Opinion
(September Term, 1888.)
Accessory — Arson — Former Acquittal and Conviction — Jurisdiction — Merger — Constitution.
1. The statute — The Code, sec. 977 — dispenses with the necessity of the conviction of the principal felon before an accessory before the fact can be tried and punished, but the common-law rule, that an acquittal of the principal is an acquittal of the accessory, still is in force.
2. Where, upon arraignment of one charged as a principal with the crime of arson, the record showed that by the consent of court and the defendant the "indictment was changed to charge an attempt to burn a dwelling-house, " but no other charge was made by the grand jury, and the defendant thereupon "pleaded guilty to an attempt to burn a store," and was sentenced to imprisonment in State's prison: Held, that the attempted change of the bill, the plea of guilty and the judgment of the court were nullities, and that an accessory after the fact could not sustain a plea of acquittal of the principal felon by proof of such proceedings. (SMITH, C. J., dissenting.)
3. It is a general rule that where two or more offenses arise out of the same transaction, a conviction or acquittal upon an indictment for one will not be good in bar of that for the other, unless the latter is a necessary ingredient of the former, and the defendant might have been convicted of it under the first indictment.
INDICTMENT, charging the defendant with being accessory (720) before the fact to the crime of arson, tried before Philips, J., at August Term, 1888, of the Superior Court of ROWAN County.
Attorney-General for the State.
Theo. F. Kluttz, for defendant.
One William Thrasher was charged with the felonious, wilful and malicious burning of the dwelling-house of one Theo. Burbon, and indicted therefor in the Superior Court of Rowan County, at Spring Term, 1888, of said court, and at the same term of the court and in the same indictment the defendant was charged with being accessory before the fact in feloniously, wilfully and maliciously inciting, moving, procuring, causing and commanding the said Thrasher to do and commit said crime.
Upon this indictment the defendant Harrison Jones was put upon his trial, the defendant Wm. Thrasher not being on trial.
Before the introduction of any testimony, either upon the part of the State or the defendant, the defendant Harrison Jones moved the court that this action should abate as to him, and in support of his said plea in abatement offered an affidavit setting forth, in substance, that, at May Term, 1888, an indictment was preferred against William Thrasher for arson, and containing a count charging the defendant with being accessory before the fact thereto; that at May Term, 1888 (the same term), an indictment theretofore found, to wit, at May Term, 1886, against the principal defendant, Wm. Thrasher, for arson, was changed so as to charge the said principal defendant with an attempt at burning, and that said defendant Thrasher was allowed to plead guilty to said substituted charge, and was thereupon adjudged guilty of an attempt to burn, and that judgment, sentence and (721) execution followed, and that said defendant Thrasher is now serving out said sentence in the State's prison.
Accompanying the affidavit is a transcript of the record, showing that at May Term, 1886, the defendant William Thrasher was indicted for arson in burning the dwelling-house of Theo. Burbon, on the first day of May, 1886, and, among other things, the following entries appear:
"State v. William Thrasher. No. 1. Arson. Indictment changed to charge an attempt to burn a dwelling-house.
The defendant pleads guilty to an attempt to burn store."
Upon this plea of guilty, the record shows a judgment that the defendant be imprisoned for a term of seven years in the State's prison. The transcript of the case on appeal shows also the following: "The reason why the defendant Thrasher was allowed on this original bill to plead guilty for an attempt to burn, and the record was so amended, was, that it was made to appear to the court that Thrasher was a man of weak and infirm mind."
The solicitor for the State opposed the defendant's plea in abatement, on the ground that the indictment against the defendant Jones was, under the statute, a substantive felony, and that the two indictments were for one and the same felony.
The plea in abatement was overruled, and the defendant excepted. There was a verdict of guilty, judgment and appeal.
It is well settled that an acquittal of the principal is an acquittal of the accessory, and at common (722) law an accessory before the fact could only be convicted when tried at the same time with the principal and after conviction of the principal, or unless the principal had been before tried, convicted and sentenced. S. v. Duncan, 6 Ired., 98.
To remedy this and prevent accessories from escaping punishment, it was enacted, or, as the statute expressed it, "for the more effectual prosecution of accessories before the fact to felony, it is enacted that if any person shall counsel, procure or command any other person to commit any felony, . . . the person so counseling, procuring or commanding shall be deemed guilty of felony, and may be indicted and convicted either as an accesory before the fact to the principal felony, together with the principal felon, 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," etc. Rev. Code, ch. 34, sec. 53; The Code, sec. 977.
This changes the common law and removes the necessity of a prior conviction and sentence of the principal felon, but has no application to cases in which the principal felon has been tried and acquitted. S. v. Ludwick, Phil. Law, 401. And we are met in the case before us by the question, has Thrasher charged as the principal felon, been tried and acquitted? If he has been tried for and acquitted of the crime for which the defendant Jones is indicted as accessory before the fact, then the latter cannot be convicted. Thrasher, the alleged principal, has been indicted for that crime. Has he been tried and acquitted? We think not. The court did not have the power to change the indictment so as to charge an offense entirely different and calling for a punishment entirely different from and not included in that passed upon by the grand jury, and no submission or consent on the part of the principal felon charged could give jurisdiction to the court in the absence of an indictment by a grand jury to punish at all, nor did the (723) court have the power to change the indictment. A new and different bill might have been found by the grand jury, if the evidence warranted it, but there was no power in the court to change the indictment returned into court by the grand jury; and the submission and sentence were not warranted by law and were null.
Upon an indictment for arson, charging the wilful and felonious burning of the dwelling-house of A., could the defendant be convicted of the misdemeanor of "attempting to burn a store"? Or upon a charge for the latter could he be convicted of the former? That would be the legal criterion by which a plea of former acquittal or former conviction would be decided for or against the principal if he were on trial. S. v. Jesse, 2 D. B., 297; S. v. Revels, Busb. Law, 200.
No consent of the prisoner can confer a jurisdiction which is denied to the court by the law, and any punishment imposed other than that prescribed for the offense is illegal. In re Schenck, 74 N.C. 607.
In Bishop on Criminal Procedure, sec. 293, it is said to be "a proposition to which there is perhaps no exception, that whatever is necessary as a guide to the court in pronouncing the sentence must be alleged in the indictment." And it might be added, ordinarily this must be done by the grand jury.
"It may be generally said," says Wharton on Crim. Law, sec. 565, "that the fact that the two offenses form part of the same transaction is no defense when the defendant could not have been convicted at the first trial on the indictment then pending of the offense charged in the second indictment." This rule, he says, has some qualification, "as where one of the offenses is a necessary ingredient or accompaniment of the other . . . And it has been ruled in North Carolina that a conviction for larceny barred an indictment for robbery, the goods being the same. But these cases cannot be sustained (724) except on the assumption that on the first trial the defendant could have been legally convicted of the major offense, and that his nonconviction was equivalent to an acquittal. It is clear that after a conviction of larceny on an indictment for larceny there may be a conviction of burglary, so far as concerns the breaking, and in respect to burglarious entries this is the general rule."
A submission to a plea of "guilty of an attempt to burn a store," without any indictment therefor, cannot be "equivalent to an acquittal" of a charge of arson in burning a dwelling for which there is an indictment.
Can the voluntary action of the principal, in pleading guilty to a charge for which he was never indicted, and of a character that could not be included under an indictment pending against him, have any legal validity? Could any lawful judgment, without an indictment, follow such a plea of guilty?
In S. v. Lawrence, 81 N.C. 522, it is said: "The practice settled in this State when a prisoner has been convicted and an illegal sentence pronounced against him, and the case is brought to this Court by appeal or otherwise (in that case by certiorari applied for after the defendant had been for some time in the penitentiary serving out the sentence), is to send the case back for such judgment as the law allows." S. v. Goings, 98 N.C. 766; S. v. Walters, 97 N.C. 489.
But how, if he has not been legally tried and convicted at all of the crime for which he is sentenced? S. v. Queen, 91 N.C. furnishes an answer to this question. In that case the defendant was indicted in the proper form for "the crime of burglary, with intent to kill and murder," and pleaded "not guilty." "The case was submitted to a jury, and while the case was in charge of the jury, the prisoner being at the bar of the court by his consent and that of the solicitor for the State, it was ordered that a juror be withdrawn (725) and a mistrial had, which was done, and the jury discharged from its further consideration."
The defendant then pleaded "guilty of larceny," and was sentenced to imprisonment in the penitentiary for ten years.
The defendant having failed to appeal, after being confined in the penitentiary for some time, applied for a writ of certiorari, which was granted, and the court held that he should be discharged from the penitentiary, but should be remanded to the custody of the sheriff of Watauga to answer the charge of burglary, for which he had been indicted.
It was said by the Court: "The record presents an anomalous case, . . . the matter was coram non judice. The judge had no more power to sentence the defendant to imprisonment than any private person in the county."
The Bill of Rights declares that "no person shall be put to answer any criminal charge, except as hereinafter allowed, but by indictment, presentment or impeachment." And there is no other mode provided in the Constitution for the prosecution of felonies.
The judgment pronounced by his Honor was in contravention of this provision of the Constitution, and was therefore without authority and void.
We think the ruling in that case applies to this, and that Thrasher, charged as principal felon, has never been tried and acquitted, and the fact that though of "weak and infirm mind," he may be wiser than Queen was, and consent to serve out a term in prison for a minor offense, for which he was never indicted and lawfully convicted or sentenced, rather than undergo and take the chances of a trial for the capital felony for which he was indicted, cannot have any legal force and effect; and, never having been tried and acquitted upon the indictment for arson, the accessory Harrison Jones could be tried, as authorized by sec. 977 of The Code, for the substantive felony with which he was charged.
Affirmed.