We are clearly of opinion, that as the principal lives in the County of Anson, and is amenable to the Law, he ought to be convicted before the accessory is put upon his trial.
State v. Groff, 5 N.C. 270, 1 Mur. 270 (1809)
July 1809
·
Supreme Court of North Carolina
5 N.C. 270, 1 Mur. 270
The State v. Groff.
> From Anson.
An accessory is not liable to be tried, as for a misdemeanor, where the principal is amenable to justice. The act of 1797, ch. 19, does not infringe this rule. That act only extends to cases “"where the principal escapes and eludes the process of law.”
The Defendant was indicted for receiving stolen goods, knowing them to be stolen. The principal, a negro slave, liad not been indicted •, he resided in the county of Arison y and was amenable to the law. It was urged that the Defendant being an accessory could not be tried until the principal was tried and convicted. The case being sent to this Court, was argued by
Ji: Henderson, for the' Defendant.
By the Common" Law, an accessory cannot be tried until the guilt of the principal is made judicially to appear. His guilt is not of a primitive nature^ it is entirely derivative, dependent upon the guilt of the principal^ and. until that guilt appears, the Court cannot be convinced that the accessory, is guilty. This fundamental rulé of Criminal Law, bottomed on the soundest principle of justice, and the wisdom of which, experience has completely verified, ought in> no instance to be departed from, except from imperious necessity. The case discloses the fact, that the principle is amenable to justice. The act of. 1797, ch. 1-S, did not intend to infringe this fundamental rule,, except in the instances mentioned in the preamble to the act, ii where the principal escapes and eludes the process of law.” It does not contemplate the case of subjecting the accessory to 'trial before the principal, where the principal was amenable to justice. The impossibility of prosecuting the principal, creates the necessity which the act contemplated, of departing from the rule of the Common Law.
*271Our act of Assembly is the same in substance with the act of Anne upon the same subject. That act subjects the accessary to trial before the principal, “ where the principal cannot be taken,”' and makes the prosecution a bar to another prosecution, in the event of the principal being afterwards convicted. Our act makes the same provision. These two statutes ought to receive the same exposition, as they both intend to provide against the same mischief. This mischief, and the remedy intended by the Legislature to correct it, is mentioned to be the same in the preamble to the act . of Anne, and also of our act of 1797. Judge Foster, in expounding the act of Anne, Foster 374, confirms the exposition contended for on behalf of the Defendant in this case, and gives it as his opinion, that the accessory is in no instance liable to be tried, even as for a misdemeanor, under that act, where the principal is amenable to justice. A subsequent áct was passed upon this subject, in the reign of George 3d — 3 Term Rep. 83 — And that expressly makes the accessory liable to be tried, whether the principal be amenable to justice or not.