| Tenn. | Dec 15, 1843
delivered the opinion of the court.
At the August term, 1843, of the Circuit Court- of Bedford county, the prisoner was arraigned and tried upon a bill of indictment for homicide. The indictment contains three counts. The first, charging him with.commission of the offence as principal in the first degree. The second, charges the offence to have been committed by a person unknown, and that the prisoner was present, wilfully, deliberately, maliciously and pre-meditatedly, aiding, abetting and assisting the unknown per
Upon the trial, the jury returned a verdict, that the prisoner was not guilty upon the 1st and 2d counts in the indictment, but was guilty upon the 3d; upon which judgment of death was given against him, to reverse which he prosecutes his writ of error to this court. This verdict and judgment acquit the prisoner of the charge of having committed the murder himself, or of having been present, aiding and abetting its commission. The court is, therefore, freed from the necessity of examining the proof in order to ascertain the truth or falsity of these allegations. .
The only question for our examination and consideration is, whether the judgment pronounced by the Circuit Judge, can be maintained upon the third count in the indictment; and this is a question of law-and not of fact, as it is presented. • We do not, therefore, deem it necessary or proper to enter into any -investigation whatever of the proof adduced on the trial, and embodied in the record.
The 3d count of the indictment charges the prisoner as an accessary before the fact and no more; this is so clearly so, that to enter into an argument to prove it, would be a waste of time. It charges the offence to have been committed by a person unknown; upon it the prisoner was put upon his trial, without his previous consent, and before the conviction of the principal. Can a conviction thus obtained, be enforced by a judgment of the court? We think most clearly not.
It is well settled by the common law, that an accessary cannot be put upon trial without his own consent previous to the attainder of his principal, unless they he jointly tried. Arch-bold in his Summary of Pleading, and Evidence in Criminal Cases, page 518, says; “Formerly an accessary could not without his own consent, unless tried with the principal, be brought to trial until the guilt of his principal had been legally ascer
The principle has been recognized, as above stated, in the United States, as far as we have had an opportunity of ascertaining.
In 3d Mass. Rep. 126, Commonwealth vs. Thos. Andrews, it is held, that “an indictment against one for feloniously receiving stolen goods, cannot be maintained, unless there is evidence that the principal has been convicted. If the accessary plead to the indictment and suffer a trial without demanding the previous trial and conviction of the principal, it is no waiver of this right. No assent can be implied from his submission to the course directed by the Attorney General in the court. In criminal. cases, an express relinquishment of a right should appear before the party can be deprived of it. Here is no such relinquishment, but merely a silent submission, which might have arisen from ignoranceatthetime, that such right existed.” In the case of The Commonwealth vs. Phillips, 16 Mass. 426" court="Mass." date_filed="1820-10-15" href="https://app.midpage.ai/document/inhabitants-of-newton-v-inhabitants-of-randolph-6404912?utm_source=webapp" opinion_id="6404912">16 Mass. Rep. 426. Upon this subject, the Chief Justice Parsons, says, “the Justices have carefully examined the books upon the subject, and are unanimously of opinion, that by the common law, an accessary cannot be put upon his trial, but by his own consent,
Upon the authority of the case of the King vs. Walker, 3 Campbell, 264, it was supposed by the Attorney General, in argument, that where the bill of indictment against the accessa-ry, states, that the felony was committed by a person, to the jurors unknown, the-accused might be put upon his trial. But on an examination of this case, we find it warrants no such supposition. . The question in that case, was not, whether the ac-cessary could be put upon trial before the attainder of his principal, but whether a bill of indictment could be sustained, which charged the felony to have been committed by a person unknown; and the Justice, L. Blank, who tried the case, said, it could not-, if it appeared that the principal felon was a witness before the grand jury. Now, it never has been. doubted, that an accessary may be indicted before the conviction of his principal, and the case from 3d Campbell, only shows, negatively., that an indictment, charging the felony to have been committed by. a person unknown, where the fact is so,. can be maintained. But, if it be maintainable, it still must abide in the court for trial in the same way, as if it had charged the person by name who committed the felony; that is, until the per-, son who committed the offence, as principal, can be ascertained and convicted. It would be strange, indeed, to hold, that an accessary cannot be tried till after the conviction of the principal, where he is known, but may be where he is not; causing, thereby, two uncertainties to overcome a difficulty, which one had thrown in the way. Upon the whole, then, we reverse the judgment of the Circuit Court, and remánd the prisoner.