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shall be convicted of having concealed any offender after the commission of any felony, or having given such offender any other aid, knowing that he has committed a felony, with intent, and in order that he may avoid or escape from arrest or trial, conviction or punishment, and no others, shall be deemed an accessory after the fact.1
In order, therefore, to constitute one an accessory after the fact, these three things are requisite. The felony must be completed-he must know that the felon is guilty, and he must conceal or give the offender other aid, with the intent that may avoid or escape arrest, trial, conviction or punishment.
(a) The felony must be complete at the time of the assistance given, as if one wounded another mortally, and after the wound given, but before death ensued, a person assisted or removed the delinquent, this did not at common law make him an accessory to the homicide, for till death ensued, there was no felony committed.?
(6) He must also know that the felon is guilty, for a man cannot be rendered guilty as an accessory after the fact, without having notice, either express or implied, of the principal having committed a felony.3
(c) With regard to the acts which will render a man guilty as an accessory after the fact, it is laid down that generally any assistance whatever given to a person known to be a felon, in order to hinder his being apprehended or tried, or suffering the punishment to which he is condemned, is sufficient for this purpose; as where a person assists him with a horse to ride away with, or with money or victuals to support him in his escape; or where one harbors and conceals in his house a felon under pursuit, in consequence of which his pursuers cannot find him ; and much more where the party harbors a felon, and the pursuers dare not take him.4
So also, a man who employs another person to harbor the principle, may be convicted as an accessory after the fact, although he himself did no act to relieve or assist the principal. And in
'2 R. S., 699, $ 7.
2 Haw. P. C., ch. 29, $ 83; 2 R. S., 699, § 7. * 1 Ros. Cr. Ev. 173 ; 2 Hawk. P. C., ch. 29, § 26; R. v. Lee, 6 C. & P., 536. • R. v. Jarvis, 2 Moo. & R., 40.
the same manner conveying instruments to a felon to enable him to break jail, or to bribe the jailer to let him escape, makes the party an accessory."
But in order to support a charge of receiving, harboring, comforting, assisting and maintaining a felon, there must be some act proved to have been done to assist the felon personally ; it is not enough to prove possession of various sums of money derived from the disposal of the property stolen, nor will a mere omission, as not arresting the felon, make the party an accessory after the fact.3
The books agree that a man may be an accessory after the fact, by receiving one who was an accessory before the fact, as well as by receiving a principal,4 and it has been held that a man inay make himself an accessory after the fact to a larceny of his own goods, or to a robbery on himself, by harboring or concealing the thief, or assisting in his escape.”
Our statute is silent upon the question of the exemption of a feme covert from punishment as an accessory after the fact, in cases where the principal offender is her husband, but it is considered that the common law rule upon that subject yet remains in force, for the common law had such a regard to the duty, love and tenderness which a wife owes to her husband, that it did not make her an accessory to felony by any receipt whatever which she might give him, considering that she ought not to discover her husband, but this exception did not extend any further, for a husband may be indicted as an accessory after the fact to his wife, a brother to a brother, a master to a servant, or a servant to a master.?
4 Blac. Com., 38. * R. o. Chapple, 9 C. & P., 355. • 1 Hale's P. C., 619. • 1 Russ. on Cr. 37: R. v. Jarvis, 2 M. & Rob., 40. * 1 Russ. on Cr., 37; Fost., 123. • 1 Russ. on Cr., 38; 2 Hawk., ch. 29, § 34; 1 Hale, 621. : 1 Arch. Cr. Pl., 18; 2 Hawk., ch. 29, § 34; Hale, 621.
OF PERSONS ATTEMPTING TO COMMIT OFFENCES AND SOLICITING
OTHERS TO ATTEMPT THE COMMISSION OF THEM, IN CASES WHERE THE OFFENCE IS NOT PERPETRATED.
We have, in treating of accessories before the fact, considered those cases where a person counsels or incites another to commit a felony, which the other afterwards commits, and in treating of principals the cases considered have been those where the offence was also actually committed; but there are still another class of cases where the party incited does not afterwards commit the offence, or where the party attempts to commit a particular offence, but does not succeed in so doing.
A mere solicitation to commit felony is an offence, whether it be actually committed or not. Our statutes contain several provisions in relation to persons advising others to commit offences, which will be noticed hereafter; and there is also a provision providing for the punishment of persons who shall attempt to commit an offence prohibited by law, and in such attempt shall do anything towards the commission of such offence, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same.2
And, by the laws of 1862, persons found armed with dangerous or offensive weapons or instruments, with intent to commit felony, or found by night having in their possession any picklock, crow, key, bit, jack, jimmy, nippers, pick, bettey, or other implements of burglary with like intent, or being found in any dwelling house, building or place, where personal property shall be, with intent to commit any larceny or felony therein, under such circumstances as shall not amount to an attempt to commit felony, are to be deemed guilty of a misdemeanor, and if such offence be committed after a previous conviction, either for felony, petit larceny or such misdemeanor as aforesaid, the party offending is guilty of felony.
· Peo. v. Bush, 4 Hill, 135; R. v. Higgins, 2 East., 5; 1 Arch. Cr. Pl., 20. : 2 R. S., 698, $ 3. • Ch. 374, p. 627. * Id.
OF THE SEVERAL JUDICIAL OFFICERS AND COURTS POSSESSING CRIMINAL
JURISDICTION IN THE STATE OF NEW YORK.
II.-SPECIAL SESSIONS IN THE CITY AND COUNTY OF NEW YORK.
V.-SPECIAL SESSIONS IN UTICA.
X.-SPECIAL SESSIONS IN TROY AND THE COUNTY OF RENSSELAER.
It is not intended in this chapter to review all the provisions of the statute applicable to courts of limited or special jurisdiction. In many of the cities and villages of the State there are recorder's courts and courts of special sessions, having a local jurisdiction only, and the particular provisions of the statute relative to the duties of the district attorney, and of the clerks, sheriff, and other officers of these courts, together with the manner of summoning and empanneling juries, taking and continuing recognizances and other matters, depending upon statu. tory enactment made applicable to these courts alone, and in many instances differing in each court, can best be observed by consulting the several acts of the legislature organizing these courts, and conferring their authority and power upon them. It is designed here to take only a cursory glance of the several judicial officers and courts in the State possessing criminal jurisdiction.
Justices of the Supreme Court, judges of the Superior Court of law, of the city and county of New York, judges of county courts, mayors, recorders, and aldermen of cities; the justices of the justices court, and police justices in the city of New York, and justices of the peace and police justices appointed for any city, or elected in any town, have authority to issue process upon complaint for the arrest and detention of offenders, to examine into the circumstances of the case, to commit them for trial or let them to bail.1
These various duties and powers of the above mentioned officers, in this respect, will be treated of fully hereafter.2 The same officers have also authority to cause to be kept all laws for the preservation of the public peace, and in the execution of that power to require persons to give security to keep the peace.3 They have also power to issue search warrants for property that has been stolen or embezzled, in the cases provided by statute.
Justices of the peace have also certain summary powers and authority given to them by statute, in relation to disorderly persons and other minor offences, and, in some instances, the authority given by statute to summarily convict and punish by fine or imprisonment for minor offences, without the intervention of a jury, is extended to the mayor, recorder, and aldermen of cities. The particular instances in which this power is to be exercised, and the method of proceeding thereon, will be spoken of in a subsequent chapter.“
OF COURTS OF SPECIAL SESSIONS.
In some of the cities and villages of the State, there are special acts in relation to the organization and jurisdiction of courts of special sessions, which will be noticed hereafter. In other parts of the State, the law upon this subject is uniform.
The courts of special sessions are the lowest criminal courts
12 R. S., 706, § 1, et seq.
Post, page. • 2 R. S., 704, § 1; post, page. • 2 R. S., 746, § 32; post, page.