
    State of Louisiana v. G. Maxent and U. Guesnon.
    ,<5ne of the counts of indictment charged that the prisoner, “under the color and pretence of fighting a duel, with the deceased, but in violation of the agreement and rules ” assaulted and murdered him. Held: That a homicide committed under such circumstances is indictable as murder,
    defendants accepted the jurors who passed upon their case, without the objection that a proper lis i hadnot been served upon them. Held: that it was too late for them to raise such objections after verdict.
    En the refusal of the Judge to allow the prisoner’s counsel to state new points and propositions in the hearing of the jury, when they came in and asked for further instructions from the court, there is not such error as would authorize a reversal of the judgment. In such a matter, much must be entrusted to the discretion of the District Judge.
    from the Eirst District Court of New Orleans, Bo^erUm-, J.
    
      Morse, Attorney General, for the State.
    
      Dufov/r & Boselius, for defendants and appellants.
   Spojtord, J.

It seems unnecessary to discuss the question, whether the of-fence of killing a man in a duel, is reduced below the grade of murder by the Act of 20th March, 1818, Sec. 16, which declares that, “if any person shall voluntarily engage in a duel with rapier or small sword, back sword, pistol or other dangerous weapon, to the hazard of life, and death should ensue, the survivor shall, upon conviction, suffer death ; and all and every person aiding and abetting as second, agent, and abettor, who shall be duly convicted, shall be punished, as accessories before the fact in murder.”

For, one of the counts of the indictment charges that the prisoners “ under the color and pretence of fighting a duel, with the deceased, hut in violation of the agreement and rules ” assaulted and murdered him. There can be no question in the mind of any casuist, that a homicide committed under such circumstances is indictable as murder. There being a count under which the verdict is good even if there 'was a pretended duel, we are not called upon to say what the proper form of indictment would have been, had death ensued from a duel fairly fought.

The first three points in the brief filed on behalf of Maxent, are thus irrelevant.

We find no evidence in the record that the jury were intimidated into giving a hasty verdict.

We are of opinion that the defendants having accepted the jurors who passed upon their case without any objection, on the ground that a proper list had not been served upon them, it was too late for them to raise such objections after the verdict.

In the refusal of the Judge to allow the prisoner’s counsel to state new points and propositions in the hearing of the jury, when they came in and asked fresh instructions from the court, we do not find such error as would authorize a reversal of thejudgment. In such a matter, much must be entrusted to the discretion of the District Judge.

The defendants were both found guilty of manslaughter. Ottesnon moved that the judgment against himself be arrested, upon the special ground that he was indicted as an accessory before the fact to Maxenl's offence, and as the latter had only been convicted of manslaughter, he could not be an accessory before the fact, the principal’s crime not admitting of accessories before. 1 East. Pleas Crown, p. 353.

But an inspection of the indictment, shows, that Quemón was charged with being present, aiding and abetting Maxent, to commit the alleged felony. He was, therefore, indicted as a principal, and not as an accessory before the fact. An accessory hefore the fact is one who being absent at the time of the commission of the crime, doth yet procure, counsel or command its commission. 1 Hale’s Pleas Crown, p. 616. See also the State v. White, 7 An. 531.

The objection urged by the same party, in his motion.in arrest, that he should have been indicted as second in a duel, under the Statute of 20th March, 1818, Sec. 16, is disposed of, already. Non aonstat that the indictment was not properly framed, although there was a duel, when it is alleged that under pre-tence of a duel, a murder was committed by violating the agreement and rules.

The judgment*against both prisoners is, therefore, affirmed with costs.  