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offence in a higher degree than others. But if the acquittal of one shows the others to be necessarily free from guilt, they will not be treated as guilty by the court, though the jury find them so. Therefore, although one of two conspirators may be proceeded against after the other one is dead ;3 yet if one is acquitted, where two only are charged, this is in effect an acquittal of the other, it being legally impossible for a man to conspire alone. And on this principle, if two are jointly indicted for stealing the same goods, one of them cannot receive judgment for grand larceny, and the other for petit larceny, because the fact could not, in the nature of the case, be so ;' yet when the proof clearly shows a grand larceny, if, nevertheless, the jury return a verdict against both defendants for petit larceny, they may receive sentence accordingly, because the evidence is for the jury, and there is no impossibility of record against the finding. When two persons are on trial for an offence laid in a single count, as jointly committed, and the proof is, that each is separately guilty, a verdict should not be taken against both ; because the conviction of one exhausts the indictment, and there is no allegation remaining as to the other. But, when the allegation is of an offence committed by the defendants severally, the word severally separates them, as shown by
* Rex v. Butterworth, Russ. & Ry.520; Shouse v. Commonwealth, 5 Barr, 83; The State v. Arden, 1 Bay, 487. Query as to Rex v. Quail, 1 Crawf. & Dix C. C. 191.
* Reg. v. Ellis, Holt, 636; The State v. Mainor, 6 Ired. 340. As to the limitations of the rule, see The State v. Allison, 3 Yerg. 428. And see Rex v. Hughes, 4 Car. & P. 373.
3 Rex v. Nicolls, 2 Stra. 1227; People v. Olcott, 2 Johns. Cas. 301.
· The State v. Tom, 2 Dev. 569; Rex v. Hilbers, 2 Chit. 163; Commonwealth v. Manson, 2 Ashm. 31. And see Reg. v. Gompertz, 9 Q. B. 824; The State v. Covington, 4 Ala. 603. 6 The State ,.. Davis, 3 McCord, 187. The State r Bennet, 2 Const. 693, 3 Brev. 515; ante, $ 540.
Stephens v. The State, 14 Ohio, 886; Reg. v. Dovey, 2 Den. C. C. 86, 2 Eng. L. & Eq. 532. See also Elliott v. The State, 26 Ala. 78.
Starkie, so that all may be convicted on the one indictment; unless the court interferes with this form of proceeding, in the earlier stages of the cause.
$ 542. The law condemns no one, however, until the matter has been duly charged against him. Therefore none of the foregoing doctrines apply where the thing proved is not sufficiently embraced within the allegation. Consequently a man indicted as principal in a felony cannot be convicted of being an accessory before the fact ;3 or, indicted as such accessory, cannot be found guilty on evidence showing him to have been a principal felon. Some have supposed, that one indicted for a substantive offence may receive sentence for an attenipt to commit it;6 but this is not generally so at the common law, though in England, and Georgia, and some American States besides, there are recent statutes which have so provided.
11 Stark. Crim. Plead. 2d ed. 43, 44.
2 The State v. Shoemaker, 7 Misso. 177; Rex v. Hughes, 4 Car. & P. 373; Rex v. Furnival, Russ. & Ry. 445; Reg. v. Paice, 1 Car. & K. 73; Vanvalkenburg v. The State, 11 Ohio, 404; The State v. Jesse, 3 Dev. & Bat. 18; Reg. v. Reid, 2 Den. C. C. 88, 1 Eng. L. & Eq. 595; Reg. v. Holcroft, 2 -Car. & K. 341 ; Carpenter v. People, 4 Scam. 197; Commonwealth v. Fischblatt, 4 Met. 354; The State v. Raines, 3 McCord, 533 ; Childs v. The Státe, 15 Ark. 204.
3 Rex v. Plant, 7 Car. & P. 575.
* The State v. Shepard, 7 Conn. 54, citing Commonwealth v. Cooper, 15 Mass. 187; which latter case was subsequently disapproved of by the Massachusetts court, though for a reason not distinctly affecting the doctrine of the text. Commonwealth v. Roby, 12 Pick. 496, 507.
• Greaves Lord Campbell's Acts, 14; Reg. v. Reid, 2 Den. C. C. 88; Reg. v. Gisson, 2 Car, & K. 781.
? 14 & 15 Vict. c. 100, $ 9, quoted ante, $ 518 b; Reg. v. Mitchell, 2 Den. C. C. 468, 12 Eng. L. & Eq. 588. 8 Clifford v. The State, 10 Ga. 422.
III. The Doctrine qualified in Various Circumstances.
§ 543. Let us now see what exceptions we find to the foregoing propositions. It is a well-settled principle of the English law, adopted in some of the United States, that there can be no conviction for a misdemeanor on an indict. ment for a felony. If the allegation includes a misdemeanor, and the proofs sustain this part of it, but not the felony, there must be a general acquittal, which will be no bar to a subsequent prosecution for the misdemeanor. The reason usually assigned is, that, when this course of procedure was established, persons indicted for misdemeanor had certain advantages at the trial, such as to make a full defence by counsel, and to have a copy of the indictment, and a special jury, not allowed those under arraignment for felony; wherefore it would be unjust to suffer the too heavy allegation to take from them these privileges. This equitable rule was disregarded in a few of the early English cases, wherein, as was afterward expressed, “the judges appear to be transported with zeal too far." 4
§ 544. But a practice to withhold from one charged with felony any substantial privilege which persons ought to have when proceeded against for misdemeanor, is clearly inequitable; and is not received in this country. If with us there is any discrimination made, it is usually in favor of defendants indicted for the higher crimes; while, in prosecutions for the lower, any peculiar rights they may have are merely circum
1 2 Hawk. P. C. Curw. Ed. p. 621 ; Rex v. Westbeer, 2 Stra. 1133, 1 Leach, 4th ed. 12; Commonwealth v. Gable, 7 S. & R. 423 ; Reg. v. Eaton, 8 Car. & P. 417; Reg. v. Gisson, 2 Car. & K. 781; Reg. v. Goadby, 2 Car. & K. 782, note; Commonwealth v. Roby, 12 Pick. 496, 505, 506; Wright v. The State, 5 Ind. 527.
? Ante, $ 29, 337. 3 Rex v. Joyner, 1 J. Kel. 29, and cases cited in Rex v. Westbeer, supra. * Rex v. Westbeer, as reported 2 Stra. 1133.
stantial. Therefore the courts of some of the States have permitted convictions for misdemeanor on indictments for felony;? discarding the rule mentioned in the last section, in obedience to the maxim, Cessante ratione legis, cessat ipsa lex;2 while in other States it has been followed. Whether the practice to discard it, which on this statement might seem to be the true one, is so really, is perhaps a nice question; for, besides the difficulty of casting off an old rule solely because of the removal of its original reason,4 other reasons for adhering to it may exist in addition to the oftener mentioned ones stated in the last section.5 So thought the Vermont court, which, having in some earlier cases put aside the English practice, took it back, saying: “On an indictment for a felony, the prisoner must appear in person, and on trial must here be taken and retained in custody in discharge of his recognizance; whereas, on an indictment for a misdemeanor, he is allowed to remain on bail, and may in general appear and plead by attorney. These are privileges of which the party ought not to be deprived by changing the mode of proceeding against him, and they appear to be of sufficient importance to require an adherence to the cominon law rule.” 6 Yet this court, at a
· Stewart v. The State, 5 Ohio, 241; The State v. Kennedy, 7 Blackf. 233; People v. White, 22 Wend. 167; People v. Jackson, 3 Hill, N. Y. 92; Burk v. The State, 2 Har. & J. 426 ; The State v. Sutton, 4 Gill, 494; Cameron v. The State, 13 Ark. 712. See The State v. Bridges, 1 Murph. 134.
? Ante, $ 29, 335, 337.
3 Black v. The State, 2 Md. 376; Commonwealth v. Gable, 7 S. & R. 423 ; Hackett v. Commonwealth, 3 Harris, Pa. 95; Braddee v. Commonwealth, 6 Watts, 530; Commonwealth v. Roby, 12 Pick. 496; Commonwealth v. Newell, 7 Mass. 245; The State v. Valentine, 6 Yerg. 533. And see United States v. Sharp, Peters C. C. 131. As to Verinont, see the subsequent notes to this section.
* Ante, & 29, 337. 6 Ante, $ 336.
• The State v. Wheeler, 3 Vt. 344, 347, overruling The State v. McLeran, 1 Aikens, 311, and The State v. Coy, 2 Aikens, 181.
later period, returned to its first ground, apparently without being aware of the existence of its intermediate decision:1
$ 515. And there are reasons of a different nature, entitled to weight: as, for example, one indicted for felony cannot be convicted on evidence showing him to have advised the act as an accessory before the fact, while one indicted for misdemeanor can; and the judge must be embarrassed about the admission of the testimony, while in doubt whether the verdict, if one of conviction, will be for felony or for misdemeanor. In England, at the present time, the before-mentioned reasons for the rule have practically ceased, defendants there having substantially the same privileges on indictments for felonies as for misdemeanors; yet the rule itself remains.? And the court of Massachusetts, sustaining the rule, rejected altogether those more common reasons; saying, with much force, it rests on “the broader consideration, that the offences are, in legal contemplation, essentially distinct in their character, and that this is manifest from an examination of the authorities." 3 We may doubt, however, whether the Massachusetts reason is broad enough alone to support the rule in all circumstances where it is found in the English law.
$ 516. Yet this rule, that on indictments for felony there can be no conviction for misdemeanor, has been partly or fully overturned by statutes in some of the States into which it was received from the common law. Therefore now in Massachusetts, one tried on an allegation of manslaughter or of rape may be found guilty of an assault and battery.
· The State v. Scott, 24 Vt. 127.
· Commonwealth v. Drum, 19 Pick. 479. As to other American statutes and the decisions upon them, see The State v. Flanigin, 5 Ala. 477, 482 ; Brittain v. The State, 7 Humph. 159; The State v. Valentine, 6 Yerg. 533 ; The State v. Bowling, 10 Humph. 52; Commonwealth v. Newell, 7 Mass.