The Hawaiian gazette., 1869-03-31

charged. Chief Justice Shaw, in the case
of the Com. vs.. Policy, u Pick, 5O4,
where the party plead former conviction,
said that in considering the identity Of the
ofenses, it must appear by the plea that
the offense charged in both cases was the
same in law and fact. The plea viii be
vicious if the ofeBses charged in the two
indictments are perfectly distinct in point
of law, however they may be nearly con-
nected in fact.
But it is different where there has been
an acquittal on an Indictment for murder,
which necessarily comprehends all the
circumstances that go 10 make up man
slaughter; or of burglary, which must
contain all the allegations necessary to
sustain a conviction Of larceny. So an
acauittal on an Indictment for murder will
be bar to an indictment for manslaughter,
and an acquittal on an indictment for man
slaughter win be bar to prosecution for
murder.
The third count charges the defendant
with an attempt at murder, and the fourth
charges him with instigating the murder,
and counsel contends that these counts
csn not be joined with counts charging
him as a principal and as an accessory
before the fact, because they are distinct
offenses. and punished in different man
ner. As Chief Justice Shaw said, in the
case of Policy, Preferred toy, "the ofenses
are distinct in their nature, of distinct
legal character, and in no case could a
party on trial for the one be convicted of
the other"
The nature of the punishment also being
different, the Court are of opinion that
such joinder is good cause to quash an in
dictment, on motion, before the defendant
has pleaded to the Carlton VS.. The
Commonwealth, 5 Met, 532.
In examining the authorities of other
countries upon the points raised, it is very
necessary to know whether they are based
on the common law or on statutes. If
upon the latter, they should have no
especial influence in forming our opinions.
For example, as before stated, by the COM
mon law, an accessory can not be put
upon his trial without his consent, until
the conviction of the principal, for the
guilt of the accessory depends upon the
guilt of the principal, and the guilt of the
principal can only be established by a
prosecution against hind Greenleaf's
Evidence, Sec. So; Phillips case, 10th
Mass, 423. This remained the law in all
countries where the common law was re-
cognized, till proceedings were authorized
by law against the accessory, irrespective
of the principal.
And it is not necessary to decide whether
the common law in criminal cases is recog-
nized or not in this Kingdom, because, if
recognized, the accessory can not be tried
till the principal is convicted and if not
recognized, there is no law to try an ac-
cessory before the fact, until the principal
is convicted.
Our statute upon accessories is similar
to that of Massachusetts, where the Court
held, in the case of Commonwealth VS..
Knapp, 9 Pick, 496, that this did not in
any way impair the common law distinction
between accessory and principal, and so
did not refer at all to persons aiding and
abetting at the fact as principals of the
second degree. These statutes do not
supersede the necessity of proving the
guilt of the principal, for man can not
be holden for procuring an act to be done
unless it were in fact done.-l Bishop
Grim. Law, Sec. GIG.
Motion to quash the indictment is sus-
tanned.
Acknowledgement for the Crown.
Mr.. Jones for the prisoner.