OPINION.
Section 1238, Gantt's Biqest, declaring that one who aids, assists, abets, advises or encourages an-other in the commission of a crime “ shall be deemed inlaw a principal and punished accordingly,” has no reference to ■the manner of charging the offense. Construed with section 1243, part of the same Act (Act of February 16,1838), which says: “An accessory before or after the fact, may be indicted, arraigned, tried and punished, although the principal offender may not have been arrested and tried, or may have been pardoned or otherwise discharged,” its obvious meaning is, but that the punishment of the accessory shall be the same as the principal’s, and shall not depend, -as at common law, upon the conviction of the principal. Bish. on Stat. Crimes, sec. 142; State v. Ricker, 29 Maine, 84; People v. Trim., 39 Cal., 75; People v. Campbell, 40 Cal., 129.
The indictment should contain a statement of .the facts •and circumstances constituting the offense, that the accused may be apprised of the nature of the particular accusation on which he is to be tried, and be prepared for his defense. 'The facts and circumstances being so materially different, one who has advised or encouraged the commission of a felony, but was not actually or constructively present when it was committed, cannot be convicted .upon an indictment charging him, not as an accessory before the fact, but as a principal perpetrator of the crime. 1 Bish. Crim. Law., sec. 803; Rex. v. Manners 7 Car. & Payne, 801.
The instruction was erroneous and should not have been given.
The judgment must be reversed and the cause remanded.