Wren v. Commonwealth

• Decision Date: 22 April 1875
• Citation: 67 Va. 952
• Parties: WREN v. COMMONWEALTH.
• Court: Virginia Supreme Court

67 Va. 952

WREN v. COMMONWEALTH.

Supreme Court of Appeals of Virginia.

April 22, 1875

1. An accessory after the fact to a felony, is a person who knowing a felony to have been committed by another, receives relieves, comforts or assists the felon.

2. To constitute an accessory after the fact, three things are requisite: 1. The felony must be completed. 2. He must know that the felon is guilty. 3. He must receive, relieve comfort or assist him.

3. It is necessary that the accessory have notice, express or implied, at the time he assists or comforts the felon, that he had committed a felony. And the mere fact that one receives a felon in the same county in which he has been attainted is not sufficient to raise the presumption of knowledge. And the question of knowledge is a question for the jury.

4. Any assistance given to one known to be a felon, in order to hinder his apprehension, trial or punishment, is sufficient to make a man accessory after the fact; as that he concealed him in the house, or shut the door against his pursuers until he should have an opportunity to escape; or took money from him to allow him to escape, or supplied him with money, a horse, or other necessaries, in order to enable him to escape; or that the principal was in prison, and the jailer was bribed to let him escape, or conveyed to him instruments to enable him to break prison and escape.

5. Merely suffering the principal to escape will not make the party accessory after the fact; for it amounts at most to a mere omission. Or if he agree for money not to prosecute the felon; or if knowing of a felony, fails to make it known to the proper authorities; none of these acts are sufficient to make the party an accessory after the fact. If the thing done amounts to no more than the compounding a felony or the misprision of it, the doer of it will not be an accessory.

6. The true test whether one is accessory after the fact, is to consider whether what he did was done by way of personal help to his principal, with the view of enabling his principal to elude punishment; the kind of help rendered appearing unimportant.

This is a sequel to the case of Wren v. Commonwealth, reported in 25 Grattan 989. On the second trial, after all the evidence had been introduced, the attorney for the commonwealth asked the court to give to the jury three instructions, which the court gave; and the prisoner excepted. But as they were not considered by this court, it is not necessary to state them.

The jury found the prisoner guilty and assessed his fine at two hundred dollars; and the prisoner moved the court to set aside the verdict and grant him a new trial. But the court overruled the motion and sentenced him to ten months imprisonment in the city jail, and to pay the fine assessed by the jury. The prisoner excepted to the opinion of the court overruling his motion for a new trial; and the evidence being conflicting, the court spread all of it on the record. It is sufficiently stated in the opinion of Judge Christian. Upon the application of the prisoner, a writ of error was allowed.

Crump, for the prisoner.

The Attorney-General, for the commonwealth.

OPINION

CHRISTIAN J.

This is a writ of error to a judgment of the Hustings court of the city of Richmond.

The case is before this court for the second time.

The accused was indicted in the said Hustings court, as accessory after the fact to a felony, of which one John Dull was convicted in said court. The indictment after setting out, in proper form, the felony committed by the said John Dull, charged " that John Wren" (the plaintiff in error), " well knowing the said John Dull to have committed the said felony in form aforesaid; to-wit, since the said felony was committed in the year aforesaid, in the city aforesaid, him the said John Dull did then and there unlawfully receive, harbor and maintain, against the peace and dignity of the commonwealth of Virginia."

Under this indictment the accused was found guilty at the November term of the said Hustings court; and his fine assessed by the jury at one cent; and was sentenced by the court to twelve months imprisonment in the city jail; and to labor upon the public streets, or other public works, for seven hours a day during said term of imprisonment. To that judgment a writ of error was awarded by this court; and upon the hearing of said writ of error at the last term, the judgment was reversed, and the accused was remanded to the said Hustings court for a new trial.

It is proper to remark, that the judgment and opinion of this court upon the former hearing was confined to a single point; and that was that the instructions given by the court were calculated to mislead the jury, and were therefore erroneous. The opinion was confined to the single point, and the judgment was reversed upon that ground only.

At the February term of the said Hustings court, the accused was again tried upon the same indictment; was again found guilty, and his fine assessed by the jury at $200; and was sentenced by the court to imprisonment for the period of ten months and until payment of said fine.

To this judgment a writ of error was awarded by this court.

The counsel for the prisoner, in his petition for a writ of error, assigns two grounds of error: 1st. The granting, by the court, of the instructions asked for by the commonwealth's attorney: and 2d. The overruling of his motion for a new trial.

The second assignment of errors will be disposed of first.

The court below refused to certify the facts proved because the evidence was conflicting; but certified all the evidence offered, both by the Commonwealth and the accused. According to the rules established by this court, in considering such a bill of exceptions, the court will reject all the evidence offered by the prisoner in conflict with that offered by the Commonwealth, and determine, upon the testimony of the Commonwealth alone and all fair and legal inferences to be drawn therefrom, whether the offence charged in the indictment is made out and established by the proof: in other words, whether admitting all the facts proved by the Commonwealth, without reference to those proved by the accused, these facts constitute the offence charged in the indictment.

The accused is charged with accessorial guilt. He is charged in the indictment with unlawfully receiving, harboring and maintaining John Dull, knowing him to have committed a felony. This charge constitutes what the law denominates " an accessory after the fact." The common law definitely and distinctly defines who is such an offender. He is a person who knowing a felony to have been committed by another, receives, relieves, comforts or assists the felon. 1 Hale P. C. 618; 1 Arch. Crim. Pract. 78, and cases there cited.

The reason on which the common law makes a party in such a case criminal, is that the course of public justice is hindered, and justice itself is evaded by facilitating the escape of the felon.

To constitute one an accessory after the fact, three things are requisite: 1. The felony must be completed; 2. He must know that the felon is guilty; 3. He must receive, relieve, comfort or assist him. It is necessary that the accessory have notice, direct or implied, at the time he assists or comforts the felon, that he has committed a felony. 2 Hawk. ch. 29, § 32. And although it seemed at one time to be doubted, whether an implied notice of the felony will not in some cases suffice, as where a man receive a felon in the same county in which he has been attainted, which is supposed to have been a matter of notoriety, it seems to be the better opinion, that some more particular evidence is requisite to raise the presumption of knowledge. 1 Hale 323, 622; 3 P. Wms. R. 496; 4 Black. Com. 37.

But knowledge of the commission of the felony must be brought home to the accused, and whether he had such knowledge is always a question for the jury.

As to the receiving, relieving and assisting, one...