
    STATE vs. BENJAMIN DUNCAN.
    On the application of a prisoner to remove or.continue his case, the discretion to do either rests with the Judge of the Superior Court, and cannot be reviewed in this tribunal.
    A witness for the State, on the trial of an accessory before the fact, in a capital case, being asked by the defendant whether he had stated, before the examining magistrate, certain facts he was then narrating, replied that he had hot, having been deterred by the threats of the principal, and was proceeding to state the conversation between himself and the principal, when the defendant objected to this evidence. Held, that the evidence was admissible.
    Where a principal and an accessory are tried separately, though on the same indictment, evidence of the conviction of the principal is not admissible on tho trial of the accessory, unlesB judgment has been first rendered against the principal.
    The cases of the State v. Chitiem, 2 Dev. 49, and the State v. Smith, 2 Ired. 402, cited and approved.
    Appeal from the Superior Court of Law of Iredell County, at the Fall Term, 1845, his Honor Judge Pearson presiding.
    
      The prisoner was indicted in Wilkes Superior Court, as accessory before the fact, with one Underwood as principal, for the murder of- one Peden. After a plea of not guilty by Underwood, the prisoner, Duncan, also pleaded not guilty, arid they united in obtaining a removal of the trial to Iredell. When brought to the bar in Iredell, the two stated, that they were ready for trial; but they prayed to be tried separately, and it was allowed by the Court. Underwood was then put on his trial, and found guilty by the jury; and after his conviction, Duncan was put on his trial, and was also found guilty.
    At that term of the Court of Iredell, the grand jury was drawn by a boy above the age of ten years ; and for that reason, the prisoner, after his conviction, moved for a venire cíe novo.
    
    After the conviction of Underwood, the prisoner, Duncan, moved that his trial should be removed to some' other County, upon an affidavit, in which he stated, that several persons, named therein, had used great exertions ■ to produce a prejudice against him in Iredell, and *had. succeeded in doing it, by certain means specified, in the. affidavit. The Court refused the motion.
    The prisoner then moved, on his affidavit, for a continuance, for the want of a witness, who had been summoned and was absent; whose absence, the prisoner, as he swore, did not know, when he said that he was ready for trial. The Court refused this motion also.
    On the trial of Duncan, the State offered, in evidence, the conviction of Underwood on the same indictment. It was objected to by the Counsel for the prisoner, because judgment had not then been given on the verdict; but it was admitted by the Court.
    The prisoner then controverted the propriety of the conviction of Underwood, and examined witnesses upon the point. The State then produced witnesses, who proved facts tending to establish Underwood’s guilt, and that Duncan hired him to commit the murder. Among them was one, who swore, that about a month before Peden was killed, he heard Duncan say to Underwood, that he would kill Peden, or have him killed, for preventing him from obtaining a certificate of bankruptcy ; and that Underwood replied, that he wished Peden was in hell, for he was breaking up all the poor people, and had denied a debt of $100 he owed him ; and that Duncan then said to Underwood — “ I will give you $250 and my roan mare, if 3-011 will kill him.” On cross-examination, the witness was asked if he had told all this, when he was examined before the magistrate who committed Underwood and Duncan ; and he replied, that he had not, because he was afraid of Underwood, who had threatened him. The prisoner’s Counsel then objected' to his stating what Underwood said to him. But the Court allowed him to proceed; and he stated that, in the evening after Peden was killed, Underwood told him that he expected to be taken up for it, and he wished him, the witness, not to tell what he knew; and said that, if he did, he Would kill him, for the jail was not sufficient to hold him, and when he got out he would kill him. For that reason, the witness said he did not tell the whole to the magistrate ; but, when he was subsequently before the grand jury, which was after the prisoner had been confined in the jail several months, he told all he knew, as he then told it in Court,
    The prisoner’s Counsel insisted before the jury, amongst other things, that if Underwood killed Peden, he did it of his own malice, which rebutted any presumption that he did it at the instigation of Duncan. As to that, the Court instructed the jury, that, although Underwood might have a grudge of his own against Peden, which might have rendered it easier to operate on him, yet, if they were satisfied that Duncan had hired, incited, and procured him to commit the murder, he, Duncan, was acccssoiy before the fact.
    After the verdicts against both, the Court proceeded, first to pass sentence of death on Underwood, and then on Duncan. From the sentence against him, Underwood appealed to this Court, and at the present'term the Court has adjudged that there was no error therein. Duncan, also, at the same time appealed from the judgment against him.
    
      Attorney General and Boy den, for the State.
    
      Guión and Miller, for the defendant.
   Ruffin, C. J.

The points, raised by the exceptions, appear to the Court to be all clearly against the prisoner, except that upon the admission of the conviction of Underwood before judgment.

The objection, founded on the manner of drawing the Grand Jury, has been disposed of in the case of Underwood, who also insisted on that matter. It might have been a cause of challenge ; but after having boon waived and the petit jurors accepted by the prisoner, he cannot urge it as an error, for which he can claim a venire de novo.

The refusals to remove the trial a second time, and to continue the case, are decisions in the discretion of the Superior Court upon the matter of fact, which, it has been often held, this Gourt cannot review. The Act of 1808, Rev. St. c. 31, s. 120, requires the affidavit to “ set forth “the facts whereon the deponent founds the belief, that “justice cannot be obtained,” and expressty states the reason therefor to be, “ that the Judge may decide upon il such facts, whether the belief is well grounded.”

It was proper to allow the witness to state what Underwood told him, for two reasons. If, as the declarations of Underwood, they would not have been competent original evidence against the prisoner, yet the witness had a right to explain his reason for not giving the whole truth in evidence, upon the occasion to which the prisoner’s counsel referred. The interrogatory was meant to .draw out an answer to the discredit of the witness, by showing that he had committed perjury, and he had a right to palliate his conduct, as far as he could, by showing that he acted under a species of duress — the fear of losing his life. Besides, it is now settled, that the accessory may controvert the propriety of the principal’s conviction by the testimony of witnesses : McDaniel’s case, Fost. C. L. 121, 365. Smith’s case, 1 Leach. 288, and in this case the prisoner did so. That necessarily opened the case to evidence on the other side, of the principal’s guilt; and to that point, any evidence must be admissible, which would be against the principal, were he on his trial. State v. Chitiem, 2 Dev. 49.

There cannot be a doubt, that, however much inclined Underwood might have been, of himself, to take Peden’s life, any acts or words of Duncan, inciting the other to action, are sufficient to make him an accessory before' the fact. Hawkins says, that one who, by showing an express liking or assent to smother’s felonious design of committing a felony, encourages him to commit it, is an accessory. Bit. 2, ch. 29, s. 16.

But on the remaining point, which is, whether the conviction of Underwood was, before judgment thereon, evi--denee against Duncan, the Court differs in opinion from the learned Judge who presided at the trial. We have no statute upon this subje.et; and, at common law, an accessory cannot be indicted, as for a substantive felony, but only together with the principal, or after the conviction and attainder of the principal. They may- be tried together. Mr. Justice Foster deems that, the most eligible course ; and if it be so in England, it is yet more conducive here to a due execution of justice. When tried together, the guilt of the principal is established, as against him and the accessory, by evidence given to the jury. But even when tried by the same jury, the jury is charged to enquire first of the principal, and if they find him guilty, then to enquire of the accessory; and even in that case, judgment must be first given of the principal; for, says Lord Hale, if any thing obstruct judgment, as clergy, a pardon, &c. the accessory is to be discharged, 1 Hale P. G. 624. The attainder of the principal is indispensable at common law, in all cases: where, the trial of the two is by the same jury, it must precede judgment of the accessory •, and where they are tried separately, whether they be indicted by one or several indictments, it must precede the conviction of the accessory. Hawkins, following'Hale, lays it down as settled before the St. 1 Ann, that, wherever the attainder of the principal was prevented by his death, or standing mute, or being admitted to the benefit of clergy, or he was pardoned, whether before or after conviction, the accessory could not be arraigned ; though, if the principal was actually attainted, whether on conviction or outlawry, his death or pardon subsequent, or any error in the record against the principal, would not avail the accessory. 2 Hawk. P. C. ch. 29, s. 41, 42. These authors are well warranted in the passages quoted, by the Resolution of the whole Court, given by Lord Coke, 4 Rep. 43 : “ That, if princi- pal and accessory are, and the principal pardoned, or “ has his clergy, the accessory cannot be arraigned, for “ the maxim of the law is — ubi factum nullum, ibi sortia “nulla; et ubi non est principalis, non potest esse accesso- “ ñus. Then, before it appears there is a principal, one “ cannot be charged as accessory. But none can be called “ principal, before he is so proved and adjudged by the “ law, and that ought to be by judgment upon verdict or “ confession, or by outlawry; for it is not sufficient that, “in rei veritate, there was a principal, unless it so ap- “ pears by judgment of the law; and that is the reason “that, when the principal is pardoned, or takes his clergy, “before judgment, the accessory shall never be arraign- “ ed; for it doth not appear, by judgment of law, that he “ is principal, and the acceptance of the pardon or pray- “ ing of the clergy, is an argument, but no judgment in “ law, that he is guilty. But if the principal, after at- “ tainder, is pardoned, or has his clergy, then the acees-“sory shall be arraigned, because it appears judicially “that he was principal.” That such was the rule at common law, further appears from St. 1 Ann. ch. 9, sec. 1, which recites as a mischief, that as the law then was, no accessory could be convicted or suffer punishment, when the principal was not attainted, and, for remedy, it enacts, that if any principal shall be convicted of a felony, or stand inute,'&c. it shall be lawful to proceed against an accessory in the same manner, as if such principal had been attainted, nothwithstanding such principal should be pardoned, or otherwise delivered before attainder. The object in using the proceedings against the principal, is to excuse the prosecutor from producing to that jury substantive evidence of the guilt of the principal, because that has been duly established against the principal himself. Now, that cannot be said without the solemnity of a judgment against the principal, in any but two cases: the one, where the accessory, as he may do, consents to be tried before the principal; and the other, where they arc tried together. But even in those cases, as we have seen, there can be no judgment of the accessory before there is judgment of the principal; which shews, that the accessory is entitled, unless he voluntarily renounce it, to the benefit of the principal’s exertions in his own behalf throughout, and that the principal’s guilt must be solemnly and conclusively established against himself, before the proceedings can be used in the next step against the accessoiy. Hence, where the trials are separate, the attainder of the principal must precede not only the sentence of the accessory, but his trial. Where there is an attainder of the principal, that is sufficient, though erroneous, as has been already mentioned ; and hence it follows also, that, though they may be tried by one inquest, the rendering of judgment against the principal can be contested by the principal only, and the accessory cannot object to the sufficiency of the indictment against the principal or the like, but is conclusively bound by the judgment, though he may, as parti-ceps in lite, make full defence with the principal before the jury. It is not, therefore, the joint indictment, which enables the State to offer the conviction of the principal, by itself, against the accessory, though it occurred to us, at one time, it might be, as it probably appeared likewise to his Honor upon the trial. Indeed, it expressly appears, by a subsequent passage in Lord Hale, 2 P. C. 222, that it is not the form of the indictment, but the mode of trial, which dispenses with the production of the attainder of the principal, on the trial of the accessory; for he says, that they, “ being indicted by one or several indictments, “ and both appearing, may be arraigned together at the “ same time, and both pleading not guilty, the same jury “ shall be charged with both, and directed to enquire of both, “ viz. first of the principal, and if they find him guilty, then “ to enquire of the accessory.” It is true, the modern precedents of separate indictments against the accessory, charge only “ the conviction in due course of law” of the principal. But that is well justified by the statute of Anne, which expressly authorizes the trial of the accessory upon the “conviction” of the principal, as it had been before upon his “ attainder” ; and upon that ground, the Courts have put it. Hyman’s case, 2 East. 782. 2 Leach, 925. Baldwin’s case, 3 Cartip. 265. R. and Ry. C. C. 240. Indeed, that might have been also the form of the indictment at common law; for whether the principal was “ duly convicted,” it might well be held, could only appear by judgment of the Court on the conviction. We have not taken the trouble to search the old precedents on the point, because the question here concerns the mode of proving, and not the form of charging the conviction: and it is very clear that at common law, the attainder of the principal was indispensable evidence on the separate trial of the accessory. It. is true, that .those rules of the common law have been often complained of, and they certainly have not unfrequently stopped tbe course of justice against great offenders — for the contriver and instigator is generally the real principal in the guilt, though not in the legal felony. In England, it has been remedied by several statutes ; as- firs!, by the statute 1 Anne, 2, already quoted, and then, following out Judge Foster’s idea of the defects of that statute, Fost. C. L. 363, it has been since provided by St. 7, Geo. 4, c. 04, for the more effectual prosecution of accessories before the fact, that an ^accessory may be indicted and convicted of a substantive felony, whether tbe principal shall or shall not have been previously convicted, or sbal-1 or shall not be amenable to justice ; and that he may be prosecuted after the conviction of the principal, in. the same manner as if the principal Were attainted, notwithstanding the principal shall die, or he allowed clergy, or pardoned, or otherwise delivered before attainder; and be punished accordingly.

Probably similar reforms may be found by the Legis-ture, to be necessary in our law, especially as peculiar provisions in it, such as the absolute right of appeal in-capital cases, whereby the judgment is temporarily vacated, and others, greatly multiply the impediments to justice against accessories, by appeals of the principal. But the Courts cannot deny to them the benefit of the law, as it was anciently settled, until it shall be altered by the Legislature- More inconveniences may indeed', and probably will, induce the Judges who preside at trials, in their discretion to' refuse separate trials, where■ the principal and accessory are both amenable, State v. Smith, 2 Ired. 402, as in some slight degree facilitating' the trial and punishment of accessories. But we are-obliged to hold, that when the accessory is not tried with the principal, judgment against the latter is indispensable-evidence against the former. Therefore, the judgment against the prisoner, Duncan, must he reversed. It is true, that we now know that the conviction of the principal was a due conviction, as the judgment against him has been affirmed by ourselves; and, if this were addressed to our discretion, as on a motion for a new trial, we might refuse it, as not advancing the justice of the case. But the question is one of strict law— whether there was error in admitting- incompetent evidence upon the trial of the prisoner; and if there was an error committed in that respect, we are obliged to award a venire de novo.

Pee Cuelui. Ordered to be certified accordingly.  