2 Mass. 409 | Mass. | 1807
The opinion of the Court was afterwards delivered by
The question before us in this case is, whether the former conviction and judgment is a bar to the present prosecution. It is not objected that the former judgment, if a bar, has not been well pleaded. No authorities have been cited on either side, and the case must be determined upon principle..
The indictment is founded on the “ Act for punishing and preventing of larcenies,” passed March 15, 1785, by the third section »f which it is enacted, that a person convicted of the crime of theft shall, besides the other punishment provided therefor, “ be sen tenced to forfeit treble the value of the goods, or other articles stolen, to the owner thereof.” By the ninth section, the crime with which the defendant is charged is defined, and the mode of prosecution is prescribed, in these words: “ that whosoever shall comfort, aid, abet, assist, counsel, hire, command, or procure, any person to commit any of the offences hereinbefore described, or shall knowingly buy or receive any such stolen goods or chattels, or that shall knowingly receive, harbor, maintain, or conceal, any person guilty of any of the offences hereinbefore described, shall be considered as an accessory to the principal offender, and shall suffer the like punishment as he might have received on a first conviction ; and in case the principal offender be not known or prosecuted, any person committing any of the said crimes, whereby he becomes an accessory, may be prosecuted for a * misdemeanor, and [ *413 ] on conviction shall suffer such punishment as the principal offender might have suffered on a first conviction.”
As the defendant received as well the goods stolen from Bellows and Stone, as the goods stolen from Dow, at the same time, in the same parcels, and the act of reception is the same ; and as he has been convicted and punished for his participation in the crime of the theft from Dow, is the crime so indivisible that the government is barred from prosecuting for his participation in the crime of stealing the property of Bellows and Stone ?
To determine this question, it is not necessary to decide whether, if a man, by the same act, should steal the property of two persons, that one act of theft would authorize two indictments and judgments ; and yet the statute would seem to require it, if for no other reason, because the judgments for treble damages must be several. But in this case the guilt of the defendant is necessarily several, and his '.rimes cannot be united. When Andrews received the goods which
Plea in bar adjudged insufficient.
Afterwards, Otis moved the Court for leave to plead over. He said it would have been more proper to have reserved this privilege in his plea in bar; but having a strong confidence in that plea, it had escaped his attention. He now asked it as an indulgence ; and he stated some circumstances of hardship which were calculated to excite the favorable attention of the Court to his request.
The Attorney-General intimated to the Court that, although the officers having the care of prosecutions in behalf of government must unquestionably always feel respect for the recommendations of the Court before which such prosecutions are pending, he still hoped, whenever they felt the need of the special interposition of the Court, they should find themselves able to solicit it. As to the present case, he would inquire into the circumstances recited by his brother Otis, and if he should be satisfied that a nolle prosequi ought to be entered, he would ask the countenance of the Court for that purpose.
The Court never do this, but at the instance of the counsel for the government.
Vide Rex vs. Barnet, Smith, Burton, and Purser. — 2 Russ. on Cr. 40, 41, 174, 175, and note, 2d Lond. ed. — Rex vs. Turner, Kel. 30. — Rex vs. Jones and Beaver, Kel. 52.-2 Russell on Crimes, 40, note (z), 2d Lond. ed. — Rex vs. Vandercomb and Abbot, 2 Leach, 716. —2 East P. C ch. 4, § 29, p. 519.