State v. Jones
| Decision Date | 03 December 1888 |
| Citation | 8 S.E. 147,101 N.C. 719 |
| Parties | STATE v. JONES. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Rowan county; PHILIPS, Judge.
One T was indicted for arson of a dwelling house. By consent the indictment was changed to charge an attempt to burn, and he pleaded guilty. Held, that the change was unauthorized and the sentence void, and T. was not acquitted of the charge of arson so as to prevent one who was indicted as accessory before the fact from being tried.
The Attorney General, for the State.
One William Thrasher was charged with the felonious, willful, and malicious burning of the dwelling-house of one Theo. Bourbon and indicted therefor in the superior court of Rowan county at the 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, willfully, 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 William 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, 1888, against the principal defendant, William 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 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, 1888, the defendant, William Thrasher, was indicted for arson, in burning the on the 1st day of May, 1888, and, among other things, the following entries appear: ". 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 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 law an accessory before the fact could only be convicted when tried at the same time with the principal, and after the conviction of the principal, or unless the principal had been before tried convicted, and sentenced. State 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 accessory 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, c. 34,§ 53; Code, § 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, (State v. Ludwick, Phil. (N. C.) 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 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 willful 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. State v. Jesse, 2 Dev. & B. 298; State v. Revels, Busb. 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 Bish. Crim. Proc. § 293, it is said to...
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