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
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
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.