal, R. v. Beacall, 1 Moo. C. C. 15.

proposed to charge two or three distinct acts of embezzlement under 7 & 8 G. IV. c. 29, s. 48, they should be stated separately in different counts, (see ante,) and the second 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 discretion of the court to compel the prosecutor to elect on which charge he will proceed. But it is safer to insert it.

Count at Common Law.]—It is also discreet always to add a count for a larceny by a clerk or servant, and another for a larceny at common law; for if the money so embezzled was ever even constructively in possession of the master, it amounts to that offence (t). Indeed, as the statute (u) provides that the offender "shall be deemed to have feloniously stolen" the chattel or money, it is by no means clear that this last count would not in all cases suffice.

SECTION XI.

OF PRINCIPALS AND ACCESSORIES.

Principals in first and second Degrees.]—All parties who are present at the fact of committing a felony, and concur therein, are principals, whether they assist by manual exertion (which constitutes them principals in the first degree), or only by command, co-operation, or encouragement (x).

A constructive presence suffices to make a man a principal (in the second degree) as an aider and abettor; for he need not be actually present, an eye or ear-witness of the transaction; he is, in construction of law, "present aiding and abetting" (y), if he act in concert with the principals, and if with the intention of giving them assistance, he be near enough at the time of the felony committed, to afford it, should the

(t) See R. v. Peck, and R. v. Smith, ante, p. 288; R. v. Johnson, 3 M. & S.

549.

(u) Ante, p. 284.

(x) They were anciently deemed only accessories, viz. down to the reign of

Henry VII. See Plowden, 100.

(y) (i. e. encouraging or setting on.) This term includes seconds present at a fatal duel, see Reg. v. Cuddy, C. & Kir. 210.

occasion arise; e. g., by watching outside a house to prevent surprise, while his companions are committing the felony, or to receive goods. which they are stealing in it, or remaining at a convenient distance in order to favour their escape, if necessary (2). If, however, he is constructively present, with the intent not of assisting but of detecting the felony, he has not the felonious intent necessary to convict him as a principal felon, though his motive in so acting was to get a reward (a). Criminals who in law are principals in the second degree, as well as in fact they are in the first, may be charged both ways in different counts (b) or either way in one count (c).

Who are Accessories ;-Time of Trial and Venue.]-An accessory 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 (d).

An accessory before the fact is he who, being absent at the time of the commission of a felony, "procures, counsels, or commands "(e) the principal felon to commit it (f); 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.

(z) Ante, p. 236, Foster, 350; 1 Hale, 439. See R. v. Borthwick, 1 Doug. 207; R. v. Gogerly, R. & Ry. 343; R. v. Owen, 1 Moo. C. C. 96; R. v. Stewart, R. & Ry. 363; Plowden, 96.

(a) R. v. Dannelly and another, 2 Marsh. 571; S. C. R. & Ry. 310. Dannelly leaned over the rails of a house while his companions robbed it. He had previously informed the police of the intended burglary: and was suffered by them to escape.

(b) An indictment in its first count charged that Folkes ravished E. and that Ludds at the time of committing the said felony and rape in form aforesaid, to wit on &c. with F. and A. at &c. feloniously was present aiding, abetting, and assisting Folkes the felony and rape aforesaid to do and commit against the peace, &c. In other counts Ludds was charged as principal and Folkes as aider. In others an evil disposed person unknown" was laid as principal and Folkes and Ludds as aiders, Ludds was acquitted, Folkes convicted generally. He with three other men had committed at same place and time, one after other successively, rapes on E., the others aiding &c. in turn. It was said that distinct

offences liable to distinct punishment were charged, so misjoinder; as 9 G. IV. c. 31, contained no specific provision against aiders and abettors in rape. Held by the judges, on case reserved, that the conviction was good on the first count charging him as principal; on such an indictment several rapes on the same woman by prisoner and other men, each assisting the other in turn, may be proved without putting the crown to elect on which count to proceed. Folkes's case, 1 Mood. C. C. 354 (1832).

An indictment against G. and W. charged in the first count W. as principal and G. as an aider, in the second it charged G. as principal and W. as aider (viz. as principal in second degree.) Coleridge, J., refused a motion to quash the indictment for misjoinder, R. v. Gray and Wise, 7 C. & P. 164; see R. v. Parry and others, 7 C. & P. 836. (c) Reg. v. Crisham, C. & Mar. 187, Maule, J. and Rolfe, B.

(d) 4 Bla. Com. 35.

(e) Command includes all those who incite, procure, set on or stir up any other to do the fact, Foster, 126; East's P. C. 641; 2 Haw. c. 33, s. 65. (f) 1 Hale, 613.

An accessory after the fact is one who, knowing a felony to have been committed, receives, harbours, relieves, comforts, or assists the principal, or accessory before the fact, with a view to his escape (g).

As in treasons, so in misdemeanours, there are no accessories: but in felonies only (h). Nor were there any accessories in larceny under or to the value of 12d. until the 7 & 8 G. IV. 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 party guilty of receiving stolen goods did not come within the definition of an accessory after the fact at common law; but his offence was made punishable as that of an accessory after the fact, and otherwise by several acts, now consolidated by 7 & 8 G. IV. c. 29, in sect. 54, and which, as constituting a substantive offence, will be noticed in the next section (i). By the old law, no accessories before or after the fact could, without their consent, be brought to trial, unless with the principal, or after his guilt had been legally ascertained by his conviction on having taken his trial singly; or, after his outlawry on a capital crime, which is equivalent to attainder (k). But now by 7 G. IV. c. 64, s. 11, in order that all accessories may be convicted and punished in cases where the principal felon is not attainted, it is enacted that if any principal offender shall be in anywise convicted of any felony, it shall be lawful to proceed against any accessory, either before or after the fact, in the same manner as if such principal felon had been attainted thereof, notwithstanding such principal felon shall die, be [admitted to benefit of clergy, or] pardoned, or otherwise delivered before attainder: and every such accessory shall suffer the same punishment, if in anywise convicted, as he or she should have suffered if the principal had been attainted.

And by s. 10. an accessory after the fact to a felony, may be tried in the same manner as if the act constituting him the accessory, were committed at the same place as the principal felony: though that act

(g) 1 Hale, 618. Employing another to harbour felons seems sufficient to constitute this offence, 4 Bla. C. 37; 2 Haw. c. 29, s. 1; 3 P. W. 475; but the assisting must be to the felons personally, Reg. v. Chapple and others, 9 C. & P. 395.

(h) 1 Hale, 238, 613; Foster, 341. "In the highest offences [crimen læsæ majestatis] and in the lowest [riots, routs, forcible entries, and vi et armis] there be no accessaries; but in felonies there be, both before and after." See

Co. Lit. 57, a. b.) What makes a man accessory before the fact in felony makes him principal in misdemeanour, Reg. v. Clayton and Mooney, C. & Kir. 128. The rule is proved by the exception in misdemeanours punishable under act against malicious injuries to person, post, p. 296.

(i) See the old acts. 3 W. & M. c. 9, s. 4; 5 A. c. 31, s. 5; 1 East's P. C. 743. (k) 4 Bla. C. 40, 132. As to the day from which the outlawry accrues, ante, p. 207.