THE

IRISH CONSTABLE'S GUIDE.

[Note. The following abbreviations are adopted in the work: F., felony; M., misdemeanour; O., offence (not indictable); P., penalty; S., section,]

Abduction, 24 & 25 Vic. c. 100.--S. 53. Where any woman of any age shall have any interest, whether legal or equitable, present or future, absolute, conditional, or contingent, in any real or personal estate, or shall be a presumptive heiress or co-heiress or presumptive next of kin, or one of the presumptive next of kin to any one having such interest, whosoever shall from motives of lucre, take away or detain such woman against her will, with intent to marry or carnally know her, or to cause her to be married or carnally known by any other person;-And whosoever shall fraudulently allure, take away, or detain such woman, being under the age of twenty-one years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, with intent to marry or carnally know her, or to cause her to be married or carnally known by any other person, shall be guilty of F.-S. 54. Whosoever shall by force, take away or detain, against her will, any woman of any age with intent to marry or carnally know her, or to cause her to be married or carnally known by any other person, shall be guilty of F.-S. 55. Whosoever shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of M. See also C. L. A. Act, at page 79.

[Under section 55 it is unimportant whether the girl consented or not to go away; the offence may be committed without the violation of the girl's will. If the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such person. The fact that the offender supposes in good faith and on reasonable grounds that the girl is more than sixteen years of age, is immaterial; but it is necessary that he should either know, or have reason to believe, that she was under the lawful care or charge of her father, mother or some other person.-Stephens' Digest of C. L.]

Abortion.__24 & 25 Vic., c. 100, s. 58. Every woman being with child who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent; and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever, with the like intent, shall be guilty of F.-S. 59. Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of M.

[There is no administering unless the poison is taken into the stomach; but to constitute administering there need not be an actual delivery by the hand of the accused. The nature of the poison or other noxious thing must be proved, as if it be of a harmless character there is no offence. The intent will appear from other circumstances, e.q., that the child was likely to be born a bastard, and chargeable to the reputed father; that the drugs were procured in a clandestine manner. The statute is satisfied if the person who supplies the thing intends it to be used for the purpose of procuring abortion, though the person to whom it was supplied had no intent to use it for any such purpose.]

Accessories, &c. Where two or more are to be brought to justice for one and the same felony, they are considered in the light either as principals in the first degree, principals in the second degree, accessories before the fact, or accessories after the fact; and in either of these characters they will be felons in consideration of law; for he who takes any part in a felony, whether it be a felony at common law or by statute, is in construction of law a felon, according to the share which he takes in the crime.-I. Principals in the first degree are those who have actually and with their own hands committed the fact. II. Principals in the second degree are those who were present, aiding and abetting at the commission of the fact; they are generally termed aiders and abettors, and sometimes accomplices. The presence need not be a strict actual immediate presence, such a presence as would make him an eye or ear witness of what passes, but may be a constructive presence. By presence is meant such

contiguity as will enable the party to render assistance to the main design. There must be a participation in the act, for although a man be present whilst a felony is committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be a principal in the second degree merely because he did not endeavour to prevent the felony or apprehend the felon. So a mere participation in the act, without a felonious participation in the design, will not be sufficient. The party must be so near as to be ablo to assist in the felony. When an offence is committed through the medium of an innocent agent, the employer, though absent when the act is done, is answerable as a principal. If a fact amounting to murder should be committed in prosecution of some unlawful purpose, though it were but a bare trespass, all persons who had gone in order to give assistance for carrying such unlawful purpose into execution would be guilty of murder. But where the purpose was lawful, it will be murder only in the party killing and his actual aiders and abettors. III. An accessory before the fact is he who, being absent at the time of the offence committed, doth yet procure, counsel, command, or abet another to commit a felony. Whoever procures a felony to be committed, though it be by the intervention of a third person, is an accessory before the fact; for there is nothing in the notion of commanding, hiring, counselling, aiding, or abetting which may not be effected by the intervention of a third person without any direct immediate connexion between the first mover and the actor. It is enough if the accessory direct an intermediate agent to procure another to commit a felony; and it will be sufficient, even though the accessory does not name the person to be procured, but merely directs the agent to employ some person. In high treason there are no accessories, but all are principals; but in felonies in general there may be accessories, except only in those offences which are sudden and unpremeditated, where there cannot be any accessories before the fact. In crimes under the degree of felony there can be no accessories, but all persons concerned

therein, if guilty at all, are principals. IV. An accessory after the fact is a person who, knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon. Whoever rescues a felon from an arrest for the felony, or voluntarily and intentionally suffers him to escape, or opposes his apprehension, is an accessory to the felony. But a wife who receives, comforts, or relieves her husband, knowing him to have committed a felony does not thereby become an accessory after the fact. This, however, is the only relationship which will excuse such an act, the husband being liable for receiving the wife. A man may make himself an accessory after the fact to a larceny of his own goods, or to a robbery on himself, by harbouring or concealing the thief, or assisting in his escape. The felony must be complete at the time of the assistance given, else it makes not the assistant an accessory. In order to render a man guilty as accessory, he must have notice, either express or implied, of the principal having committed a felony. Aiding and abetting in the commission of a misdemeanour is itself a misdeIn misdemeanours all are principals, and there are no accessories. For trial and punishment of accessories to felonies and misdemeanours, see 24 & 25 Vic., c. 94.

meanour.

Accomplice. The evidence of an accomplice in a criminal offence is admissible, since if accomplices were not admitted as witnesses it would frequently be impossible to find evidence to convict the greatest offenders. It is not a matter of course to admit an accomplice to give evidence on the trial, even though his testimony has been received by the committing magistrate; but an application to the Court for the must be made. If there be sufficient evidence purpose to convict without his testimony, the Court will refuse to allow him to be admitted as a witness. So also, if there be no reasonable probability of a conviction with his evidence, the Court will refuse his testimony. The jury may, if they please, act upon the evidence of the accomplice, even in a capital case, without any confirmation of his statement; but the

judge will warn them of the extreme danger of doing So. It may be regarded as the settled course of practice not to convict a prisoner, excepting under very special circumstances, upon the uncorroborated testimony of an accomplice. As to the nature of the corroboration which ought to be required it is considered essential that corroboration should be given of the prisoner having actually participated in the offence, and when several prisoners are tried that confirmation should be required as to all of them before all can be safely convicted. Lord Abinger said :-" A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identify ing the persons, that is really no confirmation at all. The danger is that when a man is fixed and knows that his own guilt is detected, he will purchase impunity by falsely accusing others." The rule requiring corroborative evidence does not apply to an informer, as, though great odium may attach to him for the part he has acted, yet his case is not treated as that of an accomplice. The admission of an accomplice who afterwards refuses to give evidence, or denies the facts admitted by him, can be used asevidence against him, and he can be convicted on his own confession.

Affray-M.-An affray is the fighting of two or more persons in some public place to the terror of the King's subjects, for if the fighting be in private, it is not an affray, but an assault. It differs from a riot in not being premeditated, and also, two persons may be guilty of an affray, but it requires three or more to constitute a riot. Mere words will not make an affray. There may be an assault which will not amount to an affray, as when it happens in a private place, out of the hearing or seeing of any except the parties concerned, in which case it cannot be said to be to the terror of the people. A prize fight is an assault, and not an affray. Anyone who sees others fighting may lawfully part them, and also stay them till the heat be over, and then deliver them to the Constable, who may carry them before a magistrate, in order to their finding sureties for the peace. A