COLLIER, J.
The prisoner was indicted in the Circuit Court of Monroe County, in an indictment containing two counts.
The first count charges in due form, the prisoner, in conjunction with Thomas P. Kennedy, with making an assault “upon one Primus, (a negro .man slave, belonging to one George Roll,) and the said Kennedy, with discharging the contents of a pistol at Primus, by means of which he was wounded, and thereafter died,” The count then proceeds [37]*37to charge the prisoner with being present, aiding, helping, abetting, comforting, assisting and maintaining the said Kennedy, “ the felony and murder aforesaid,” in manner and form aforesaid, to do and commit. The count then concludes, that the prisoner and the said Kennedy did kill and murder, in usual form.
The second count merely charges, that the prisoner andj said Kennedy did “ maliciously deprive a certain negro man slave, named Primus, belonging to one George Roll, of lifeand concludes, contra formarn statuti, and against the peace and dignity of the State.
The prisoner, we suppose, (though the record does not shew,) was tried on the plea of not guilty; to which the jury responded, “ that the said prisoner is guilty of manslaughter, and not guilty of murder, and assess his imprisonment at sixty-eight days, and a fine of one hundred dollars.” Judgment following the verdict, the prisoner by his counsel, submitted to the Court the following motion.
“The State ^ “ The defendant in this case vs > moves to arrest the judgment, “ Daniel Coleman, ) upon the following grounds—
1st. The indictment is against Thomas P. Kennedy and Daniel Coleman, for the murder of a negro slave, named Primus; and the indictment charges Kennedy with shooting the said Primus, with a pistol, which the said Kennedy in his right hand ■had and held; and charges the defendant, Coleman, with being present, aiding and abetting.
Pdly. The indictment shews, that Coleman, if he [38]*38did any thing, only aided and abetted Kennedy; and, under that charge, lie can not be found guilty of manslaughter, — because, the very nature of the offence, with which Coleman is charged, implies premeditation, and would make it murder, if it be any offence at all.
“3dly. No one can commit manslaughter, except the one who actually kills — because manslaughter is an unlawful killing, without malice.
“4thly. The judgment ought to be arrested, because the finding is uncertain, in not shewing on which count the defendant was found guilty.
5thly. The finding is erroneous, if under the second count, because the second count is founded on the statute against malicious killing, and every malicious killing is murder — at any rate, if the jury found the defendant guilty, under the second count, they ought to have found him guilty of murder, and not of manslaughter.”
The Circuit Court overruled the motion in arrest of judgment, and referred the questions of law, thereupon arising, as novel and difficult, to this Court, for its decision.
The legal sufficiency of the first count in the indictment, is not drawn in question by the reference made to this Court; if it were, as at present advised, we should not hesitate to express the opinion, that it conforms to the most approved precedents, and was consequently free from objection.
In respect to the second count, it charges no of-fence, with technical precision and accuracy — the means employed, the circumstances of their employment, and the particular offence committed, [39]*39save only by way of inference, are not shewn; so that according to all rule, this count cannot be sustained. It is supposed to be founded upon the third section of the article of our constitution, in relation to slaves, which is as follows: .
“Any person who shall maliciously dismember, or deprive a slave of life, shall suffer such punishment as would be inflicted, in case the like offence had been committed on a free white person ; and on the like proof, except in the case of insurrection of such slave.”
This provision of the constitution, was never intended to introduce any new offences against the law. “Maliciously to dismember, or to deprive a slave of life,” were as highly penal, before its adoption, as they are now-. Its true purpose, was, the security of the slave, by restraining the legislature from the enactment of laws, which would take from him the same protection for his life, which the free white man enjoys. To ascertain how the charge should be made in the indictment, we are not to look to the constitution, but to the books which treat of criminal law. Maliciously to dismember, or deprive of life, are but terms of circumlocution, to designate mayhem and murder, and an indictment for the former, should be good for mayhem, and of the latter, for murder.
The first count being good, and the second bad, the question arises, can the verdict of the jury, which is general, and upon both counts, be sustained. It may be observed, that each-count, is a distinct substantive charge. If either count be defective, exception may be taken to it by motion to quash, or [40]*40on demurrer, at the discretion of the judge trying the case; but no objection will avail to the whole indictment, if it has any good count.
j£ £[iere are several counts in an indictment, and the law inflicts a distinct punishment for the offence charged in each, then the indictment would be bad for misjoinder of offenqes. It however, seems to be now well settled, that where there is a verdict and judgment on an indictment, with good and bad counts, the judgment shall not be arrested or reversed; but that the finding of the jury, will be upheld by the good counts. For it will be presumed, that the Court, and of consequence the jury, were controlled in their action, by a reference to the good counts.† And Lord Mansfield,‡ seems to have considered this to be law in his day, and expressed regret that the principle had not been applied to proceedings in civil suits,
The right to punish manslaughter, under an indictment for murder, has been conceded, upon the principle that the latter includes the former, as a lesser offence of kindred character.
It remains, then, but to inquire whether the prisoner can ,be found guilty of manslaughter, upon the first count of the indictment,
In this count, he is charged with Kennedy, in making an assault upon Primus, and aiding and abetting of him. (Kennedy,) to shoot him, (Primus.) To have participated in the assault, implies an actual and not a constructive presence. To constitute the crime of murder, it is essential to- shew, either express or implied malice, on the part of the-accused, for if uninfluenced by what the law terms [41]*41express malice, or there be no proof of such circumstances as to authorise its implication, he must, if the act be merely illegal, be guilty of manslaughter. The man who, without any predetermined purpose, but under the influence of a momentary excitement, aids and abets his friend in an affray, in which the friend kills his adversary, is not guilty of murder, because malice, an essential constituent of the crime, is wanting; yet, he is not wholly dispunishable, for aiding and abetting an unlawful homicide.
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COLLIER, J.
The prisoner was indicted in the Circuit Court of Monroe County, in an indictment containing two counts.
The first count charges in due form, the prisoner, in conjunction with Thomas P. Kennedy, with making an assault “upon one Primus, (a negro .man slave, belonging to one George Roll,) and the said Kennedy, with discharging the contents of a pistol at Primus, by means of which he was wounded, and thereafter died,” The count then proceeds [37]*37to charge the prisoner with being present, aiding, helping, abetting, comforting, assisting and maintaining the said Kennedy, “ the felony and murder aforesaid,” in manner and form aforesaid, to do and commit. The count then concludes, that the prisoner and the said Kennedy did kill and murder, in usual form.
The second count merely charges, that the prisoner andj said Kennedy did “ maliciously deprive a certain negro man slave, named Primus, belonging to one George Roll, of lifeand concludes, contra formarn statuti, and against the peace and dignity of the State.
The prisoner, we suppose, (though the record does not shew,) was tried on the plea of not guilty; to which the jury responded, “ that the said prisoner is guilty of manslaughter, and not guilty of murder, and assess his imprisonment at sixty-eight days, and a fine of one hundred dollars.” Judgment following the verdict, the prisoner by his counsel, submitted to the Court the following motion.
“The State ^ “ The defendant in this case vs > moves to arrest the judgment, “ Daniel Coleman, ) upon the following grounds—
1st. The indictment is against Thomas P. Kennedy and Daniel Coleman, for the murder of a negro slave, named Primus; and the indictment charges Kennedy with shooting the said Primus, with a pistol, which the said Kennedy in his right hand ■had and held; and charges the defendant, Coleman, with being present, aiding and abetting.
Pdly. The indictment shews, that Coleman, if he [38]*38did any thing, only aided and abetted Kennedy; and, under that charge, lie can not be found guilty of manslaughter, — because, the very nature of the offence, with which Coleman is charged, implies premeditation, and would make it murder, if it be any offence at all.
“3dly. No one can commit manslaughter, except the one who actually kills — because manslaughter is an unlawful killing, without malice.
“4thly. The judgment ought to be arrested, because the finding is uncertain, in not shewing on which count the defendant was found guilty.
5thly. The finding is erroneous, if under the second count, because the second count is founded on the statute against malicious killing, and every malicious killing is murder — at any rate, if the jury found the defendant guilty, under the second count, they ought to have found him guilty of murder, and not of manslaughter.”
The Circuit Court overruled the motion in arrest of judgment, and referred the questions of law, thereupon arising, as novel and difficult, to this Court, for its decision.
The legal sufficiency of the first count in the indictment, is not drawn in question by the reference made to this Court; if it were, as at present advised, we should not hesitate to express the opinion, that it conforms to the most approved precedents, and was consequently free from objection.
In respect to the second count, it charges no of-fence, with technical precision and accuracy — the means employed, the circumstances of their employment, and the particular offence committed, [39]*39save only by way of inference, are not shewn; so that according to all rule, this count cannot be sustained. It is supposed to be founded upon the third section of the article of our constitution, in relation to slaves, which is as follows: .
“Any person who shall maliciously dismember, or deprive a slave of life, shall suffer such punishment as would be inflicted, in case the like offence had been committed on a free white person ; and on the like proof, except in the case of insurrection of such slave.”
This provision of the constitution, was never intended to introduce any new offences against the law. “Maliciously to dismember, or to deprive a slave of life,” were as highly penal, before its adoption, as they are now-. Its true purpose, was, the security of the slave, by restraining the legislature from the enactment of laws, which would take from him the same protection for his life, which the free white man enjoys. To ascertain how the charge should be made in the indictment, we are not to look to the constitution, but to the books which treat of criminal law. Maliciously to dismember, or deprive of life, are but terms of circumlocution, to designate mayhem and murder, and an indictment for the former, should be good for mayhem, and of the latter, for murder.
The first count being good, and the second bad, the question arises, can the verdict of the jury, which is general, and upon both counts, be sustained. It may be observed, that each-count, is a distinct substantive charge. If either count be defective, exception may be taken to it by motion to quash, or [40]*40on demurrer, at the discretion of the judge trying the case; but no objection will avail to the whole indictment, if it has any good count.
j£ £[iere are several counts in an indictment, and the law inflicts a distinct punishment for the offence charged in each, then the indictment would be bad for misjoinder of offenqes. It however, seems to be now well settled, that where there is a verdict and judgment on an indictment, with good and bad counts, the judgment shall not be arrested or reversed; but that the finding of the jury, will be upheld by the good counts. For it will be presumed, that the Court, and of consequence the jury, were controlled in their action, by a reference to the good counts.† And Lord Mansfield,‡ seems to have considered this to be law in his day, and expressed regret that the principle had not been applied to proceedings in civil suits,
The right to punish manslaughter, under an indictment for murder, has been conceded, upon the principle that the latter includes the former, as a lesser offence of kindred character.
It remains, then, but to inquire whether the prisoner can ,be found guilty of manslaughter, upon the first count of the indictment,
In this count, he is charged with Kennedy, in making an assault upon Primus, and aiding and abetting of him. (Kennedy,) to shoot him, (Primus.) To have participated in the assault, implies an actual and not a constructive presence. To constitute the crime of murder, it is essential to- shew, either express or implied malice, on the part of the-accused, for if uninfluenced by what the law terms [41]*41express malice, or there be no proof of such circumstances as to authorise its implication, he must, if the act be merely illegal, be guilty of manslaughter. The man who, without any predetermined purpose, but under the influence of a momentary excitement, aids and abets his friend in an affray, in which the friend kills his adversary, is not guilty of murder, because malice, an essential constituent of the crime, is wanting; yet, he is not wholly dispunishable, for aiding and abetting an unlawful homicide.
Upon authority, it seems unquestionable that there may-be aiders and abettors in manslaughter; and Russell, (1. vol. 456.) lays it down, that “in order to make an abettor to a manslaughter a principal in the felony, he must be present, aiding and abetting the fact committed.” This learned author is sustained by Hale*.
So in Hawkins, (1 vol. 102.) it is said to be clear, that if-a master, maliciously intending to kill another, take with him his servants, without acquainting them with his purpose, and meet and fight his adversary, and his servants then take part with him, and kill his adversary, they are guilty of manslaughter only; but the mastei, of murder. This distinction is doubtless, founded upon the fact, that there was a mere participation in the act, without a felonious participation in the design — a distinction, founded in principle and recognized by authority. Rex vs Plumer.†
In the case at bar, xt is alleged that the prisoner was present, aiding &e. and that Kennedy and him[42]*42self, made the assault upon the deceased, which eventuated in his death, at the hands of Kennedy. This allegation, brings the case of the prisoner, not only within the principle, b,ut yvithin the letter .of the authority cited
Hence, we are of opinion, that there is no error in the refusal of the Circuit Court, to arrest its judg-pent.
Jt is therefore ajhrmecL
5 Whit. 201