Commonwealth v. Phillips
Opinion
observed, that the question was of too much importance to be decided instanter; the trial might proceed, and the prisoner should have the benefit of the objection after conviction, if a conviction should follow. The trial continued through the greater part of the day ; * and towards evening the [ * 425 ] Solicitor-General, finding that a material witness for the government had left the Court, the trial was postponed until the morning; when
The Chief Justice stated, that since the adjournment of the Court the preceding evening, the justices had carefully examined the books upon the subject, and were unanimously of opinion, that, by the common law an accessory cannot be put on his trial, but by his [352] own consent, until the conviction of the principal. The reason of this rule is very plain. If there is no principal, there can be no accessory; and the law presumes no one guilty until conviction. Statutes have made a difference as to some lesser species of offences, but do not touch the principle in capital cases. Our only doubt arose from the peculiar circumstance in this case, that the person charged as principal is dead, and can never be tried. If he were alive, and on trial, it is possible he might establish his innocence, strong as the evidence has appeared in support of his guilt. In such case, the prisoner could not be found guilty ; for he could not have been accessory to the commission of the crime as charged. The trial might have been stopped at the commencement of it, had our minds been then free from all doubt. But as the prisoner has been put on his trial, he has a right to a verdict. The jury, accordingly, under *>e direction of the Court, immediately returned a verdict of acquittal : and the prisoner was discharged of this indictment
Footnotes
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16 Mass. 423 (Commonwealth v. Phillips) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.