Commonwealth v. Wallace

Gkay, J.

The objection to the right of the attorney for the 'Commonwealth to enter a nolie prosequi as to the whole or any part of an indictment was properly abandoned at the argument as untenable. Commonwealth v. Briggs, 7 Pick. 177. Commonwealth v. Tuck, 20 Pick. 356. Commonwealth v. Smith, 98 Mass. 10. Jennings v. Commonwealth, 105 Mass. 586.

It is contended that, as the indictment in a single count alleges both that the defendant removed and concealed, and that he aided and abetted in removing and concealing, the mortgaged property; and as either of these allegations was sufficient, with the other allegations of the indictment, to constitute the offence charged, and to warrant a conviction, under the Gen. Sts. <?. 161, § 61; the jury' may have found the defendant guilty, not upon the ground that he himself removed and concealed the property, but on the ground that he aided and abetted some other person in removing or concealing it; and that to sentence him upon the indictment, after the entry if a nolle prosequi as to the second allegation, would therefore be to punish him for an act of which it does not appear that he has been found guilty by the jury.

But we are of opinion that there is a conclusive answer to this objection. The offence charged, not being punishable by death or imprisonment in the state prison, is not a felony, but a misdemeanor. Gen. Sts. c. 168, § 1. Even in felony, a person who is present aiding and abetting in the commission of the crime by another, and is thus a principal in the second degree, may be convicted upon an indictment charging him with having committed the crime. Commonwealth v. Knapp, 9 Pick. 496. Commonwealth v. Chapman, 11 Cush. 422. And perhaps, under the Gen. Sts. e. 168, § 4, he may be charged in the same manner, if he is not present at the actual commission of the crime, but is only an accessory before the fact. Commonwealth v. Ray, 3 Gray, 441, 448. Regina v. Manning, 2 C. & K. 887, 903. However that may be, in misdemeanors there are no degrees, and no distinction between principals and accessories before the fact; but all who participate in the commission of the offence are principals, and may be charged in the indictment as such. Commonwealth v. Ray, above cited. Commonwealth v. Gannett, 1 Allen, 7. Regina v. Clayton, 1 C. & K. 128. Regina v. Greenwood, 2 Denison, 453. 1 Stark. Crim. Pl. (2d ed.) 81. The statute upon which this indictment is framed does but affirm this rule of the common law. The allegation in the indictment of aiding and abetting was superfluous, and no evidence could have been admitted, or conviction had, by reason of that allegation, which would not have been competent if it had been omitted. The defendant might have been found guilty and sentenced under the charge that he received and concealed the property, upon proof that he merely aided and abetted in so doing. Receptions overruled.