Pettes v. Commonwealth

Lord, J. Assuming that the indictment upon which the plaintiff in error was convicted contained but two counts, his counsel contend that the verdict of not guilty on the first count and guilty on the second count was contradictory and repugnant, and that no judgment should have been rendered upon it. The ground upon which this claim is made is, that in a felony an accessory before the fact may be deemed to be, and be convicted as, a principal felon, and inasmuch as the plaintiff in error in this indictment was charged in the first count as a principal felon, and in the second count as being an accessory before the fact to a felony, an acquittal upon the first count was in law an acquittal of the whole charge. Whatever the law may be upon the state of facts assumed by the counsel of the plaintiff in error, it is sufficient in this case to say that the felony charged in the first count is another and distinct felony from that of which he is charged to have been an accessory before the fact in the second count. The first count charges him with the forging of a certain instrument, and that is the whole of the charge in that count. The second count charges that one Holden uttered and published as true a forged instrument, and that the plaintiff in error was an accessory before the fact to such uttering. — 245 — It has heen so long the practice in this Commonwealth to charge the same felony in various counts of an indictment by alleging it to have been committed in various different-modes, or by various different means, that the right to do so cannot now be questioned. In this Commonwealth, from the first, it has been the practice to charge a defendant with various and distinct felonies in different counts of the same indictment, and where the felonies are of the same general nature and supported by evidence of a similar kind, and the punishment to be awarded is the same in its nature, the more common practice is to try the whole indictment to the same jury. If there is any danger that such trial will operate to the prejudice of the defendant, the court is authorized to direct the prosecutor to elect upon which count he will proceed. Commonwealth v. Hills, 10 Cush. 530. Commonwealth v. Sholes, 13 Allen, 554. Commonwealth v. Costello, 120 Mass. 358. Commonwealth v. Brown, 121 Mass. 69. The next objection to the legality of the conviction is that the indictment contained three counts, and that no offence is charged against the plaintiff in error in the second count; that the second count charges simply that one Holden committed a felony, and the third count charges the defendant as accessory before the fact to the commission of the felony by Holden. This objection is not well founded in fact. The indictment contains but two counts. It is the practice to charge in the same count two defendants, who are both principals in the same felony, although one may be a principal in the first degree, as having actually committed the offence, the other as principal in the second degree by reason of being an accessory before the fact. See precedents in Chitty’s Criminal Law and Archbold’s Criminal Pleading; Commonwealth v. Cohen, 120 Mass. 198. It is not necessary to determine whether there may be verbal or formal errors technically in the second count of the indictment, because any such error is cured by verdict and judgment thereon. See Carlton v. Commonwealth, 5 Met. 532; Crowley v. Commonwealth, 11 Met. 578. If by reason of the nature of the offences, or because of the mode of proof, or because of the joinder of another party in one count, there was a possibility of prejudice to the plaintiff ip — 246 — error at Ms trial, he should, as we have before shown, have asked the court to direct the district attorney to elect upon wMch count he would proceed. The rule of the common law that no person can be convicted as an accessory before the fact, until the principal has been convicted, has been abrogated in tMs Commonwealth. Gen. Sts. a. 168, § 4. That section answers all the objections to the form of the indictment. It is in these words: “ Whoever counsels, Mres, or otherwise procures, a felony to be committed, may be indicted and convicted as an accessory before the fact, either with the principal felon, or after Ms conviction; or may be indicted and convicted of a substantive felony, whether the principal felon has or has not been convicted, or is or is not amenable to justice; and m the last-mentioned case may be punished in the same manner as if convicted of being an accessory before the fact.” Judgment affirmed.