
    Whitehead vs. The State.
    An accessary cannot be tried without his consent before the conviction of the principal, unless they are tried together.
    Abel Litle was shot about twelve o’clock at night, in a still-house belonging to him, which was situated on the highway, in Bedford county. He died instantly, The assassin fled. Whitehead was suspected, in consequence of the hostility which existed between him and Litle and other circumstances, of being the perpetrator, arrested and indicted.
    The indictment contained three counts. The first charged him as principal. The second charged him with being present, aiding and abetting the commission of the offence by some person, to the jurors unknown. ‘The third charged him with having aided, counselled, hired and commanded the said person, unknown to the jurors, the said felony and murder to do and commit.
    The defendant pleaded not guilty to the indictment, and at the August term, 1843, Judge Caruthers presiding, the case was submitted to a jury without objection on the part of the defendant.
    The testimony was heard, and the court having charged the jury, without exception being taken thereto, they returned the following verdict:
    “The jurors upon their oath do say, the defendant is not guilty in manner and form as charged in the first and second counts in the indictment, but that he is guilty in manner and form as charged in the third count; that some person, unknown, was guilty of murder in the first degree, in manner and form as charged, and that the defendant did wilfully, maliciously, pre-meditatedly, deliberately and feloniously procure said unknown person to perpetrate said murder.”
    The defendant moved the court to grant him a new trial. This motion was overruled. A motion in arrest of judgment was made and being overruled, and judgment of death pronounced on the defendant, he appealed in error to the Supreme Court.
    
      
      Thomas H. Fletcher, for the plaintiff in error.
    The defendant has been convicted of the offence of accessary before the fact to the murder of Abel Litle; and it does not appear that the principal has been tried and convicted, or that the defendant ever consented to be put on his trial. This judgment is, therefore, erroneous and should be reversed upon well settled principles.
    A principal in the first degree, is one who commits the deed with his own hand. 1 Russ. C. 21; 1 Chitty C. Law, 256-9. A principal in the second degree is one who is present, aiding and abetting at the fact, or ready to give assistance if necessary. 1 Russ, on Cr., 21. An accessary before the fact in murder is one who being absent at the time of the offence committed, doth yet procure, counsel, and abet another to commit the murder. 1 Russ. 29, 432.
    Whithead is not indicted here as principal in either degree. He is not charged with being present; but the offence with which he stands charged, comes precisely within the definition of an accessary before the fact. It is charged, that before the commission of the murder, he procured the unknown person to do it; and the verdict of the jury is only the finding of a crime, which amounts precisely to that of an accessary before the fact in murder. See 2 Chitty, 4 & 5.
    Our statute of 1829, ch. 23, sec. 62, p. 306, Nich. & Car., defining what constitutes a principal, makes no change in the common law. 1 Russ. C. 22-3-9, &30; 1 East, P. C. 362.
    An accessary before the fact cannot be tried, until after the principal has been tried and convicted. A principal and an accessary may be indicted jointly, and then they may be tried at the same time, and if the principal is convicted, the acces-sary may also be convicted on the same trial. Or the principal may be first tried, and if convicted, then the accessary may be tried; but the acquittal of the principal operates as a discharge of the accessary. Or they may be indicted separately, and then the principal must be first tried and convicted, and then the accessary may be tried. But by the common law, under no circumstances, could an accessary before the fact be tried, until after the conviction of the principal. 1 Russ. 21-36; 1 Hale, G23; 2 Hawkins, P. C. ch. 29, sec. 45; Foster, 360; 4 Black., 40; 1 Chitty, 26G-272; 16 Mass. R. 423; 3 Mass. 126; 2 Burr’s Trial, 440; 7 S. & Rawle,' 491. And this rule of common law still prevails in Tennessee.
    . By 7 George IV, ch.- 64, in England and by special statutes in some of our own States, an accessary before the fact may be tried, convicted, and punished before the trial and conviction of the principal; but no such law has been enacted in Tennessee.
    ' The prisoner is not bound to plead that his principal has not been tried, but may putin the plea-of not guilty; and unless the State proves the, conviction of the principal, - the accused must have a verdict of acquittal. 1 Russ. 29; 10 Pick. 477; Archb. 298; 3 Mass. 126.
    
      Attorney General, for the State.
    
      Ready, for the plaintiff in error;.
    An accessary cannot be put on his trial until the principal has been convicted, or is put on his, trial with the supposed accessary. See The Commonwealth vs. Phillips, 16 Mass. , R. 423; The Commonwealth vs. Andrews, 3 Mass-Rep. 126;' Archbold 4 Am. Ed.'7 &8, 147, 148; 1 Russ. 29; 'Rex vs. Russell, 1 Mod. C.-C. 356.
    The defendant is entitled to be discharged by this court; because lie has been indicted and acquited as principal; and cannot, therefore, be indicted as accessary before the fact. 1 Russ. 38; 1 Hale, 625.
   Turley, J.

delivered the opinion of the court.

At the August term, 1843, of the Circuit Court- of Bedford county, the prisoner was arraigned and tried upon a bill of indictment for homicide. The indictment contains three counts. The first, charging him with.commission of the offence as principal in the first degree. The second, charges the offence to have been committed by a person unknown, and that the prisoner was present, wilfully, deliberately, maliciously and pre-meditatedly, aiding, abetting and assisting the unknown person, the said felony and murder to commit. The third, charges the offence to have been committed by some person unknown, and that the prisoner did feloniously, wilfully, deliberately, maliciously and premeditatedly incite,-move, procure and counsel, hire and command the said unknown ' person, the said felony and murder to do and commit.

Upon the trial, the jury returned a verdict, that the prisoner was not guilty upon the 1st and 2d counts in the indictment, but was guilty upon the 3d; upon which judgment of death was given against him, to reverse which he prosecutes his writ of error to this court. This verdict and judgment acquit the prisoner of the charge of having committed the murder himself, or of having been present, aiding and abetting its commission. The court is, therefore, freed from the necessity of examining the proof in order to ascertain the truth or falsity of these allegations. .

The only question for our examination and consideration is, whether the judgment pronounced by the Circuit Judge, can be maintained upon the third count in the indictment; and this is a question of law-and not of fact, as it is presented. • We do not, therefore, deem it necessary or proper to enter into any -investigation whatever of the proof adduced on the trial, and embodied in the record.

The 3d count of the indictment charges the prisoner as an accessary before the fact and no more; this is so clearly so, that to enter into an argument to prove it, would be a waste of time. It charges the offence to have been committed by a person unknown; upon it the prisoner was put upon his trial, without his previous consent, and before the conviction of the principal. Can a conviction thus obtained, be enforced by a judgment of the court? We think most clearly not.

It is well settled by the common law, that an accessary cannot be put upon trial without his own consent previous to the attainder of his principal, unless they he jointly tried. Arch-bold in his Summary of Pleading, and Evidence in Criminal Cases, page 518, says; “Formerly an accessary could not without his own consent, unless tried with the principal, be brought to trial until the guilt of his principal had been legally ascertained by conviction.” Chitty in the 1st volume of his Criminal Law, page 180, has the same in substance: he says; “Formerly the accessary could never be tried without his own consent before the conviction, or outlawry of the principal, unless they were tried together.” And the truth of this proposition is fully sustained by 1st Hale, 621; Hawkins’ b. 2, c. 29, sec. 34; 4 Black. Com. 39; Com. Dig. Justice, p. 2; and the reason of this rule is obvious. There can be no accessary to an offence, unless an offence has been committed, and it will not do to say, that the goods of another have been stolen; that a house has been broken, or a homicide committed; all this may be, and yet there be no laceny, no burglary, no murder; for the commission of the offence cannot be predicated of the fact, until it has been judicially announced upon legal investigation. And this investigation, upon principle, cannot be made, except upon a charge against the perpetrator, who is supposed to be best acquainted with the circumstances attending the transaction, and the best qualified to make the proper defence.

The principle has been recognized, as above stated, in the United States, as far as we have had an opportunity of ascertaining.

In 3d Mass. Rep. 126, Commonwealth vs. Thos. Andrews, it is held, that “an indictment against one for feloniously receiving stolen goods, cannot be maintained, unless there is evidence that the principal has been convicted. If the accessary plead to the indictment and suffer a trial without demanding the previous trial and conviction of the principal, it is no waiver of this right. No assent can be implied from his submission to the course directed by the Attorney General in the court. In criminal. cases, an express relinquishment of a right should appear before the party can be deprived of it. Here is no such relinquishment, but merely a silent submission, which might have arisen from ignoranceatthetime, that such right existed.” In the case of The Commonwealth vs. Phillips, 16 Mass. Rep. 426. Upon this subject, the Chief Justice Parsons, says, “the Justices have carefully examined the books upon the subject, and are unanimously of opinion, that by the common law, an accessary cannot be put upon his trial, but by his own consent, until the conviction of the principal. And the reason of this rule is very plain. If there is no principal, there can be no ac-cessary; and the law presumes no one guilty until conviction. One only doubt arose, from the peculiar circumstance in this case, that the person charged as principal is dead, and can never be tried. If he were alive, and on trial, it is possible he might establish his innocence, strong as the evidence has appeared in support of his guilt. In such case, the prisoner could not be found guilty.” This principle of the common law, has been modified in England by various statutes. The statute of 1st Ann, ch. 9, sec. 2, enacts, “that whosoever shall buy or receive stolen goods, knowing them to be stolen, may be prosecuted for a misdemeanor, and punished by fine and imprisonment, though the principal felon be not convicted.” And this provision is extended by 22d George III, ch. 58, sec. 1, to cases of petit larceny, and by it all accessaries in grand larceny are liable to be indicted as such,’ at any time before the conviction of the principal. The statute of 7th George IV, ch. 64, enacts, “that if any person shall counsel, procure, or command any other person to commit any felony, whether the same be a felony at common law, or by virtue of any statute or statutes, made or to be made, the person so counseling, procuring, or commanding, shall be deemed guilty of felony, and may be indicted and convicted, either as an accessary before the fact, to the principal felony, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall, or shall not have been previously convicted, or shall, or shall not. be amenable to justice, and may be punished in the same manner as any accessary before the fact, to the same felony, if convicted as an accessary may be punished.” The provisions of none of these statutes are in force in this State; the question as to the propriety of introducing them, is for the consideration of another department of the State, the legislature. Our statute of 1829, ch. 23, has made no alteration in the principle of the common law; it provides in sec, 4, “that every person convicted of the crime of murder in the first degree, or as accessary before the fact to such crime, shall suffer death, by hanging by the neck.” This only specifies the punishment to be inflicted upon the accessary, but does not change the relation, as established by the common law, between the principal and the accessary, or the mode in which the prosecution shall be conducted.

Upon the authority of the case of the King vs. Walker, 3 Campbell, 264, it was supposed by the Attorney General, in argument, that where the bill of indictment against the accessa-ry, states, that the felony was committed by a person, to the jurors unknown, the-accused might be put upon his trial. But on an examination of this case, we find it warrants no such supposition. . The question in that case, was not, whether the ac-cessary could be put upon trial before the attainder of his principal, but whether a bill of indictment could be sustained, which charged the felony to have been committed by a person unknown; and the Justice, L. Blank, who tried the case, said, it could not-, if it appeared that the principal felon was a witness before the grand jury. Now, it never has been. doubted, that an accessary may be indicted before the conviction of his principal, and the case from 3d Campbell, only shows, negatively., that an indictment, charging the felony to have been committed by. a person unknown, where the fact is so,. can be maintained. But, if it be maintainable, it still must abide in the court for trial in the same way, as if it had charged the person by name who committed the felony; that is, until the per-, son who committed the offence, as principal, can be ascertained and convicted. It would be strange, indeed, to hold, that an accessary cannot be tried till after the conviction of the principal, where he is known, but may be where he is not; causing, thereby, two uncertainties to overcome a difficulty, which one had thrown in the way. Upon the whole, then, we reverse the judgment of the Circuit Court, and remánd the prisoner.  