
    The State vs. John Pybass.
    Ah accessary camiot be put on his trial before the conviction of the principal, unless he consent thereto, or be put on his trial with the principal. This principle of the common law applies to the offence created in the 12th section of the act of 1829, ch. 21.
    The grand jury of Henderson county, at the July term, 1842, returned a bill of indictment against Newton Pybass, which charged that he (said Pybass,) on the 25th day of March, 1841, with force and arms, in the county of Henderson, feloniously, wilfully, unlawfully and maliciously, did set fire to the house of one Stacy Roach, there situated, with the intent, then and there, thereby to injure said Stacy Roach, against the statute, &c. and that John Pybass, before the felony aforesaid was committed in form aforesaid, to wit, on the 25th day of March, 1841, in the county aforesaid, did, maliciously, wilfully, unlawfully and feloniously, incite, move, procure, counsel and command the said N. Pybass the felony aforesaid, in manner and form aforesaid to do and commit, &c.
    The defendant moved the court to quash the bill of indictment. This motion was overruled. The defendant thereupon pleaded not guilty, and continued the case. At the November term succeeding, the defendant again continued the case. At the March term, 1843, the defendant again continued the case. At the July term, 1843, when the cause was called, the defendant objected to being put on his trial until the principal should be tried; and the court, not being satisfied as to the law arising, continued the cause, upon advisement, till the next term of the court. At the November term, 1843, Dunlap, Judge, presiding, this motion was overruled, and thereupon the defendant ordered to be put upon his trial. The defendant then continued the cause. At the March term, .1844, Read, Judge, presiding, the defendant again objected to being put on his trial; and the matters of law thereupon arising having been argued, the presiding Judge sustained the objection. The court thereupon ordered that defendant be discharged; the judgment of discharge reciting, that no steps had been taken to bring said Newton Pybass to trial, and the attorney general declining to take any steps for tbat purpose, and that the said N. Pybass had fled to parts unknown.
    From this judgment, the State, by the attorney general, Talbot, appealed in error.
    
      Attorney General, for the State.
    
      Bullock and McLanahan, for the defendant.
   Reese, J.

delivered the opinion of the court.

The defendant is indicted as accessary, before the fact, of James M. Tatum and Newton Pybass, for the burning of a building called Mount Pleasant Meeting House, under the 12th section of the Penitentiary Code. The form of the indictment is according to the mode of proceeding at common law in the prosecution of an accessary. After the cause had been pending for a considerable time in the Circuit Court, the defendant moved that he should not be put upon his trial, before the trial and conviction of the principals, or of one of them indicted with him. This motion was sustained, and the court ordered his discharge, and from this the State has prosecuted an appeal in error to this court. The general question involved in this case was fully discussed and conclusively determined at the last Nashville term, in the case of Whitehead against the State, to which, and to the authorities upon which that judgment was based, we refer. But it is argued, on behalf of the State, that the offence charged in this indictment was at common law a misdemeanor only; that the felony is created by the statute, and that the terms of the statute constitute the charge against the defendant a distinct and substantive felony. If this were so, still the defendant is indicted as an accessary according to the forms of the common law, and not for a distinct and substantive felony. But it is not so. The offence as created by the statute is in its nature accessorial only, and the term used to create it, “procure,” is appropriate to designate, according to law, the accessary. The proposition is maintainable neither by reason or by authority, that when the offence has been at common law a misdemeanor, and has been by statute created a felony, and the relation of accessary has also been constituted, that the accessary may, without his consent, be put on trial with or before his principal. Every reason which exists for the trial and conviction of the..principal in a common law felony before the, accessary should be put upon his trial, applies with equal force to the case of principal and accessary in a statutory felony. To give the government the right, in either case, to put the acces-sary upon his triál without his consent, with or before his principal, the legislature must interpose and expressly change the rule of the common law. The Circuit Judge, therefore, was right in refusing to order the defendant to be put on his trial in this case. As to the propriety of ordering his discharge, we have some doubt; but as it was done in the exercise of a legal discretion properly and necessarily confided ■ to the Circuit Judge, we do not feel called upon by the circumstances of this case, as shown upon the record, to determine that such discretion was exercised contrary to law.

Let the judgment be affirmed.  