R v John Royce
| Jurisdiction | England & Wales |
| Judgment Date | 24 May 1767 |
| Date | 24 May 1767 |
| Court | Court of the King's Bench |
English Reports Citation: 98 E.R. 81
IN THE COURT OF KING'S BENCH
rex vers. john royce. Monday 25th May 1767. Persons present aiding and abetting principals in the second degree under the Riot Act. The defendant had been indicted for a capital felony as a principal in the second degree, at a session of oyer and tenniner holden before the commissioners under a special commission of oyer and terminer and gaol-delivery for the city and county of the City of Norwich, in December last; for [that he and divers other persons to the number of one hundred persons and more, whose names are unknown to the jurors, after the last day of July 1715, to wit, on the 27th of September 6 G. 3, with force and arms, unlawfully, riotously, and tumultuously did assemble together, to the disturbance of the public peace; and being so assembled together, then and there unlawfully and with force, feloniously did begin to demolish and pull down a dwelling-house of Robert Marsh, Robert Harvey, Jeremiah Joes, Robert Rogers, William Offley, Samuel Wiggett, Richard Wright, Henry Kitt, Charles Marsh, Nathaniel Roe, Isaac 82 BEX V. ROYCE 4 BURR. 2074. Lillington, and John Woodrow, situate, &c. against the peace, &c. and against the form of the * statute in such case made and provided. The jury find him not guilty, as to all the counts but the second : and as to the second count, (which is the one above mentioned,) they find that the said John Eoyce and divers other persons unknown, to the number of one hundred persons and more, did at the time and place in the said second count charged, with force and arms, unlawfully riotously and tumultuously assemble together, to the disturbance of the public peace ; and being so assembled, that divers of the said persons unknown did then and there, with force and arms, unlawfully and with force feloniously begin to demolish and pull down the dwelling-house, in the said second count mentioned, in manner and form aa in the said second count is specified; and that at the time the said persons unknown so began to demolish the said dwelling-house, the said John Eoyce was then and there presen^ and did then and there encourage and abet the said persons unknown, in beginning to demolish and pull down the said dwelling-house, by then and there shouting and using expressions to incite the said persons unknown so to do. But the jury further [2074] find, that the said John Eoyce did not with force begin to demolish or pull down, or do any act with his own hands or person for that purpose, otherwise than as aforesaid. N.B. The word "aiding" was originally inserted in this special verdict, but struck out by the Judge (Mr. Justice Gould), who tried the cause. On Tuesday the 3d of February last, the defendant was brought up by habeas, corpus, upon this special verdict; when counsel were assigned to him, viz. Mr. Cox and Mr. Wallace ; and the Monday following (9th February) was appointed for arguing it. In the interim, he was committed to the marshal. The indictment was founded on the Act of 1 G. 1, st. 2, c. 5, and the question was, " whether he was a principal in the second degree; and as such, ousted of clergy by this statute." According to appointment, it came on to be argued upon Monday the 9th of February, by Mr. Solicitor General (Willes), pro Eege; and Mr. Wallace, for the defendant; and many cases were cited, (particularly the third point of the case of the Sissingkitrst Riot, in Hale's Hist. P. C. vol. 1, p. 463,) and many statutes mentioned and argued from, which it would lengthen this report too much, to specify particularly. The very short scope of the argument had the following tendency. For the prosecutor, it was argued that upon the present finding, this man is a principal in the second degree. Accessaries at the fact, as they were anciently called, are now considered as principals in the second degree. Principals in the second degree are defined in Hale's Hist. P. C. vol. 1, p. 437 and 615. But Mr. Justice Foster adds to this definition, " that in order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance, if necessary." And this man was abetting, and ready to afford assistance, if necessary. The negative part of the finding only shews that he was not a principal in the first degree. Enough is found, to shew that he was so in the second : for, although aiders and abetters are not particularly named in this Act of Parliament; yet there is enough in it, to shew that they were meant to be included in it; and the benefit [2075] of clergy is taken from them by it, " the offenders therein shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy." For the prisoner, it was urged-1st. That this statute is restrained to those who actually commit the felony. 2dly. That this finding does not draw the defendant within the description of a principal offender in the second degree; for, that all statutes which take away clergy ought, in favorem vitas et privilegii clericalis, to be construed literally and strictly. 2 Hale's Hist. P. C. Now this man did not actually assist; he only encouraged by expressions to incite them. It does not appear even that he was ready to assist them in act; and it is found negatively, " that he did not do any act, &c. with his own hands or person," In the course of the argument, a ease of one Simms, at Gloucester Assizes in 1749, upon the Black Act, for stabbing a mare, was mentioned by Lord Mansfield, and remembered by Mr. Justice Aston; where Simms held the mare by a handkerchief round her neck, whilst the other (Merryweather) ripped up her belly. Both were * V. G. 1, atat. 2, c. 5. [4 Ves. 330. 5 Burr. 2797. 11 Co. 5, 6.] 4 BUBR. 307& REX V. ROYCE 83 indicted as principals. The case was very...
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