By the Court.
Nisbet, J.
delivering the opinion.
[1.] We have two Penal Statutes in relation to the receiving [469]*469of stolen goods — the 28th Sect, of the 8th Division of the Penal Code, and the Act of 1840. The former is in the following words : “ If any person shall buy or receive any goods, money, chattels, or other effects, that shall have been stolen or feloniously taken from another, knowing the same to be stolen or feloni-ously taken, such person shall be taken and deemed an accessory after the fact, and shall receive and suffer the same punishment as would be inflicted on the person convicted of having stolen or feloniously taken the said goods, money, chattels or other effects so bought or received.” Prince, 640. The Act of 1840 is as follows : “If anyfree white person or persons, shall buy or receive any money, goods, chattels or other effects from any negro or free person of color, that has or have been stolen or feloniously taken, knowing the same to have been so stolen or feloniously taken— such person or persons so offending, shall be taken and deemed to be accessory or accessories after the fact, and being convicted thereof, shall receive and suffer the same punishment as would have been inflicted on such person or persons, had he or they been convicted of stealing or feloniously taking the same.” Hotchkiss, 734. Both these statutes declare that the offender shall be taken and deemed an accessory after the fact. That is the legal character given to the offence in both acts — and all the incidents which attach to that offence, attach to the crime in them described. And the same pleadings and proof which are required to convict, are required by each of them. The Penal Code is general in the 28th Sect. 8th Division above quoted.
It applies to any person, whether slave, citizen, or free person of color, whilst the Act of 1840 applies only to free white persons. The code embraces the receiving of stolen goods, &c. from any person whatever, whether slave, free person of color, or free white person, knowing them to be stolen by any person; whilst the Act of 1840 is confined to the receiving of stolen goods, &c. from a negro or free person of color, knowing them to be stolen. The' punishment which the code prescribes, is that which by law is due to the principal offender; and that which the Act of 1840 prescribes, is the same which the law would inflict upon the accessory, were he convicted of the fact to which he is accessory. I see no difference between the Penal Code and the Act of 1840, so far as the cases to which it extends are concerned, except in the punishment. That is to say, a free white person who [470]*470receives goods from a negro or free person of color, knowing them to be stolen, is guilty of the same offence, under the Act of 1840, that any person would be guilty of under the Penal Code.. The punishment only is different. In either case, the offence is being accessory after the fact. The Act of 1840 was no doubt passed for the purpose of altering the punishment in the cases to which it applies, and for no other purpose. And there was a very urgent necessity for such an act. For by the Penal Code, a white man convicted of being accessory after a fact committed by a negro, was liable to a severer punishment than he would be, if he were himself the principal felon; and to a punishment wholly disproportioned to the offence. For example, take the case made in this record. A white man is charged with being accessory after the fact of larceny, by privately stealing from a house, by a negro man slave, Bob. Now, the punishment prescribed for this offence, when committed by a slave, is left to the discretion of the Court before which he is tried, limited only, so as not to extend to life or limb. ’Prince, 792. The same offence when committed by a free white person, is punished by confinement in the Penitentiary, for a term not less than two, nor more than five years. Prince, 630. So, if the accessory after the fact in this case is finally convicted, the Penal Code would have pun ished him at the discretion of the Court, limited alone so as to protect life and limb. Burglary, when committed by a slave, is a capital offence. A citizen, convicted of being accessory after the fact of Burglary, committed by a slave, would, by the Penal Code, be hung. Whereas, if convicted of burglary himself, he would be punished only by imprisonment in the penitentiary for a term varying from three to seven years. Prince, 628. The chief object of the Act of 1840, I repeat, was to correct this statutory inconsistency and absurdity. We are to consider the 28th Sect. 8th'Division of the Penal Code, and as that act, in pari materia. 'The extent to which it modifies the Code is as stated, and no more. This indictment is for receiving stolen goods from a slave named Bob, knowing them to be stolen. The offence charged, is that made by the Act of 1840. And that is the offence of being ■accessory after the fact of larceny committed by a slave. It is argued for the State, that the Act of 1840 creates a new and original offence, and therefore the pleading and proof may be adapted to the offence as described in the Statute. This was also the [471]*471view of it taken by the presiding Judge. In other words, says the counsel, the offence is not that of being accessory after the fact; it is not a derivative, but an original offence, and therefore it is not necessary that the State should prove what, at Common Law, was necessary to convict, and all that was then necessary to conviction. This reasoning became necessary, to maintain the decision of the Court below. That was, that the offence is complete without regard to the person who committed the larceny. That is, it is complete, if the goods were received from any person whatever, knowing them to be stolen or feloniously taken.. A consequence of this position was a farther position, that in this case, although the indictment charges that a certain individual slave, Bob, did steal the goods, and that the defendant' received them from him, knowing that they were stolen ; yet it was not necessary for the State to prove that Bob did, in fact, steal them. In any view of this case, we believe the latter position of the Court is erroneous. We think, as already stated, that the effect of the Act off 1840 is not to repeal or alter the Penal Code, except so far as the punishment is concerned in the cases named. That it does-not alter the character of the offence — that remaining as it was. And that the offence defined in the Code is that distinctive one, known to the law, as consisting in being accessory after the fact in the receipt of stolen goods. But suppose the Code had been silent as to this offence, or was in terms repealed by the Act o£ 1840, the new offence created by that act would be in that event, still the same. The defendant would still have to be indicted as-an accessory, and the same proof would be necessary to conviction.. The Court below held, and very properly, that the State, under-this indictment, must prove that the defendant received the goods:from the slave, Bob, and that at the time he received them, he knew them to be stolen from the owner. All this the Common Law and the Statute require. The Court erred in charging that it, was not necessary to prove, according to the allegations in. the indictment, that the individual, Bob, stole the goods.
At Common Law, the accessory could never be arraigned
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By the Court.
Nisbet, J.
delivering the opinion.
[1.] We have two Penal Statutes in relation to the receiving [469]*469of stolen goods — the 28th Sect, of the 8th Division of the Penal Code, and the Act of 1840. The former is in the following words : “ If any person shall buy or receive any goods, money, chattels, or other effects, that shall have been stolen or feloniously taken from another, knowing the same to be stolen or feloni-ously taken, such person shall be taken and deemed an accessory after the fact, and shall receive and suffer the same punishment as would be inflicted on the person convicted of having stolen or feloniously taken the said goods, money, chattels or other effects so bought or received.” Prince, 640. The Act of 1840 is as follows : “If anyfree white person or persons, shall buy or receive any money, goods, chattels or other effects from any negro or free person of color, that has or have been stolen or feloniously taken, knowing the same to have been so stolen or feloniously taken— such person or persons so offending, shall be taken and deemed to be accessory or accessories after the fact, and being convicted thereof, shall receive and suffer the same punishment as would have been inflicted on such person or persons, had he or they been convicted of stealing or feloniously taking the same.” Hotchkiss, 734. Both these statutes declare that the offender shall be taken and deemed an accessory after the fact. That is the legal character given to the offence in both acts — and all the incidents which attach to that offence, attach to the crime in them described. And the same pleadings and proof which are required to convict, are required by each of them. The Penal Code is general in the 28th Sect. 8th Division above quoted.
It applies to any person, whether slave, citizen, or free person of color, whilst the Act of 1840 applies only to free white persons. The code embraces the receiving of stolen goods, &c. from any person whatever, whether slave, free person of color, or free white person, knowing them to be stolen by any person; whilst the Act of 1840 is confined to the receiving of stolen goods, &c. from a negro or free person of color, knowing them to be stolen. The' punishment which the code prescribes, is that which by law is due to the principal offender; and that which the Act of 1840 prescribes, is the same which the law would inflict upon the accessory, were he convicted of the fact to which he is accessory. I see no difference between the Penal Code and the Act of 1840, so far as the cases to which it extends are concerned, except in the punishment. That is to say, a free white person who [470]*470receives goods from a negro or free person of color, knowing them to be stolen, is guilty of the same offence, under the Act of 1840, that any person would be guilty of under the Penal Code.. The punishment only is different. In either case, the offence is being accessory after the fact. The Act of 1840 was no doubt passed for the purpose of altering the punishment in the cases to which it applies, and for no other purpose. And there was a very urgent necessity for such an act. For by the Penal Code, a white man convicted of being accessory after a fact committed by a negro, was liable to a severer punishment than he would be, if he were himself the principal felon; and to a punishment wholly disproportioned to the offence. For example, take the case made in this record. A white man is charged with being accessory after the fact of larceny, by privately stealing from a house, by a negro man slave, Bob. Now, the punishment prescribed for this offence, when committed by a slave, is left to the discretion of the Court before which he is tried, limited only, so as not to extend to life or limb. ’Prince, 792. The same offence when committed by a free white person, is punished by confinement in the Penitentiary, for a term not less than two, nor more than five years. Prince, 630. So, if the accessory after the fact in this case is finally convicted, the Penal Code would have pun ished him at the discretion of the Court, limited alone so as to protect life and limb. Burglary, when committed by a slave, is a capital offence. A citizen, convicted of being accessory after the fact of Burglary, committed by a slave, would, by the Penal Code, be hung. Whereas, if convicted of burglary himself, he would be punished only by imprisonment in the penitentiary for a term varying from three to seven years. Prince, 628. The chief object of the Act of 1840, I repeat, was to correct this statutory inconsistency and absurdity. We are to consider the 28th Sect. 8th'Division of the Penal Code, and as that act, in pari materia. 'The extent to which it modifies the Code is as stated, and no more. This indictment is for receiving stolen goods from a slave named Bob, knowing them to be stolen. The offence charged, is that made by the Act of 1840. And that is the offence of being ■accessory after the fact of larceny committed by a slave. It is argued for the State, that the Act of 1840 creates a new and original offence, and therefore the pleading and proof may be adapted to the offence as described in the Statute. This was also the [471]*471view of it taken by the presiding Judge. In other words, says the counsel, the offence is not that of being accessory after the fact; it is not a derivative, but an original offence, and therefore it is not necessary that the State should prove what, at Common Law, was necessary to convict, and all that was then necessary to conviction. This reasoning became necessary, to maintain the decision of the Court below. That was, that the offence is complete without regard to the person who committed the larceny. That is, it is complete, if the goods were received from any person whatever, knowing them to be stolen or feloniously taken.. A consequence of this position was a farther position, that in this case, although the indictment charges that a certain individual slave, Bob, did steal the goods, and that the defendant' received them from him, knowing that they were stolen ; yet it was not necessary for the State to prove that Bob did, in fact, steal them. In any view of this case, we believe the latter position of the Court is erroneous. We think, as already stated, that the effect of the Act off 1840 is not to repeal or alter the Penal Code, except so far as the punishment is concerned in the cases named. That it does-not alter the character of the offence — that remaining as it was. And that the offence defined in the Code is that distinctive one, known to the law, as consisting in being accessory after the fact in the receipt of stolen goods. But suppose the Code had been silent as to this offence, or was in terms repealed by the Act o£ 1840, the new offence created by that act would be in that event, still the same. The defendant would still have to be indicted as-an accessory, and the same proof would be necessary to conviction.. The Court below held, and very properly, that the State, under-this indictment, must prove that the defendant received the goods:from the slave, Bob, and that at the time he received them, he knew them to be stolen from the owner. All this the Common Law and the Statute require. The Court erred in charging that it, was not necessary to prove, according to the allegations in. the indictment, that the individual, Bob, stole the goods.
At Common Law, the accessory could never be arraigned before the actual attainder of the principal, and the consequence-was, that if that was prevented by his death — his standing mute —challenging peremptorily above the number of jurors allowed by law — by a pardon — or by being admitted to the benefit oF clergy, the accessory went free. This evil was remedied by Stat[472]*472ute 1 Ann Sess. 2 Ch. 9 S. 1, which enacted that if for these, or any other cause, the principal was delivered between conviction and attainder, the accessory might still be arraigned, tried and punished. 1 Chitty's Crim. Laws, 420. 2 Inst. 183, 4. Cro. Eliz. 541. 2 Hale, 222. Fost. 362. Hawk. b. 2, c.29, s. 41. 4 Black. C. 323.
Formerly, in England, the accessory could never be tried, without his own consent, before the conviction or outlawry of the principal, unless they were tried together. This was the Common Law rule. Fost. 369. 1 Hale, 523. Hawk. b. 2, c. 29, s. 36. 4 Bla. G. 40. 1 Ghitty’s Grim. Law, 266,7. And when tried together, both were arraigned together — plead together— and if they both relied upon the general issue, might be tiled by the same jury. And in such a case, the jury were charged to inquire, first of the guilt of the principal, and if they thought him innocent, the accessory was, of course to be acquitted. 2 Inst. 184. 1 Hale, 624. 2 Hale, 223. 4 Hawk. b. 2, c. 29, s, 47. 9 Coke R. 119. 3 Hawk. b. 2, c. 29, s. 47. Fost. 350. 1 Ghitty, 421. Upon the trial, it was also competent for the accessory to dispute the guilt of the principal, although he had been previously convicted, and thus establish his own innocence. Fost. 365, 121. 1 Leach, 288. Hawk. b. 2, c. 29, s. 49, n. 4. 4 Black. C. 324. 1 Ghitty, 422. Thus it is manifest at Common Law, to convict an accessory, it was necessary to show the guilt of the principal. And so indispensable was the guilt of the principal to the offence of the ac-cessory, that the latter could go behind a judgment of conviction against the former, to show that he was not guilty. The guilt of an accessory is derivative. The maxim applicable to these cases is “ ubifactum nullum, ibi fortianulla.” If the principal has been so acquitted, as that he might successfully plead autrefois acquit, the accessory was not even liable to an arraignment. 4 Co. Rep-43. Hawk. b. 2, c. 29, s. 36. 1 Ghitty, 420. How far the position last stated would make the acquittal of Bob before the magistrates a good defence for the defendant in this case, may be a matter of some doubt, because of thé peculiar character of that trial under our Statutes. He was arrested, tried and discharged. As evidence, we have no doubt it goes a great way to show his innocence, and the consequent innocence of the defendant. We hold, also, that upon this trial, the State might, notwithstanding that discharge, show his guilt. As there was a little, and we must [473]*473say Very little evidence of Bob’s guilt, the whole was properly-left to the jury, and their verdict, upon that ground, properly left undisturbed. But to return from this digression. Such were the' rules of the Common Law, as to this offence. They were modified in England by statutes. By Statute 1 Ann, 2, c. 9, s. 2, and by Statute 22 Geo. III. c. 58, s. 1, accessories receiving stolen goods, knowing them to be stolen, were made liable to an indictment for a misdemeanor, and punished, although the principal felon be not Convicted. And by still inoré recent statutes, they are made liable to prosecution and punishment, although the principal has neither been convicted nor prosecuted to outlawry. 1 Chitty Grim, haw, 267. By our own Statute they may be prosecuted for a misdemeanor, when the principal thief cannot be taken so' as to be prosecuted and convicted. Prince, 640.
From all which, I infer that in Georgia, where one is indicted as an accessory after the fact, it is necessary for the State to prove the guilt of the principal, if any one individual is charged, as in this Case, to be the principal. Although it is not necessary to show' his conviction, in cases where his outlawry is averred and proven; yet in -all cases it is necessary to' prove to the satisfaction of a Jury, that he is guilty of having stolen thé gó'ods. This is an indictment which charges the' defendant with the offence of being an accessory, after a larceny committed by a, slave, specially natnech The Court held that it was not necessary to prove that the larceny was committed by that individual; and in that we think there was error. Now, we do not deny but that ah indictment which charges-the principal to be unknown, or to be some evil-disposed person,' would be good, and that in such a case, proof of the receipt of the' goods, knowledge by the defendant that they were stolen, and proof of the theft by any person, would be sufficient. In England, where the principal is known, the averment ought to be according to the truth of the case — that is the general rule; a case where he is unknown, &c. is the exception. 3 Camp. 264. 3' Chit. Grim. hawj 958, ’9. The case before us is not within the exception. The pleading ought to show it to be within the exception. This indictment shows the contrary, for it names the principal felon.
It is a familiar rule of the Láw of pleading, that a party is held to prove all material allegations, and even immaterial ones, unless-they be wholly impertinent and irrelevant to the cause. In this case the offence charged is not, that the defendant is accessory after a fact committed by a slave or free person of color unknown } [474]*474but that lie is accessory after a fact committed by a negro man slave, named Bob, tlie property of one Prichard. That is the of-fence to which the defendant is called to answer, and none other, and if convicted at all, that is the only offence of which he can be convicted. A judgment of acquittal in this case, would protect him, only from a second trial for that offence, as set forth and described in the indictment. Without proof that the principal is guilty of the fact, the State does not make out the case which she has made, and without it, in the Judgment of the law, as we understand it, the defendant is guiltless of any offence whatever. 1 Chit. Crim, hato, 453. 2 Leach, 594. Doug. 665 — 7. 1 Chit. Plea. 307. 2 East, 452, 502. 4 Ibid, 400. 2 Bla. R. 1104. 7 Johns. li. 321. 3 Day’s R. 283. 2 Russ, on Crimes, 788. Ib. 248.
So let the Judgment of the Court below be reversed.