June Term, 1860.

#### Ogden vs. The State.

To sustain an indictment against a person charged as an accessary before the fact to the commission of a felony, it is necessary for the state to establish the guilt of the principal felon, as well as that the defendant was an accessary; and confessions of the principal that he committed the crime, are not admissible as evidence of his guilt, upon the trial of the accessary, such confessions being, as to the latter, only hearsay.

EEEOE to tbe Circuit Court for *Portage*County.

Tbe case is stated in tbe opinion of tbe court.

*Sessions & Reed*and *Geo. B.*Smith, for plaintiff in error.

*J. H*Howe, Attorney General, for tbe state.

October 15.

*By the Court,*

Dixon, C. J.

Tbe only point raised by tbe exceptions appears to tbe court clearly in favor of tbe prisoner. He was indicted under tbe provisions of sec. 2 of cbap. 172 of tbe Eevised Statutes, as for a substantive felony, being charged as an accessary before tbe fact to tbe crime . of arson, said to bave been committed by burning tbe barn of one John Bourcies in tbe county of Portage. This and tbe succeeding section are borrowed from section 9, cbap. 64, of tbe English Statutes, 7 Geo. IY. It enacts that every person who shall counsel, hire, or otherwise procure, any offense to be committed, which shall be a felony, may be indicted and convicted as an accessary before tbe fact, either with tbe principal felon, or after tbe conviction of tbe principal felon, or be may be indicted and convicted of a substantive felony, whether thdprincipal felon shall or shall not bave been convicted, or shall or shall not be amenable to justice, and in tbe last mentioned case, may be punished in tbe same manner as if convicted of being an accessary before tbe fact. Sidney Wright, who, it is alleged in tbe indictment, was tbe principal felon, bad made bis escape, and it does not appear that any indictment was ever preferred against him.

Tbe felony is charged to bave been committed by Wright on tbe 31st day of August, 1859. Tbe only evidence offered on tbe trial, of tbe guilt of Wright, was bis admissions made to Darius Dodd and Stiles Wheeler, two of tbe witnesses produced and sworn on tbe part of tbe state. Dodd testified that *533be resided in tbe county of Portage, and knew Wrigbt; tbat after tbe fire, and in tbe month of March, 1860, be bad a. conversation with him in relation to it, at tbe city of Du-buque, in tbe state of Iowa, and tbat Wrigbt said be burned tbe barn by lighting matches and putting them in tbe straw in tbe night time. Wheeler testified tbat be saw Wrigbt tbe next morning after tbe bam was burned, when be said, “ be bad better get out of this-, tbat be bad burned tbe barn.” This was all tbe testimony offered concerning Wright’s guilt or connection with tbe affair. To its reception proper objections and exceptions were taken by tbe prisoner.

It is very evident tbat upon this testimony tbe conviction cannot be sustained. In order to establish tbe guilt of *Ogden,*it was first incumbent on tbe prosecutor to prove tbe guilt of tVrigbt as alleged in tbe indictment. This done, be must then prove tbat *Ogden*previously procured, hired, advised or commanded Wrigbt to commit tbe felony. Both ’ these facts must be established by competent evidence. Now, however tbe confessions of Wright, as to tbe first, might have been used against him, bad be been indicted and put upon bis trial, it is very evident tbat as against *Ogden*they were wholly inadmissible. As to Mm they were mere hearsay, and open to all tbe objections which exist to tbat kind of testimony. For however clearly it may have appeared tbat *Ogden*counseled and advised Wrigbt to commit tbe offense, yet if Wrigbt never did so in point of fact, and tbe barn was set on fire by some one else, or by other means, then *Ogden*was innocent of tbe crime with tbe commission of wMcb be stood charged.

If such admissions were to be received, Wrigbt, after tbe advice was given, but without having acted upon it, and being innocent, and believing, tbat bis personal safety would not thereby be endangered, might make them, from' feelings of ill-will and hatred to Ogden, for tbe sole purpose of deceiving and misleading others, and betraying him into tbe conviction of an offense of which be knew him to be innocent. They were made privately, and without tbe sanction of an oath; tbe jury bad not tbe advantage of observing bis deportment, or tbe manner in which bis statements *534were made; no opportunity was afforded to ascertain.wheth-be was friendly or Hostile to tbe accused; be was sub-jeoted to no cross-examination, and bis motives, means of knowledge and situation, could not be inquired into and exposed. Eor authorities on this question see 1 Russ, on Crimes, 8th American edition, page 43, and notes, and cases there cited.

Tbe judgment of the circuit court is reversed, and a *ven-ire de novo*awarded.