
    
      The State vs. Abram Rabon, the elder, Abram Rabon, the younger, and Duke Rabon.
    
    An indictment against A. B. & C., for the murder of R., charged that the assault was committed by A., “ feloniously, wilfully, and of his malice aforethought that B. & C. “ feloniously, were present, aiding, abetting, and assisting the said A. the felony” to commit; and concluded as follows: “ and so the jurors'aforesaid, upon their oaths aforesaid, do say, that the said A. B. & C., the said R., in manner and form aforesaid, feloniously, wilfully, and of their malice aforethought, did
    ■ kill and murder,” &e. Held that the indictment was good, and that it was no objection to it, that it did not charge that B. & C. were feloniously, wilfully, and of their malice aforethought, present, aiding, &c.
    Where one party brings out from a witness declarations of a third person, which are wholly immaterial to the issue, the other party cannot require the witness to state declarations of the third person, made at the same time, which are material to the issue, — semble.
    The testimony leaving it doubtful whether one of the prisoners was present when the murder was committed, a new trial was ordered as to him.
    
      Before Frost, X, at Horry, Spring Term, 1850.
    This was an indictment for murder. The indictment charged “ that Abram Rabón, the younger, late of the district of Horry, not having the fear of God before his eyes, but being moved and ■seduced by the instigation of the devil, on the fourth day of ¡September, in the year of our Lord one thousand eight hundred and forty-nine, with force and arms, in the district aforesaid, in and upon one. Willis Rabón, in the peace of God and the said State then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault, and that the said Abram Rabón, the younger, with a certain knife, of the value of fifty cents, which he, the said Abram Rabón, the younger, in his right hand, then and there had and held, the said Willis Rabón, in and upon the right side, and under the right breast, between the ribs of him, the said Willis Rabón, then and there, feloniously, wilfully and of his malice aforethought, did strike and thrust, giving' to the said Willis Rabón, then and there, with the knife aforesaid, in and upon the right side, and under the right breast, between the ribs of him, the said Willis Rabón, one mortal wound, of the breadth of two inches, and of the depth of six inches; of which said mortal wound, the said Willis Rabón, from the said fourth day of September, in the year aforesaid, until the fifth day of the same month of September, in the year aforesaid, in the district aforesaid, did languish, and languishing did live; on which said fifth day of September, in the year aforesaid, the said Willis Rabón, in the district aforesaid, of the said mortal wound, died.
    
      “ And the jurors aforesaid, upon' their oaths aforesaid, do further present that Abram Rabón, the elder, and Duke Rabón, both late of Horry District, aforesaid, on the day and year aforesaid, feloniously, with force and arms in the district aforesaid, were present, aiding, abetting, and assisting the said Abram Rabón, the younger, the felony aforesaid to do and commit, against the peace and dignity of the same State aforesaid. And. so the jurors aforesaid, upon their oaths aforesaid, do say, that the said Abram Rabón, the younger, Abram Rabón, the elder, and Duke Rabón, the said Willis Rabón, in manner and form aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder, , against the peace and dignity of the same State aforesaid.”
    Many witnesses were examined on both sides. There was no doubt that Abram Rabón, the elder, and Abram Rabón, the younger, were present, and took part in the commission of the homicide ; but the testimony left it doubtful whether the third person, who was present, was Duke Rabón, the prisoner, or one Isaiah Graham. George O. Rabón was examined as a witness for the defence. In the course of his cross-examination, by the counsel for the State, he said: “ Graham was also charged with the murder. Witness don’t know how Graham was charged, except it were by some of his own talk. Graham was carried before ’Squire Potter; witness was present. Both were carried for the murder; he did not hear Graham say that he had any thing to do with the murder. Heard Graham say he was there and saw it. That might be the reason Graham was taken up — don’t know it was so. Graham always told witness he saw the murder, and Graham said so before ’Squire Potter. Don’t know that Graham told a different story; witness don’t know how Graham was discharged.”
    l' In reply to this, the prisoners’s counsel claimed the right to bring out from the witness Graham’s whole account of the part which the prisoners and others had taken in the affray which resulted in the death of Willis Rabón. His Honor ruled it out
    The prisoners were found guilty; they appealed, and now moved this Court in arrest of judgment; and, failing in that motion, then for a new trial, on the grounds, inter alia,
    
    1st. Because his Honor erred in excluding the declarations of Isaiah Graham, as to the whole transaction, when a portion of his declaration had been brought out by the State.
    2d. Because the evidence was insufficient to convict any of the prisoners.
    3d. Because the proof was insufficient to convict Duke Rabón as an aider and abetter in the fact of killing, as he has proved, by witnesses and circumstances, to have been absent, and the verdict against him was against law and evidence.
    Harllee, Munro, for the prisoners, contended
    that the indictment was bad, as against Abram Rabón, the elder, and Duke Rabón, because it did not charge that they were present, wil-fully and of their malice aforethought, which words they contended were necessary; and upon this point they cited Arch. Or. Law, 6; 3 Chit. Cr. Law, 733, 737, 753 ; 4 Strob. 41, note ; 16 Howell St. Tr. 1; 3 Chit. Cr. Law, 756,761, etseq. ; 1 Leach, 398; Crown. Cir. Comp. 491.
    Manna,-Solicitor, contra,
    cited Arch. Cr. PL 642; 1 Chit. Cr. Law, 214, 272 ; Hawkins, book 2, chap. 23, §' 76 ; 2 Strob. 273 ; Arch. Cr. PI. 240; 1 Chit. Cr. Law, 200; Foster, 424 •, 2 Brev. 338.
   Curia, per

Evans, J.

The prisoners’s counsel have abandoned their ground for arrest of judgment, as set down in their notice ; but they contend that their motion should be granted as to Abram Rabón, the elder, and Duke Rabón, because the indictment is defective in this: that it charges the said Abram, the elder, and Duke, that they “ feloniously, were present, aiding, abetting and assisting the said Abram Rabón, the younger, the felony aforesaid, to do and commit,” whereas they should have been charged as feloniously, wilfully, and of their malice aforethought, present, aiding, abetting and assisting, &c.

The indictment alleges that the assault was made and the mortal wound was given by Abram Rabón, the younger, felo-niously, wilfully, and of his malice aforethought. It then charges the others as feloniously present,- aiding, abetting and assisting in the commission of the felony aforesaid, and concludes, and so the jurors aforesaid,” “ do say that the said Abram Rabón, the younger, Abram Rabón, the elder, and Duke Rabón, the said Willis Rabón, in manner and form aforesaid, feloniously, wil-fully, and of their malice aforethought, did kill and murder.” The mode of charging the offence in this case, both as to the principal and the abettors, and the conclusion as to all, is in exact conformity with the precedent and the direction given in Archbold’s Criminal Pleadings, Book 2, part 4, page 394. But it is very clear that Chitty and all the other writers on criminal pleadings, as far as I have consulted them, charge the aiders and abettors in the form contended for by the prisoner’s counsel, that is, that they “ were feloniously, wilfully, and of their malice aforethought, present, aiding and abetting.” There is no doubt that the forms given in Books of Pleading, afford very strong evidence of legal principles. They are such as have been long used and approved in practice, and have stood the test of legal criticism. Where they are all one way, I would hesitate long before I would sanction any departure from them. But in this ease they are different, and we must deeide between them by reference to the principles which must govern in framing indictments. On this part of the case I would observe that Arch-bold’s is, I believe, the latest work on the subject. It has been used and approved for thirty years. Some of my brethren know that persons have been tried in this State on indictments framed on the model used in this case. The same, it is fair to presume, has been, done in England, and, so far as we know, this, mode of stating the offence has never been brought into question before.

Where two or more, acting with a common intent, are present at the commission of a felony, it matters not by whose immediate agency the crime is consummated ; — all are equally guilty. The act is the act of all and the act of each. They are all principals, and although the law distinguishes them into principals of the first and second decree, yet this is only descriptive of the part which each performed in the commission of the crime, and points to no difference in the guilt which the law imputes to them all. So identical are they regarded, that it is said both by Hale and Foster, that where the. statute takes away Clergy from a common law felony by name, as in murder, rape, &c., those present aiding and abetting are impliedly ousted of Clergy, (1 Hale, 537; Foster, 357.)

It was admitted in the argument, that all the defendants, might have been charged as principals in the first degree, and in- Arch. C. P. 396, on the authority of Machalley’s case, 9 Co. 67, c.; 1- Hale, 438, it is said “ that the pleader may charge the principal in the second degree as a principal in the' first degree, (for proof .that he was present, aiding and abetting, will, in such case, maintain an indictment charging him with having actually committed the offence) or at his option, with being present, aiding and abetting.” The better mode, however, is to describe the part which each had in the crime, according to the truth of the facts, as is the usual practice, and as has been done in this case. When this mode of pleading is adopted, the indictment consists of three parts. 1st, That Abram Rabón, the younger, feloniously, wilfully, and of his malice aforethought, gave the mortal wound. 2d, That the other prisoners were feloniously present, aiding, abetting and assisting in the commission of the murder. 3d, The conclusion which the law draws from the facts stated, that all of them are guilty of the murder. The question to be decided is, whether this conclusion is the legal consequence of the facts stated in the narrative part of the indictment. The objection is, that manslaughter, as well as murder, is felonious, and that as the indictment does not charge that they were aiding and abetting with malice aforethought, the charge as to the abettors amounts only to the crime of manslaughter. But it has already been stated, that all who are present, acting with a common intent, are guilty of the same crime, and that it is immaterial whether they are all charged in the pleading as principals in the first degree, or one as principal in the first, and the others as principals in the second degree, which is the same as aiders or abettors; When, therefore, Abram, .the elder, and Duke, áre charged as feloniously present, aiding and abetting in the commission of the felony, it imputes to them the same motive as that imputed to him who gave the mortal blow, that is, m the language of the conclusion, that all the prisoners, the said Willis Rabón, in manner and form aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder. We think there is nothing in this objection which can avail any of the prisoners, and that, the motion in arrest of judgment must be dismissed.

I come now to the consideration of the grounds for a new, trial. They relate to the admissibility of Graham’s declarations, and the insufficiency of the evidence to convict the prisoners, and especially the prisoner, Duke Rabón. The facts connected with the first of these grounds are these : in defence of the prisoner one George O. Rabón was examined ; he said, and no. objection was made, that “ Graham always told him he saw the murderand as this was said on the cross-examination, the counsel for the prisoners claimed the right, in the reply, to bring out everything which Graham said as to the part which any or all of them acted in the murder. This was very properly ruled out. The rule of law is very clear, that hearsay, in such case as this, is not evidence ; but if the counsel for the State had by; direct examination brought out Graham’s declarations against the prisoners, they, on their part, had a right to have everything which was said by him in their favor also stated. But this rule does not apply heie, as the statement of Graham “ that he had seen the murder” was wholly immaterial to the guilt or innocence of the prisoners. No inference for or against them could be drawn from that fact, and, therefore, .the proof of what Graham said as to himself, did not entitle them to have the benefit of what he said as to them. As to the evidence of their guilt, there is no doubt as to the threats made on the previous day by Abram, the younger, and Abram, the elder. There is no doubt that the mortal blow was given by the younger, and that the elder was present, aiding, abetting and assisting, and there is nothing in the evidence as to them which creates a reasonable doubt of their guilt. The homicide was but the carrying into effect the threats of the day before. If it were equally clear that the other prisoner, Duke Rabón, was present, I see no reason for exempting him from the fate of his father and brother. His defence rests- on the allegation that he was not present. It is true, George H. Rabón says very confidently that he was; and the jury must have believed him, as is apparent from their verdict. But other witnesses say he was not, and it may be that in this particular he was mistaken. Amid the excitement of such a bloody transaction, George may have taken another for Duke, or he may be mistaken in the fact that another was assisting the elder Abram in the fight. Without affirming any of these suppositions to be true, or expressing any opinion as to his innocence, a majority of the Court have come to the conclusion that Duke’s case ought to be submitted to another jury.

The conclusion of this Court therefore is, that the motion to arrest the judgment be refused ; that the motion for ¡a new trial be refused as to Abram Rabón, the younger, and Abram Rabón, the elder, but that it should be granted as to Duke Rabón; and it is so ordered.

O’Neall, Wardlaw and Whitner, JJ., concurred.

Frost and W ithers, J J. We concur with the decision in this case, except in so far as it orders a new trial for Duke Rabón.

Motions refused as to Abram Rabón, the elder, and Abram Rabón, the younger ; and new trial ordered as to Dulce Rabón.  