By the Court, Knox, J.
Although the three defendants, Wixson, Lee and Lockwood, were jointly indicted, the first two were tried separately from Lockwood.
On their trial Lockwood was admitted, under objection, as a witness for the People. This is alleged as error.
In the case of The People v. Michael Donnelly, impl. with Beals and others (2 Park. Cr. R., 182), Clerks, J., says: “ It is well settled, and I believe never questioned in this State or England, that when several persons are jointly indicted, one is [126]*126not a competent witness either for or against the others, without first being acquitted Or convicted, and it makes no difference whether the defendants plead jointly or separately ; an accomplice, however,, separately indicted, is competent. Whether there is any good reason for this distinction, it is unnecessary to inquire on the present occasion.”
This was a general term decision, and we should feel bound to follow it and reverse the judgment in this case, for it determines the very point raised by the counsel for Wixson, were we not convinced that the decision is erroneous beyond all question.
An examination of the cases will show that the correct rule as to the admissibility of accomplices is this: When the persons indicted are all put on trial together, neither can be a witness for or against the others; but when they are tried separately, though jointly indicted, the People may call those not on trial, though not convicted or acquitted or otherwise discharged, with the permission of the court; but they cannot be called as witnesses for each other, though separately tried, while the indictment is pending against them. If acquitted they may be examined, and even if convicted, unless it be for a crime which disqualifies, and then sentence must have followed the conviction. When all are tried together, if the People desire to swear an accomplice, he must in some way be first discharged from the record.
From this it will be seen that there is no such “ distinction” as is mentioned by Justice Clerks, because an accomplice, separately tried, is in the same condition with reference to his competency as an accomplice separately indicted. Certainly, there can be no “good reason ” for any such “ distinction.” (2 Russ, on Cr., 956, 957; 1 Greenl. on Ev., 506, § 363; p. 524, § 379, and cases in notes; Barb. Cr. L., 2d ed., 425.) The case of Rex v. Rowland and others, 1 Ryan & Moody, 401; 21 Eng. Com. Law, 471; cited by Justice Mitchell, in his opinion in the case cited from Parker, was where all the defendants were on ■ trial, and hence the necessity, on the part of the prosecution, that the two defendants who [127]*127were to be used as witnesses, should be discharged. The indictment was for a conspiracy. The case referred to by the learned justice, in “ Cases Temp.” Hardw., 163, was when the parties were not separately tried, I conclude; I have not the book at hand; but the case is referred to in Grreenleaf, in a connection which authorizes me to say that it is not an authority against the rule which I suppose to be the true one.
The same learned justice says: “ Our courts have decided that one defendant in an indictment cannot be a witness for another; it cannot be on the ground of interest, for there is no interest either way; and if it be because he is a party, it applies whether called for the people or his co-defendants.”
Undoubtedly, one defendant cannot be a witness for another in the same indictment, unless he have been' acquitted, or convicted of an offense which would not disqualify, or in some way discharged from the record ; but the reason why the evidence of accomplices has been admitted for the government, rests upon reasons of public policy, or the necessity of the case. (People v. Whipple, 9 Cow. R., 707; People v. Costello, 1 Denio R., 83 ; See cases above cited.)
Lockwood was, therefore, properly admitted as a witness. Eo general application was necessary, although it rests in the discretion of the court, whether an accomplice, already charged with the crime by indictment, shall be admitted.
In this case, the district attorney called Lockwood as a witness. The counsel for the defendants objected “ that an accomplice could not be sworn, except by special leave of the court.” The court overruled the objection, and allowed the witness to be sworn.
In my judgment, this was tantamount to a formal application for leave to swear the witness, and a determination by the court to accede to the request.
If it was proper to allow Lockwood to be sworn, of course it was no error to admit his wife. She would not have been competent, had her husband been incompetent as an accomplice.
The charge of the judge, that the jury might convict upon the uncorroborated testimony of an accomplice, was clearly right, [128]*128and in accordance with all the cases, which are very numerous. (The People v. Costello, 1 Denio R., 83; The People v. Haskins, 16 N. Y. P., 344; The People v. Dyle, 21 N. Y. R., 578.)
The true rule is briefly but comprehensively stated, in the case from Denio P., just cited, by Beardsley, Justice.
This indictment contains three counts : one for burglary, one for larceny, and one for receiving stolen goods, knowing them to be stolen. The defendant was convicted of petit larceny, as appears by the bill of exceptions, and sentenced to the State prison for five years. This judgment—five years in the State prison, for petit larceny, which is punishable only by fine, or imprisonment in the county jail, or both — is manifestly improper. As matter of fact, this could hardly have happened; and it is said by the district attorney that the conviction was for grand larceny, and that, by mistake, the clerk entered in the minutes a conviction for petit larceny.
If the conviction was really for petit larceny, the judgment must of course be reversed, for the reason suggested; and if for grand larceny, the judgment must be set aside for another reason, to wit: an error in the charge, to which I now call attention.
It seems, by the testimony of Lockwood, upon which, mainly, the conviction of Wixson was had, that he and Lee, at the instigation of Wixson, committed the burglary and larceny charged in the first count of the indictment; and that the property then stolen was taken to the house of Wixson, and there concealed, with his assistance and advice. It does not appear that Wixson was present when the burglary, &e., were committed, nor was he so near that it could be said that he was constructively present. Indeed, the evidence is to the effect that Wixson, although he instigated the burglary, &c., and knew when it was to be committed, was himself, at the time, at home and abed. And yet he was convicted of larceny; and. the jury were right in so doing, under the charge of the court, which was: “ That although Wixson had no part in breaking the store and taking the goods, yet if he knew it was tó be done by Lockwood and Lee, or either of [129]
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By the Court, Knox, J.
Although the three defendants, Wixson, Lee and Lockwood, were jointly indicted, the first two were tried separately from Lockwood.
On their trial Lockwood was admitted, under objection, as a witness for the People. This is alleged as error.
In the case of The People v. Michael Donnelly, impl. with Beals and others (2 Park. Cr. R., 182), Clerks, J., says: “ It is well settled, and I believe never questioned in this State or England, that when several persons are jointly indicted, one is [126]*126not a competent witness either for or against the others, without first being acquitted Or convicted, and it makes no difference whether the defendants plead jointly or separately ; an accomplice, however,, separately indicted, is competent. Whether there is any good reason for this distinction, it is unnecessary to inquire on the present occasion.”
This was a general term decision, and we should feel bound to follow it and reverse the judgment in this case, for it determines the very point raised by the counsel for Wixson, were we not convinced that the decision is erroneous beyond all question.
An examination of the cases will show that the correct rule as to the admissibility of accomplices is this: When the persons indicted are all put on trial together, neither can be a witness for or against the others; but when they are tried separately, though jointly indicted, the People may call those not on trial, though not convicted or acquitted or otherwise discharged, with the permission of the court; but they cannot be called as witnesses for each other, though separately tried, while the indictment is pending against them. If acquitted they may be examined, and even if convicted, unless it be for a crime which disqualifies, and then sentence must have followed the conviction. When all are tried together, if the People desire to swear an accomplice, he must in some way be first discharged from the record.
From this it will be seen that there is no such “ distinction” as is mentioned by Justice Clerks, because an accomplice, separately tried, is in the same condition with reference to his competency as an accomplice separately indicted. Certainly, there can be no “good reason ” for any such “ distinction.” (2 Russ, on Cr., 956, 957; 1 Greenl. on Ev., 506, § 363; p. 524, § 379, and cases in notes; Barb. Cr. L., 2d ed., 425.) The case of Rex v. Rowland and others, 1 Ryan & Moody, 401; 21 Eng. Com. Law, 471; cited by Justice Mitchell, in his opinion in the case cited from Parker, was where all the defendants were on ■ trial, and hence the necessity, on the part of the prosecution, that the two defendants who [127]*127were to be used as witnesses, should be discharged. The indictment was for a conspiracy. The case referred to by the learned justice, in “ Cases Temp.” Hardw., 163, was when the parties were not separately tried, I conclude; I have not the book at hand; but the case is referred to in Grreenleaf, in a connection which authorizes me to say that it is not an authority against the rule which I suppose to be the true one.
The same learned justice says: “ Our courts have decided that one defendant in an indictment cannot be a witness for another; it cannot be on the ground of interest, for there is no interest either way; and if it be because he is a party, it applies whether called for the people or his co-defendants.”
Undoubtedly, one defendant cannot be a witness for another in the same indictment, unless he have been' acquitted, or convicted of an offense which would not disqualify, or in some way discharged from the record ; but the reason why the evidence of accomplices has been admitted for the government, rests upon reasons of public policy, or the necessity of the case. (People v. Whipple, 9 Cow. R., 707; People v. Costello, 1 Denio R., 83 ; See cases above cited.)
Lockwood was, therefore, properly admitted as a witness. Eo general application was necessary, although it rests in the discretion of the court, whether an accomplice, already charged with the crime by indictment, shall be admitted.
In this case, the district attorney called Lockwood as a witness. The counsel for the defendants objected “ that an accomplice could not be sworn, except by special leave of the court.” The court overruled the objection, and allowed the witness to be sworn.
In my judgment, this was tantamount to a formal application for leave to swear the witness, and a determination by the court to accede to the request.
If it was proper to allow Lockwood to be sworn, of course it was no error to admit his wife. She would not have been competent, had her husband been incompetent as an accomplice.
The charge of the judge, that the jury might convict upon the uncorroborated testimony of an accomplice, was clearly right, [128]*128and in accordance with all the cases, which are very numerous. (The People v. Costello, 1 Denio R., 83; The People v. Haskins, 16 N. Y. P., 344; The People v. Dyle, 21 N. Y. R., 578.)
The true rule is briefly but comprehensively stated, in the case from Denio P., just cited, by Beardsley, Justice.
This indictment contains three counts : one for burglary, one for larceny, and one for receiving stolen goods, knowing them to be stolen. The defendant was convicted of petit larceny, as appears by the bill of exceptions, and sentenced to the State prison for five years. This judgment—five years in the State prison, for petit larceny, which is punishable only by fine, or imprisonment in the county jail, or both — is manifestly improper. As matter of fact, this could hardly have happened; and it is said by the district attorney that the conviction was for grand larceny, and that, by mistake, the clerk entered in the minutes a conviction for petit larceny.
If the conviction was really for petit larceny, the judgment must of course be reversed, for the reason suggested; and if for grand larceny, the judgment must be set aside for another reason, to wit: an error in the charge, to which I now call attention.
It seems, by the testimony of Lockwood, upon which, mainly, the conviction of Wixson was had, that he and Lee, at the instigation of Wixson, committed the burglary and larceny charged in the first count of the indictment; and that the property then stolen was taken to the house of Wixson, and there concealed, with his assistance and advice. It does not appear that Wixson was present when the burglary, &e., were committed, nor was he so near that it could be said that he was constructively present. Indeed, the evidence is to the effect that Wixson, although he instigated the burglary, &c., and knew when it was to be committed, was himself, at the time, at home and abed. And yet he was convicted of larceny; and. the jury were right in so doing, under the charge of the court, which was: “ That although Wixson had no part in breaking the store and taking the goods, yet if he knew it was tó be done by Lockwood and Lee, or either of [129]*129them, and the goods were immediately taken to his house, and he aided in furnishing a box to secrete the goods, and directing where they should be placed to avoid discovery, and prevent the owner from finding them, so as to convert them to his own use, then he was guilty of larceny.”
This charge was clearly erroneous. Under it, Wixson might have been convicted, though he had been a thousand miles from the place where the felony was committed.
That a felony may be committed through the instrumentality of others, though the principal be not present, is well settled, upon the principle, “ qui facit per alium, facet per se,” which is as applicable to criminal as civil cases. But this is where the “ other,” or agent, is an innocent party. When the.person employed is guilty, he is the principal, and his employer but an accessory. (The People v. Adams, 3 Denio R., 308; 1 Russ, on Cr., 27.) I speak of crimes which are felonies. In misdemeanors there are no accessories, but all the guilty actors, whether present or absent, are principals. ■ (4 Denio R., 130.)
It is not required that a party should be proved to have been actually, personally present at the commission of a felony, to warrant his conviction as a principal. It is enough that he be constructively present. 'By this is meant that he must be of the party, and do some act in execution of the common design, or be near enough to the scene of operations, to assist in carrying it out, or to aid those who are immediately engaged in it to escape, should necessity require.
As before observed, the jury, under the charge given, were warranted in convicting Wixson as principal, though they had believed, upon the evidence, that he was neither actually nor constructively present, but miles away from the place where the burglary and larceny were committed.
Why the jury convicted Wixson and acquitted lee, who was tried with him, I cannot understand.
The testimony against him was certainly as strong as against Wixson.
The fact that he had previously borne a good character did [130]*130not, as against the positive testimony of Lockwood as to his complicity in the burglary and larceny, tend to show that he was innocent. If Lockwood was to be believed, there could be no doubt of Lee’s guilt, and his previous good character would then avail him nothing. . If the jury put so little reliance on Lockwood’s testimony, that proof of Lee’s previous good character induced them to reject it wholly as to Lee, how could they convict Wixson on the same testimony ?
In my opinion, upon the evidence, Wixson could have been convicted only as an accessory to the felony, or as a receiver of stolen goods.
For the error committed in the charge to the jury, the conviction and judgment must be reversed.