Hatchett v. Commonwealth

Andébson, J., delivered the opinion of the court. The prisoner, Littleton Hatchett, was indicted jointly with Oliver Hatchett and Henry Carroll; Oliver Hatchett for the willful and malicious murder of Moses Young by poison, Henry Carroll and Littleton Hatchett, the prisoner, as accessories before the fact. It is stated in the petition that Carroll has been tried and acquitted. Oliver, who is charged as principal, had not been tried, but was still under arrest. The court is of opinion that the evidence is insufficient to connect Oliver Hatchett, who is charged as principal with the perpetration of this crime, to warrant the conviction of the prisoner as an accessory before the fact. [931] At common law the accessory could not be tried until the principal had been convicted by the verdict of a jury, (or outlawed), and the only evidence which was admissible to prove the principal's guilt, was the record of his conviction by the verdict of a jury in a court of competent jurisdiction. In England, and some of the American States, the common law rule has been subverted by statute, which provides that an accessory before the fact to a felony “may be indicted, tried, convicted and punished, in all respects as if he were a principal felon.” Our statute does not go so far. It provides (Acts of Assembly, 1877, p. 312, ch. 10, § 7) that “ in the ease of every felon, every principal in the second degree, and every accessory before the fact, shall be punished as if he were the principal in the first degree • and by § 9, an accessory, either before or after the fact, may, whether the principal felon be convicted or not, or be amenable to justice or not, be indicted, convicted and punished, and an accessory before the fact may be indicted either with the principal or separately. These provisions are the same in the Code. It does not provide, as the Pennsylvania statute does, which is substantially a copy of the English statute, that he is to be indicted, tried and convicted in all respects as if he were the principal in the first degree. It is implied by the Virginia statute that he must be indicted, tried and convicted as an accessory before the fact, though he shall be punished as if he were the principal in the first degree. He may be indicted, convicted and punished, whether accessory before or after the fact, by express terms of the statute, but it is as accessory, whether the principal felon has been convicted or not, and the accessory before the fact may be indicted either with the principal or separately, of course, as accessory. He could only be indicted under this statute as accessory. It gives no authority to indict him as principal. Accordingly in Thornton’s ease, 24 Gratt. 669-70, it was held by this court [932] that “ our statute has not gone far enough to make an accessory before the fact to a felony liable to be convicted on an indictment against him as principal.” Upon this view of the statute the conclusion is obvious that an accessory to a felony cannot be prosecuted for a substantive offence, but only as an accessory to the crime perpetrated by the principal felon, and 'in order to his conviction, although it is not necessary now to show that the principal felon has been convicted, it is necessary to show that the substantive offence, to which he is charged as having been accessory, has been committed by the principal felon. The court is of opinion that the evidence is clearly insufficient to convict Oliver Hatchett, as principal, with administering the poison. It is in proof that Oliver Hatchett came to Osborne Horthington’s house on the evening of the night that Moses Young died, and asked to have his shoes mended. On being told by Osborne that he did not have time, he left in about five minutes, and went to the corner of the house towards Moses Young’s, whose house was about 200 or 250 yards distant. One of the witnesses for the Commonwealth, who was passing about that time, said he heard a strange voice, not of any one living there, enquiring the way to Moses Young’s house; but Osborne, who was also a witness for the Commonwealth, said no one asked the way to Moses Young’s house. Ho witness testifies that Oliver Hatchett was at Moses Young’s house that night. Sally Young, the wife of Moses Young, testified that a stranger came to her husband’s house that night, and that after supper the stranger and her husband walked out, and pretty soon he came back in the house and in short time said he believed that pain in his side had gotten worse. And he pretty soon became worse, and said that the stranger had given him a drink out of a tickler, and that he believed he had tricked him, and his dying declaration was that he would be killed by the drink given [933] him by the stranger out of the tickler. She testified that she did not know Oliver Hatchet—that the stranger appeared to be a darker man than Oliver Hatchett, but about his size. This is the only evidence we find in the record tending to identify Oliver Hatchett with the stranger, who, Moses Young said, ga,ve him a drink out of the tickler, which, according to his dying declaration, would kill him. The court is of opinion that the evidence is plainly insufficient to convict Oliver Hatchett, who is indicted as principal with the killing, or to show that he was guilty of administering the poison. The court is of opinion that the court below did not err in refusing to give the prisoner’s third instruction to the jury | but that it did err in overruling his motion for a new trial. The court is of opinion, for the reasons heretofore given, to reverse the judgment of the court below, to set aside the verdict of the jury and to award the prisoner a new trial. The judgment was as follows: The court is of opinion, for reason stated in writing and filed with the record, that the judgment of the court below is erroneous; it is, therefore, considered that the said judgment be reversed and aunulled; and the court proceeding to render such judgment as ought to have been rendered by the court below, it is considered that the verdict of the jury be set aside and a new trial be awarded the prisoner. Judgment reversed.