State v. . Jones

Davis, J.

(after stating the case.) It is well' settled that an acquittal of the principal is an acquittal of the accessory, and at common law an accessory before the fact could only be convicted when tried at the same time with the principal and after conviction of the principal, or unless the principal had been before tried, convicted and sentenced. State v. Duncan, 6 Ired., 98.

To remedy this and prevent accessories from escaping punishment, it was enacted, or, as the statute expressed it, “ for the more effectual prosecution of accessories before the fact to felony, itis enacted that if any person shall counsel, procure or command any other person to commit any felony, * * * the person so counseling, procaring or commanding shall be deemed guilty of felony, and may be indicted and convicted either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may be punished,” &c. Rev. Code, ch. 34, § 53; The Code, § 977.

This changes the common law and removes the necessity of a prior conviction and sentence of the principal felon, but has no application to cases in which the principal felon has been tried and acquitted. State v. Ludwick, Phil. Law, 401. And we are met in the case before us by the question, has Thrasher charged as the principal felon, been tried and acquitted ? If he has been tried for and acquitted of the crime for which the defendant Jones is indicted as accessory before the fact, then the latter cannot be convicted., Thrasher, the alleged principal, has been indicted for that crime. Has he been tried and acquitted ? We think not. The Court did not have the power to change the indictment so as to charge an offence entirely different and calling for a punishment entirely different from and not included in that passed upon by the grand jury, and no submission or consent on the part of the principal felon charged could give jurisdiction to the Court in the absence of an indictment by a grand jury to punish* at all, nor did the Court have the power to change the indictment. A new and different bill might have been found by the grand jury, if the evidence warranted it, but there was no power in the Court to change the indictment returned into Court by the grand jury; and the submission and sentence were not warranted by law and were null.

Upon an indictment for arson, charging the wilful and felonious burning of the dwelling house of A., could the defendant be convicted of the misdemeanor of “ attempting to burn a store”? Or upon a charge for the latter could he be convicted of the former? That would be the legal criterion by which a plea of former acquittal or former conviction would be decided for or against the principal if he were on trial. State v. Jesse, 2 D. & B., 297; State v. Revels, Busb. Law, 200.

No consent of the prisoner can confer a jurisdiction which is denied to the Court by the law, and any punishment imposed other than that prescribed for the offence is illegal. In re Schenck, 74 N. C., 607.

In Bishop on Criminal Procedure, section 293, it is said to be “ a proposition to which there is perhaps no exception, that whatever is necessary as a guide to the Court in pronouncing the sentence must be alleged in the indictment.” And it might be added, ordinarily this must be done by the grand jury.

“ It may be generally said,” says Wharton on Crim. Law, § 565, “ that the fact that the two offences form part of the same transaction is no defence when the defendant could not have been convicted at the first trial on the indictment then pending of the offence charged' in the second indictment.” This rule, he says, has some qualification, “ as where one of the offences is a necessary ingredient or accompaniment of the other * * * * And it has been ruled in North Carolina that a conviction for larceny barred an indictment for robbery, the goods being the same. But these cases cannot be sustained except on the assumption that on the first trial the defendant could have been legally convicted of the major offence, and that his non-conviction was equivalent to an acquittal. It -is clear that after a conviction of larceny on an indictment for larceny there may be a conviction of burglary, so far as concerns the breaking, and in respect to burglarious entries this is the general rule.”

A submission to a plea of “ guilty of an attempt to burn a store,” without any indictment therefor, cannot be “ equivalent to an acquittal ” of a charge of arson in burning a dwelling for which there is an indictment.

Can the voluntary action of the principal, in pleading guilty to a charge for which he was never indicted, and of a character that could not be included under an indictment pending against him, have any legal validity? Could any lawful judgment, without an indictment, follow such a plea of guilty ?

In State v. Lawrence, 81 N. C., 522, it is said: “ The practice settled in this State when a prisoner has been convicted and an illegal sentence pronounced against him, and the case is brought to this Court by appeal or otherwise (in that case by certiorari applied for after the defendant had been for some time in the penitentiary serving out the sentence), is to send the case back for such judgment as the law allows.” State v. Goings, 98 N. C., 766; State v. Walters, 97 N. C., 489.

But how, if he has not been legally tried and convicted at all of the crime for which he is sentenced ? The State v. Queen, 91 N. C., furnishes an answer to this question. In that case the defendant was indicted in the proper form for “ the crime of burglary, with intent to kill and murder,” and pleaded “ not guilty.” ' The case was submitted to a jury, and while the case was in charge of the jury, the prisoner being at the bar of the Court by his consent and that of the Solicitor for the State, it was ordered that a juror be withdrawn and a mistrial had, which was done, and the jury discharged from its further consideration.”

The defendant then pleaded “ guilty of larceny,” and was sentenced to imprisonment in the penitentiary for ten years.

The defendant having failed to appeal, after being confined in the penitentiary for some time, applied for a writ of certiorari, which was granted, and the Court held that he should be discharged from the penitentiary, but should' be remanded to the custody of the Sheriff of Watauga to answer the charge of .burglary, for which he h.id been indicted.

It was said by the Court: “ The record presents an anomalous case, * * * * the matter was coram non judice. The Judge had no more power to sentence the defendant to imprisonment than any private person in the county.”

The Bill of Rights declares that “ no person shall be put to answer any criminal charge, except as hereinafter allowed, but by indictment, presentment or impeachment” And there is no other mode provided in the Constitution for the prosecution of felonies.

The judgment pronounced by his Honor was in contravention of this provision of the Constitution, and was therefore without authority and void.

We think the ruling m that case applies to this/and that Thresher, charged ns principal felon, has never been tried and acquitted, and the fact that though of “ weak and infirm mind',” he may be wiser than Queen was, and consent to serve out a term in prison for a minor offence, for which he was never indicted and lawfully convicted or sentenced, rather than undergo and take the chances of a trial for the capital felony for which he was indicted, cannot have any legal force and effect; and, never having been tried and acquitted upon the indictment for arson', the accessory Harrison Jones could be tried, as authorized by § 977 of The Code, for the substantive felony with which he was charged.

Affirmed.