
    *Maybush v. The Commonwealth.
    January Term, 1878,
    Richmond.
    1. Marriag'e License — Evidence of Female’s Agre. — The act, Code of 1873, ch. 1S9, § 13, authorizes the cleric of a county or corporation court, when an application is made to him for a marriage license, to require evidence that the female to be married is over the age of twenty-one years, ar.d to administer an oath to the person giving the testimony.
    2. Subornation of Perjury. — M is prosecuted for subornation of perjury, found guilty, and judgment rendered against him. At the same term of the court, but after the conviction of M, G is tried for the perjury, and is acquitted.^ M then moves the court for a new trial. G having been acquitted of the perjury, M should have a new trial; as if G was not guilty of the perjury, M could not be guilty of subornation or perjury.
    ACCESSORIES.
    Before the Pact.
    Before Conviction, of, State Mnst Prove That the Principal Has Committed the Felony. — An accessory to a felony cannot be prosecuted for a substantive offence, but only as an accessory to the crime perpetrated by.the principal felon. And, in order to his conviction, although it is not necessary now to show that the principal felon has been convicted, it is necessary to show that the substantive of-fence, to which he is charged as having been accessory, has been committed by the principal felon. Hatchett v. Commonwealth, 75 Va. 925.
    Same — Same—Same.—There can be no accessory to a crime not committed by a principal. Under the laws of this state, to convict a person as an accessory to a crime, he must be indicted and tried as such. A guilty principal cannot escape punishment because he is not guilty as an accessory. State v. I/illy, (W. Va.) 35 S. 'Rep. 837.
    Offence Defined — How Indicted. — If the procurers or aiders are not present, they are accessories, and must be indictment specifically as such, and not as principals. Rasnick v. Commonwealth, 2 Va. Cas. 356.
    Cannot Be Indicted as a Principal. — An accessory before the fact to a felony, cannot be convicted on an indictment against him as a principal. Thornton v. Commonwealth, 24 Gratt. 657.
    Accessories — Wlien and Where Tried— How Indicted. — An accessory, either before or after the fact, may, whether the principal felon be convicted or not, or be amenable to justice or not, be indicted, convicted, and punished in the county or corporation in which he became accessory, or in which tlie principal felon might be indicted. Any such accessory before the fact may be indicted either with such principal or separately. Sec. 3887, Va. Code.
    
      In January, 1877, the grand jury of the hustings court of the city of Richmond indicted John Maybush for subornation of perjury. In the indictment it was alleged that Maybush, wishing to obtain from A. Jenkins, clerk of the hustings court of the city of Richmond, a license to marry Anne Elizabeth Humphreys, and Jenkins, before issuing the license, requiring to have evidence that Miss Humphreys was twenty-one years old, by the oath of some one having knowledge thereof, Maybush, corruptly, &c., did suborn and procure one John B. Graves, to falsely, &c., swear and make affidavit in writing, before the said Jenkins, clerk as aforesaid, that the said Anne Elizabeth Humphreys was then of the full age of twenty-one years; whereas she was in truth but of the age of sixteen years.
    *Maybush demurred to the indictment. The ground on which the demurrer was rested, was that the clerk had no legal authority to administer the oath. The court overruled the demurrer; and upon the trial, Maybush was found guilty, and his fine was assessed at fifty dollars; and there was a judgment according to the verdict, for the line of fifty dollars, and imprisonment in the jail of the city for one year, the period fixed by law, &c.
    How Principal in Second Decree and Accessories Punished. — 'In the case of every felony, every principal in the second degree and every accessory before the fact, shall be punished as if he were the principal in the first degree, and every accessory after the fact, shall be confined in jail not more than one year, anel fined not exceeding five hundred dollars. Sec. 3885, Va. Code.
    Verdict Must SSiow What Crime Accused Is Accessory to.- — A verdict, which finds a person indicted as being accessory to murder, to be guilty thereof, but not determine whether he is guilty as accessory to the murder in the first, or second degree, is erroneous, and ought to be set aside, and a venire facias da novo awarded. Commonwealth v. Williamson, 2 Va. Cas. 211.
    Where Principal Departs from Accessory's Instructions. — -If a principal totally and substantially departs from the instructions of an accessory, and commits a different offense, or an additional offense, he stands single in such different or additional offense, and the other is not held responsible for it as accessory. Watts v. State, 5 W. Va. 532.
    After the Fact.
    Accessory the Fact Deiined. — Says the Court in Wren’s Case, 26 Gratt. 955: “This charge constitutes what the law denominates ‘an accessory after the fact.’ The common law definitely and distinctly defines who is such an offender. He is a person who knowing a felony to have been committed by another, receives, relieves, comfoits or assists the felon.”
    Reason of the Law, — '“The reason on which the common law makes a party in such a case criminal, is that the course of public justice’ is hindered, and justice itself is evaded by facilitating the escape of the felon.” Wren’s Cas’, 26 Gratt. 955.
    'What Constitutes the Offense. — -“To constitute one an accessory after the fact, three things are requisite: 1. The felony must be completed; 2. He must know that the felon is guilty; 3. Tie must receive, relieve, comfort or assist him. It is necessary that the accessory have notice, direct or implied, at the time he assists or comforts the felon, that he has committed a felony.” Wren’s Case, 26 Gratt. 956.
    Actual Xotiee Required. — “And although it seemed at one time to be doubted, whether an implied notice of the felony will not in some cases suffice, as where a man receive a felon in the same county in which he has been attainted, which is supposed to have been matter of notoriety, it seems to be .the better opinion, that some more particular evidence is requisite to raise the presumption of knowledge.” Wren’s Case, 26 Gratt. 956.
    
      After the trial of the cause, but at the same term, the prisoner moved the court for a new trial, on the ground that John B. Graves, the person whom it was charged he had suborned, had been tried upon the charge of perjury after verdict had been rendered against him (Maybush), before the same court, and a verdict of “not guilty” had been returned, and ihe said Graves had been discharged; but the court overruled the motion; and the prisoner excepted. And he applied to this court for a writ of error; which was awarded.
    William Rllyson, for the appellant.
    The Attorney General, for the Commonwealth.
   Anderson, J.,

delivered the opinion of the court.

The court is of opinion, that there is no error in the judgment of the hustings court in overruling the demurrer to the indictment in this case. By section 13 of chapter 159 of the Code of 1873, any clerk of a court, or his deputy, may administer an oath in any case wherein an affidavit is necessary or proper as the foundation of an official act to be performed by him. The words italicized “or proper” have been inserted in the statute since the decision of Matthew Williamson’s case, 4 Gratt. 554, wherein it was held that a clerk, under the statute as it '‘then was, had no authority, when applied to for a marriage license, to examine a witness on oath as to the age of the parties; the court construing the law as it then stood, to apply only to such cases in which, without regard to circumstances, the making of the affidavit was necessary as a prerequisite to the performance of the official act required of the clerk. But the legislature soon after that decision, at the revisal of 1849, having amended the law by inserting the words above recited, evidently designed, we think, to authorize the clerks and their deputies to administer an oath in such cases, because it is highly proper that the clerk, before issuing the marriage license to parties who had not the consent of parents or guardians, or such evidence of it as the law required, should have authority to examine a witness on oath as to the age of the parties. We think that the authority is given by the statute as it now stands.

But the court is further of opinion, that the Commonwealth wholly failed to prove the allegation of the indictment, that the plaintiff in error did wilfully, corruptly and unlawfully commit subornation of perjury by procuring John B. Graves to commit wilful and. corrupt perjury, in the oath which he is before alleged in said indictment to have taken. Tn order to convict the plaintiff in error of subornation of perjury, it was essential for the Commonwealth to show that the person whom he is alleged to have suborned had committed perjury. 2 Bishop on Crim. Proced. § 879. But if it had been shown to the contrary that the person alleged to have been suborned had been indicted for the offence of the perjury alleged, and had been tried and acquitted, it would have entitled the plaintiff in error to an acquittal of the offence of subornation for which he was indicted. It appears from the plaintiff’s third bill of exceptions that after the trial of his case, but while the matter was yet *in the breast of the court, he moved the court for a new trial, upon the ground that John B. Graves, the person whom it was charged he had suborned, had been tried upon the charge of perjury after the verdict had been rendered against him, the said plaintiff, before the same court, and a verdict of not guilty had been returned, and the said Graves had been discharged; which motion for a new trial the court overruled. If this evidence had been before the jury upon the trial of the plaintiff in error, they would have been bound to have found a verdict in his favor. And inasmuch as in the nature of things the evidence of Graves’ acquittal of the perjury charged could not have been given in evidence in that trial, because his trial and acquittal did not occur until afterwards, it was error in the court to overrule his motion for a new trial. We are of opinion, that the court ought to have set aside the verdict and awarded the prisoner a new trial.

Knowledge Must Be Brought Home to Accused — Jury tlxe Judg’e. — “But knowledge of the commission of the felony must be brought home to the accused, and whether he had such knowledge is always a question for the jury.” Wren’s Case, 26 Gratt. 956.

Wliat Constitutes the Offence — Generally. —“As to the receiving, relieving and assisting, one known to be a felon, it may be said in general terms, that any assistance given to one known to be a felon in order to hinder his apprehension, trial or punishment, is sufficient to make a man accessory after the fact; as that he concealed him in the house, or shut the door against his pursuers, until he should have an opportunity to escape; or took money from him to allow him to escape; or supplied him with money, a horse or other necessaries, in order to enable him to escape; or that the principal was in prison, and the jailer was bribed to let him escape; or conveyed instruments to him to enable him to break prison and escape. This and such like assist-anee to one known to be a felon, would constitute a man accessory after the fact. But merely suffering the principal to escape, will not make the party accessory after the fact; for it amounts at most but to a mere omission. Or if he agree for money not to prosecute the felon; or if knowing of a felony, fails to make it known to the proper authorities; none of these acts would be sufficient to make the party an accessory after the fact. If the thing done amounts to no more than the compounding a felony, or the misprison of it, the doer will not be an accessory. The true test whether one is accessory after the fact, is to consider whether what he did was done by way of personal help to his principal, with a view of enabling his principal to elude punishment; the kind of help rendered appearing to be unimportant.” Wren’s Case, 26 Gratt. 956.

Wlio Not Deemed Accessories after tlie Fact. — But no person in the relation of husband and wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity, or servant to the offender, who, after the commission of a felony, shall aid or assist a principal felon or accessory before the fact, to avoid or escape from prosecution or punishment, shall be deemed an accessory after the fact. Sec. 3886, Va. Code.

The court is of opinion, therefore, that for this cause (the overruling the motion of the plaintiff in error for a new trial) the judgment must be reversed, the verdict of the jury set aside, and a new trial awarded the plaintiff in error, and the cause is remanded for further proceedings therein iii conformity with' this opinion.

The judgment was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that the hustings court did not err in overruling the demurrer to the indictment; but being of opinion that the trial and acquittal of John B. Graves in the said hustings court, of the charge of perjury, for the subornation of which the prisoner was indicted in this case, would be conclusive to show that the prisoner was not guilty of the offence for which he *was prosecuted. And such trial and acquittal of Graves having been subsequent to the trial and finding of the jury against the prisoner in the same court, it was error to overrule the prisoner’s motion to set aside the verdict and grant him a new trial on that ground. It is therefore considered that the judgment be reversed and annulled, the verdict of the jury set aside and a new trial awarded the prisoner. And the cause is remanded to the hustings court of the city of Richmond for further proceedings to be had therein, in conformity with this order and the opinion of this court filed with the record.

Judgment reversed.  