Simmons vs. The State of Georgia. view 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 of 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 But suppose the Code had been silent as to this offence, or was in terms repealed by the Act of 1840, the new offence created by that act would be in that event still the same.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 Simmons vs. The State of Georgia. ute 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. C. 40. 1 Chitty's Crim. Law, 266, 7. And when tried together, both were arraigned together-plead togetherand if they both relied upon the general issue, might be tried 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 Chitty, 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 Chitty, 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 "ubi factum nullum ibi fortia nulla." 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• Hawk. b. 2, c. 29, s. 36. 1 Chitty, 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 the 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 43. Simmons vs. The State of Georgia. say very litle evidence of Dob's guilt, the w'o'e was properly left to the jury, and their verdict, upon that ground, properly left undisturbed. Cut to return from this digression. Such were the rules of the Common Law, as to bis offence. They were modified in England by statutes. By Save 1 Ann, 2, c. 9, s. 2, and by Statute 22 Geo. III. c. 58, s. 1, accessories receiving stolen goods, koowing them to be stolen, were made liable to an indictment for a misdemeanor, and panished, a'hough the principal felon be not convicted. And by still more recent statutes, they are made liable to prosecution and punishment, albough the principal has neither been convicted nor prosecuted to outlawry. 1 Chitty Crim. Law, 267. By our owa Stafute 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 go't 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 gey of beveg stolen the goods. This is an indictment which che ges the defendant with the offence of being an accessory, after a larceny commitied by a slave, specialty named. The Court held that it was not necessary to prove that the larceny was committed by that individual; aud in that we think there was error. Now, we do not deay but that an 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, world 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. Crim. Law, 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 Law 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; Persons vs. Hight. but that he is accessory after a fact committed by a negro man slave, named Bob, the property of one Prichard. That is the offence 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. Law, 453. 2 Leach, 594. Doug. 665-7. 1 Chit. Plea. 307. 2 East, 452, 502. 4 Ibid, 400. 2 Bla. R. 1104. 7 Johns. R. 321. 3 Day's R. 283. 2 Russ. on Crimes, 7SS. Ib. 248. So let the Judgment of the Court below be reversed. No. 51. THOMAS F. PERSONS, plaintiff in error, vs. HENRY HIGHT, defendant. Per LUMPKIN, J. [1] The Act of 1842 to compel parties plaiatifs in the several Courts of this State, when the plea of usury is filed, to discover on oath the truth or false good of the facts stated in the plea, applies sa well to the Executors ard Administrators as the original parties. [2.] If the plaintiff fites bis written affidavit in terms of the Statute, but fails to discover the usury charged in the plea, from inability to do so; this does not authorize the affidavit of the defendant to be read on the trial. Per NISBET, J. [1.] The Act of 1842, which authorises a defendant to call upon a plaintiff in action upon a usurious contract, to discover upon oath the truth of the facts as to the usury set forth in his plea, &c., applies to parties who sue and are sued as representatives, as well as to the original pa ties to the contract. [2.] Held, that under the Act of 1842, the oath of a plaintiff, which states, "that the facts set forth in the defendant's plea, as to the usury, are not true, and that there was, and is no usury in the contract upon which the suit is brought," is a compliance with the requirements of that Act; and that upon the filing of such an affidavit, the affidavit of the defendant in support of his plea, cannot be admitted. Persons vs. Hight. [3,] Held that the insufficiency of the plaintiff's affidavit to prove the facts stated in the defendant's plea as to the usury; is not the criterion upon which the defendant's affidavit is to be admitted-and that the only contingency upon which it can be admitted is the failure or refusal of the plaintiff to discover the truth of the facts set forth a his plea as to the usury, and whether or not there is usury in the contract sued on. Per WARNER, J. Dissentiente : [1.] The Act of 1842, "to compel parties, plaintifas, in the several Courts of this State, where the plea of usury is filed to discover on oath, the frath or falsehood of the facts stated in the ples,” requires just such a discovery from the plaintiff, as he would have been required to make to a bill for discovery on the Equity side of the Court. [2.] Suits brought by Administrators are within the provisions of the Statute. Assumpsit, &c. in Warren Superior Court, tried before Judge SAYRE, April Term, 1848. The following Bill of Exceptions, upon which error was assigned, will disclose the facts of this case: THOMAS F. PERSONS, Adm'r. vs. HENRY HIGHT. Assumpsit in Warren Sup. Court. Be it remembered, that this cause came on for trial at the present April term, for the year Eighteen Hundred and Forty-Eight, and issue was joined upon the pleas of the general issue and usury. Plaintiff, in support of his action, read in evidence a promissory note, in the word and figures following: $2660, 83. 8 3 One day after date, we, or either of us, promise to pay John Persons, or bearer, the sum of Twenty-Six Hundred and Sixty dollars, cts., for value received of him this the 6th of September, 1843. HENRY HIGHT, FIELDING HILL. 100 (Reverse.) January 16, 1845. Then received One Hundred and Eleven Dollars and Sixty-Four Cents on the within note. Received One Hundred Dollars on the within note. February 9, 1846. Plaintiff then closed his case. Defendant then opened his case, by reading his pleas, and offered in evidence in support of the |