
    The State against Arden.
    THE prisoner was indicted, together with one Campbell, for the murder of a Spanish seaman by the name of Jewels ; and, at her particular request, was tried separately. Campbell was convicted of manslaughter, but the prisoner of murder. On the adjournment day of the sessions, when she was brought up for sentence,
    
      Trezcvanl moved in arrest of judgment, on the ground that if one be indicted for murder, and another as accessary, and the principal is convicted of manslaughter, that the ac-cessary shall be discharged. He cited to this point 1 Tríale^ 437. where it is said, jf A. be indicted for murder, and B» accessary, and A. be found guilty of manslaughter, B. shall be discharged. Also, 1 Hale, 116. to the same point:— if A. be indicted of murder, and B. as accessary, and the jury find A. guilty of manslaughter, there shall be no inquiry of B. afterwards. Likewise, 2 Hawk. 447. where it is said that if a man is found guilty of manslaughter, those accused as accessaries, before or after the fact?'shall be discharged. So again in 1 Hale, 137. if a man be indicted for manslaughter, with accessaries, the indictment as to ac-cessaries is void. Also, Cro. 546. 1. From these authorities, he urged, that as Campbell, who was a principal, had been convicted of manslaughter, the prisoner ought to be discharged.
    
      The Attorney-General, in reply.
    There are two counts in the indictment, in both of which Campbell and the prisoner are charged as principals, and not as principal and accessary alternately, as her counsel has supposed. In the first, Campbell is stated tó have murdered the deceased with a club, or stick, by severe beating, -and that the prisoner was present, aiding and assisting. In the second, the prisoner is charged with murdering the deceased, by stabbing in the throat and breast with a pair of scissors, and that Campbell was present, aiding and assisting her. So that they are both charged as principals in both counts. It is true, the old law admits of principals and accessories, at the fact; but by modern improvements of our criminal juris» prudence, and as it now stands, there may be accessaries before and after the fact, but none at the fact; they are all principals. 2 Hawk. 312. Foster, 347. Even under the first count, the prisoner might have been convicted of murder as an abetor, and Campbell onlv of manslaughter, according to the malignity of the offenders, and the deadly weapon made use of by each respectively. For it is laid down in 2 Hawk. 312. that if there be matice in the abetor, and none in the person who struck the party, it will be murder in the abettor, and manslaughter only as to the other. It is the malicious intention which constitutes this offence, and makes the essential difference between murder and manslaughter. For although two be aiding and assisting in killing another, yet, if one engage on a sudden quarrel or heat of passion, without any previous malice or ill will, and the other, while the parties are engaged seeks that opportunity of taking revenge, or of gratifting a malicious disposition, and gives the deadly blow, it is murder in the latter, although only manslaughter in the former. But in the second count she is charged as the principal in the first degree, and not as an abettor, and the jury were to judge whether she was a principal or an abettoi, according' to the nature of the evidence offered them. In either case, if there was malice, it constitutes the offence of murder. The jury have found it so ; there is no averring to the contrary ; and the court is bound by the finding of the jury.
    Pregnancy Si^by^wol ^„y¡ct£0*fter before sen-is passed ujm shall be tried matrons!7 °f
   The Court

(present Burke, Grimke, Waties, and Bay, Justices)

unanimous that the motion in arrest of judgment should be overruled, as the prisoner had been indicted as a principal in both counts of the indictment, and the jury were to judge of the malicious intent, of the degrees of guilt in the parties, and to apply the evidence to the different counts as the)' thought proper.

The prisoner was then asked if she had any thing to offer why sentence of death should not be pronounced against her ? Upon which she pleaded pregnancy. Whereupon she was remanded to gaol; and the sheriff was directed to summon a jury of matrons, de ventre impidiendo. The court then adiourned from day to day, till the inquisition was found. It was then returned by the sheriff into court, under the hands and seals of twelve matrons, in which they certified that they had examined the prisoner, and found that she was not pregnant. The prisoner was then brought up, and received sentence of death, and was afterwards executed pursuant to the sentence.  