Where two persons are indicted, one as principal and the other as aider or abettor, the latter may be convicted as principal, where the evidence shows he was the per petrator of the deed ; Benge v. Com., 92 Ky. 1, 17 S. W. 146.
At common law, an accessory cannot be tried, without his consent, before the convic tion of the principal ; (unless they are tried together; Fost. Cr. Cas. 360 ; Cora. v. Wood ward, Thatch. Cr. Cas. (Mass.) 63 ; Baron v. People, 1 Park. Cr. Cas. (N. Y.) 246 ; State v. Groff, 5 N. C. 270 ; Whitehead v. State, 4 Humph. (Tenn.) 278; at least not without some special reason, recognized by law, why the principal has not been tried; Smith v. State, 46 Ga. 298). This is altered by stat ute in most of the states. This rule is said to have been the outcome of strict medieval logic. The trial of the accused being by sacred or supernatural processes, it would be a shame to the law if the principal were acquitted after the accessory had been hang ed. 2 Poll. & Maitl. 508.
But an accessory to a felony committed by several, some of whom have been con victed, may be tried as accessory to a felony committed by these last; but if he be in dicted and tried as accessory to a felony committed by them all, and some of them have not been proceeded against, it is error; Stoops v. Cora., 7 S. & R. (Pa.) 491, 10 Am.
Dec. 482; Com. v. Knapp, 10 Pick. (Mass.) 484, 20 Am. Dec. 534. If the principal is dead, the accessory cannot, by the common law, be tided at all. Com. v. Phillips, 16 Mass. 423; State v. McDaniel, 41 Tex. 229.
If the principal has been tried and acquit ted, a person charged as accessory should be discharged on motion, but if the former is not found the latter may by statute be tried and convicted; United States v. Crane, 4 Mc Lean, 317, Fed. Cas. No. 14,888. The trial of an accessory may proceed where the prin cipal enters a plea of guilty, and his with drawal of it during the trial of the former does not affect the validity of a conviction.
One indicted as an alder and abettor of the crime of murder may be convicted and sentenced for that offence, notwithstanding the principal offender had been tried pre viously, and convicted and sentenced for manslaughter only ; Goins v. State, 46 Ohio St. 457, 21 N. E. 476.
In offenses less than felony all are prin cipals, and on information charging one as principal he may be convicted of aiding and abetting ; [1907] 1 K. B. 40.
See ABETTOR; AIDING AND ABETTING; PRINCIPAL.