under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he willfully encouraged, and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arrange that a criminal offense shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding and abetting. A very strong authority upon this point is to be found in the case of Rex v. Borthwick. That was an indictment for murder, charging the prisoners as principals in the second degree. Mr. Justice Willes having cited Messenger's Case from Kelyng's Reports, said: "Where several acts of force are found to have been actually committed in pursuance of the design" (that is a common illegal design) "there is no need to find the prisoners to have been aiding and assisting, for that is only necessary to be found where the jury find a person was there amongst them, and find no particular act of force done by him, but only in his presence. In the present case it is not found that the prisoners did any act during the affray, or that they were present aiding and assisting; and the court cannot intend that they were." In Rex v. Young, which was an indictment for murder (in a duel between Eliot and Mirfin), against the prisoners as principals in the second degree, Mr. Justice Vaughan, in addressing the jury said: "Mere presence alone will not be sufficient to make a party an aider and abettor; but it is essential that he should by his countenance and conduct in the proceeding, being present, aid and assist the principals. Did the prisoners give their aid and asistance by their countenance and encouragement of the principles in this contest? It is said one of the prisoners went for the purpose of bringing about a reconciliation, not to give countenance to the continuance of the contest - that is for you.”

In Regina v. Cuddy the prisoner was indicted as principal in the second degree to murder (in a duel between Munro and Fawcett), and Mr. Justice Williams said: "The question is whether the prisoner was at the spot at the time, and whether he took such a part as amounts, in the language of this indictment, to an aiding and abetting of the principal offender. All persons who were present encouraging or promoting will be guilty of abetting the principal offender," and with this direction the question was left to the jury. In Regina v. Atkinson,1 Lord Chief Baron Kelly, on the trial of the defendants for a riot, expressly ruled “that the mere presence of a person among the rioters, even though he possessed the power, and failed to exercise it, of stopping the riot, did not render him liable on such a charge." And he

1 11 Cox, C. C. 332.

left the case to the jury with this direction: "That in order to find any of the defendants guilty, the jury must be satisfied that they had taken part in an assembly for an unlawful purpose, and had helped, or encouraged, or incited the others in the prosecution of that purpose." In Regina v. Taylor,1 Chief Justice Cockburn said: "To support an indictment against a man as an accessory by abetting an offense, there must be some sort of active proceeding on his part, he must incite, or procure, or encourage the act," and the whole court held that merely holding the stakes to be paid to the winner of a fight in which one of the combatants was killed, was not, of itself, sufficient to make such holder an accessary to a charge of manslaughter. This case of Regina v. Taylor was a peculiar one, and it was not necessary to decide whether the facts would have justified a conviction for aiding and abetting a breach of the peace, as to which a question might possibly be raised.

It is unnecessary to multiply authorities upon this point or to speculate upon the infinite variety of cases in which a person may innocently witness, and be a passive spectator of a fight, or any other unlawful or criminal act. Nor is it necessary to express any final opinion whether or not the evidence upon the present occasion would have justified the jury, had they been so minded, in finding the defendants to be aiders and abettors. I confess I have grave doubts whether there was sufficient evidence of aiding and abetting against either. The only question we have to determine is whether, upon mere proof that the defendants were mere voluntary spectators at the fight, the chairman was right in directing them to find the defendants guilty; and in recording that verdict, in the teeth of the express finding that the defendants were not aiding or abetting. I am of opinion that he was not; and I base my judgment upon this, that no matter how cogent the circumstances may be to establish active encouragement, aiding and abetting on the part of the accused, it is the province of the jury alone to exercise their judgments upon those circumstances, and to say by their verdict whether from them they draw the conclusion of guilt or innocence:2 and that however conclusive the evidence may appear to him to be, no judge has a right to direct a verdict of guilty as a matter of law until the jury have drawn the inference essential to support such verdict.

Since this judgment was written, Lord Justice Baggallay, at the Warwick Winter Assizes, 1882, in Regina v. Hodkiss et al., who were indicted for manslaughter, stated this, which, I think, the correct view of the law to be, that the mere presence of a person at a prize-fight was not, in itself, aiding and abetting of that which was going on.

1 23 W. R. 616; L. R. 2 C. C. 147.

2 See the direction of Chief Justice Mansfield, in Clifford v. Brandon, 2 Campb. 370.

But, of course, the presence of a person at such a fight must be taken in connection with the surrounding circumstances, which might affect particular individuals and make all the difference; and in every case it was the province of the jury to determine whether those particular circumstances applied to a certain person, and so brought him within the law.

I think, therefore, this conviction ought to be quashed.

HUDDLESTON, B. I am of opinion that the direction of the learned chairman of Quarter Sessions was not correct, and that this conviction must be quashed.

If he had told the jury that the going to a prize-fight to see the combatants strike each other, and being present when they did so, was evidence from which they might find that the defendants countenanced what was going on, and that therefore they might find them guilty, I I should have been disposed to support that ruling.

But that is not the effect of his summing up, by the qualification he introduced, quoting words attributed to Mr. Justice Littledale, he in substance told the jury that staying at the place was of itself encouragement, and that the mere fact of being present was sufficient to justify a conviction. I can not believe that the learned judge, Mr. Justice Littledale, has been accurately reported in this respect; but if he has been, with great respect for so learned a judge, I can not concur in his ruling. The mere staying at a place, where a fight is going on is not necessarily encouragement; the detective sent to report what is taking place and to bring the offenders to justice can not be said to be encouraging what is going on; a person casually passing, but who stays to see what happens and interferes to prevent, or retires in disgust, or is hemmed in so that he can not retire, can not be said to be encouraging. The witness mentioned in the fourth paragraph of the case could not be said to be encouraging, yet all of these were present and stayed at the place, within the words of the learned judge.

The question of what amounts to encouraging must be a question of fact, in each case, for the jury, and can not be one of law. The finding of the jury was, in fact, one of not guilty. They bow with respect to the chairman's direction in point of law, but by adding that the prisoners were not aiding and abetting, I conclude that they intend to convey that by no act of theirs were they countenancing or encouraging the fight-a conclusion fully supported by the evidence in the case. MANISTY, J. I am of opinion that this conviction can not be sustained.

I see no evidence that the fight was a prize-fight. In the absence of evidence to the contrary, it must be taken to have been an ordinary hostile fight between two angry men, each of whom committed a series

of assaults upon the other; but whether it was a prize-fight or an ordinary fight is in my opinion immaterial, seeing that all persons who, being present at a fight, encourage it, are guilty of an assault. In the case

of a misdemeanor, all who take part in it are principals; there are no accessaries in the technical sense of that term.1

Such being the law, the first question which arises is whether there was any evidence to go to the jury against the three prisoners or any of them. All that was proved was, that each of them was seen in the crowd; that they were neither speaking nor doing anything; and, as to Coney, that he was so hemmed in as to render it impossible for him to push his way out. I very much doubt whether there was any evidence proper to be left to the jury as against any one of the three prisoners. but assuming that there was, it remains to be considered whether the direction given to the jury was correct in point of law. The direction was, that "if the prisoners were not casually passing by, but stayed at the place, they encouraged the fight by their presence, although they did not say or do anything." The jury understood, and, as it seems to me, rightly understood, the direction to be that if the prisoners merely stayed at the place, they, as a matter of law, encouraged the fight by their presence, and they found the prisoners guilty of an assault, adding that they did so in consequenee of the chairman's direction of law, though they found that the prisoners were not aiding or abetting.

I am of opinion that the direction was erroneous in point of law. If there was any evidence to go to the jury, it raised a question of fact for them, namely, whether the prisoners or any of them by their presence encouraged the fight. No such question was left to the jury, consequently the conviction can not stand.

The only authority in support of the direction, that I know of, is to be found in the summing up of Mr. Justice Littledale in the case of Rex v. Murphy. No doubt that learned and accurate judge is reported to have used the very expressions which the chairman in the present case adopted, and repeated to the jury. Whether the learned judge, Mr. Justice Littledale, did direct the jury as he is reported to have done, may, I think, well admit of doubt. If he did, I think the direction was erroneous. It is said that if the ruling of the chairman is not upheld a great impetus will be given to prize-fighting. I do not share in that apprehension. It is well settled law that every person who by his presence or otherwise encourages a fight, be it a prize or an ordinary fight, is guilty of a criminal offense - that is to say, of an assault or manslaughter, as the case may be, but it is for the jury in each particular case to say as a matter of fact whether the accused did, by his

1 Reg. v. Greenwood, 2 Den. C. C. 453.

presence or otherwise, encourage the combatants to fight. To hold the contrary, would, in my opinion, be erroneous in point of law, and very injurious in its consequence.

Suppose that the fight in question had resulted in the death of one of the combatants, then, if the direction given to the jury was right, every person who was in the crowd was in point of law guilty of manslaughter, though he neither spoke nor did anything, and notwithstanding that in the opinion of the jury he neither aided nor abetted the combatants. I can not believe such is the law of England.

For these reasons I answer the question submitted to the conrt in the negative. If it were necessary to do so, I should be prepared to go further and hold that the special finding of the jury amounted to a verdict of acquittal.

This point is, it is true, not submitted to us by the chairman, but if the court sees, upon the face of the case stated, that the conviction is wrong, it is their duty to take notice of it.

POLLOCK, B. In my judgment, this conviction should stand.

The question stated for the opinion of the court properly raises that which alone is open for our determination, and the answer to it should, I think, be that the direction to jury was correct.

There was ample evidence from which the jury could find, as in effect they did, that what took place between Burke and Mitchell amounted to a prize-fight; and this being so, there is clear authority for the direction of the chairman that prize-fights are illegal.1

When once this is estabished, the only remaining question is, whether, looking at the evidence as it affects the three prisoners, Coney, Gilliam and Tully, it was sufficient to support the direction of the chairman, and if so, whether that direction was right in law.

In dealing with the evidence as it affects the three prisoners, we must look first at paragraph four of the case, to see what was the real character of the fight as bearing upon the conduct of those who were present, though not taking any active part in it, and the inference to be drawn from such conduct. The facts here set out, the ring of cord, the four blue posts, the six persons within the ring besides the combatants, and the fighting by these two combatants, stripped, for threequarters of an hour, all point to a condition of things which would denote to those present and those looking on, even if they had not gone to see a fight, that a real fight was taking place. As to the evidence affecting the prisoners, it amounts to this: that there was a crowd surrounding the ring, and that they were in it; and, further, as to Coney, that the crowd was so closely packed that he was hemmed in and could not push his way out.

1 Rex v. Billingham, Rex v. Perkins, Rex v. Hargreave. And see, also, Hale P. C., ch.39.