PREVIOUS where crime of instigator. as he effects the crime by employing an unreasoning COUNSEL being to commit it. It may also be important to strongest case consider whether the instigation was merely an en- serves the ends couragement to do what the other had resolved to commit, or whether it proceeded from the direct desire of the instigator, or was part of a joint adventure, in which he has caused his accomplice to take the risks of the actual perpetration. In the first case it would require very strong circumstances to justify conviction, while in the second the instigator who puts the other forward, is the more criminal of the two (1). It is also a fact of great importance Bribe or promise. that use has been made of practical persuasion, as by a bribe, or even a promise of reward (2). MUST RELATE TO The instigation must be to such an act as Was INSTIGATION likely to result in the crime charged. If a person THE ACT DONE. send his servant after a boy who is trespassing, or doing mischief, telling him to cuff the boy, and the servant beat him so unmercifully that he dies, the master, though accessory to an assault, is not guilty for result likely counselled. of murder by instigation. On the other hand, though Instigator liable the result was not directly intended by the instigator, from deed still if that which he counselled was not unlikely to have the consequences which did result, he is guilty. Thus if a person instigate a surgeon to cause abor- Instigating to tion, and the woman dies, the instigator is guilty of or to robbery. the murder (3); or if one instigate another to robbery, and the violence done causes death, he is liable as accessory to murder. In short, where the principal procure abortion commits an offence which follows as a natural result of the counsel, the instigator is guilty (4). And this holds where the perpetrator is not the person origi- Act done by a nally instigated, but another employed by him. If A employed by instigate B to murder, and B hire C, who does the 1 Hume i. 279. 2 Hume i. 278.-Thos. Hunter and others, H.C., Nov. 10th 1837; 1 Swin. 550 (Indictment.) 3 Will. Reid, H.C., Nov. 10th third person mandatary. INSTIGATION MUST RELATE TO deed, the instigator is responsible (1). Or if the principal, by mistake, kill not the person intended, but another, the instigator is guilty. In both cases the death is the result of his mandate (2). It would Mandatary acci- of course be different if the "actor" killed another person, knowing him not to be the person to whom his mandate applied. There would then be no connection between the mandate and the death. dentally injuring wrong person. COUNSEL COM BINED WITH ASSISTANCE. If instigation alone infer guilt, instigation accompanied by assistance does so a fortiori (3). Indeed, the seriousness of the instigation may often be best estimated by the assistance given. If A instigate B on the character to murder, or to inflict grievous injury, and supply B The assistance may throw light of the counsel. have real connexion with crime. with a deadly weapon, then he is guilty of the crime which B commits (4). And the act done by A may lend significance to words otherwise capable of more than one construction. If A tell B to search for C, and if he find him "not to spare him," handing to B a light cane, or a heavy bludgon, or a dagger, or a bottle of sulphuric acid, the words would imply a different intention in the instigation in each case. On Aid given must the other hand, the assistance given, to be of weight in a case of instigation, must have a real connection. with the act. It must be practical assistance towards that end. A doubtful case can scarcely be propped up by proof of assistance of a general kind, such as lending a horse which carries the principal to the scene of the offence. If the instigation is not so serious and deliberate as to afford evidence of concert, inferring guilt per se, then it will require evidence of practical and immediate assistance to imply guilt (5). ASSISTANCE ALONE. A person may be art and part, by supplying means to commit the act, even though the act itself be the 1 Burnett 266.-Alison i. 59. Hay and Thompson: and Kinninmount there. 5 Hume i. 276, 277.—Alison i. 60. ALONE. relate to the offence. affair of the other party altogether. If A inform B ASSISTANCE of his intention to destroy C, and B furnish A with Supplying poison, then B is guilty art and part (1). Or if A poison. desire B to decoy C to a certain place, that he may Decoying injured waylay and assault C, and B do so, he is art and party to spot. part of the assault (2). But the assistance must be Assistance must direct, and for the particular offence. If A employ particular B to make a set of housebreaking tools, not for a particular housebreaking, but only for his general business as a thief, B cannot be held guilty of the housebreakings committed by means of them (3). But B may be art and part of a particular housebreaking by A, if he make and supply A with instruments for that specific purpose; e.g. if it could be proved that A got him to examine a lock and to make a key for it, that might make B guilty art and part. tween counsel or aid and the offence must not penting and perpetrator The connexion between the instigation or assistance Connexion beand the act must continue to the last. If the instigator repent, he is not guilty if he dissuade the be broken. person whom he originally instigated, but the latter Instigator repersists and commits the crime. And if a person be dissuading induced to supply poison, knowing the purpose for which it is intended, but demand it back, and repudiate the plot, he is not guilty of what the principal afterwards does with the poison, although he may be liable to punishment for having supplied it. But he will not be held free if his withdrawal of his instiga- Instigator not tion, or demand for restoration of the means supplied, of mandate too have not reached the principal before the deed was crime. done, as from a letter not arriving in time, or from his being unable to find him (4). free if withdrawal late to prevent The instigator is not less guilty under the law of INSTIGATION 1 Hume i. 275, case of Hay and Thomson there.-Alison i. 59. 2 Hume i. 275, case of Muir there.--Alison i. 60. 3 See observations by Baron Hume (i. 157, 158) in reference to 4 Hume i. 279, 280. GIVEN ABROAD. INSTIGATION GIVEN ABROAD. CONDUCT AT THE OFFENCE. Participation may be taken up at the moment. Participation combined with previous concert. Persons acting together may not be all guilty of act of individual. Sudden scuffie without previous concert. Scotland because the instigation was given in a different country. The guilt is not of instigation— that may be a separate offence-it is guilt of the crime. When there is proof of the counsel, the instigator is, in the eye of the law, present at the offence. If persons conspire in London to procure a murder in Edinburgh, and hire an assassin, they are guilty of the murder in Scotland, and subject to the Scottish courts (1). Accession may be inferred from the accused's conduct at the time of the offence, with or without evidence of previous concert. In the latter case, although the participation be only taken up at the moment, it may be sufficient. Thus, if persons join in shooting at a rifle range, without taking proper precautions for safety, all may be responsible for injuries caused by a shot fired by one of them (2). And if this be true of participation at the moment, it is of course more clearly true where there has been any previous concert. Those who watch while another commits a murder or a housebreaking, are guilty art and part (3). On the other hand, whether there has been previous concert or not, it does not follow that where several persons are together, each individual is guilty of every act done. Take the case first of there having been no previous concert. If a quarrel suddenly arise between persons on the street, two or three on one side and two or three on the other, and a few blows with fists or sticks having been interchanged, one 1 See Will. Duncan and Alex. Cumming, H. C., March 11th 1850; J. Shaw 334 (Lord Mackenzie's opinion). 2 George Barbier and others, Inverness, Sept. 25th 1867; 5 Irv. 482; 40 S. J. 1 and 4 S. L. R. 251. 3 Hume i. 265.--Hume i. 102, and cases of Donaldson and Calder: and Wilson and others there.-Alison i. 62, 289, 290, 291, and cases of Prior and M'Lachlan and Boyd and others there.-In the case of Jas. M'Kenna and others, H.C., April 8th 1826, it was laid down that "If persons go into a house, and act so as to aid the individual who takes, as by calling off the attention of the proprietor, they are guilty art and part."- Lord Wood's MSS. CONDUCT AT THE TIME OF OFFENCE. bined to commit draws a knife and stabs another, the rest are not art and part of this act, which was not a likely result of such a trifling brawl (1). Only those could be guilty who encouraged it, either by inciting the person who did it (2), or by holding the injured party in the knowledge of what was being done (3), or by themselves making use of similar deadly weapons, or in some such way (4). Again, take the case of there being pre- Persons comvious concert to commit some not very heinous crime, trifling offences. If one person enter an orchard to steal fruit, and another, who is watching, kill the orchard keeper, the thief who is taking the fruit is not held art and part guilty, without proof that he concurred in the deed (5). The rule seems to be sound, which infers responsi- All responsible if bility against the whole body for the acts of indi- highly criminal viduals, where the concert has been for a violent and outrageous purpose, or where such a purpose has been manifestly taken up at the time. Thus, if several persons make a violent attack to commit robbery, and Combination to the sufferer die, all who join in the attack are guilty of murder, though it cannot be proved which struck the mortal blow (6). combined for purpose. rob. bination formed Again, if a combination be formed at the moment, Sufficient if comwithout previous concert, that will be enough. If in at the moment. a sudden brawl the whole of one party draw knives, they would all be guilty of the consequent injuries, 1 Hume i. 270, and case of Bruce and Arrot there-i. 271, cases of Price and others: and Crieff and Cordie there,-i. 273, case of Lindsay and Brock there.Alison i. 63, 64, and cases of Marshall and others: and Durrand and others there. 2 Hume i. 267, case of Maxwell there.-Hume i. 271, case of Davis and Wiltshire there. 3 Hume i. 266, case of Ross and Roberts in note 3.-Hume i. 280, case of Brown in note 1.-Burnett, 277, case of Ryach in note. 4 See Hume i. 266, and case of Hamilton there. 5 Hume i. 270. 6 Hume i. 266, case of Mackintosh and others in note 1.-Alison i. 65, 66. The following note occurs in Lord Wood's MSS., in the case of Rob. Hamilton and others, H. C., July 19th 1826, which was a case of robbery-"The Lord "Justice Clerk laid it down as "clear law that all being engaged "in the felonious purpose, and one |