
    Commonwealth versus Thomas Andrews.
    An indictment against one for feloniously receiving stolen goods, cannot be maintained, unless there is evidence that the principal has been convicted.
    The indictment, which was found at March term, 1804, charged that one Amos Tuttle, at Greenwich, in the county of Hampshire, certain goods and chattels, described in the indictment, the property of Robart Field and Peleg Canada, feloniously stole ; and that the defendant, at Boston, in the county of Suffolk, and on the 9th day of August, 1802, “ did feloniously receive and have all the same goods and chattels aforesaid, after the same had been stolen, taken, and carried away aforesaid, he, the said Andrews, then and there well knowing the same to have been so stolen, taken, and carried away; and did aid, abet, countenance, and maintain him, the said Amos Tuttle, in the felony and theft aforesaid, against the peace,” &c.
    The defendant was tried, upon not guilty pleaded, at the March term, 1807, before Parker, J.
    The jury returned a special verdict as follows, viz “ The jury find that the said Thomas Andrews did feloniously have and receive the goods mentioned in the indictment, in manner and form as is therein set forth, knowing the same to have been stolen; but they do not find that Amos Tuttle, the principal, mentioned in said indictment, was ever convicted of the theft therein alleged; and whether the law be such, that the said Andrews can be lawfull} tried and convicted of the charge in said indictment, before the conviction of the said Tuttle, the jury are ignorant, and pray the advisement of the Court; and if the law be such, that the [ * 127 J said Andrews can be thus convicted, the jury find * him guilty in manner and form as alleged in said indictment otherwise they find him not guilty.”
    The defendant, upon this verdict being found, moved the Court to arrest the judgment, because it appearing that the defendant was indicted as an accessory to a felony, he could not legally have been put on his trial, until the principal felon had been tried and convicted.
    This motion came on now to be argued before Sedgwick, Sewall Thatcher, and Parker, justices (the chief justice having been formerly of counsel for Andrews), by Otis, in support of the motion, and the attorney-general, Bidwell, for the government.
    
      Otis
    
    considered the point so clear at common law, that the attorney-general would not contest it, that an accessory is not obliged to plead and cannot be convicted before the conviction of the principal. Unless, then, our statute has altered the law in the case, there can be no judgment upon this verdict.
    The ninth section of the statute  enacts that whoever shal aid, abet, &c., any person to commit any of the offences before described, one of which is larceny, or shall knowingly buy or receive any such stolen goods, shall be considered as accessory to the principal offender; 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 in each of the cases the same punishment shall be inflicted, as the principal offender might have suffered on a first conviction.
    The defendant is indicted as a felonious accessory, and the jury find, if he is guilty at all, it is in manner and form as he is indicted. The government had their election, and might have drawn the indictment for a misdemeanor only. But in such case it would be necessary to allege that the principal felon was not known or prosecuted. The statute contemplates two distinct modes of prosecution. The first has been pursued, and the question before the Court is, whether, upon the application of common law principles to *the case, it is competent for them to [ * 128 ] sentence the defendant upon this verdict.
    Upon the attorney-general’s suggestion that the defendant, by pleading to the indictment and suffering the trial to proceed, had waived his claim to a prior conviction of the principal: Otis cited 2 Hawk. P. C. cap. 29, <§> 45. “ It seems to have been always agreed that the accessory’s plea cannot be tried before the appearance or attainder of the principal, unless the accessory desire it himself.” It is very clear that he may be compelled to answer, but not to submit to. a trial.
    In the case of The King vs. Wilkes 
      , the indictment was for a misdemeanor in receiving stolen goods; and a question arose upon the evidence, whether the indictment was maintainable. This question was submitted to eleven of the judges; four of whom thought that, as the principal felon was known, and might have been taken, the conviction was improper, because the statute  allows an indictment for the misdemeanor only, “ if the principal felon cannot he taken.” But seven of them were of opinion, that, as it did not appear, from the finding of the jury, that the principal felon could have been taken, so as to be prosecuted and convicted, the verdict was right. Although the point in the case cited was not the son e with that before the Court, yet the reasoning strongly supports our objection, and also the distinction between a misdemeanor and the crime of a felonious accessory. In the case at bar, the jury expressly disaffirm the conviction of Tuttle.
    
    Though felony is not attended in this country with all its consequences in England, yet the distinction between that class of crimes and misdemeanors is perfectly understood, and has always been maintained here, as well in the legislature as in courts of justice. The word feloniously must be intended to have some effect, or it would not have been used in the indictment. Indeed, the provision of the statute, on which this question has arisen, would be useless and nugatory, inasmuch as it applies a [ * 129 ] like punishment in both the cases, * were it not for the purpose of keeping up the technical distinction between felony and misdemeanor, so that the principles of the English authorities may be applied.
    The precedents of indictments for this offence in the Crown Circuit Companion 
      , which charge an accessory as such, either charge the principal in the same indictment, or allege his previous conviction ; and those which charge the offence as a misdemeanor, do not allege the fact to have been feloniously committed.
    
      Bidwell, attorney-general,
    
    said he should not contend that this indictment did not charge the defendant as accessory to felony. The receiving of stolen goods was but a misdemeanor at common law. The statute has made it a felony, and has defined it. The indictment has described the offence in the words of the statute, which has not said, that, to be a felonious accessory, one must have received stolen goods from one who shall be previously convicted. A previous conviction of the principal is not then necessary under this statute to the conviction of the accessory. The expression “ shall suffer the like punishment” implies that he is liable to the same proceedings, the same means to bring him to punishment. Qui datfnem, dot media ad finem necessaria.
    
    It must be agreed that the legislature meant by this statute to provide for the prosecution and punishment of this offence under any conceivable circumstances. But where the principal is known and prosecuted, the receiver cannot be prosecuted fora misdemeanor. He must be indicted as an accessory. Suppose the principal known and prosecuted, and a long time intervenes, as is by no means uncommon, between the indictment and conviction. If his convie • tian is necessary to the offence of the receiver, how can the receiver in the mean time be prosecuted ? not for a misdemeanor because the principal is known and prosecuted; and not as an accessory, because the principal is not convicted.
    The precedents in the books of indictments against principal and accessory joined in one bill, show that it is not necessary *to allege a previous conviction of the principal. And [ * 130 J if a prior conviction is not necessary to be proved, then it should seem that the want of alleging it cannot form a ground for a motion in arrest of judgment, for an indictment must contain every allegation necessary to constitute the offence.
    The true rule of common law is, that when an accessory is arraigned, he is not obliged to plead to the indictment, until the principal is convicted; but, when he voluntarily pleads, he shall be understood to have waived his right to a postponement, which is alJ the right he has, and shall be tried.
    If a previous conviction of the principal is necessary, it must be because such conviction forms a constituent part of the receiver’s crime; and the verdict may be considered as acquitting him of that part, and finding him guilty of the remainder, in which case he may be sentenced for such part as he is convicted of, pursuant to the eleventh section of the statute, it amounting substantially to a crime of a lower nature.
    
      Otis, in reply,
    
    said the objection on which he grounded his motion was simple and precise, viz., that to convict a felonious accessory, the previous conviction of the principal was necessary. He had not .contended that this must be alleged in the indictment, but that it must be proved. But the verdict finds expressly in the case that there was no evidence of such previous conviction.
    It is said the defendant may waive his right, and that, by pleading and submitting to trial, he has done so. But, according to every principle, all waivers of rights in criminal prosecutions ought to be made of record; and the Court will not only not permit advantage to be taken of an implied waiver without such record, but will cautiously see that a defendant has the full advantage of all his legal rights.
    The eleventh section of the statute, referred to by the attorney-general, cannot aid the government; for here the jury have found the defendant guilty of the whole crime, at the same time that they find that a part of the evidence necessary to his conviction was not given them.
    
      
       1784, c. 66
    
    
      
       1 Leach, c. 121.
    
    
      
       5 Ann, c 31.
    
    
      
       Page 131, &c.
    
   The opinion of the Court was afterwards thus delivered by

* Parker, J.

The indictment in this case charges that [ * 131 ] one Amos Tuttle, on the fourth day of June, Anno Domini 1802, did feloniously take, steal, and carry away certain articles therein specified, and that the defendant, on the ninth day of August, following, did feloniously have and receive the same articles, knowing them to be stolen.

The jury have returned a special verdict, viz., that the defendant is "guilty of feloniously having and receiving the articles stolen, knowing them to have been stolen, but they do not find that Tuttle, the principal, has been convicted ; thus submitting to the Court the legality of a conviction upon the facts so found by them.

Upon a motion in arrest of judgment, the defendant’s counsel have insisted that he, being indicted as accessory, ought not to have been tried, until there had been a trial and conviction of Tuttle who is accused of being principal in the larceny.

By the common law it is clear that no accessory can be tried and convicted, unless the principal has either been previously convicted, or outlawed (which amounts to a conviction), and evidence thereo. given to the jury; or unless' the principal be charged in the same indictment with the accessory, and tried' at the same time; in which latter case the jury must first inquire of the charge against the principal, and determine that to be true, before they proceed against the accessory. The only exception to this rule seems to be, when the person charged as accessory shall himself request to be put on trial before the principal; and even then, upon conviction, judgment against him is to be suspended until the principal shbll be prosecuted and found guilty .

Cases having often occurred, in which the guilt of the accessory was manifest, but punishment could not be inflicted, because of the concealment or escape of the principal, more especially in crimes of the nature of that set forth in this indictment, it was provided by the statute 1 Ann. c. 9. $ 2, that, when the principal [ * 132 ] could not be taken or prosecuted, *the receiver of the stolen goods might be prosecuted and punished for a misdemeanor.

Our statute upon the same subject adopts the principle, and provides that, when the principal is not known or prosecuted, the receiver shall be guilty of a misdemeanor, and punished in the same manner as the principal would have been-, if convicted.

The same section of the statute constitutes the receiver of stolen goods knowingly, an accessory; and he must be proceeded against as such, unless the principal be not known or prosecuted.

The facts charged against the defendant, therefore, making him an accessory, according to the terms of the statute, provided the principal were known or prosecuted, it will be necessary to ascertain in what character, he is by the indictment prosecuted, whether as accessory, or as having committed a misdemeanor.

There is no allegation that the principal is not known or prosecuted, which would seem to be proper, if not necessary, in order to keep up the distinction which the legislature has seen fit to adopt, with respect to the guilt of the receiver under different circumstances. And we find, by examining precedents, such allegation always made when the party is proceeded against for a misdemeanor only.

We find, also, that this indictment is conformable, m every particular, to the forms in the books of precedents, where the party is charged as accessory; the principal being formally accused in the same bill, and the receiving being stated to be felonious, which seems to negative the idea of its being a mere misdemeanor, which the grand jury intended to fix upon him.

We must therefore consider the defendant in this case to be indicted as accessory to the felony alleged to have been committed by Amos Tuttle; which being the case, he ought not, according to the principles before stated, to have been tried until Tuttle had been tried and convicted, unless he consented thereto. It has been insisted by the attorney-general that his having pleaded to the indictment, and having suffered a trial without claiming this privi lege, are circumstances sufficiently indicative of a waiver of his * right in this particular, and of his consent to the [ * 133 J proceedings as they took place. But we are of opinion that no such assent can be implied from his submission to the course directed by the attorney-general or by 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 probably arose from ignorance at the time that such right existed.

It is, however, said by the attorney-general, that the eleventh section of the statute, giving the jury authority to convict of a crime of a lower denomination than the one charged, provided such a crime be substantially proved, applies to this case; and that, under the special verdict as found, the Court may enter judgment against the defendant for a misdemeanor, that being essentially found by the jury.

But whether the jury have the power contended for, need not be decided, it being clear that they have not exercised it. They comict the defendant of the whole offence, in manner and form as set forth in the indictment, if the Court deem such conviction under the circumstances to be legal; otherwise they entirely acquit. The Court have no authority given them to depart from the alternative presented to them by the special verdict.

We are of opinion that judgment, for the cause set forth in the notion must be arrested. 
      
      
        Foster on Accomplices, c. 2. page 360, 343.—1 Hale’s P. C. 623, 2 ditto, 224.
     
      
       [By conviction or outlawry, unless they are tried together.—1 Russell on Crimes, 37,2d Ed.—But by the common law, in crimes under felony, as is larceny by our statutes, there were no accessories.—1 Hale, P. C 613.—2 Hawk ch 29 § 4.—Ed.]
     