FROM CURRITUCK The jury found the prisoner guilty, and a motion for a new trial being overruled and judgment of death awarded, the prisoner appealed.
A copy of the record of the conviction of March was made a part of the case. On the indictment against him "negro Lamb" was endorsed as a witness. It seems not to admit of a question but that the record of the conviction and attainder of the principal is prima facie evidence against the accessory that the principal committed the crime, which the accessory is charged with inciting. This is the case, although the conviction may have been had upon the confession of the principal; the only doubt seemed to be whether the conviction was not conclusive. If the actual guilt of the principal is essential to the criminality of the accessory, it is difficult to see upon what principle the record of his conviction can prove the fact; for it is perfectly res inter alias acta. The accessory has no opportunity upon the trial of the principal, when *Page 36 they are separately tried, of producing, confronting and examining witnesses. If, therefore, we were from this practice to ascertain what the principle is, it would seem that the guilt of the accessory is independent of that of the principal. But that the law was satisfied with the conviction of the principal; which fact the record in controversy established to all the world, as well strangers, as parties and privies. This idea is much strengthened by the fact that in cases where the principal has been convicted before the indictment is preferred against the accessory the indictment against the latter need not charge the guilt of the principal, but only that he has in such a Court been duly convicted of the crime, prout patetper recordium, and if such an indictment is good it is sufficient to prove the facts as laid; it seems, then, as there is no charge of the guilt of the principal, but only an allegation of his conviction, that the indictment is fully supported by proving the incitement, and the conviction of the principal, without offering any evidence of his guilt. Yet it seems agreed on all hands that the (55) conviction of the principal, either by outlawry or judgment, must precede the conviction of the accessory, unless the accessory waives such prerequisite, and even then judgment shall not be pronounced upon the accessory until the principal is convicted; and if afterwards the principal is acquitted, the accessory is thereby discharged. Even in cases where the principal has been outlawed, and the accessory has been tried, convicted, attained and executed, and afterwards the principal appears, reverses the outlawry, and pleads not guilty to the felony, and it is found for him, this acquittal ipso facto reverses the attainder of the accessory, and his heir may enter upon the lord who has seized his ancestor's lands as an escheat, and is not put to his action, but may show all this, in an action brought against him by the lord, for his entry. (Lord Sanchar's case, 9 Coke, 117, citing 4 Edw. III.) I cannot pretend to unravel all this, nor to decide whether Lord Coke is right, when he says that the statute of West. I, ch. 14, which enacts "that none be outlawed upon appeal of commandment, force aid or receipt, until he that is appealed of the deed is attained," is but in affirmance of the common law; I must administer it as I find it laid down, and I know of no case, or even dictum, where it is said the record of the conviction is not admissable [admissible] as prima facie evidence of the guilt of the principal, upon the trial of the accessory.
But we are startled in this case, because negro testimony may have been, and I presume was, admitted against the negro, the principal felon — as it appears that a negro is endorsed as one of the witnesses on the bill of indictment. This does not vary the case from others. For if the principal is convicted upon his own confessions, or by the testimony of one who is incompetent against the accessory, as, for instance, *Page 37 the wife of the accessory, the record is admissible in the same manner as if it had been founded on testimony which the accessory could not object to. And the present case is nothing more, for (56) the confessions of the principal, or the evidence of the wife of the accessory, are as inadmissible against the accessory as the testimony of negroes within the fourth degree; and yet we never heard of those objections. The fact is, they, by law, are admissible against the principal, and are competent to produce his conviction, and this is sufficient. I admit with the counsel for the defendant that this doctrine leads to the introduction of negro testimony on the trial of a white man; that it would have been competent in this case for the prisoner to have proved by negro testimony that the principal felon was not guilty. For as by law the conviction is only prima facie evidence of the guilt of the accessory, and may have been procured by negro testimony, that presumption may be repelled by the same kind of evidence by which it was created, or strengthened by it when attacked. But the incitement, which constitutes the moral guilt of the accused, must be proved by testimony admissible against him.
I will not hazard an opinion what the common law upon the subject was before the statute of West. I, and what apparent effect, in the nature of accessorial crimes, the regulations of the statute might have produced.
HALL, J. By our laws slaves are considered to be human beings and capable of committing crimes, and upon the maxim noscitur a sociis, negro testimony is admissible evidence against them. Upon such evidence, in part, has the negro March been convicted, and that conviction was lawful.
An accessory cannot be tried before the principal is convicted, if amenable to justice; in this case, therefore, the prisoner could not be tried before March was convicted, because there can be no accessory without a principal, and proof that there is a principal can only be established by the record of his conviction.
The principal is guilty of one offense and the accessory of another. They are essentially different in their characters; of (57) course, the guilt of the one is not the guilt of the other. The record of March's conviction was no proof of the prisoner's guilt, and it was not read for that purpose. It was read for the purpose of establishing the fact that a murder was committed by March as a prerequisite to the trial of the prisoner. For if the murder was not committed the prisoner could not be tried as an accessory, although, in a moral point of view, he might be as guilty, if it was not committed owing to some accident not under his control, as if it had been. But if it is shown by *Page 38 the record that a murder has been committed, then an investigation of the charge against the accessory takes place, on which evidence of his guilt must be adduced. But of what kind? Not the record of the conviction of the principal, that only proves the conviction of March; it neither adds to nor takes from the guilt or innocence of the prisoner. Competent evidence must be adduced; not the testimony of slaves, but such as in law is admissible against white citizens.
But the prisoner, on his trial, not only had the right of contesting the question of his own guilt, but also of proving, if he could, the innocence of March, because if he could establish that, the law would shield him from further risk, however guilty he may have been, in endeavoring to procure the murder. And as he might disprove March's guilt (a question in point of fact quite different from that of his own), so he might do it by the same kind of testimony — that of negroes — by which, in part, it was established. If such evidence was used against March it might be resisted by evidence of the same kind, either by him or by any other person authorized by law to controvert the question of his guilt. I therefore think that the record of the conviction of March, although in part procured upon negro testimony, was properly received to prove the fact of his conviction, so as to make it lawful to go (58) into the trial of the prisoner as accessory, and, as far as depended upon that record, to decide upon his case.
PER CURIAM. No error.
Cited: S. v. Duncan, 28 N.C. 102.