The indictment charges Mack Bowen, the plaintiff in error, with the murder of one Horace Stalvey and Richard Rogers and Henry Braeey as accessories before the fact to such murder; it then charges Brace}7 with the murder and Bowen and Rodgers as accessories thereto before the fact and then charges Rogers with the murder and Braeey and Bowen as accessories thereto.
A severance was granted at the request of the defendant. The trial of Bowen was entered upon, and on the 20th day of last December, the jury returned a verdict finding him *647guilty of “ being an accessory to murder, as charged in the second count,” or in effect, that he was guilty as an accessory to Bracey as the murderer of Stalvey.
On the 22d day of December Bowen moved for a new trial on the usual grounds, and the motion was denied ; and on the 28th day of the month lie entered a motion in arrest of judgment on the ground that he had been placed on trial before the other defendants, and found guilty in the manner and form as stated above ; and afterwards, on the 26th day of the same, month, Bracey had been put on trial, and the jury had returned a verdict of not guilty; and that after-wards the Judge, at the request of the State Attorney, entered .a nolle prosequi as to Rogers.
This motion was overruled. On the same day the court sentenced Bowen to be hanged. The sentence recites that he had been convicted of being accessory before the fact (by counseling, hiring, procuring and aiding) to murder in the first degree.
The case is now before us on a writ of error and with a bill -of exceptions. The law governing this case as to the trial and conviction of accessories before the fact is set out in Ex-parte Mack Bowen, decided by ns at the last term, 25 Fla., S. C., 6 So. Rep., 65. The charge in the indictment of being an accessory, is of that offence as at common law, and not of a substantive felony under our statute. The conviction of the principal, Bracey, was essential to the guilt of the plaintiff in error as accessory at common law. Ex-parte Mack Bowen, and authorities.
The judgment is reversed, and the case will be remanded with directions to discharge the prisoner.- McCarty vs. State, 44 Ind., 214.