
    * Commonwealth versus Thomas Andrews.
    To an indictment for receiving stolen goods which were the property of A, toe defendant pleads in bar a former indictment, conviction, and judgment, for receiving stolen goods the property of B, and then alleges that the two parcels were received by him of the same person, at the same time, and in the same package, and that the act of receiving them was one and the same. P.ea adjudged insufficient
    The Court never recommend a nolle prosequi to the government’s counsel, but ai their instance.
    The indictment in this case, which was found at March term, 1804, charges that Amos Tuttle stole certain enumerated goods, the property of Josiah Bellows and David Stone, and that the defendant “ did aid, abet, and maintain, him, the said Amos Tattle, in the felony and theft aforesaid, and with force and arms did knowingly and feloniously have and receive all the same goods and chattels, he well knowing the same to have been stolen, taken, and carried away, in manner aforesaid, against the peace, &c., and the law in such case made and provided.” There is no allegation that Tuttle, the principal thief, has ever been convicted or prosecuted.
    At the same term at which the indictment was found, the defendant pleaded not guilty ; and the indictment was continued from term to term until November, 1806, when, by leave of the Court, he retracted his former plea, and filed a plea in bar, which is in substance that, before this Court holden here in March, 1804, he was indicted for having received of the same Amos Tuttle other goods, which had been previously stolen by him from Moses Dow, Jun., knowing, at the time he so received them, that they had been stolen; that upon that indictment he was afterwards, in March, 1806, tried and convicted; that upon that conviction, judgment has been rendered, and still remains in force; that the goods men tioned in this indictment, and alleged to have been stolen from Bellows and Stone, and those alleged to have been stolen from 
      Vow, were in the same packages and parcels at the time they were received by the defendant; that they were all received by him at the same time ; and that the act of receiving them was one and the same. Wherefore he prays judgment, &c. To this plea, the Attorney-General demurred generally, and the defendant joined in demurrer.
    
      The Solicitor-General, Davis,
    
    in support of the demurrer, observed that, the stealing these two parcels of goods by Tuttle constituting two several and distinct felonies, he could not have been prosecuted for those several offences but in two distinct and several indictments.
    *By the statute of March 15, 1785, upon which this [ *410 ] indictment is framed, the receiver of stolen goods is made “ an accessory to the principal offender, and shall suffer the like punishment as he might have received on a first conviction.” The expression like punishment imports that he shall be liable to indictment in like manner as the principal. The defendant is charged by the two indictments as an accessory to two several felonies. The felonies in receiving the goods stolen from different persons are, in their nature, as distinct and several as the principal felonies were.
    To this may be added that the treble damages to which the Court have determined, upon the same indictment which is recited in the defendant’s plea, that he is liable, being to be awarded to several persons, would require several judgments.
    
      Otis, for the defendant,
    insisted that, in the crime which the government have thus seen fit to divide, the defendant performed but one act; there was but one act of his mind. It was plain, then, as any reasoning could make it, that there was but one offence : no inconvenience would have arisen if the government had charged the several thefts in one indictment, and then proceeded to allege that the defendant, knowing the several felonies to be committed, had received all the goods. In that case, he would at least have been liable to but one bill of costs.
    As to the point made by the Solicitor-General, that the defendant, being an accessory, was liable to like punishment, and so to several indictments, — it was contended by Otis that, the principal not being known or prosecuted, the receiver was liable to indictment for a misdemeanor only. It was for a misdemeanor only that he was indicted m these two cases. As an accessory, he could not be convicted until after the conviction of the principal, notwithstanding this statutory provision ; for a principal offender can by no rule be considered such until after conviction ; and without a principal, there can, in no legal sense, be an accessory
    
      Sewall, J. In this indictment the defendant is alleged to have done this act feloniously. It cannot, therefore, be taken as an indictment for a misdemeanor, which is never so charged, [ *411 ] *but it must be considered as charging the defendant as an accessory to a felony.
    
      Otis.
    
    If I am right in the principle, that there can be no conviction of an accessory, as such, until after.that of the principal — which I believe will not be contested — this indictment cannot be supported. If it was intended as an indictment for a misdemeanor only, it ought not to have charged the act to be done feloniously ; and if it was intended to charge the defendant as an accessory, it was necessary to recite the conviction of the principal.
    
      The Attorney-General, Sullivan, in reply.
    If the defendant was liable to suffer more from a conviction upon two indictments than if both the offences had been contained in one, there might be some pretence for complaint of hardship; though, in that case, it would be a sufficient answer to such complaint, that the government has a right to adopt its own modes of prosecution without consulting the wishes or convenience of the object of the prosecution. But the truth is that, if these two offences had been described in one indictment, the threefold damages would have been awarded to each owner, and the other parts of the punishment being in the breast of the Court, the same considerations would operate to lead the discretion of the Court to lenity or severity, as the case might appear. And as to the costs, the difference between one and two indictments will be found to be inconsiderable, when it is remembered that the principal articles in the bill are the travel and attendance of witnesses, which would be equally necessary in either case. In this case, the witnesses to the several facts lived out of the state; and not being under the control of the Court, it was not thought safe, if it had been legal, to unite the several charges in one indictment when the government might want several and distinct trials; and this fact goes far, also, to show the technical propriety of thus dividing the charges.
    By the provisions of the statute on which this indictment is grounded, whoever shall knowingly buy or receive any such stolen goods, &c., shall he considered as accessory to the principal offender, and in case the latter is not known or prosecuted, the [ * 418 ] * person committing any crime, whereby he becomes an accessory, may be prosecuted for a misdemeanor. It is agreed that, if this indictment was intended to charge the defendant as an accessory, in the legal and technical sense of the word, the conviction of the principal should be set forth. But the statute having declared that one guilty of such an offence shall be c'onsid Bred as an accessory, it was considered proper and pertinent to use the technical language descriptive of the offence of an accessory. But if in this the counsel for the government were in a mistake, the Court will reject the word “ feloniously ” as surplusage.
   The opinion of the Court was afterwards delivered by

Sedgwick, J.

The question before us in this case is, whether the former conviction and judgment is a bar to the present prosecution. It is not objected that the former judgment, if a bar, has not been well pleaded. No authorities have been cited on either side, and the case must be determined upon principle..

The indictment is founded on the “ Act for punishing and preventing of larcenies,” passed March 15, 1785, by the third section »f which it is enacted, that a person convicted of the crime of theft shall, besides the other punishment provided therefor, “ be sen tenced to forfeit treble the value of the goods, or other articles stolen, to the owner thereof.” By the ninth section, the crime with which the defendant is charged is defined, and the mode of prosecution is prescribed, in these words: “ that whosoever shall comfort, aid, abet, assist, counsel, hire, command, or procure, any person to commit any of the offences hereinbefore described, or shall knowingly buy or receive any such stolen goods or chattels, or that shall knowingly receive, harbor, maintain, or conceal, any person guilty of any of the offences hereinbefore described, shall be considered as an accessory to the principal offender, and shall suffer the like punishment as he might have received on a first conviction ; and in case the principal offender be not known or prosecuted, any person committing any of the said crimes, whereby he becomes an accessory, may be prosecuted for a * misdemeanor, and [ *413 ] on conviction shall suffer such punishment as the principal offender might have suffered on a first conviction.”

As the defendant received as well the goods stolen from Bellows and Stone, as the goods stolen from Dow, at the same time, in the same parcels, and the act of reception is the same ; and as he has been convicted and punished for his participation in the crime of the theft from Dow, is the crime so indivisible that the government is barred from prosecuting for his participation in the crime of stealing the property of Bellows and Stone ?

To determine this question, it is not necessary to decide whether, if a man, by the same act, should steal the property of two persons, that one act of theft would authorize two indictments and judgments ; and yet the statute would seem to require it, if for no other reason, because the judgments for treble damages must be several. But in this case the guilt of the defendant is necessarily several, and his '.rimes cannot be united. When Andrews received the goods which had been stolen by Tuttle from Dow, he became the accessory of" Tuttle in that theft; and by receiving those stolen from Bellows and Stone, he became an accessory also in that theft. The guilt of the accessory is a relation to the crime of the principal; and as the principal, in this case, had committed two crimes, the defendant, by his participation, is equally guilty of both. To illustrate this principle, let it be supposed that theft is a felony, and that there was no statute provision by which the defendant could have been convicted until after the conviction of the principal; that Tuttle had been convicted of the theft from Dow, before he was detected in the theft from Bellows and Stone; that afterwards a detection takes place, and there is another conviction of Tuttle ; and the defendant is charged as his accessory to the latter theft, but in the mean time he had been convicted as accessory to Tuttle in the theft from Dow: it will not, I presume, be pretended that that conviction would operate as a bar to the second prosecution. And we are all clearly of opinion that the statute in this respect makes no difference. It in the first place enumerates the acts which [ *414 ] shall make an accessory *to the principal offender, and then provides that, if the principal offender be not known or prosecuted, a person committing any of the crimes whereby he becomes an accessory , may be prosecuted for a misdemeanor. By the whole purview of the section, it is manifest that the guilt of the receiver is made to consist in his being accessory to the principal offender; andas Tuttle, the principal in this case, was guilty of two crimes, —- stealing from Dow, and from Bellows and Stone, — the guilt of both, by the defendant’s receiving the goods stolen, is imputable to him, and therefore a conviction in the one instance cannot be a bar to an indictment in the other.

Plea in bar adjudged insufficient.

Afterwards, Otis moved the Court for leave to plead over. He said it would have been more proper to have reserved this privilege in his plea in bar; but having a strong confidence in that plea, it had escaped his attention. He now asked it as an indulgence ; and he stated some circumstances of hardship which were calculated to excite the favorable attention of the Court to his request.

Before the Court had decided on this motion, Otis withdrew it for the purpose of moving the Court, in consideration of the circumstances above alluded to, to recommend to the counsel for the government to enter a nolle prosequi upon this indictment.

The Attorney-General intimated to the Court that, although the officers having the care of prosecutions in behalf of government must unquestionably always feel respect for the recommendations of the Court before which such prosecutions are pending, he still hoped, whenever they felt the need of the special interposition of the Court, they should find themselves able to solicit it. As to the present case, he would inquire into the circumstances recited by his brother Otis, and if he should be satisfied that a nolle prosequi ought to be entered, he would ask the countenance of the Court for that purpose.

Per Curiam.

The Court never do this, but at the instance of the counsel for the government. 
      
      
         Vide Rex vs. Barnet, Smith, Burton, and Purser. — 2 Russ. on Cr. 40, 41, 174, 175, and note, 2d Lond. ed. — Rex vs. Turner, Kel. 30. — Rex vs. Jones and Beaver, Kel. 52.-2 Russell on Crimes, 40, note (z), 2d Lond. ed. — Rex vs. Vandercomb and Abbot, 2 Leach, 716. —2 East P. C ch. 4, § 29, p. 519.
     