Hughes v. State , 12 Ala. 458 ( 1847 )

GOLDTHWAITE, J

1. We think the Attorney General is right in conceding the charge of the circuit court cannot be sustained. It was probably induced by the impression, either that the prisoners, if acquitted as principals, could not afterwards be indicted as accessories before the fact, or that the offence of assaulting with intent to commit murder, being only a misdemeanor at common law, could have no accessories, but that all concerned were punishable as principals. We shall briefly state our opinion of the law in each of these connections.

It is said by Lord Hale, that if one is indicted as principal, and acquitted, he cannot afterwards be indicted as an accessory before the fact, though he admits the law was anciently otherwise. [1 Hale’s P. C. 626.] Mr. Justice Foster, though he states the same doctrine as agreed by the commentators, says he is ignorant of the ground on which it rests. [Foster’s C. L. 361, ei seq. 1 It seems to us that this doctrine necessarily involves the idea that one may be convicted as an accessory on an indictment charging him as principal, for otherwise, the party thus indicted would inevitably escape. In this view, it is unnecessary to pronounce a determinate opinion, until the precise case arises, but it seems to be put at rest by what is conceded in Gordon’s case, 1 Leach, 615, S. C., cited 1 East C. L. 352. There, the indictment amounted to nothing more than charging the prisoners, as accessories before the fact, but, the proof showed them to be principals in the second degree. It was held they were improperly convicted, but the judges considered an acquittal on this charge, would be no bar to a subsequent indictment, charging them as accessories. In Sowre’s case, 1 Russell & R. 25, the prisoners were indicted as principals, but the evidence proved them accessories only, and they were recommended for pardon on the ground the conviction was wrong. The case before us is precisely the same in every respect, and that decision is conclusive, as we entirely concur in its reasonableness. If the conviction could be allowed under the circumstances in proof, the rule that the principal must be convicted or outlawed before the accessory is tried, would in effect he abrogated.

2. The general doctrine is, that there can be no accessories to crimes which are not felonious, but our penal code defines a felony to be any crime which is punishable capitally or by confinement in the penitentiary, (Digest, 439, <§> 8,) and Sowre’s case, just referred to, shows that a statute felony, even when the offence originally at common law was a misdemeanor only, may have accessories before the fact. Indeed, it is said that when a statute makes an offence a felony, though it mention nothing of accessories, yet it virtually and consequentially extends to those who are accessories, whether before or after the fact. [1 Hale, 613; 1 Russell on Crimes, 32.] We refer to this general doctrine, that it may be seen the omission to prescribe the precise mode and extent of punishment to be inflicted on accessories before the fact, in the penal code, except in cases of murder, is no ground to infer they cannot be punished at all.

3. Upon the other exceptions, relating to the sending out the jury to correct their informal verdicts, we think there is no error of which the prisoners can complain. It is possible the first verdict would be considered as a general finding of guilty on both counts, and therefore, if there was any error, the prisoner has had already the benefit of it. The. others were simply informal verdicts, and we entertain no doubt the circuit court might properly direct the jury to retire, and return with one in due form.

For'the .error in the charge, the judgment, as to the prisoner suing out the writ of error, must be reversed, and the cause remanded for such proceedings as may legally be had. The prisoner, in the meantime, to remain in custody, unless discharged by due course of law.