
    Stoops and another against The Commonwealth.
    In Error.
    
      Monday, January 14.
    ERROR to the Court of Oyer and Terminer for the city and" county of Philadelphia, held by the Justices of the J r * a • Court of Quarter Sessions. .
    a®ac. cessary to a felony committed by several, some of whom only are convicted, no?¿rocked a?a,.n9tt000"" viction or out* iawry,h« may tric'das* to saca f.r have been convieted: but if he be tried, convicted, and sentenced as accessary to all without his consent, it is error.
    Such consent will not be implied from the party’s pleading and going to trial.
    If tlie indictment state a burglarious entry with intent to '■teal, and then and there stealing, it is but one offence, viz. a burglary, and a count charging a party as accessary “to the felony afore»aid,” is good.
    
      Charles Coring, James Mitchell\ Charles A. Mitchell, Filatio Russell, Solomon Price, Adam Stoops, and-Cook, were indicted for burglary, in the said Court of Oyer and ° J1 - J „ Terminer, and Margaret Stoops and Ann Carson, plaintiffs in'error, were charged as accessaries before .the fact, with Elizabeth Mitchell. and Henry Parmelé, as áccessaries J after the fact, to all the principals. Lormp and Russell being ' arraigned pleaded guilty: James Mitchell and Charles A. Mitchell pleaded. not güilty, and were convicted. Price, Adam Stoops,. and Cook, never were tried or arraigned. The plaintiffs in error were afterwards tried. Margaret Stoops was convicted as accessary before and after the fact. Ann Carson was convicted of being accessary after the fact. Elizabeth Mitchell and Parmeli were tried and acquitted.
    The counts in the indictment now excepted to, were the following.
    1st count. That Charles Loring, Joseph Mitchell, Filatio Russell, Solomon Price, Adam Stoops and- Cook, on, &c., at, &c. the dwelling house of Thomas Mann, there situate feloniously and burglariously did break and enter with intent the goods and chattels, the property and monies of the said Thomas Mann, in the said dwelling house, then and their being, then and there feloniously and burglariously to steal, take, and carry away, and then and.there with force and arms, two kegs containing two thousand silver dollars, of the value of two thousand dollars of the goods and chattels, property and monies of the said Thomas Mann, in the said dwelling house, then and there feloniously and burglariously did steal, take, and carry away, &c.
    2d count. That Margaret Stoops, Elizabeth Mitchell, Ann Carson, otherwise called Ann Smith, on, &c., at, &c. did feloniously and maliciously incite, move, procure, aid and abet, counsel, hire and command, the said Charles Loring, Joseph 'Mitchell, Charles Mitchell, Filatio Russell, Solomon Price and Adam Stoops, todo and commit the said felony and burglary, in manner and form aforesaid, &c.
    3d count. That Henry Parmeli, Ann Carson, otherwise called Ann Smith, &c., Margaret Stoops and Elizabeth Mitchell, after the committing of the said felony and burglary, in manner and form aforesaid, on, &c., at &c., did feloniously and maliciously receive, comfort and assist the said Charles Loring, Joseph Mitchell, Charles Mitchell, Filatio Russell, Solomon Price and Adam Stoops, the said Henry, Ann, Margaret and Elizabeth, then and there, well knowing the felony and burglary aforesaid, in manner and form aforesaid, to have been committed, See.
    
      King, for the plaintiffs in error.
    By the record it appears, that the plaintiffs in error were indicted and convicted as accessaries before and after the fact, to seven principals, four only of whom had been previously tried or arraigned, the remaining three never having been amenable to justice.
    Two questions present themselves for consideration on this part of the record.
    
      First, whether a party indicted as an accessary to several principals, can be tried without his previous consent, before the conviction or outlawry of all the principals.
    
    
      Second, whether such an accessary can be tried, (without such consent,) as accessary to any other principals, than those actually convicted. In the case before the Court, it would be sufficient to shew the irregularity of the latter mode-of proceeding, but the argument in the first branch of the inquiry necessarily includes the latter.
    1. The older authorities establish the doctrine to the extent embraced in the first point, and require the conviction of all the principals, before the trial of one charged as accessary to all. Morris Gittirís Case, Plozuden’s Com. 98 B. is fully supported by 40th Ass. PI. 25. Bro. ■ 119. Fitzherb. Tit. Corone. 216. In 1 Hale, Pleas of the Crown, 624, it is said, “ that if A., B. &? C., are indicted as principals, and D. as accessary to all, he shall "not be tried till all the principals are convicted or attainted.” In 2 Hale, 200, a similar doctrine is laid down, and Lord Coke in 2 Inst. 183, 184. recognises the same principle. Flawkins, B. 2. Ch. 29. Sec. 45, while he recognises the modern rule to be, to try an accessary to several as accessary to such of his principals as may appear and be convicted, declares that the contrary opinion is supported by great authority, and that he does not find any instance in the books wherein the Court had actually proceeded to the trial of an accessary in such a case, before' all the principals had appeared or been attainted.
    The reason of the old rule is obvious, and is most in accordance with our civil institutions. The great objection against trying a person as accessary to those who have not appeared, is, that it subjects the person tried to the hardship anc[ hazard of two trials for his liberty or life ; whereas if the trial were deferred until all the principals should be st-tainted or appear, he would be tried but once. For all the books that maintain the modern rule, agree that an acquittal or being accessary to one principal, does not prevent a subsequent trial as accessary to the other principals, when they are attainted. Hawk. B. 2 Ch. -29 sect. 46. The mischief arising from the introduction of this rule in criminal justice, produced in England the Slat. 43 Geo. III. Ch. 113. s. 5. Russell on Crimes, 52, which enacts, that in such case, the accessary shall only be subject to one trial, and that his acquittal when tried as accessary to one of several principals, shall be a bar to future proceeding in relation to the others. By adopting the modern, in preference to the ancient rule, the mischief remains, while the remedy provided by 43 Geo. III. is out of our reach.
    2. But the modern rule is, that an accessary to several principal felons may be indicted as accessary to such principals as are convicted or attainted, though all are not so convicted or attainted. Foster, Ch. 2. sect. 1, who is the leading authority for this doctrine, goes no further than this, and subsequent elementary writers, who incorporate it, lay it down in the same way. Chit. Crim. L. 343. Russell, 52. Hawk. B. 2. Ch. 29. sect. 45. But this is not the case before the Court. Here the plaintiffs in error were indicted and tried not only as accessaries to four convicted principals, but to three principals who never have been amenable to justice or proceeded against in any way. Testimony under such an indictment could be received as to the defendants guilt with the absent principals and others, and facilitate a conviction in relation to those present, while the finding would be no bar to a future indictment, charging the defendant as accessary to the absent principals in the event of their attainder.
    It may be argued that it does not appear, but that the proceeding was by consent, or that Stoops, Price, and Cook were outlawed according to the- Act of Assembly. But such consent, waving an important and substantial privilege will not be presumed. Commonwealth v. Andrews, 3 Mass. Rep. 126. If Stoops, Price, and Cook had been outlawed, it should have been set forth in the indictment or at least averred. 1 Chitty 274. (Margin.) Foster C. L. 365. Com. Dig. Tit. Justices T. (3.) Fuss. Cr. 53. 2 East P. C. 782. Hyman’s case 2 Leach, 925. Outlawry isa conviction}-and lik^ any other conviction should be averred in proceedings against an accessary, 1 Dali. 90. In Finer’s Abr. the necessity of such an averment is. expressly declared. 1. Fin. Ab. Tit. Accessary, Letter F, 122. Id. 6?. 119.
    3. The indictment is defective. It sets forth a larceny and a burglary in one count, alleging, in the first instance* a breach and entry with intent to steal and afterwards an actual larceny in stealing, taking, &c., the money laid, while the .defendants are charged'as accessary to the said felony. Hale considers such an indictment as charging two offences. 1 Hale 559, 560. 3 Chitty, 10. 98. 9. In Catherine Graham’s case, 1 Lawyer’s Magazine, 469, the twelve Judges decided that an indictment setting forth two felonies by the principal, and charging the accessary as being such to, “the felony aforesaid,” could not be'supported, being too uncertain to autho-rise any judgment. The punishment of an accessary to a burglary differs most materially, from that of an accessary to a larceny. The difficulty of pronouncing judgment on such an indictment is obvious.
    
      Kittera, for the Commonwealth.
    The old common law undoubtedly was, that all the principals must be tried before the accessary could be arraigned. It is equally true that the rule no longer exists. Now, the accessary of several may be arraigned on the conviction of any one. The most approved modern authority establishes this. It is agreed that the proceeding would have been regular, had the Commonwealth proceeded to outlawry against the absent principals, Stoops, &c. Two principles are submitted to the Court in answer to che objection.
    First, That outlawry is a matter in pais, and that this Court will presume that such outlawry was proved on the trial of these accessaries in the Court below. Second* That process of outlawry does no't lie in Pennsylvania. They may have been convicted in another Court; and nothing appears to the contrary. None ol the precedents sets forth the conviction or outlawry of the principal. It was properly a matter of defence below, and the defendants might have avail-1 ed themselves of it by plea. ...
    But is it, in Pennsylvania, necessary to proceed to the outlawry of the principal, before you can try the accessary ? The Act regulating outlawry, 3 Smith’s Laws, 37. Act of September, 1,791, was passed when the Supreme Court had a general jurisdiction, and there was no difficulty in the way of the proceedings. Situated as the' Court now is, outlawry in any other county but this, is impossible, and here extremely difficult. By the habeas corpus act, a defendant is entitled to his discharge at the second term if not tried. By the outlawry act, three terms must elapse before the outlawry of the principal can take place. The accessary might then be entitled to his discharge under the habeas corpus act, before the outlawry of the principal could take place. Again, if the principal chose to come in and plead before the outlawry is complete,-in no district but this, could, he be tried; this Court, to which the proceeding previous to outlawry must be removed, having no authority- elsewhere in the Commonwealth to award a venire.
    
    There are not two felonies charged in this indictment. .The breaking, entering, stealing, &c., are but the component parts of one burglary. The case cited was of two obviously distinct felonies charged against the principal.
    
      King, in reply.
    The Court never will presume the existence of a state of things, which is clearly negatived by the record before them. Such a presumption would be peculiarly unauthorised in a criminal casé, if it could be authorised in any case. In this indictment, all the principals, and all the accessaries are indicted-together. In one count, the principals, Stoops, Price, and Cook included, are charged with the burglary, and in the second count the plaintiffs in' error are charged as accessa-" ries to them all. Had this been a separate indictment against the plaintiff as accessary, and if, in point of law, in such an indictment, it is unnecessary to set forth or aver the conviction or outlawry of the principals, then the reasoning might be sound.
    The argument against the convenience of outlawry would, with more propriety, be addressed to the Legislature, than to this Court. An Act of Assembly giving the Supreme Court power to issue a venire in such case, would make the system complete and harmonious. The argument drawn from the habeas corpus Act is equally unfounded. The construction given' to that law ever has been, that if the Commonwealth is prevented from proceeding to trial by the act of the defendant, he cannot claim his discharge. If he should refuse his consent to a trial previous -to the attainder of his principal, which, with his consent, would be legal, he never could obtain a discharge under the provisions of the habeas corpus Act.
   The opinion of the Court was delivered by

Duncan J.

Charles Loring, James Mitchell, Charles A, Mitchell, Filatio Russell, Solomon Price, Adam Stoops and •- Cook, were indicted for burglary, and Margaret Stoops and Ann Carson, plaintiffs in error, with Elizabeth Mitchell and Henry Parmelc were indicted as accessaries before and after the fact, to all the principals. Loring and Russell pleaded guilty, James Mitchell and Charles A. Mitchell not guilty. Price, Stoops and Cook were never tried or arraigned. The plaintiffs in error were afterwards tried as accessaries. Margaret Stoops was convicted as accessary both before and after, Ann Carson of being accessary after. Elizabeth Mitchell and Henry Parmelé were acquitted.

The errors assigned are—1. That accessaries were tried and convicted before conviction of all the principals.

2. They were tried as accessaries of principals who had neither been outlawed, arraigned or convicted.

3. The indictment charges two felonies, and the plaintiffs in error were charged as accessaries to the felony aforesaid.

The offence of the accessary, though different from that of the principal, is yet, in judgment of law, connected with it, and cannot .subsist without it. In consequence of this connection, the accessary shall not, -without his own consent, be brought to trial, till the guilt of the principal is legally ascertained by the conviction or outlawry of him, unless they are tried together, and then the jury shall be charged to inquire first of the principal, and if they are satisfied of his guilt, then of the accessary. Foster’s Cr. L. 361. As the law formerly stood, if a man had been accessary in the same felony to several persons, he could not have been arraigned tilt all the principals were convicted and attainted or outlawed; but as the law now stands, if a man be indicted as accessary to two or more, and the jury find him accessary to one, it is a good verdict, and judgment may pass upon it, g and the Court, in their discretion, may arraign him as accessary to such of the principals who are convicted, and if he be found guilty as accessary to them or any of them, judgment shall pass upon him. But on the other hand, if he be acquitted, that acquittal will not discharge him as accessary to the others. And when they come in and are convicted and attainted, or judgment of outlawry passes against them, he may be arraigned de novo as accessary to them, 1 Hale, 624, and he may be considered as accessary to him who has been convicted, though the evidence prove him to have stood in that relation of guilt to several. It is said by Lord Hale to be the safer course, to postpone the arraignment of the accessary till all appear or are outlawed. ■ Now there cannot appear to be justice in trying a man as accessary to several, some of whom have been convicted, and others neither convicted nor outlawed, and that if he be acquitted on that trial, he should still be subject to a future trial on the conviction or outlawry of the others. The verdict here finds the prisoners guilty as accessary to all. The jury could not inquire into the guilt of those who had not pleaded, and yet they find them guilty as to these. The prisoners might properly have been arraigned and tried with the principals who had pleaded, but could not without their consent be put to plead on the whole indictment as to those who were not on their trial, and had neither been convicted or outlawed; and the only question is, do the arraignment and plea amount to a consent to be tried as accessaries to all ? In a case so highly criminal, a silent submission probably arising from ignorance, at the time, of the right, ought not to be construed into a relinquishment of the right, and a consent to the proceedings as they took place. In The Commonwealth v. Andrews, 3 Mass. 126, it was held not to be a waver of the right: and the reason is much stronger why consent should not be implied in this case, where it exposed the parties to a double trial for the same offence; a matter prohibited by the Constitution. There is an insuperabie difficulty where none of the principals are taken or convicted, in every other part of this State, than the Courts' of Philadelphia. For as there can be no removal by certiorari, into the Supreme Court, of any indictment, and as there could be no trial there, did the party come in and plead, so there can be no outlawry. This can only be remedied by the Legislature, in taking away all original jurisdiction from the Supreme Court, except in the city and county. This case of outlawry is not provided for; but the Court cannot supply the omission, and deprive the accused of a privilege which the common law has conferred on him. It appears to the Court, that there was a mis-trial, and the judgment for that reason must be reversed. But the Court order and direct,. that the prisoners enter into recognisance, each in two thousand dollars, with one or more sureties, for their appearance at the next Court of Oyer and Terminer, to be held by the Court of Quarter Sessions for the county of Philadelphia, to answer for this offence. The Court do not think it proper to pass over in silence the last objection, which is to the indictment. This objection would have been sustained had two felonies been charged against the principal. The allegation of the prisoners being accessary to the felony aforesaid, when there were two distinct felonies against the principal, would have been defective, and have vitiated the indictment against the accessaries. But there is only one offence laid, and that is burglary. The charge is for a burglarious entry, with the intent to steal, and then and there stealing. It is all one offence, one burglary. The only crime laid is burglary.

Gibson J. was absent.

•Judgment reversed.  