Loyd v. State , 42 Ga. 221 ( 1871 )

Lochrane, C. J.

This was an indictment for burglary, tried in Chatham Superior Court, in which these two plaintiffs in error were found guilty as accessories after the fact; and the case presents two points for the adjudication of this Court. Eirst, whether the indictment charges sufficiently in law the offense; and secondly, whether the evidence sustains it; and we may add, thirdly, whether the charge of the Judge was a proper statement of the law in this case.

The indictment charges Loyd and Ward with being accessories before the fact. Its language is: “And did then and there unlawfully, burglariously, and feloniously incite, move, conceal, help, and procure, aid, abet, and command the said John Quarterman to do and commit the felony,” etc. Under this indictment, several witnesses were introduced who testified as to the burglarious taking of some cotton which' was traced to the place of these parties and there found; but there was no evidence that they concealed the crime from the magistrate, and harbored, assisted and protected, etc., the person charged with the crime as principal. The Judge charged the jury: “As an isolated fact, the receiving of stolen goods, knowing the same to have been stolen, would not constitute an accessory after the fact under the indictment.” In this proposition we concur with the Court, because that was, in itself, a separate and distinct offense, punishable by law; but the Court went farther and charged the jury: “ If they found, from the testimony, that the defendants procured a burglary to be done, and, having instigated the perpetration by reward or the hope thereof, afterwards received the goods, knowing them to be stolen, then it would authorize them to find the defendants guilty as accessories after the fact.” This was error; for, under the facts stated by the Court, they would be guilty as accessories before the fact.

Again, he charged the jury: “ That if they found, from the evidence, that the defendants concealed the crime from the officers of the law, or harbored the defendant, Quarter-man, to prevent his arrest, then, in contemplation of law, they were accessories after the fact.” This was error. An accessory after the fact is a person who, after full knowledge that a crime has been committed, conceals it from the magistrate and harbors, assists, or protects the person charged with or convicted of the crime. The language of the Court was “concealed the crime from the officers of the law or harbored.” The language of the law is, “ conceals it from the officers of the law and harbors,” etc. In the second branch of the charge of the Judge below, he uses the words, “and afterwards received the goods, knowing them to be stolen, it would authorize them to convict, as accessories after the fact.” In the opinion we entertain of the law, and as this case comes before us on a motion in arrest of judgment and for a new trial, no matter what may be our personal opinions of the criminality of the parties, inasmuch as it involves their liberty, we are constrained to give the parties the exact measure of their legal rights; and we hold that, in this classification of the offense, both at common law and under our statutes, the law contemplates some assistance or act done to the felon himself, and is distinct from the crime of receiving stolen goods from the felon, except such taking is for the purpose of facilitating his escape from justice, or attended with some benefit. 1st Hale, 618; 4 Blackstone, 37; 1st Chitty, 264, concur in the definition that an accessory after the fact is where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. As to what shall be esteemed within these general definitions depends upon the facts in the particular ease; but to receive stolen goods, knowing them to be stolen, did not fall under any of the definitions of the common law, and did not constitute the receiver an accessory, but was, in itself, a distinct and separate offense: 1st Bishop, section 493. The receiver of stolen goods, knowing them to be stolen, is not an accessory, according to our definition, because he renders no aid to the principal felon. Nor, in speaking of the common law, do we overlook the statute, 3 and 4 W. & M., or of 1st and 5th Ann, but after a review of the whole subject, and in view of the provisions of our own Code, which makes this a distinct offense as accessory after the fact, we lay down the true test to be to consider whether what he did was done by way of personal help to his principal, with a view to enable the principal to elude punishment; and it is unimportant as to what assistance was rendered, provided it was done with a view to aid the principal to elude or escape punishment. In the view, therefore, we take of the law of this case, we think the Court erred in overruling the motion for a new trial, on the grounds stated.

Judgment reversed.