Holmes v. Commonwealth , 25 Pa. 221 ( 1855 )

The opinion of the Court was delivered by

Knox, J. —

Although the first count in the indictment charges that a burglary was committed by Jacob Clement and Samuel H. Fisher, it is apparent from the whole record that the indictment was against Andrew H. Holmes, as accessory before and after the fact, and for receiving stolen goods, knowing them to have been stolen. The pleader has set forth the commission of the burglary in apt and technical terms, but it is merely as inducement to the charge against the prisoner as accessory, and not with tshe intention of indicting principals and accessory together. The bill is endorsed as against Holmes alone, and so was it docketed. It is a common law principle that an accessory shall not be tried before the conviction or outlawry of the principal; but it does not follow that he may not be indicted before either conviction or outlawry. On the contrary, it is clear that principal and accessory may be indicted at the same time, and that the conviction of the principal may be given in evidence upon the trial of the accessory, without being averred in the indictment. The guilt of the principal must be averred, and the evidence must establish that the guilt was legally ascertained before the trial of the indictment against the accessory. We are satisfied from the paper-book of the defendant in error that the principals were convicted of burglary before this indictment was tried; and as we cannot examine the evidence, we are bound to presume that legal proof was given to the jury of that conviction, upon the trial of the indictment against the accessory.

In Stoops v. The Commonwealth, 7 Ser. & R. 491, the record shows that principals and accessories were indicted together, and that but four of the seven principals had been tried. The trial and sentence of the accessories was held to be erroneous, because the record showed that they were indicted and convicted as accessories to the whole seven principals, when the guilt of but four of the principals had been established. It will be seen that here, instead of its appearing from the record that the principals had not been convicted, the necessary inference is just the contrary, and therefore the case of Stoops and the Commonwealth is an authority in favour of the legality of this proceeding rather than otherwise.

We will consider, in the next place, the question as to the jurisdiction of the Court of Quarter Sessions. The indictment was against the prisoners as accessory to the crime of burglary, and for receiving stolen goods knowing them to have been stolen. It is alleged by his counsel that the Quarter Sessions had no jurisdiction to try this accusation. The jurisdiction of our criminal courts is regulated by the Act of 16th June, 1836. The 15th section of the Act enumerates the crimes which are exclusively within the jurisdiction of the Oyer and Terminer and General Jail Delivery; and the 16th section provides that “ the Quarter Sessions of the peace shall have jurisdiction and power within their respective counties, 1. To inquire by the oaths or affirmations of good and lawful men of the county, of all crimes, misdemeanors, and offences whatever against the laws of this Commonwealth, which shall be triable in the respective county; 2. To inquire of, hear, determine, and punish, in due form of law, all such crimes, misdemeanors, and offences, whereof exclusive jurisdiction is not given as aforesaid to the Courts of Oyer and Terminer of such county.” The “ exclusive jurisdiction” as aforesaid means that given by the 15th section; and as neither of tbe crimes alleged to have been committed in this indictment by the person indicted are enumerated amongst those of which the Oyer and Terminer has exclusive jurisdiction, it is plain that the Quarter Sessions have jurisdiction to try the indictment and pronounce sentence upon the prisoner.

There is nothing in the third assignment of error. It appears from the record that the prisoner was tried by a jury duly called and sworn, and this is all that is required.

The fourth assignment is that “it does not appear from the record that the prisoner was present at the rendition of the verdict.” Had this conviction been for murder, the record would not have supported it, for it does not affirmatively appear that the prisoner was present when the verdict was rendered. In felonies not capital it is allowable to presume that everything was rightly done until the contrary appears: Prine v. The Commonwealth, 6 Harris 103. Here the record neither avers the presence of the prisoner when the verdict was rendered, nor does it show that he was not present. As the felony was not capital, we may presume that the proceeding was regular and lawful.

Judgment affirmed.