Smith v. State , 46 Ga. 298 ( 1872 )

McCay, Judge.

It was a well-settled rule at common law, that the accessory could not be put upon his trial until after the conviction of the principal felon: Wharton’s American Criminal Law, section 135, 1st volume. This was changed by the Act of Anne, so that if the principal felon was delivered in any way after conviction and before attaint, the accessory might be tried. In the special case of the offense of receiving stolen goods, there was an exception to the rule if the principal was outlawed. And this rule is, in effect, adopted by the provisions of our Code: Eevised Code, section 4421. But we know of no other legislation changing, the common law. There would seem tobe great incongruity in trying, and perhaps, convicting one as accessory to the crime of another^ when perhaps the next day the principal may be found not guilty.

As we understand this record, the defendant in this case, on his arraignment excepted on the ground that the principal had not yet been tried. We think it was error to put him on trial. We are not prepared to say that had the principal in this case been convicted, his confessions would not have been good evidence to show his guilt on the trial of the accessory. The conviction would be only prima faeie against the accessory and it might be supplemented and sustained by the confessions. But they must be confessions made under circumstances when they would be testimony against the principal. Is that the case here? The man himself says, on oath, that they were extorted from him. This, it is true, is contradicted by the other witnesses, but even they say he was promised he should not be hurt. This is just as fatal to them as legal evidence as extortion. Hope is just as powerful an inducement, if brought to bear as fear: Revised Code,section 3740. The evidence going to show the guilt of the accused, even if the guilt of the principal were established, is hardly of any weight. The prisoner had great influence and control over the principal, and after the principal was arrested the prisoner sent word to him by a friend not to bring him into it. We do not think such evidence as this sufficient to justify a conviction. We are ready to go a long way to sustain verdicts, but this would be going rather too far. There is no evidence in either of the circumstances to warrant any inference of guilt.

Judgment reversed.