The next day Dade saw the notes and approved of them; and he was to fill them up by a pattern which Wilson had got from Collins, to let Dade have; and Dade finished the notes off. Dade promised not to deliver any of them till he saw Wilson again. Collins and Campbell were desirous to have some of them when they were ready. This was on the 4th of September. The note in question. was proved to be a forgery. It was proved to be one of Stansfield's make. The engraving was proved to be an impression from the plate which Kirkwood showed to Wilson.

The filling up of the note was proved to be in Dade's writing. It did not appear that Stansfield, either before or at the time he delivered the bottom to Wilson, knew that either Dade or Kirkwood had or were to have anything to do with the transaction; neither did it appear that Kirkwood, when he delivered the impression of the plate to Wilson, knew that either Dade or Stansfield had or were to have anything to do with the transaction.

The counsel for the crown referred to the case of Rex v. Bingley and Others, Russell and Ryan, 446.

The jury found Kirkwood, Stansfield, Collins, and Campbell guilty; Liddy not guilty,

But the learned judge doubted whether the present case went the length of that, and whether the conviction, as far as related to Kirkwood and Stansfield, was proper; and then, if it was wrong as to them, the conviction of Collins and Campbell, who were charged as accessories before the fact, would fall to the ground also, inasmuch as Dade was not upon his trial.

The learned judge respited the judgment till the next assizes, that the opinion of the judges might be taken.

This case was considered at a meeting of all the judges, except GARROW, B., and PATTESON, J., in Trinity term, 1831; and they were unanimously of opinion that Kirkwood was a principal, and that the conviction was right.1

REGINA v. JEFFRIES.

(Central Criminal Court, 1848. 3 Cox, C. C. 85.)

The prisoners were indicted for larceny in a dwelling house. It appeared that Jeffries was clerk to one Whittock, the prosecutor, who was a coal dealer. The prosecutor's money chest was kept in a room adjoining the office, and of the door of this room the prisoner Jeffries had a key. On the night of the larceny he was proved to have unlocked the door and then gone away. About 20 minutes afterwards the prisoner Bryant came to the room and removed the money chest. It was attempted to be shown, on the part of the

1 Compare Rex v. Manners, 7 Car. & P. 801 (1837); Reg. v. Charles, 17 Cox. C. C. 499 (1892).

prisoner Jeffries, that he was three-quarters of a mile from the prosecutor's premises at the time Bryant was there.

CRESSWELL, J., told the jury that where one person opens the door of a house which contains the articles stolen, and then goes away, and another in his absence, but acting in concert with him, enters、 the house and commits the larceny, the one who opens the door is not guilty as a principal in the act.

Greaves, for the prosecution, submitted that Jeffries was guilty of a joint larceny, although he was not actually present at the time of the removal by Bryant. In the case of burglary, where the breaking is in one night and the entry the next night, a person present at the breaking, though not present at the entering, is in law guilty of the whole offense. Rex v. Jordan, 7 C. & P. 432.

CRESSWELL, J., said he would consult Mr. Justice PATTESON, sitting in the Nisi Prius Court. On his return, he said Mr. Justice PATTESON agreed with him, and entertained no doubt on the point; and accordingly

CRESSWELL, J., directed the jury, if they believed that Jeffries was not present assisting Bryant at the time of the removal of the chest, to acquit him.

REGINA v. McPHANE.

(Central Criminal Court, 1841. 1 Carr. & M. 212.)

The first count of the indictment charged the prisoners jointly with feloniously assaulting George Whatmow, and cutting and wounding him with intent to kill and murder him. In the second count the intent was charged to be to maim and disable him; and in the third count to do him some grievous bodily harm.

The prosecutor was a police constable; and while he was on duty in Hooper street, Lambeth, between eleven and twelve o'clock at night, on the 17th of May, he was proceeding in a direction towards a beer shop called "The Farmhouse," when he was told that a person had been robbed of his watch there. He went on towards the house for the purpose of making inquiries, and when he was about ten yards from the door, the prisoner, Popham, came from a brothel opposite, and saying, "You shall never reach the house," struck him a violent blow in the face with his fist. Popham then was making his way towards the beer shop, when the prosecutor seized him and endeavored to stop him; upon which he took a life preserver out of his breast pocket and struck him with it, and knocked off his hat. He then struck him a second blow with the life preserver, which severely cut his head about the left temple, and felled him to the ground, but he still continued to keep his hold; and while they were struggling together the prisoner, McMIK.CR.L. (2D ED.)-24

Phane came from the beer shop, and struck the prosecutor another blow on the face with some instrument, which appeared to him to be a life preserver also. The prosecutor still retained his hold of Popham, but McPhane gave him another blow across the arm with the same weapon, which caused him to lose his hold of Popham, and Popham in consequence got away. McPhane then struck the prosecutor a third blow, upon which he endeavored to secure him; and while he was so doing, the other prisoner, Donoghue, came from the beer shop and kicked him several times in various parts of the body while he was on the ground, but did not say anything while he was doing so.

Several witnesses were called on the part of McPhane, to contradict the witnesses for the prosecution.

TINDAL, C. J., in his summing up, told the jury, that inasmuch as the prisoners were jointly charged with the offence of cutting and wounding, and as it appeared that the prisoner, Donoghue, did not come up until after the prisoner Popham had got away, the evidence did not sustain the charge against him; and he must be acquitted altogether upon this indictment. With respect to the other two prisoners, he thought that the first count of the indictment. had not been proved, as it did not appear that there was any intention to take away the life of the prosecutor. They would therefore have to say, whether they considered that the prisoners, Popham and McPhane, wounded him with intent either to maim and disable him, or to do him some grievous bodily harm; if they did so consider, then, they would find them guilty upon either the second or third counts; but if they were not satisfied that they had either of those intents, but still were of opinion that they struck the prosecutor in the way described by the evidence, they were at liberty to find them guilty of an assault only.

Verdict: Popham and McPhane, guilty upon the second count; Donoghue not guilty.

SECTION 2.-PRINCIPAL IN THE SECOND DEGREE

GRIFFITH'S CASE.

(Reporter's Note, 1553. 1 Plow. 97.)

Note (Reader) that the said case in 40 Ass. pl. 25, proves that the law anciently was, that those who were present and abetting were not Principals, but Accessories, as the Lord Bromley said before, for the book is, that four were appealed as Principals, and the others of Presence, Force, and Aid. And also in Mich. 40 Edw.

MIK.CR.L. (2D ED.)

* * *

III, 42, it appears that one William de C. was appealed for that he was aiding, present, and commanding one T., who on a certain Day killed W. de R., Husband of the Wife; and because the Principal. was not attainted by Exigent, nor in other manner, the defendant was let to Mainprize, and afterward the Principal was attainted by Exigent, and then W. was put to answer. But of late time the Law has been held contrary in this point, for now they are taken to be Principals by all the Sages of the law and in the Years of Henry IV, the Reader may see the law often adjudged accordingly, viz., that those who are present and abetting to do the Act are Principals, as well as he that does it. And it seems the Law was so changed in the Time of the said King Henry IV, when the former course was reproved and corrected in this point.

* * **

BANSON v. OSSLEY.

(King's Bench, 1686-87. 3 Mod. 121.)

An appeal of murder was tried in Cambridgeshire against three persons, and the count was, that Ossley assaulted the husband of the appellant and wounded him, in Huntingdonshire, of which wound he languished and died in Cambridgeshire, and that Lippon and Martin were assisting.

The jury found a special verdict, in which the fact appeared to be, that Lippon gave the wound, and that Martin and Ossley were assisting.

The first exception to this verdict was, That the count and the matter therein alleged must be certain, and so likewise must the verdict, otherwise no judgment can be given; but here the verdict finding that another person gave the stroke, and not that person against whom the appellant had declared, it is directly against her own showing.1

THE COURT answered to the first exception, that it was of no force, and that the same objection may be made to an indictment, where in an indictment if one gives the stroke and another is abetting, they are both principally and equally guilty; and an indictment. ought to be as certain as a count in an appeal.

1 The second exception is omitted.

2 Accord: Doan v. State, 26 Ind. 495 (1866); Commonwealth v. Kern, 1 Brewst. (Pa.) 350 (1867); State v. Hess, 65 N. J. Law, 544, 47 Atl. 806 (1900).

McCARNEY v. PEOPLE.

(Court of Appeals of New York, 1881. 83 N. Y. 408, 38 Am. Rep. 456.)

Error to the General Term of the Supreme Court, in the Fourth Judicial Department, to review judgment entered upon an order made October 7, 1879, affirming a judgment of the Court of Sessions, in and for the county of Erie, entered upon a verdict convicting the plaintiff of the crime of grand larceny.

The indictment charged the plaintiff in error with stealing twelve barrels of whisky, which were averred to be the property of the "Farmers' & Mechanics' National Bank of Buffalo, then and there being a body corporate organized and existing under and by virtue of the laws of the state of New York." The further facts are sufficiently set forth in the opinion.

FOLGER, C. J. There was not proof that the prisoner was present at the warehouse from which the property was taken; or that he was in close vicinity to it. There was proof that there was a man at the warehouse that the jury might have found was the guilty taker; but it was not conclusive. They might have found that all of the immediate actors were innocent of the intent to steal. On this state of the proof the prisoner claimed that he could not be held as a principal offender, and if at all, only as an accessory before the fact. To constitute one a principal in a felony, he must be present at the commission of it. But he need not be so near as to be an eye and ear witness of the criminal act. His presence may be constructive, and that constructive presence is made out when it is shown that he acted with another in the pursuance of a common design; that he acted at one and the same time for the fulfillment of the same preconcerted end and was so situated as to be able to give aid to his associate, with a view to insure the success of the common enterprise. A waiting and a watching at a convenient distance is enough; as if, in a case of larceny, he be placed where he may learn of the whereabouts and movements of the custodian of the property, and be prepared to lure him away, or to retard him, or to give timely warning of his approach. Now there was proof here tending to show that the prisoner had part in planning the theft, and in spying out the lay of the premises where the property was stored, and in learning the ways of the keeper of them. It was in proof that one who was in fact engaged in the taking of the property sent the porter of the warehouse to the home of the keeper of the goods with a letter, and promised the porter a reward on his calling after the delivery of it, at a given number and street. On his reaching that street, and in quest of that number, he met the prisoner, who spoke to him, and they conversed of

1.Only so much of this case as relates to the law of principals is printed.