
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1809.
    The State v. Jesse Fley, Jun., and Lovick Rochelle.
    A person, discharged under the habeas corpus act, from prison, being committed on a charge of murder, was held not to be protected thereby from a subsequent prosecution on the same charge, as in case of a former acquittal.
    In an indictment for murder, if several be charged as principals, one as principal perpetrator, and the others as present, aiding and abetting, it is not material which of them be charged as principal in the first degree, as having given the mortal blow; for the mortal injury done by any one of those present, is, in legal consideration, the injury of each and every on'e of them.
    If the actual perpetrator of a murder should escape by flight, or die, those present, abetting the commission of the crime, may be indicted as principals ; and though the indictment should state that the mortal injury was committed by him who is absent, or no more ; yet if it be substantially alleged that those who are indicted were present at the perpetration of the crime, and did kill and murder the deceased, by the mortal injury so done by the actual perpetrator, it shall be sufficient.
    The distinction, between principals in the first and second degree, is a distinction without a difference; and therefore it need not be made in indictments.
    The words, “ then and there,” in the concluding part of a charge against one present abetting a murder, may be rejected as surplusage, or referred to the act done which caused death, and not to the time and place of the death.
    Motion in arrest of judgment, and for a new trial. The defend, ants were found guilty of murder, upon an indictment tried before Smith, J., in Kershaw district. The indictment contained several counts; but the verdict of the petit jury was founded on the first count only, which charged that Isaiah Jenkins, and Jesse Fley, Jr., on the 13th of April, 1805, with malice aforethought, made an assault on David Minton. That Jenkins, with a gun, shot Minton, and mortally wounded him, so that he died ori the 14th of April aforesaid ; that Fley was then and there present, maliciously aiding the felony, and murder, aforesaid, to commit. And so the ju. rors aforesaid say, that the said Jesse Fley did feloniously kill, and murder, the said David Minton, against the peace of the said Stale ; and that Lovick Rochelle, the felony and murder aforesaid, by the said Jesse Fley, committed in manner aforesaid, the said Jesre Fley, the murder aforesaid to be so committed, maliciously did incite, and procure, against the peace and dignity of the State aforesaid.
    The motion for a new trial was attempted to be maintained on the following grounds. 1. That the verdict was unsupported by evidence. 2. Misdirection of the presiding judge, on points of law. 8. That the court refused to admit evidence to prove the bad character of one of the witnesses for the State, except as to the veracity of the witness; but not as to the moral character of the witness, not immediately affecting her veracity, or character for speaking the truth.
    The following grounds were taken in arrest of judgment. 1. That the verdict was reduced to writing after the jury returned into court. 2. That the verdict finds the •“prisoners guilty,” which is uncertain. 3. That the verdict was altered, after the return of the jury into court, by the direction of the_court, by making the same read, “ we find the prisoners guilty, on the first count,” instead of “ we find the prisoners guilty, on the first account.” 4. That the defendants ought not to have been found guilty upon the first count, from the manner in which the crime is therein charged. 5. That the defendant, Rochelle, having been discharged from a former commitment for the same crime, for delay of prosecution, under the habeas corpeasy act, could not be legally indicted, and tried, on the same charge.
    Smith, J., reported the evidence, and circumstances, attending the trial, very fully, and particulaly, from which it appeared, that the indictment was supported by the evidence, though that evidence was circumstantial, and presumptive only. A great variety of corroborating circumstances, detailed by a great number of witnesses, tending to criminate the prisoner, taken all together, and after every reasonable allowance, made out a very strong case against the prisoners. The exculpatory evidence was suspicious, and deserving of very little attention.
    The arguments of counsel were very elaborate and ingenious, and especially, in commenting on the facts given in evidence; but as'the court were clearly of opinion that the verdict could not be set aside, as a verdict not authorized by the evidence, it would be useless to notice such parts of the arguments as relate to the mere facts of the case.
    The arguments for a new trial, were chiefly conversant with the facts given in evidence, to show that these facts did not authorize the verdict of guilty. The court did not hesitate on the grounds for a new trial. The judges, although they approved of the conduct and sentiments of Judge Smith on the trial, appeared to differ in opinion among themselves, in some respects, as to the precise rule in the examination of witnesses, touching the character of a witness who has given testimony, with a view to impeach his testimony. Some of the judges were decidedly of opinion, that the general character of a witness may be examined into, in every respect, to destroy or weaken his testimony; and that it is not neces. sary to restrain the examination to the direct point of veracity. It appeared in the investigation of the case, that although the judge did express his opinion to be, that the inquiry touching the character of one of the State’s witnesses, ought not to go beyond the question of veracity, or the reputation of the witness for speaking truth, yet that her character was, with the consent of the State’s counsel) fully inquired into. But the judge would not suffer the prisoner’s counsel, in their address to the jury, to animadvert upon her character as a woman of loose morals, and lewd conversation. Although all the judges did not approve of this restriction, it was not considered a sufficient ground for a new trial. The other exceptions to the opinions delivered by the presiding judge in the course of the trial, and his observations to the jury, were overruled.
    The arguments in arrest of judgment, for the prisoners.
    Witherspoon. Jenkins is not sufficiently charged as the perpetrator of the murder. Fley is charged with aiding and abetting Jenkins. If Jenkins is not sufficiently charged, Fley cannot be legally convicted. Plow. 97. 2 Hal. 173. The conclusion of the indictment is not in strict conformity with the constitution ; it does not conclude against the peace and dignity of the same State, as relates to Fley, but only as to Rochelle.
    The prisoner, Rochelle, having been discharged from his commitment, for this murder, under the habeas corpus act, after two terms, the State not being prepared to proceed in the prosecution, he could not afterwards be indicted for the same offence, or supposed crime. It is contrary- to a humane maxim of our law, which forbids jeopardizing the life of a man twice on the same charge. The indictment must state a principal in the first degree in murder, or actual perpetrator. Jenkins is charged as principal in the first degree, though imperfectly charged. Admit the charge to be suffi. cient, yet he has not been convicted ; for before he can be legally convicted he must be tried. It is against natural justice, to con. derau a man before he has been heard in his defence. If the priu-cipal, in the first degree, be not convicted, the principal, in the second degree, cannot be found guilty; because his guilt is acces. sional, and depends on the guilt of the principal. The verdict finds the prisoners guilty, including Jenkins, who was not tried. For this it is erroneous, and ought to be net aside.
    Nott, on the same ride.
    Jenkins is chaiged as principal, and Rochelle as accessary before the fact. Fle'Jrps charged as aider and abettor. Anciently, he who struck the blow by which the party died, was only the principal, and those that were present, aiding and assisting, were but in the nature of accessaries, and could not be put on their trial, till he who gave the stroke was attaint by out. lawry, or judgment. 1 Hal. P. C. 437. At this day, indeed, the law is taken otherwise, and all present, aiding and assisting, are equally principals with him that gave the stroke, ib. But how has the law been altered ? Probably by statute, though it cannot now be found. The counsel for the State are bound to show that the common law has been repealed, or amended, by competent authority, and that our courts are not bound by the rule of common law as it anciently stood. If the alteration was effected by the construe-. tion of the judges in England, our judges may reject their construction, arid adhere to the ancient rule. The principal, in the first degree, must be first convicted, before the accessary, or he who is charged as having been present, aiding and abetting, can be tried ; for the offence of the abettor depends on that of the principal or chief actor. They may indeed be tried together; but the guilt of the principal offender must be established before the accomplice can be convicted. In high treason in England, an abetter, not present, is a principal. But such principal cannot be convicted till the principal traitor be outlawed, or convicted. 2 Hal. P. C. 223. 1 Hal. 613. This absurdity might otherwise follow, viz., that the principals in the second degree might be convicted, and yet the principals in the first degree, may be acquitted. Jenkins may hereafter be acquitted. If he is innocent, the conviction of Fley and Rochelle is wrong. But Jenkins is not charged with the crime of murder, with that technical sufficiency which the rules of Jaw require. It is only by implication, and construction, that the charge of murder is to be made out. Jenkins is charged, in the indictment, with ■having shot and killed Minton. Fley is charged with having been ■present, aiding the murder of Minton. There is no direct charge ■of murder against Jenkins, though there is against Fley, as principal in the second degree. In capital cases, the'offence charged in the indictment ought to be clearly and explicitly stated. If there is. any uncertainty, or want of technical precision, the judgment, to be given on such a charge, ought to be arrested. This was done in Catharine Graham’s case. Lea. C. L. 101. Where a doubt Graham’s case. Lea. C. L. 101. can be raised respecting the propriety of a conviction, the party convicted ought not to suffer death. King v. Bolland. Lea. 07. An indictment was held void for omitting these words, “ thereby giving one mortal wound, or bruise.” Lea. The finding of the jury, as to Fley, is not warranted by the premises. It is not stated that he gave a mortal blow. It is stated that Jenkins did. But it is not stated that Jenkins did kill and murder. Then' the conclusion drawn from these premises, does not follow. The precedents of indictments show that the principal, in the first degree, should be expressly charged with murder. Cro. Cir. Comp. 449. The charge against Jenkins does not conclude against the peace and dignity of the State ; nor the charge against Fiey, as aider. Only the charge against Rochelle, as accessary before the fact, is properly concluded. For this defect, in the indictment, judgment ought to be arrested. Rochelle having been discharged, from his arrest and imprisonment on the same charge of murder, prior to the finding of this indictment, he ought not to have been indicted. Hab. Corp. Act, sec. 7. In addition to the above cited authorities, on the subject of principal in the first and second degree, Nott also cited, and argued, from the following. 4 Co. 43. 2 XJaw. 4 Tucker’s Bl. 2 MlNally’s Ev.' 523, 530. Plowd. 97, 101. 9 Co. 66. 1 Hal. 636.
    Deas, and EimisoN, for the State,
    contended, the jury were authorized to amend their verdict at any time before it was recorded. The verdict is no part of an indictment. The indictment is free from the defects alleged, and sufficient to support the conviction of the prisoners. The word “prisoners” cannot relate to Jenkins, jvhg was never apprehended. The indictment' states the killing by Jenkins; and the murder by Fley. It was not necessary to charge Jenkins with the murder, because he was not indicted. Fley is charged as principal, and Rochelle as accessary. Hal. 237-8. Plow. 100. All present aiding and assisting, are equally principals. Where guilt is derivative, the person must be ascertained from whom the guilt is derived; but in legal contemplation, there is no distinction as to their guilt. The mortal blow is considered as given by all of them. Their united will is supposed to guide the stroke, and urge the blow. Plow. 97. 2 Hal. 173. Fost. 347, 351.
    As to the conclusion of the- indictment, the constitutional requi.site is complied with. The count, which contains the charge in question, concludes as the constitution requires. It is not necessary that every material part of the charge should so conclude. It is enough if the indictment so concludes. Each count may be regarded as a several distinct indictment. In this case, the finding of the grand jury is upon the first count. The other counts must, therefore, be laid out of view. The count in question is one substantive and complete charge, which concludes in proper form.
    As to the habeas corpus act, and the discharge of Rochelle under it, it is no bar to this indictment. It could not have been pleaded in bar at the trial. A discharge from imprisonment is no acquital of the crime. The life of the prisoner was not put in jeopardy by the commitment. Principals in the first, and principals in second degree, relates to priority of trial. 2 M’Nally, 530. Fost. 347.
    Richardson, for the prisoners,
    travelled over the same ground which had been previously occupied by Messrs. Witherspoon and Nott. Cited 2 Hayw. 140, to shew with what cautious strictness criminal Jaw should be construed. Indictments ought to be clear, precise, and certain. Every indictment should contain a perfect syllogism. A proper legal expression cannot be omitted and a different expression used, although tantamount, if the proper expression be consecrated by time and use. 1 Hayw. 403, 263. One part of an indictment ought not to be repugnant to another part. Ib. It is stated in the indictment in this case, that the mortal stroke was given on the 13th of April, and that the deceased died on the 14th. That Fley was then and there present aiding the felony and murder, and that Rochelle incited and procured, &e. Here is a fatal want of certainty and precision. To what do the words then and there relate ? To the time and place of the stroke, or to the time and place of Minton’s death ? 1 Hal. Hayw. Here is such a repugnancy as is sufficient to arrest the judgment. If then and there must have relation to the last antecedent, the time and place of Minton’s dea^fi then it will not appear that Fley was present abetting the mol blow.- If the words are taken with reference to the time and pla |< of the blow, then the charge against Fley is inconsistent, becai st 2 Haw. inflicted, but did not prove mortal until after the 13th. C. See ch. 25.
    Branding, in reply,
    on the part of the State. 1. The discharge •of Rochelle under the habeas corpeas act, was not equal to an acquittal, and formed no bar to this prosecution. But if it could be considered in the light of an acquittal, yet it cannot be considered as an acquittal .for the same crime. The commitment of Rochelle was for murder, as a principal. The conviction on this indictment is for inciting, and procuring, as an accessary before the fact. 2. The indictment is substantially and formally correct. Fley ia charged as principal in the first degree. The distinction, between principals in the first and second degree, is an immaterial distinction ; there is no essential difference in the guilt, or punishment*
    An abetter may be convicted, though the actor of the crime should not be convicted, or attainted. 2 M’Nally 523. The com. mon law has not been altered. The rule of the common law, aá established by the doctrines of all the eminent sages of English law, and by constant usage, supports the opinion that all present* and assisting, are principals in the same degree. Plow. 97* Fost* 351. Hal. Nor is it material who gives the fatal blow* It is re-1 garded as the blow of all. The aider may be guilty of murder, and the actual perpetrator may be innocent. Cases may be easily imagined wherein the person giving the mortal blow may be imposed on by the person procuring, and inciting to the murder; of may want the will to constitute legal malice. The doctrine relative to principal in the second degree in high treason, does not apply ia this case. The distinction in high treason is essentia], and necessary. In this case, what is stated as to Jenkins, is stated by way of inducement, and not by way of charge against him. It was necessary in the description of the crime charged against Fley as a principal in the murder. After stating the material facts, and the agency of Fley in the commission of the crime, it is expressly found by the jury that Jesse Fley did feloniously kill and murder the said David Minton; and that Rochelle did incite and procure the said Fley to commit the same murder. There is no want of certainty or precision. The words “ then and there,” apply to the whole charge of murder, or killing of Minton by Jenkins, and cannot with propriety be restricted to the death only, excluding the idea of the cause of such death. 2 Haw. 264, does not support the exception* It is an authority against it. The conclusion of an indictment forms no part of the criminal charge. It is merely formal. If there be a proper conclusion, it is sufficient if it be in the indictment any where after the charge stated. The verdict is substantially sufficient. No particular form is necessary. Jenkins was not on trial* The word “prisoners” had no reference to him. 2 East. C. L. 978. The meaning of the word is not dubious. The habeas corpus act cannot be pleaded in bar, or given in evidence to avoid act indictment. No authority can be produced to support such a doctrine. 4 Bl. Com 335. 2 D. and E.
   The resolutions of the court were delivered by

Gedike, J.

As to the exceptions taken for a new trial, and, as to the exceptions in arrest of judgment, the judge stated and answered them all in succession, very fully and particularly,

As to the form of the verdict, and the alteration of it after it was reduced to writing; and its not being reduced to writing until after the jury had returned into court, after having agreed on their verdict: The ancient practice was for the jury to give in their verdict ore terms by their foreman, which was recorded by the clerk of the court. If the foreman should reduce the verdict incorrectly into writing, it is the duty of the court to see that it is amended consistently with the true intent and meaning of the jury. It is not necessary that the verdict should be written by the jury at all; at any rata, it is not material that it should be written before the jury return with thei'r verdict into court. The word “prisoners,” must be taken to mean the prisoners on trial before the jury, and cannot be taken to mean any other persons. The verdict is certain, and sufficient enough.

With respect to the exceptions toj’the indictment. In favor of life, great strictness bias at all times been required in indictments. Courts have indeed leaned too much in favor of exceptions to them, which has sometimes proved very prejudicial to public justice, and a reproach to the law. This pronenéss to favor exceptions in favor of life ought not to be indulged too far. There is no reason to induce us to go beyond the limits already established; and there is no authority which has been produced which will justify or excuse us in deciding in favor of the exceptions now insisted on. It is very clear that a person aiding and assisting another in committing a murder, is to be regarded as a principal, and that he may be in- / dieted and punished, although the principal who really gave the mortal blow, or was otherwise the immediate instrument by which the murder was effected, had not been taken. The immediate injury, from which death ensues, is considered as proceeding from all who are present and abetting the injury done; and the actual per. petrator is considered as the agent of his associates. His act is their act, as well as his own ; and all are equally criminal. Post. 851. The distinction between principals in the first and second degree has been exploded. ít is now a distinction without a difference. Vide 4 Bdrr. 2074, 1 Hal. H. ?. C. 437,615. Doug. 206. This doctrine has been settled from the 4 Hen. 7, as appears' from Plowd. 97, 100. And, therefore, although it is necessary, to state ift the indictment the manner of doing the injury which occasions the death of the party murdered; yet if several be present, aiding and assisting in the perpetration of the act, ^'s not material whether it is correctly stated which of them did the act. For if A be indicted as having given the mortal stroke, 00 nnd B and C as present, aiding and assisting, and it should appear from the evidence that B gave the stroke, and A and C were aiding and assisting, this proof maintains the indictment. 1 Hal. 437. Fost. 351. 1 Salk. 334. There is no good reason why the law should not be so. Great inconvenience would result; there might be a manifest defect of justice, if it were not so. If the distinction contended for should prevail, and it should be established as a rule, that a principal, in the second degree, is to be regarded in the nature of an accessary, and that the guilt of the principal, in the first degree, must be first established, before the principal, in the second degree, can be tried and convicted, the consequence would be, that if the principal, in the first degree, should die, or should escape, the principal, in the second degree, could not be tried or punished. Besides, as the counsel for the State has well remarked, the actual perpetrator may, in some cases, be less guilty than the accomplice who incited, or procured, the murder to be done. See Plow. Fots. 349. 100. P.

It follows from this reasoning, and from the authorities which support it, that it was not necessary to make a party of Jenkins in this indictment; that it was necessary to state his agency in caus. ing the death of Minton ; that Fley is charged as a principal, and properly charged; for it is expressly alleged, that he maliciously aided and assisted Jenkins, who gave the mortal stroke; that the assault was made by him, and Jenkins, with malice aforethought; and that he, the said Fléy, did feloniously kill and murder the said Minton. The precedents seem to conform to the distinction between principals in the first and second degree, and state the murder to be committed by the principal in the first degree, and then go on to charge that the aiders then and there, of their malice aforethought, were present, helping and abetting the principal in the first degree, the murder to commit, &c. And then conclude that all the principals, then and there, in manner, &c., did kill and murder the deceased. The distinction, however, of principal in the first and second degree being merely nominal, and no ways essential, it seems to be useless to preserve it in indictments. If the stroke of one be considered in law as the stroke of all, it is best to say, as .this indictment -dpes, that the party charged as principal by the stroke so given by aether, as stated in the indictment, did kill and murder. If several are present, says Hawkins, and abet a fact, and one only actually does it, it may be laid generally in the indictment as done by them all, or specially as done by one only, and abetted by the rest. 2 Haw, chap. 25, sec.'64. 1 Salk. 334, 1 East. C. L. 351. As to the exception to the words “then and there” the authorities cited in support of it, clearly show that in this case it ought to have no weight. If the indictment had gone further, and said, “then and there, to wit, on the 13th of April,” there might be some room to doubt; upon the authority of 4 Co. 42. But it has been held that an allegation of the day prima facie somewhat uncertain, may be helped by the apparent sense of the whole ; as where it is alleged, as in the present case, that the principal on such a day made the assault, and gave the stroke, and that the party died on such a subsequent day ; and that the aider was ad tunc and ibidem, abettans the said principal; because the words ad tunc and ibidem, frornthe manifest import of the whole, shall be referred to the time of the stroke, by which the felony was done. 2 Haw. ch. 23, sec. 89. The best way of alleging such abetment, it is said, is to set forth that the aider was prmsens, auxilians, &c., ad feloniam and murdrum prcedictum in forma prendida faciend. 4 Co. 42. If this be correct, the words then and there may be rejected as surplusage. Or if considered material, they may be referred to the act done which caused death. The day, and place of the stroke, or other act done inducing death', by the law of England, must be expressed, because the escheat or forfeiture of land relates to that timé ; the time of the death must be expressed, because it must appear that the death was within the year and day after the stroke. 2 Hal. P. C. 179. If the time be necessary to be stated against an abettor, or for any other party, except for the purpose of showing that the 'deceased died within a year and day, it must be the time when the mortal injury is done, and not the time of the death of the party. The case in 4 Co. 42, does not appear reasonable. At all events, it cannot be admitted to govern the present. The abetment must relate to the stroke ; the death is only a consequence. 1 East. C. L. 351. And the death has relation back to the time of the stroke, which was the cause. 2 Salk. 614. Plowd. 401. The conclusion of the whole charge against the prisoners is in proper form. The constitution does not require that each material allegation against the prisoners respectively; should conclude against the peace and dignity of the State; but only that the prosecution, or indictment, should so conclude. See the State Constitution.

Note. In criminal cases, one good count in an indictment will support a general verdict. Doug. 730. Cowp. 276. 1 Johns. 322. After conviction on an indictment, the prisoner was discharged, because a juror was improperly withdrawn, and he was again indicted and tried. On the second trial, he pleaded autrefois acquit, but it was held no bar. 1 Johns. N. Y. T. R. 66.

The discharge of Rochelle, under the habeas corpus act, cannot, upon any sound principle, be considered as an acquittal from the charge, so as to bar a subsequent prosecution for the same of-fence. The act was made to secure the citizens of the State from vexatious arrests and imprisonment, and not to protect them from prosecutions for crimes actually committed. The act in favor of liberty, was sufficient to operate the discharge of the prisoner, Rochelle, from his former imprisonment, when the state’s officer was not ready to produce the proofs of his guilt; but it would be monstrous to say that such discharge should shield him from a subse. quent prosecution, when the proofs of his guilt are ready to be produced.

The exceptions were all overruled, and the prisoners were executed.  