
    *The Commonwealth v. Malachi Williamson.
    Criminal Law — Accessories—When May Be Tried. — An accessary may be tried after conviction, and before the attainder of the principal, under our Statute.
    Same — Same—Indictment.—It is not necessary that the Indictment against the accessary, should aver the conviction of the principal, for they may be jointly indicted.
    Same — Same — Verdict. — A verdict, which finds a person indicted as being accessary to murder, to be guilty thereof, but does not determine whether he is guilty as accessary to the murder in the first, or second degree, is erroneous, and ought to be set aside, and a venire facias de novo awarded.
    
      This was an adjourned Case from the Superior Court of Princess Anne. The prisoner was indicted at the June Term, 1820, of that Court, as an accessary before the fact, of the murder of one Mary Whitehurst. One Aaron Throp had been indicted at the same Term, as principal in the said murder : Throp was tried first upon the Indictment found against him, and was convicted by his jury of murder in the second degree, and his punishment by them ascertained to be five years in the Penitentiary. After Throp’s trial and conviction, and before sentence was passed on him, the trial of the accessary came on ; the Indictment and verdict against Throp were given in evidence upon the trial of Williamson, and the jury found the following, verdict: “We the jury find the prisoner guilty, and ascertain the term of his imprisonment in the Jail and Penitentiary-house to be five years, if the Court shall be of opinion that the prisoner can legally be tried, and a verdict found against him, before the principal, Throp, (who has been indicted as principal for the murder stated in this Indictment, and against whom a verdict of guilty has been found, during the present Term, and recorded, and who is now in custody,) has received judgment, or been adjudged by the Court guilty on the verdict. But if the Court shall be of opinion, that the said prisoner cannot legally be tried, and a verdict found against him, before judgment is rendered against the said Throp, against whom an Indictment has been exhibited, and a verdict found, and recorded as aforesaid, and who is now in custody, under that judgment, as before mentioned, then we find for the prisoner, and that he is not guilty.” The Superior Court then adjourned to the General Court, for its decision, the questions arising out of the verdict, and especially the following question: “ What judgment ought the Superior Court of Princess *Anne to render on the verdict aforesaid, under all the circumstances of the case?”
    Mr. Leigh, for the prisoner.
    The principal here was found guilty, having been tried at the same Term, but he was not sentenced at the time of the trial of the accessary. Could the accessary be tried before the attainder of the principal ?
    At Common Law, it is clear, that the principal must not only be convicted, but attainted, before the accessary can be tried, and convicted : perhaps the accessary might be indicted, or even arraigned, before the attainder of the principal, but certainly not tried. The ground on which this doctrine is founded, seems to be, that the verdict, only ascertains the fact, but the guilt is not conclusively proved, until the Court gives judgment. The charge itself against the principal may not be legal: the verdict may not be conformable to Law and the evidence, and a new trial may be awarded: these things are not certainly fixed till the sentence is passed. [See Hawk. B. 2, ch. 29, § 36-41-42 ; 3 Inst. 231 ; 2 Inst. 183-4 ; 2 Hale, 224 ; 4 Black. 323.J These authorities say he cannot be tried, before attainder of principal: the doubt is as to his arraignment. [See, also, 4 Co. Rep. 43, b.; the principal must be adjudged guilty. Poster, 361-2.]
    It is very true, that even at Common Law, both principal and accessary may be indicted together in the same Indictment; but “unless the accessary chooses it,” he cannot be called on to plead, till attainder of principal. 4 Black. 363. [ On this point of the joint Indictment, he referred to Hawk, ut supra, § 47 ; 1 Chitty’s Cr. Law, 272.]
    How is this point affected by Statute? “ If any principal offender shall be convicted of any felony, or shall stand mute on his arraignment, or persist, after being admonished by the Court, in not answering directly to the Indictment, or shall be outlawed, it shall and may be lawful to proceed against any accessary, either before or after the fact, in the same manner as if such principal felon had been attainted thereof, notwithstanding such principal felon shall be admitted to the benefit of his clergy, pardoned, or otherwise delivered before attainder,” &c. 
    
    *Mr. Leigh contended, that this non obstante (or notwithstanding), clause, was a restriction upon the general words in the other part of the clause ; and that a conviction alone of the principal was a sufficient foundation for the trial of the accessary, only where the principal was admitted to his clergy, was pardoned, or otherwise delivered ; but that where neither of these things occurred to the principal, he must be still attained, as at Common Law, before you could proceed to try the accessary. If this was not a restriction, there was no way of accounting for the use of these expressions. Our Statute is nearly a literal transcript from the Statute 1 Anne, ch. 9, and Blackstone has given the same construction to that Act. [p. 324.] He also thought thst Chitty so construed it. “If the principal--be convicted, but for some extrinsic cause, not at-tainted, the accessary shall be compelled to answer.” 1 Chitty, 274. Also, Roster, 364.
    Mr. Leigh admitted, that there were other authorities which seemed in opposition. Hyman’s Case, 2 Leach, 925, and the Note to the same ; also, Tremaine’s PI. Crown, 288.
    But, if a conviction is sufficient without attainder, still it is necessary that the conviction of principal should be alleged in the Indictment against accessary, and that the judgment here should be arrested for that reason. Roster, 365.
    There was another objection to this verdict. The jury have not determined whether he was guilty of being accessary to murder in the first, or in the second degree, which they ought to have done, by the directions of the Penitentiary Law. 1 Rev. Code of 1819, ch. 171, § 2 and 4.
    Robertson, Attorney General, contended,
    that the clause called by Mr. L. the non ob-stante clause, could not by any means be construed as a restriction on the other part of the clause : it was not the language of restriction. It appears to be inserted from abundant caution, and to shew that although in the case of clergy, pardon, or other delivery, the principal could not possibly be at-tainted, yet the accessary may be tried. The meaning of the Legislature is this : If the principal be convicted, the accessary may be tried, in the same manner as if sucia principal had been attainted; and, further, although (notwithstanding) such ^convicted principal be admitted to his clergy, pardoned, or otherwise delivered, yet may the accessary be tried.
    In addition to the authority of Leach and Tremaine, he referred to Comyn’s Digest, “Justices,” T. 3, where it is stated that a conviction is now sufficient.
    That it is not necessary to allege, in. the Indictment the conviction of the principal, is evident from this, that even at Common Law they might be indicted jointly; in which case the conviction could not be stated. And that it is usual not to allege the conviction. See 1 Chitty, 271-2.
    He thought the verdict was sufficient. If the jury had been of opinion that he was guilty, as accessary to murder in the first degree, they would not have said that he should be confined in the Penitentiary-house.
    
      
      Criminal Law — Accessories.—In U. S. v. Hartwell, 26 Fed. Cas. 201, it is said : “ Omission to sentence the principal defendant cannot make any difference as to the effect of the plea, as it is well settled that the conviction of the principal is sufficient without any judgment to constitute prima facie evidence of his guilt in the trial of the accessary. 3 Greenl. Ev. § 46; Com. v. Williamson, 2 Va. Cas. 211; Horne Tooke’s Case, 25 How. State Tr. 449.” The principal case,is also cited in Blair v. Com., 25 Gratt. 855 ; foot-note to Maybush v. Com., 29 Gratt. 857.
    
    
      
       1 Rev. Code of 1819, ch. 160, § 8.
    
   The Court, after mature examination of the Law, and free conference, gave the following opinion :

“A majority of the Court is of opinion, that the prisoner, may be legally tried, and a verdict may be found against him, before the principal, Throp, had received judgment, or been adjudged by the Court guilty on the verdict.”

[In this opinion, Judges Holmes, Johnston, Randolph, G. Parker, and R. L. Parker, concurred ; the others dissented.]

“The Court is further unanimously of opinion, that the verdict in this Case is erroneous, because the jury have not decided on the degree of the prisoner’s offence, by determining whether the prisoner was guilty as accessary to the murder in the first or second degree ; and as the said verdict was not such an one as ought to have been received by the Court, it ought, therefore, to be set aside, and a venire facias de novo awarded.”  