
    Commonwealth versus James Phillips.
    ah accessory in a capital felony cannot be put on his trial without his consent, H the principal be dead without conviction.
    Where a capital indictment had been continued one term, and the government was not prepared for trial, the Court took the prisoner’s single recognizance for his appearance the next term.
    Indictment at the last March term in this county, charging one Thomas Daniels as principal, and the defendant as accessory before the fact, in burglary. The death of Daniels was alleged in the indictment: and the question was, whether the prisoner Phillips could lawfully be put upon his trial.
    
      Fay, for the prisoner.
    By the common law, no accessory, either before or after the fact, could be put upon his trial before conviction of the principal, but by his own consent. If the principal has been before acquitted, the accessory can never be put.on trial; and if the accessory should he first convicted, and the principal aftenvaids acquitted, the conviction of the accessory must be reversed. To the rule of law, thus generally laid down, there are * certain particular exceptions ; none of which bear at all upon [ *424 ] the present case . And this rule is founded in the highest reason. The guilt of the principal must in every case be proved, before the accessory can be put on his defence. But although, upon an ex parte hearing, the evidence may satisfy the jury of the principal’s guilt, it might be much otherwise if he were present. He might be able to make a defence for himself, which it is wholly out of the power of the accessory to make for him. It may be too that, if the crime was committed by the principal, and the defendant counselled the commission of it, yet that, the commission of the crime was not caused by such counsel.
    
      Davis, Solicitor-General,
    considered the case as novel, but was satisfied, on the whole, that the prisoner might be put on his trial without his consent. The rule, he confessed, was general by the ancient law, 'that an accessory is not to be put on trial before the conviction of the principal, unless he gives his consent thereto; but there were many exceptions to it, which had been adopted from time to time, for the furtherance of justice; as where the principal is pardoned after verdict and before judgment, where he stands mute, &c. The death of Daniels happened before he could be put on trial, by the course of the Courts: and the Court will take notice of this from the indictment. He destroyed himself; and if this prisoner is to escape a trial by this means, he will owe his safety, not to the act of God, but to a new felony. But the true principle in the case is, that the accessory may be compelled to put himself on trial, whenever it appears that the principal cannot afterwards be tried. In this case, unless the guilt of Daniels is fully established, the prisoner must be acquitted.
    
      
       1 Chitty on Crim. Law, 224, 343.
    
   The Court

observed, that the question was of too much importance to be decided instanter; the trial might proceed, and the prisoner should have the benefit of the objection after conviction, if a conviction should follow. The trial continued through the greater part of the day ; * and towards evening the [ * 425 ] Solicitor-General, finding that a material witness for the government had left the Court, the trial was postponed until the morning; when

The Chief Justice stated, that since the adjournment of the Court the preceding evening, the justices had carefully examined the books upon the subject, and were unanimously of opinion, that, by the common law an accessory cannot be put on his trial, but by his own consent, until the conviction of the principal. The reason of this rule is very plain. If there is no principal, there can be no accessory; and the law presumes no one guilty until conviction. Statutes have made a difference as to some lesser species of offences, but do not touch the principle in capital cases. Our only doubt arose from the peculiar circumstance in this case, that the person charged as principal is dead, and can never be tried. If he were alive, and on trial, it is possible he might establish his innocence, strong as the evidence has appeared in support of his guilt. In such case, the prisoner could not be found guilty ; for he could not have been accessory to the commission of the crime as charged. The trial might have been stopped at the commencement of it, had our minds been then free from all doubt. But as the prisoner has been put on his trial, he has a right to a verdict. The jury, accordingly, under *>e direction of the Court, immediately returned a verdict of acquittal : and the prisoner was discharged of this indictment .

The prisoner was also arraigned at the last March term, upon an indictment against him as principal in the same offence. The Solicitor-General not being inclined to go to trial upon the evidence he had, the counsel for the prisoner moved for his discharge.

The habeas corpus act provides that, “ when any person shall be held in prison under indictment, he shall be tried or bailed at the first term next after his indictment, if he demands the [ * 426 J same; unless it shall appear to * the Court, that the witnesses on behalf of the government have either been enticed away, or are detained by some inevitable accident from attending.”

The Court ordered the prisoner to recognize alone in 2000 dollars for his appearance at the next term. 
      
      
        [Russell on Crimes, p. 36, 2d Ed.—Ed.]
     
      
      
        Stat. 1784, c. 72, § 13
     