56 S.W.2d 524 | Ky. Ct. App. | 1933
Reversing.
The appellees were indicted for the offense "of being accessories after the fact of grand larceny." While this indictment was pending, the principal was put on trial and acquitted. Thereupon the appellees, presenting that fact to the court, moved for a dismissal of this indictment against them. This motion the court sustained, and the commonwealth has appealed. The precise question of whether an accessory after the fact can be tried* and convicted although the principal has theretofore been tried and acquitted seems not to have ever been determined up to this time by this court.
Section 1128 of the Statutes provides:
"In all felonies, accessories before the fact shall be liable to the same punishment as principals, and may be prosecuted jointly with principals, or severally though the principals be not taken or tried, unless otherwise provided in this chapter."
Section 1129, in so far as pertinent to the present controversy, provides:
"Accessories after the fact, not otherwise punished, shall be guilty of high misdemeanors, and fined and imprisoned at the discretion of the jury, and may be tried, though the principals be not taken or tried."
It will be noted that the statutory right to try accessories after the fact, "though the principals be not taken or tried," is expressed in the same language as is expressed the like right to try accessories before the fact, though the principal has not been taken or tried. It is conceded that whatever the rule may be in other *811
states under like statutes, in this state an accessory before the fact may be tried and convicted even though the principal has been tried and acquitted. Thus in the case of Cummings v. Commonwealth,
"On this appellant can only be charged as an accessory before the fact, and, as all the alleged principals have been acquitted, it may be thought that he cannot now be put on trial. Such was the rule under the common law, but under section 1128, Ky. Statutes, the guilt of accessories before the fact does not depend upon the conviction of the principal, and, as different juries may reach different conclusions as to the guilt of the principal, it is no longer essential to prove the conviction of the principal on the trial of an accessory, though it is essential for the jury trying the latter to believe the principal to be guilty. [Citing cases.]"
It is difficult to understand why there should be any different construction of section 1129 of the Statutes than that given by this court to section 1128. Appellees in their able brief undertake to make the distinction on the ground that accessories before the fact are after all principals, and rely on the case of Levering v. Commonwealth,