c. 111.

inquire concerning such previous conviction, until after they 6 & 7W.4, shall have inquired concerning such subsequent felony, and shall have found such person guilty of the same; and whengiven in ever in any indictment such previous conviction shall be stated, charge, until the reading of such statement to the jury as part of the indict- after the finding for a ment shall be deferred until after such finding as aforesaid: pro- subsequent vided nevertheless, that if, upon the trial of any person for any after evidence felony, except such subsequent felony as aforesaid, such person shall give evi- of good chadence of his or her good character, it shall be lawful for the ter. prosecutor, in answer thereto, to give evidence of the indictment and conviction of such person for the previous felony, before such verdict of guilty shall have been retnrned; and the jury shall inquire concerning such previous conviction for felony, at the same time that they inquire concerning the subsequent felony.

SECTION 9.
Accessories.

Accessory

to try the

9 Geo. 4, c. 54, s. 23.—And for the more effectual prosecution of accessories before the fact to felony; be it enacted, that if any person shall counsel, procure, or command any other before the fact, may be person to commit any felony, whether the same be a felony at tried as such, common law, or by virtue of any statute or statutes made or to or as a prinbe made; the person so counselling, procuring, or command- cipal felon, by any court ing, shall be deemed guilty of felony, and may be indicted and which has convicted as an accessory before the fact to the principal felony, jurisdiction either together with the principal felon, or after the conviction principal of the principal felon; or may be indicted for, and convicted of felon. a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice; and may be punished in the same manner as an accessory before the fact to the same felony, if convicted as an accessory, may be punished: and the offence of the person so counselling, procuring, or commanding, howsoever indicted, may be inquired of, tried, determined, and punished by any court which shall have jurisdiction to try the principal felon, in the same manner as if such offence had been committed at the same place as the principal felony, although such offence may have been committed either on the high seas, or at any place on land, whether within his majesty's dominions or without; and in case the principal felony shall have been com- If the offen. mitted within the body of any county, and the offence of ces of principal and counselling, procuring, or commanding, shall have been com- such accesmitted within the body of any other county, the last mentioned sory be in offence may be enquired of, tried, determined, and punished in

different counties, the

9 G. 4, 8. 54. either of such counties. Provided always, that no person who shall be once duly tried for any such offence, whether as an accessory before the fact, or as for a substantive felony, shall be liable to be again indicted or tried for the same offence.

latter may be tried tn either.

24. And for the more effectual prosecution of accessories after the fact to felony, be it enacted, that if any person shall become an accessory after the fact to any felony, whether the same be a felony at common law, or by virtue of any statute or statutes made or to be made; the offence of such person may be enquired of, tried, determined, and punished by any court which shall have jurisdiction to try the principal felon, in the same manner as if the act, by reason whereof such person shall have become an accessory, had been committed at the same place as the principal felony, although such act may have been committed either on the high seas, or at any place on land, whether within his majesty's dominions or without; and that, in case the principal felony shall have been committed within the body of any county, and the act, by reason whereof any person shall have become accessory, shall have been committed within the body of any other county, the offence of such accessory may be enquired of, tried, determined, and punished in either of such counties. Provided always, that no person who shall be once duly tried of any offence of being an accessory, shall be liable to be again indicted or tried for the same offence.

25. And in order that all accessories may be convicted and punished, in cases where the principal felon is not attainted; be it 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, or be pardoned, or otherwise delivered before attainder; and every such accessory shall suffer the same punishment, if such accessory be in anywise convicted, as such accessory should have suffered, if the principal had been attainted.

[Vide 9 Geo. 4, c. 55, s. 54, ante 9.]

GENERAL RULE

Of Interpretation of Criminal Statutes.

9 Geo. 4, c. 54, s. 35.-That whenever, in this act or in any other act relating to any offence, whether punishable upon indictment or summary conviction, in describing or referring to the offence, or the subject matter on or with respect to which it shall be committed, or the offender, or the party affected or in

tended to be affected by the offence, any word or words have 96.4, c. 54. been or shall be used or employed, importing the singular number or the masculine gender only; every such act shall be understood to include several matters of the same kind as well as one matter, and several persons as well as one person, and females as well as males, and bodies corporate as well as individuals; unless it be otherwise specially provided, or there be something in the subject or context repugnant to such construction; and wherever any forfeiture or penalty is or shall be made payable to a party aggrieved, it shall be payable to a body corporate, in every case where such body shall be the party aggrieved.

Before closing this branch of the subject of criminal law, NOTE. it may not be improper to make a few observations upon the several degrees of crime, as recognized by the law of Ireland:

Crimes have been divided into three classes, according to their supposed flagrancy, and are either treasons, felonies, or misdemeanors.

1. Treason. This class was formerly subdivided into high treason and petty treason. The distinction, however, has been abolished by the 10 Geo. 4, c. 34, s. 3, ante 81, by which petty treason is to be deemed murder. Several offences relating to the coin were formerly deemed high treason, but by 2 Will. 4, c. 34, ante 117, all such offences are made either felonies or misdemeanors. The only crimes, therefore, which are now punishable as treason, are those committed by the subject directly against his allegiance. They will be found enumerated in the several statutes on the subject, (ante 99, et seq.) All persons concerned in high treason are principals. 2 Hawk. c. 29, s. 2. But a bare knowledge and concealment of treason, without any assent thereto, amounts only to a misprision, and is punishable as a misdemeanor. 4 Bl. Com. 120. All persons indicted for high treason, under the 25 Edw. 3, (ante 99,) shall, if they desire it, have counsel (not exceeding two,) assigned them by the court, by whom they shall be permitted to make a full defence, and may also have a copy of the indictment, five days before the trial. 5 Geo. 3, c. 21, ante 101. The number of peremptory challenges allowed to a prisoner in treason and felony is limited to twenty. 9 Geo. 4, c. 54, s. 9. The punishment annexed by law to this offence is death the manner of which is described by the 54 Geo. 3, c. 146, ante 113. No person charged with treason can be admitted to bail, except by the King's Bench. 4 Bl. Com. 298; R. v. Wyndham, Str.2; R. v. Yates, Holt 83. When a per

NOTE.

son has been convicted by the jury of treason or felony, or has been put in exigent after indictment found for either of those crimes, all his goods and chattels become forfeited to the crown; and all his rights of action, except those for a wrong to his person, as a battery, and all debts owing to him, and all securities for money; but not the goods which he has as executor or administrator. Com. Dig. Forfeiture, B. 2; 2 Hawk. c. 49, ss. 13, 15; 4 Bl. Com. 387; Batty v. Fay, Ir. T. R. 511; Bullock v. Dodds, 2 B. & Ald. 258; Lambert v. Taylor, 4 B. & Cr. 138. He forfeits also those goods which he may have fraudulently conveyed away, in prospect of a conviction, and to avoid a forfeiture. Morewood v. Wilkes, 6 C. & P. 144. The goods so forfeited immediately become vested in the rown, Bullock v. Dodds, 2 B. & Ald. 258; and without being subject to the debts of the felon, Megit v. Johnson, Dougl. 542; and the sheriff may seize them to the king's use, Com. Dig. Forfeiture, B. 4.

When judgment is pronounced against the party accused of treason or felony, he thenceforward becomes attainted. 4 Bl. Com. 381. In treason the consequences of attainder are forfeiture of all freehold estates of inheritance which he had at the time of the treason committed, or at any time after; and also the profits of all lands which he had in his own right for life or years, so long as such interest subsists-corruption of blood -and infamy as a witness. The party in fact becomes civiliter mortuus, and, if a peer, also forfeits his dignity. So also he forfeits his right of entry into any lands, and also all annuities of inheritance. But he does not forfeit the lands or hereditaments which he holds in auter droit, or as trustee for another; nor does his wife lose her jointure. 28 Hen. 8, c. 7, s. 4, ante 104; 4 Bl. Com. 381, 388; Com. Dig. Forfeiture, B. 1, Dignity, E; 4 & 5 Will. 4, c. 23, s. 3.

2. Felony. Forfeiture has long been considered the distinguishing characteristic of offences of this class; and so generally did it prevail, that petit larceny is the only felony which did not entail forfeiture as one of the legal consequences of its commission. Com. Dig. Forfeiture, B. 3. Suicide being a felony, induced a forfeiture of goods; but, there being no attainder, the realty was exempt. 3 Inst. 55.

In felony, where there is no corruption of blood, there can be no forfeiture of lands; for that is only by way of escheat, for defect in the descent by reason of the corruption of blood. Lovell's Case, 1 Salk. 85. Since the 54 Geo. 3, c. 145. murder is the only crime which occasions a corruption of blood. Upon attainder therefore, for murder, the party forfeits to the crown all the profits of his freehold lands during his life, and also, "the year day and waste" after his death, in those lands of which he was seized in fee-simple; but this prerogative does not extend to the lands of which he was seized in fee tail, or for life, or years, or as trustee, or mortgagee, Com. Dig. Ann jour & wast; 9 Hen. 3, (Mag. Ch.) c. 22; 4 & 5 Will. 4, c. 23, s. 3;

4 Bl. Com. 385. Estates of freehold are not devested by attainder until office found; and an ejectment may be maintained upon the demise of a person so attainted. Doe d. Griffith v. Pritchard, 5 B. & Adol. 781.

Formerly the punishment of death was considered as annexed to every felony higher than petit larceny; and so, when acts of parliament provide that persons guilty of certain offences shall suffer death, or shall have judgment of life and member, such offences are thereby made felonies, 1 Hale, 703; 1 Hawk, c. 7, s. 5: and where a statute declared that the offender should be deemed to have feloniously committed the act, it made the offence a felony, and imposed all the ordinary consequences of a felony, R. v. Johnson, 3 M. & S. 556. But if the act enact that the offence shall be punishable with forfeiture of all a man has, or of his body and goods, it only amounts to a misdemea. nor. 1 Hawk. c. 7, s. 6.

Any private individual may and ought to arrest a person whom he sees committing treason or felony; and when he knows that such an offence has been committed, he may arrest any one whom he reasonably suspects to be the traitor or felon. Constables may (and whenever they have power, it is also their duty,) arrest on such suspicion, although they may have no positive knowledge of the actual commission of such an offence. Beckwith v. Philby, 6 B. & Cr. 635; Davis v. Russell, 5 Bing. 355; Nicholson v. Hardwick, 5 C. & P. 495.

The arrest of persons charged with treason, felony, or breach of the peace, may be effected in any place, on any day, and at any time of the day, 9 Co. 66; Ch. C. L. 16; and if they fly from, or resist a lawful arrest by the officers of justice, they may be killed, when they cannot be otherwise secured. R. v. Daunt, ante 81; R. v. Fennerty, ante 82; 1 East. P. C. 298. A person may repel force by force in defence of his person, habitation, or property against one who manifestly intends and endeavours by violence or surprise to commit a known felony upon either. In these cases he is not obliged to retreat, but may pursue his adversary till he finds himself out of danger, and if in a conflict between them he happen to kill, such killing is justifiable. Fost. 273. In case of an attempted robbery or murder, the servant of the person attacked, or any person present may interpose; and in arson and burglary, any member of the family, or even a lodger, may lawfully kill the assailants to prevent the mischief intended. Fost. 274.

Felons may be tried at any assizes or sessions after their committal, and have no right to have their trial postponed, except for the absence of a material witness who could not be produced, or other good cause shewn on affidavit. R. v. D'Eon. Bl. 514, Burr, 1514. Persons arraigned for treason or capital felony have a right of peremptory challenge of twenty of the jury panel when called, and before they are sworn. 9 Geo. 4, c. 54, s. 9. In felony alone, the parties concerned are capable of distinction, as principal or accessories. Ch. C. L. 261.

NOTE.