
    John Warden v. The State of Ohio.
    1. One who, participating in the felonious intent, is present, aiding and abetting the commission of a murder or other felony, is a principal, although not himself the immediate perpetrator of the act.
    '2. The presence, either actual or constructive, of the accused at the commission of a felony, is not a necessary ingredient in the offense of aiding, abetting, or procuring another to commit it, defined by section 36 of the crimes act.
    Error to the Court of Common Pleas of Adams county.
    The plaintiff in error, John Warden, and one James Daugherty, were jointly indicted for the murder of one Morris Edgerton. Warden, upon being separately tried, was convicted of murder in the second degree. The indictment upon which this conviction was had, after charging that both defendants, at the time and -place named, actuated by the same felonious intent, assaulted the deceased, and that his death was occasioned by a wound then and there inflicted by Daugherty, proceeded as follows: “And the jurors aforesaid, upon their oaths aforesaid, do further find and present that said John Warden, being then and there present at the time said felony and murder was committed, as aforesaid, to wit, on, etc., at, etc., with intent then and thereby to kill and murder‘him, the said Morris Edgerton, did unlawfully, willfully, purposely, and of Ms deliberate and premeditated malice, aid, abet, and procure him, the said James Daugherty, the felony and murder aforesaid, to do and commit.” * -
    Thirty-six electors of the county having been summoned to attend the trial as jurors, the accused, on the day fixed for the trial, moved to set aside the array on the ground that four of the electors thus summoned failed to attend. The motion was overruled, and the defendant excepted.
    The jury having returned their verdict, finding the defendant guilty of murder in the second degree, the defendant, by his counsel, filed his motion for a new trial, assigning as reasons therefor:
    1. That the verdict was not responsive to the charge.
    2. That the court erred in its charge to the jury.
    8. That the verdict was not sustained by the evidence.
    This motion was also overruled, to which defendant excepted ; and thereupon, on his behalf, a bill of exceptions-was taken, setting out the testimony and the charge of the court.
    The several rulings of the court excepted to, are now-assigned for error.
    
      E. P. Evans, Henry Collins, and F. H. Bayless, attorneys-for plaintiff in error:
    The court erred in refusing to set aside the array, on the ground that the places of the absent jurors were filled from the bystanders. Section 125 of the criminal code provides-the number of jurors out of which the defendant shall have the right to select a lawful jury for his trial, and section 129: that the panel of the jury shall be delivered to every person indicted at least three days before the trial, in order that he-may have an opportunity to examine their qualifications, to sit as jurors in his case.
    If the whole array of thirty-six jurors failed to appear, and the court should cause the jury to be made up from the bystanders, the defendant would not and could not have thirty-six lawful jurors from whom to select a jury. It is-equally so if four be absent.
    The court erred, greatly^to the prejudice of the defendant’s rights, in its charge to the jury, “that if the act is-intentionally and unlawfully done, it is also maliciously done,” thus precluding the idea of manslaughter under the first clause of section 3, crimes’ act.
    The defendant Warden was indicted under section 36, crimes’ act, S. & S. 266, for “ aiding and abetting” Daugherty in the murder of Edgerton, for which crime he was arraigned, and to which he plead not guilty, and was put on his trial for aiding, abetting, etc., Daugherty to commit murder in the first degree.
    This, in Ohio (Noland v. The State, 19 Ohio, 131), is an independent and substantive offense. The verdict of the jury ought to have been responsive thereto. It was not, but was, “ G-uilty of murder in the second degree.” He was convicted and sentenced for an offense of which he was never charged by indictment.
    The evidence does not support the finding of a verdict of murder in the second degree.
    
      John B. Billings, for the state:
    The defendant was not indicted under section 36, crimes’ act, S. & S. 266. The indictment does not allege that Warden, at a time prior to the murder, did aid and abet . to commit the murder, but that he was present, aiding and abetting, etc., which makes him principal under the statute of March, 1835. S. & C. 401.
    He who is present aiding and abetting is a principal. Warren’s Criminal Law, 38, 39; Breese v. The State, 12 Ohio St. 146; Chitty’s Blackstone, book 4, marginal pages 33, 36, 37; Roscoe’s Criminal Evidence, 166, 658.
    Our statute has not changed the meaning of the terms “principal” and “accessory.” Nolan v. The State, 19 Ohio, 131.
    In manslaughter, there can be no aiders or abettors before the fact; therefore, Warden could not have been convicted as an aider or abettor under act of March 24, 1864.
   Stone, J.

The objection taken on behalf of the accused to the regularity of the proceedings in the court below, which seems now to be chiefly relied upon, was made in various forms during the progress of the case, and stands upon the assumption that the accused was charged, under the 36th section of the crimes act, as an accessory in the alleged felonious homicide, and not, under the first section, as being, with Daugherty, a principal in that offense. Upon this ground it is insisted that the verdict was not responsive to the indictment, and that the accused was convicted of a crime with which he was not charged.

There is, however, no foundation for this objection. At common law, one who counseled, advised, or procured another to commit a crime, but who was himself absent at the time the crime was committed, was an accessory before the fact. This degree of crime, as recognized by our law, is defined by the 86th section of the crimes act, and is, as defined by that section, made a substantive and independent offense. Noland v. The State, 19 Ohio, 131.

But under our statute, as at common law, one who, participating in the felonious intent, is present aiding and abetting the commission of a felony, is a principal, although not himself the immediate perpetrator of the act.

At common law a distinction was in such case recognized between the immediate perpetrator of the act and one who was present aiding and abetting it. While both were principals, one was a principal in the first, and the other in the second degree. The distinction, however, was merely formal, and is ignored by our statute.

The indictment in the present case was framed under the first section of the crimes act, and charges both Daugherty and Warden as principals. The felonious act is charged as the act of both. In describing the means by which the ¡alleged intended result was produced, it is averred that the iknife was held by Daugherty, and that he struck the blow which indicted the fatal wound. That the act of which Daugherty is thus alleged to have been the immediate perpetrator was also the act of Warden, is aptly charged by the allegation that he was present, participating in the felonious intent, and aiding and abetting the principal fact.

It does not appear that in the selection of a jury any •legal right of the accused was disregarded. If it be true, as assumed in the motion filed on his behalf, that of the thirty-six electors summoned as jurors four failed to appear, we see no reason for concluding that the array should, for that reason, have been set aside. But however this may be, it is sufficient to say that this question is not before us. No bill of exceptions was taken on the overruling of the motion, and it does not appear, either, that any of the electors summoned failed to attend, or how the jury finally impaneled for the trial of the case was selected.

We find no error in the charge of the court to the prejudice of the accused, and are of the opinion that the testimony, as reported in the bill of exceptions, does not present a case authorizing us to say that the court below erred in refusing a new trial on the ground that the verdict was not sustained by sufficient evidence.

Judgment affirmed.

Day, C. J., McIlvaine, Welch, and White, JJ., concurring.  