
    The State v. William Heyward.
    
    Judgement will not be arrested upon objections not arising on tlie face of tlie record. Misdirection of tlie judge can never be a ground.
    Where a number of persons have associated together to commit an unlawful act, e. g. to commit a robbery, and one only perpetrates the act, all the company are guilty.
    In January Term, 1820, at Charleston, William Heyward, the prisoner, was tried on an indictment for robbery committed on the highway, contrary to the Act of Assembly in such case made and provided. The clause in the Act of Assembly is as follows : “ And be it enacted by the authority aforesaid, that if any person or persons, shall steal, or take by robbery, any bond, warrant, bill, or promissory note, for the payment or securing the payment of any money, being the property of any other person or persons, or of any corporation, notwithstanding any of the said particulars are termed in law a chose in action, it -x-9i on shall be deemed and construed to be felony of the same ^nature, and in J the same degree, and with or without the benefit of clergy, in the same manner as it would have been if the offender had stolen, or taken by robbery, any other goods of like value with the money due on such bill, bond, warrant, or note, or secured thereby, and remaining unsatisfied ; and such offender shall suffer such punishment as he or she should or might have done, if he or she had stolen other goods of the like value, with the moneys due on such bond, warrant, bill, or note, respectively, or secured thereby and remaining unsatisfied, any law to the contrary thereof, in any wise, notwithstanding.” 2 Brev. Dig. 196, P. L. 147.
    
    The offence charged in the indictment, was, that one John Peoples had been robbed, on the highway, of certain bank notes, for the payment of money and of specie.
    The evidence of the prosecutor, John Peoples, was substantially as follows : That on the 19th day of February, 1819, in travelling from Charleston homeward, with his wagon, he was violently assaulted at a well on the road side, near the sis mile house, and there cruelly and inhumanly beaten by sundry persons who came from the yard and house. That among those who were present was Hey-ward, the prisoner, who took an active part on the occasion, and struck the prosecutor with a stick upon the head; that he had done nothing to provoke such ill-usage; that the persons, nine or ten in number, came in a hurried manner, advanced within ten steps of the wagon ; that he took up his gun and ordered them to stand off; they being armed, some with sticks, others having guns; they stopped; but upon information being given to the prosecutor by a boy, traveling in company with him, that his gun was not primed, the assailants rushed forward, knocked the prosecutor down several times, beat him very much, punched him in the mouth with the muzzle of a gun, thereby cutting his lip nearly in two; that lie expected to be killed. They, however, went back to the house, and he, with the ^assistance of the lad who was traveling in com- ¿i pany with him, got into the wagon, which was driven off; that he was L ' 4 immediately pursued by two men, and overtaken at the distance of two hundred yards. He identified those two to be Fisher and Heyward, the prisoner. The boy, who was driving, was ordered to stop the wagon, upon which, he put the horses into a trot, when Fisher galloped before, and stopped the horses. He said Heyward then rode up and asked where was that rascal ? And being told by the boy, that he was in the wagon, Heyward ordered him to come out; he declining to do so, Heyward swore that unless he did he would shoot him ; that Heyward, at the time, had a pistol in his hand; that the witness then got up to the side of the wagon, when Fisher, who was on foot, took him by the arm, pulled him out and carried him to the back part of the wagon. That Heyward asked him how much money he had, and being told not much, he was ordered by Heyward to give up what he had. He declining to do so, Heyward stooped down, put his handinto the pocket of witness, took out his pocket book, opened it, and asked if that was all the money he had ? At the same time Fisher felt his pockets. The witness told them that it was all the money he had. Fisher, remounted hia horse, and, together with Heyward, rode up towards the house. The witness was asked if he was certain as to Heyward’s person; he replied, that he was positive that it was Heyward who put his hand into his pocket, and took out the pocket book, which the witness said he parted with reluctantly, and expected to have been killed unless he gave it up. On proceeding up the road as far as the Ten Mile Spring, he was advised by persons whom he there met with, to return to town, and obtain medical aid. He did so. This was on Friday, the day of the robbery. That on the Sunday following, he went to the gaol; Hey-ward was there shown to him, and he Immediately knew him to be the person who had robbed Mm, and be pointed him out as such. He, at the *next rXi,, ,- Oourt in Charleston, saw Heyward passing about, and he knew him to ■- di0 be the same, of which he said he had then no doubt. He said he had lost by the robbery a twenty, a ten, and a five-dollar bill; all, as he testified, being South Carolina money, and three or four dollars in silver. These, together with Ms pocket book he had lost. He acknowledged, on being cross-examined, that he had been mistaken in having testified that he had seen Roberts in gaol. He thought, he had been told, that Fisher and Heyward had been taken on suspicion; and the object of his going to gaol was to ascertain whether he would know them. He did not think that Fisher and Heyward were talked of at the gaol, before they were brought down. When brought down he knew them by their faces. On being asked, he said, that on leaving the well, he took the right hand road above the six mile house, and was in it when he was robbed. This road was fifty or one hundred yards from the main road, but was a wagon way which led through the field to avoid the sand. That he was in sight of the house when he was robbed. He had taken two or three drinks before he got to the well, but was sober.
    Zaehariah Oarville, the lad who accompanied the prosecutor, Peoples, corroborated his testimony in all the material facts sw.orn to by him, and presented some additional evidence of enormity. He said, that on Fisher and Heyward’s riding up, the former ordered the driver to stop the horses; the order not being obeyed, Fisher rode up and struck him on the head with a stick. That Hey-ward, before this, had snapped a pistol at him. He saw Heyward put his hand into the pocket of Peoples, and take out his pocket book. That he also saw Heyward present and snap a pistol at Peoples. He said that the first time he saw Heyward after the robbery, was in a room in the Court house; that he knew him well, and said that he really is the man who took the pocket-book, of which fact he has no doubt.
    In the defence, evidence was offered, intended to*show that Heyward r*op0 could not have been one of the persons who was present when the rob- L bery was committed. Zilpha Miller, who had been hired by Heyward, the proprietor, to keep the six mile house for him, said, that on the day of the robbery, and after the affray at the well, Heyward was engaged, personally, in replacing with her certain furniture which had been turned out of the house; that he was so immediately in her view, that he could not have been absent from her five minutes, nor three minutes; she was confident that he could not have been absent five minutes. That he remained, after the affray at the well, about an hour and a half, thus engaged at the house ; and that he then set out for town, accompanied by Fisher and wife, Roberts and Laird. She saw them proceed down the road in a direction for town. She testified as to the dress of Hey-ward, on that day, and her evidence went to show, that he was not clad as the person committing the robbery had been described by the witnesses of the State; aDd proved that Laird, who was at the six mile house that day, was so dressed.
    Testimony was offered to impair the credibility of Peoples, the prosecutor, but Ool. Levy, the witness, in the evidence he gave, rather established than weakened his credibility.
    It was also proven that on Heyward’s being retaken, Laird 'said he must be off, and that on the next morning he took his departure for Boston.
    J oseph Roberts, one of the assailants at the well, a person implicated in this charge, who had been tried on this indictment and acquitted, Laird having given testimony in his behalf, he testified, that this man, Laird, was one of the persons who committed the robbery. To this fact he swore most positively, and solemnly asseverated that Heyward was not present at the robbery. On being asked how he knew it, he hesitated to answer, and from his manner, evidently designed to convey the idea that he himself was the other person, He said that 7i Heyward knew nothing xof the robbery. That the witness had given ’ J no information of Laird’s guilt till after his own acquittal; and that when the robbery was committed, Heyward was at the house.
    Ool. Oleary, who was called in reply on the part of the State, said that he accompanied Peoples, the prosecutor, to the gaol, and his testimony went to corroborate the facts sworn to by Peoples, which took place at the gaol.
    The jury found the defendant guilty.
    The defendant appealed, and the causes of appeal, contained in the brief, were:
    1. For a new trial, on the ground that the verdict was contrary to the weight of evidence; and.
    2. In arrest of judgment, on the ground of misdirection, in point of law, on the part of the presiding judge, in having directed the jury to the following, effect and purpose: That if they believed the prisoner to be one of a gang who had associated themselves together for the purpose of committing robberies generally, in or near the six mile house, they had a right to presume him to be so constructively present on the particular occasion set forth in the indictment. '
    
      
       Another case of like name, 1 vol. 546.
    
    
      
       3 Stat. 468; 1 N. & McC. 10, 91.
    
   The opinion of the Court was delivered by

Gantt, J.

The Court are of opinion that there is no cause for arresting the judgment in this case. That can only be done upon objections which arise upon the face of the record itself, and which make the proceedings apparently erroneous. JsTo misdirection on the part of the presiding judge ; no defect in evidence, or any other circumstance attending the trial, dehors the record, is a ground for arresting the judgment. See Chit. Crim. Law, tit. Arrest of Judgment.

The present motion, therefore, can be considered as one for a new trial only, for the several reasons taken in the brief: and first, is the prisoner entitled to a new trial for the supposed misdirection in the charge of the *2181 judge ? The correctness and *propriety of the charge d must be judged of by the nature of the offence contained in the indictment and the manner of setting it forth, the evidence in support of it, and with reference to the arguments of counsel. In this indictment sundry persons are included; various counts inserted, under which the persons implicated are respectively charged, first, as principals committing the robbery in person, and secondly, as aiders and abettors, or principals iu the second degree. After that manner is Heyward, the prisoner, charged. From the evidence, no possible doubt can be entertained but that a most unlawful, unprovoked, wanton, and violent assault, has been made on the prosecutor, Peoples, by various persons coming out of the yard and six mile house, of whom Heyward, the prisoner, is positively sworn to have been one. The assault committed on a peaceable, unof-fending stranger, on the highway, travelling homewards from a market, in whose behalf the arm of protection ought rather to have been raised by the proprietor of the house than extended to his annoyance. The evidence shows that immediately consequent upon the outrages offered at the well, and when the prosecutor, Peoples, had proceeded, at most, but two hundred yards from the place where he had been so shamefully abused, he was followed, forced to stop, and robbed. These are strong circumstances, and if not leading to the direct conclusion, certainly bear along with them the probability, at least, of a combination having been formed, on the part of the assailants, to act in concert, upon some unlawful enterprise ; and that they were encouraged to carry it on from the strength of their number, and the certainty of mutual assistance. It was so considered by the attorney-general, who made it a strong ground of argument, contending that the circumstance of the assault at the well, and what immediately afterwards took place, would justify the jury in concluding that Heyward, the prisoner, was a principal in the second degree in this robbery, although he might not have been actually present when it was committed. These *were the considerations which led the pre- „ siding judge, in his charge, to draw the attention of the jury to L 9 the doctrine of constructive presence, if they should have reason to distrust or discredit the positive testimony which went to establish, beyond doubt, if accredited, the personal agency of Heyward in the robbery.

The law read by the presiding judge, and from which his comments were made, was the following, from M’Nally: “ In some eases there may be legal evidence of robbery, when, in truth, the defendant never had any of the loser’s goods in his possession, as when I am robbed by several of one gang, and one of them only takes my money, in which case, in* judgment of law, every one of the company shall be said to take it, in respect of that encouragement which they gave to one another, through the hopes of mutual assistance in the enterprise, nay, though they miss of the first intended prize, and one of them ride from the rest; and rob a third person in the highway, out of their view, and then return to them, all are guilty of robbery, for they came together with an intent to rob, and to assist one another in so doing.” M’Nal. Ev. 596. Now, if the evidence in this case would justify the inference, that the assault at the well was but the prelude of an intended robbery, and there is great difficulty in putting any other interpretation upon it, then it is impossible to conceive law more immediately applicable to the case. Whether the intent to commit robbery existed at the time of the assault by those engaged in it or not, the act committed was nevertheless unlawful, tending to excite a just sense of danger on the part of Peoples, the prosecutor, and certainly paved the way to the more ready accomplishment of what immediately afterwards took place, the robbery. Now, as to the abstract principle contained in the brief, can there be a doubt, that if an association should be formed by a gang of men, with the avowed design and understanding among them to commit robberies generally, and they should assemble at a particular place to carry on their trade and occupation, the *3901 *more conveniently, and especially on the side of the highway, J - that so long as this agreement continues, so long as they prosecute their design, they would respectively become principals in every act of robbery which each might commit in the neighborhood of their range, whether present or not ? The contrary doctrine would lead to the most mischievous consequences ; the law would identify them as one and the same in respect to robberies committed, and this from the countenance and encouragement which each affords the rest; the mutual assistance which they are ready to afford in every enterprise in which any of them may be engaged for the common benefit, in pursuance of their common interest.

In 1 Chitty’s Crim. Law, 25Í, the law is thus laid down : “The presence need not be an actual standing within sight or hearing of the fact; but an active co-operation in the crime, at the time of its commission : as where one stands to keep watch at a convenient distance, while another completes the felony. So, if several persons come to a house with intent to make an affray, and one be killed, while the rest are engaged in riotous and illegal proceedings, though they are dispersed in different rooms, all will be principals in the murder.” Here it is to be observed that no intent to commit murder existed on coming to the house ; the intent was to make an affray, and this intent was common. One of the gang, howevei’, commits murder, the rest, although absent in other rooms, prosecuting the object of their visit, not actually assistant in the murder, and not knowing that it was intended by the perpetrator, still they are considered as principals in the offence. The reason is, that they were engaged in the doing of an act which was unlawful, committing an affray, and shall be held equally answerable for all the consequences to which it may lead. Terror is inspired when numbers assemble themselves together for an unlawful purpose. Each actor is emboldened to go greater lengths by the countenance which the rest affords, and resistance is weakened, if not done away with altogether, by the certain danger ^arising from *321] opposition. There is nothing which the law more abhors than illegal force and violence, and its just reprehension makes the authors answerable in particular cases for more than they may have actually intended to commit, but which has been the consequence of an incipient illegal act. Chitty is supported in his position by 1 Hale, 439. Haw. b. 2, c. 29, s. 8. 1 East. P. C. 258. Dalton, who is also referred to by Chitty, deduces a correctness in this doctrine, from what is said in 2 Sam. 12, ix., where David is told (from God,) that he had killed Uriah, whereas he only commanded Joab to kill him. And in the case of the Serpent, who was aiding and advising the perpetration of the first sin ; and who, by the judgment of the Almighty, had imposed upon him a greater punishment than on the woman or man. The case of the Lord Dacre, noticed in 1 Hale, 439, although a case of murder, shows that the consequences growing out of an unlawful act, devolve upon all who have been engaged in it. In that case, the intent was to steal deer in the park of one Pelham. Rayden, one of the company, killed the keeper in the park. The Lord Dacre and the rest of the company being in other parts of the park, it was ruled that it was murder in them all, and they died for it.

In the case before the Court, although there was no express evidence of any association having been formed by the persons engaged in the affray at the well, and therefore by a remote possibility, the principle said to have been advanced, may have had an influence in the finding of the jury, yet it is thought much more probable, that if the jury were influenced by anything short of the positive testimony of the prisoner being the robber, it must have been a conviction resting on their minds, and growing out of the circumstances of the case, that the robbery was the result of a preconcerted determination to commit it. The evidence affording this conviction being the violence of the assault at the well, a violence calculated, and perhaps intended, to impress upon the mind of the unhappy *victim of it, so strong a sense of their barbarity and r*an9 his own danger, as to induce him afterwards to yield his property L -1 without resistance, rather than forfeit his life by a refusal. The time when the robbery was committed, and the place where, are no inconsiderable circumstances to strengthen the conclusion, that the last act was no more than the consummation of what had been before determined on.

An argument has been offered to show, that, as the place where the robbery was committed, was off the highway, that the prisoner is entitled to his clergy. But the Court cannot view the circumstance in that light. It was a way used in common by travellers, to avoid the sand, and must therefore be considered as much a highway as the road which he left, so long as there was no restriction to the enjoyment of this privilege. A practice not confined to that particular place, but one which extends throughout most of the low country, where the roads are deep with sand.

The evidence being positive as to the prisoner’s being one of the persons who committed the robbery, it appears, from short notes taken by the judge of his charge, that the jury were told that the question was one of identity of person, in the solution of which they were to be governed by the evidence which had been offered.

Prom the most attentive view of the evidence and circumstances incident to this trial, the Court are of opinion that no new trial can be granted, and that the motion for the same, must fail.

Nott, Johnson, HugeR and Bat, concurred.

Richardson, J.:

I dissent in this ease from the opinion of the Court, upon the alleged ground of mistake in law, in the charge of the judge to the jury.

Colcock, J., was absent, holding the Court below.  