Hovey, «L
The defendants were jointly indicted by the grand jury' of Hartford County, for the willful, deliberate and premeditated murder of Wells Shipman, a night watchman in the state prison at Wethersfield. The indictment contained two counts. The first count charged all of the defendants as principals in the crime; the second charged the defendants Hamlin and Allen as principals, and the defendant Davis as an accessory before the fact.
The defendant Davis pleaded in abatement to the indictment, assigning as causes therefor, in substance:—
First That he was not brought before the grand jury during their examination of the witnesses produced by the State against him, although he was then in the custody of the court.
Second. That more than one-third of the grand jury, before they were impaneled and sworn, had formed and expressed an opinion of the guilt of the defendants Hamlin and Allen, and had formed an opinion of the guilt of the defendant Davis, and were unduly biased and prejudiced against the defendants.
Third. That the foreman of the grand jury occupied the same law office with the State’s Attorney, and that the guilt of the defendants had been talked over, claimed and discussed by said Attorney with and in the presence and hearing of the foreman, and that thereby the foreman had become biased and prejudiced against the defendants.
Fourth. That the indictment laid before the grand jury charged the three defendants jointly with the crime of murder; that there were not twelve members of the panel in favor of finding a true bill against the defendant Davis; that a number of members desired to take a separate vote upon the question of the defendant Davis’s guilt, but the foreman of the jury ruled and decided, as matter of law, that a true bill could not be found against the defendants Hamlin and Allen, unless a true bill was also found against Davis, and refused to allow a separate vote to be taken upon the question of finding a true bill against Davis alone; and that the grand jury, believing that a true bill ought not to be found against Davis, [104] nevertheless found a true bill against him for the sake of finding a true bill against Hamlin and Allen. The defendants Hamlin and Allen also pleaded in abatement the same matters which constitute the second and third causes of abatement assigned by the defendant Davis in his plea.
The State’s Attorney demurred to these several pleas, and the court sustained the demurrers and ordered the defendants to answer over; and thereupon the defendants Hamlin and Davis severally pleaded not guilty to the charges contained in the indictment and elected to be tried by the court. The defendant Allen pleaded not guilty and elected to be tried by the jury. ' Trials were had accordingly. And the court found and adjudged the defendant Hamlin to be guilty of murder in the first degree and the defendant Davis to be guilty of murder in the second degree. The defendant Allen was also found guilty of murder in the first degree by the verdict of the jury.
The defendant Davis moved in arrest of judgment for the insufficiency of the indictment, and specially assigned as a ground for the motion that the degree of the crime charged in the indictment against him and the other defendants is not alleged; but the motion was overruled by the court.
Motions in error were then filed by the defendants Hamlin and Davis; and upon those motions the record, with the errors assigned, is brought before this court for revision.
The first question raised by the assignment of errors is, whether the omission of the grand jury to cause the defendant Davis to come before them while the witnesses produced by the State against him were under examination, vitiated the indictment as against him. It was contended upon the argument in behalf of that defendant that under the rule adopted by the judges of the Supreme Court of Errors in Lung's case, 1 Conn., 482, he had the right to be present before the grand jury while the witnesses produced by the State were * under examination by that body, and to put to those witnesses any proper questions. But the rule referred to was intended to confer no such right. It is directory merely. Its purpose was to secure uniformity in the proceedings of grand juries [105] throughout the state so far as it might be done without imposing limitations or restrictions upon the discretionary-powers of the court. Before the adoption of the rule it had been the practice of the court to grant to persons accused of capital crimes, if in custody of the sheriff of the county in which the crimes were committed, the privilege of going-before the grand jury while their cases were under investigation and interrogating the witnesses produced by the State against them. But it always rested in the discretion of the court to grant the privilege or to deny it; and the rule in lung's case was not intended to interfere with the exercise of that discretion. The grand jury had, therefore, no authority, unless directed by the court, to cause the defendant Davis to come before them. The plea in abatement contains no allegation that such a direction was givenj and in the absence of such an allegation, it must bo presumed that no such direction was given. There was no irregularity therefore ■ in the proceedings of the grand jury by reason of their-omission to call the defendant Davis before them, and consequently there is no infirmity in the indictment arising out of' that omission.
The second question is, whether the Superior Court erred! in sustaining the demurrer to that portion of the defendants’ plea in abatement in which they allege that more than one- - third of the grand jury, before they were impaneled and. sworn, had formed and expressed opinions of the guilt of the-defendants, and were unduly biased and prejudiced against them. The statutes of this state prescribe the qualifications -. of grand jurors, the manner in which they are to be summoned, and the oath which they are to take on being impaneled. They must be electors of the county in which thé inquest is held; they must be summoned by the sheriff upon an order of the court; and they must be sworn to diligently inquire after and due presentment make of all breaches of the law that shall come to their knowledge according to their charge; the secrets of the cause, their own and their fellows’, they will duly observe and keep; they will present no man from envy, hatred or malice; neither will they leave any man. [106] unpresented from love, fear or affection, or in tlie hope of reward; hut will present cases truly as they come to their knowledge, according to their best understanding and according to law. The grand jurors who found the bill of indictment in the case before .us possessed the requisite qualifications, were summoned by the sheriff upon an order of the court, and were sworn in the prescribed form. But the statutes contain no provision for challenging grand jurors; and we believe that no grand juror was ever challenged for favor in the courts of this state. Whether individual members of a grand jury may be challenged for favor before they are sworn, is a question which we are not called upon to determine, because no challenge for that or any other cause was made by either of the defendants. The common law requires grand jurors to be good and lawful freeholders and inhabitants ■ of the county in which the crimes they are to inquire after were committed. And where that law prevails, there seems to be no doubt that if a disqualified person is returned as a grand juror he may be challenged before indictment found. 3 Bac. Abr., Juries, A.; 1 Cliitt. Or, Law, 309. And Mr. Cliitty says that if the disqualification is discovered after the finding the defendant may plead it in avoidance and answer ■over to the felony. 1 Cliitt. Cr. Law, 309. But the disqualification must be such as is pronounced by the common law, ■ or by the statute, whore the statute prescribes the qualifications, and such as absolutely disqualifies; as alienage, non-residence, or the want of a freehold, where a freehold qualification is required, or that the person returned is not an elector of tlio county, and which would be a cause of principal challenge as distinguished from challenge to the favor arising from bias, prejudice, interest or the like. United States v. Williams, 1 Dillon, 492. I have examined, with considerable care, the authorities bearing upon this question, but find it. nowhere laid down that the expression of an opinion by a •grand juror, before he was summoned or returned and sworn, that the defendant was guilty, was ever a ground of challenge ■in the English courts. But in this country there are some ■respectable authorities in favor of allowing it to be a sufficient [107] ground of challenge; whilst other authorities, equally respectable, hold the contrary. Nearly all the authorities of the former class, however, hold that the exception must be taken before the juror is sworn, and if taken afterwards it cannot be allowed.
In the case of The People v. Jewett, 3 Wend., 314, the defendant and one Smith were indicted by the grand jury for a conspiracy to carry off and transport one William Morgan to some place unknown, and in pursuance of such conspiracy, for confining him in a carriage and furnishing means for his abduction. The defendant moved to quash the indictment on the ground that the foreman of the grand jury, with others, had published a pamphlet in which it was stated that the defendant, when called upon as a witness in reference to the abduction, had refused to testify, alleging that he could not do so truly without criminating himself, and concluding with strictures on the conduct of the defendant; and on the further ground that another grand juror, before the finding of the bill of indictment, had, in repeated conversations, declared that the defendant was concerned in the abduction of Morgan, aided in carrying him off, was guilty thereof, and ought to be punished therefor; and that in such conversations the juror discovered great malignity of feeling and bitter hostility against the defendant. The counsel for the defendant thought that those jurors were not competent to find a bill against the defendant. They admitted that a party recognized or in jail must challenge the jurors when they came to be sworn; but they claimed that one who has no day in court is put to his plea in avoidance or motion to quash. The court denied the motion to quash, and its action was sustained by the Supreme Court, Savage, C. J., and Marcy, J., giving opinions in the cause. The Chief Justice, after stating that the foreman of the grand jury was not disqualified for the causes set forth in the motion to quash, but that as to the other juror a good cause of challenge existed, observed: “ There are causes of challenge to grand jurors, and these may be urged by those accused, whether in prison or out on recognizance, and it is even said that a person wholly disinterested [108] may as amicus curice suggest that a grand juror is disqualified. But such objection, to be availing, must be made previous to the juror’s being impaneled and sworn. It has been urged upon us that the defendant, not having been apprised of any intended proceedings against him, and not having been arrested on a criminal charge or required to enter into a recognizance to appear at the court when the bill of indictment was found, had not an opportunity to make his challenge; that now is his earliest day in court, and that he ought, therefore, to be permitted to avail himself of this defence. Although the force of this appeal is felt, I cannot yield to it and consent that after an indictment found the party charged may urge an objection of this kind in avoidance of the indictment. The books are silent on the subject of such exceptions after indictment found, and in the absence of authority I am inclined to say in consideration of the inconvenience and delay which would unavoidably ensue in the administration of criminal justice was a challenge to a grand juror permitted to be made after he has been sworn and impaneled, that the objection comes too late.” Marcy, J., in giving his opinion said: “Though I feel the force of the argument that the defendant should be allowed the benefit of an exception to a partial grand juror, I cannot turn my view from the consideration of the great delays and embarrassments which would attend the administration of criminal justice, if it was to be obtained in the way now proposed. No authority for adopting this course was shown in the argument, and I have not since been able to find any. It would be a novel proceeding, and there is reason to fear it might be followed with more serious difficulties than are now foreseen.”
In the case of the United States v. Aaron Burr, before the Circuit Court of the United States at Richmond, Va., the prisoner was allowed to challenge grand jurors, on the ground that they had formed and expressed opinions of the prisoner’s guilt. But the challenges were made before the grand jury were impanneled and sworn. Burr’s Trial, reported by David Robertson, p. 88. In Tucker's case, 8 Mass., 286, Tucker had been returned as a grand juror. When he was [109] called in court to bo sworn, Mr. Story, as amieus curiae, suggested that a certain person had been accused of the crime of murder and that his case would come under the consideration of the grand jury at that term, whether an indictment should or should not be found against him; that Tucker had most probably formed a strong opinion of his guilt; and that it was therefore unsuitable that he should be sworn of the grand jury. Being inquired of by the court if he had known or read of an instance of an objection of this kind to a grand juror being received, Mr. Story replied that he had read in a printed account of the trial of Aaron Burr, of challenges to grand jurors being made by the prisoner for a similar cause, and allowed by the court. The court here recollected the instance referred to, observing that it was a solitary one so far as their knowledge extended. And they said that if objections of this nature were to be received, the course of public justice would be greatly impeded. Those who live in the vicinity are probably better knowing than others to the general character of the parties and of witnesses; and on this account are perhaps the more proper members of the grand jury, who will derive useful information from their knowledge. If, however, any individual juror should be sensible of such a bias upon his mind that he could not give an impartial opinion in any case under the discussion of the grand jury, such juror would.feel it his duty or it would be his right to forbear giving an opinion, or perhaps to withdraw himself from the chamber while the discussion continued. Mr. Tucker was sworn. In another case before the same court, it was held that objections to the personal qualifications of a grand juror or to the legality of the returns, cannot affect any indictments found by them after they have been received by the court and filed. Commonwealth v. Smith, 9 Mass., 107.
In the case of Musick v. The People, 40 Ill., 268, which was an indictment for larceny, the attorney for the defendant entered a motion to have the grand jury brought to the bar of the court for the purpose of having it purged of members who, it was alleged, had, before hearing the evidence, ex[110] pressed the opinion that the accused was guilty of tho charge; but the court being engaged, the motion was not taken up until the grand jury came into court for the purpose of making-presentments. After they were polled the motion was called up, and, after arguments were heard upon it, the court in-, quired of the foreman whether the grand jury had acted in the case and was informed that they had and were ready to report a bill. The court thereupon overruled the motion; and upon exception taken, the case went before the Supreme Court. The latter court were inclined. to the opinion that under the practice in Illinois, the expression of an opinion by a grand juror that the accused was guilty formed no ground of challenge. But they held that if such an expression of opinion were a ground of challenge, the objection should be taken before the grand juror has been sworn.
In Indiana, a person under prosecution for crime and in custody or on bail, may challenge, for good cause, any person returned or placed on the grand jury. Hudson v. The State 1 Blackf., 317; Jones v. The State, 2 id., 475; The State v. Herndon, 5 id., 75; Hardin v. The State, 22 Ind., 347; Mershom v. The State, 51 id., 14. In Hardin v. The State the court say that “ no doubt challenges to the polls may be made where any of the jurors have not the necessary qualifications. These challenges, however, must be made before the jury are sworn and charged.”
In Pennsylvania, the defendants in the case of Commonwealth v. Clark, 2 Browne, 325, being in jail on a charge of homicide, were allowed to challenge grand jurors for favor, before the grand jury were sworn. In New Jersey, the court in the case of the State v. Rockafellow, 1 Halst., 332, held that it was a good plea in abatement to an indictment for rape that one of the grand jurors by whom the bill was found was not a freeholder as required by the statutes of that state. In another case subsequently tried in the same court, the defendant, who was indicted for embezzling money of a bank, pleaded in abatement to the indictment that two of the grand jurors who found the bill, had, before they were sworn, formed and publicly expressed an opinion unfavorable and prejudicial [111] to the defendant, by declaring tlicir determination to have him indicted, and that nothing else would have induced them to attend the court at that term. The plea was demurred to and the demurrer was sustained. Ford, J., in giving the opinion of the court affirming the judgment, said: “ In regard to the last exception, that being no more than a challenge to the favor is, it comes too late. I have had great difficulty in finding out what the law really is upon this point. It appears never to have made its appearance before this time in a court of justice, though in point of fact the case must have been occurring for centuries; and if there be a case in the books, my misfortune has been not to discover it. In the case of Col. Burr, the challenges to grand jurors were all taken before they were sworn. The case of the State v. Rockafellow, 1 Halst., 343, was not a challenge to the favor; it was a matter of principal challenge for want of a leading qualification required by the statute; and though I subscribe to the doctrine of the court there delivered and do not see how the court could have done otherwise upon the facts admitted by the demurrer, it may lead to very inconvenient results if carried a single inch beyond the precise circumstances of that very case. If such a plea should be traversed, the eourt might find great difficulty in permitting those very counsels of the grand jury room to be pumped out of witnesses by the force of their authority, which has been employed in imposing an oath on each grand juror to keep secret. And that, not to elicit evidence of a crime in which the public justice was concerned, but to establish a mere irregularity for the purpose of arresting a public prosecution; and when the defendant was as likely to be guilty as if the irregularity had never happened. But without meaning to disturb that case, my impression is that it has no bearing on the present; and in the absence of all cases, I find no principle on which to maintain the present plea. * * Finally, there is no such plea as this to be found among the records and monuments of the law. It is sui generis, not alone without precedents (whereof the books had been filled if past ages had deemed such matters pleadable) but contrary to all precedents, which are the other way.” State v. Rickey, 5 Halst., 83.
[112] The case of The United States v. White, 5 Cranch C. C., 457, was an indictment for burning the treasury building at Washington. The defendant pleaded in abatement that one of the grand jurors who found the bill had previously expressed the opinion that the defendant was guilty of the crime charged in the indictment. The district attorney objected to the filing of the plea, because the defendant had already pleaded the general issue and because the matter pleaded was no ground for plea. And the objection was sustained by the court. In giving their reasons for thus disposing of the question the court said: “The authorities which have been cited refer to those legal disqualifications which render the juror incompetent in law to act as a grand juror in any case, and not to objections which go only to the favor in some particular case. No exception for favor can be taken to a petit juror after he has been sworn; nor has a case been cited in which an exception to one of the grand jurors for favor has been pleaded. The books cited show that challenges to grand jurors must be taken before they are sworn or before the indictment is found. Exceptions for favor are causes of challenge only and not grounds for a plea.”
In Boyington v. The State, 2 Port. (Ala.), 100, the plaintiff in error was indicted for murder, tried, and found guilty. On his arraignment he pleaded in abatement that his name was Charles R. S. Boynton, on which, issue having been taken, it was adjudged that he answer over. He then filed a special plea averring that one of the grand jurors who preferred the bill of indictment against him was, at the time of the finding, an alien. The court struck out the plea and reserved the point as novel and difficult. The Supreme Court upon that reservation affirmed the ruling of the court below and held, contrary to the decision in The State v. Rockafellow, supra, that after an indictment had been found against a prisoner and the same had boon filed and accepted by the court, he could not except to the personal qualifications of the persons selected, summoned and sworn on the grand jury, or plead in bar or avoidance of the indictment that one of the jurors who preferred it was an alien. Upon [113] the argument of that case it was urged by the attorney for the state, and with great reason, that if exceptions might be taken after indictment found, it would become the policy of the guilty to look and be silent when they saw exceptionable persons about to be impaneled and sworn; that they could not be known to the court by intuition; and guilty persons knowing them would reserve their disclosures until after indictment found in order that they might have other chances of more favorable returns or of taking similar exceptions ad infinitum.
The Supreme Court of Ohio, in the case of The State v. Easter, 30 Ohio St. R., 542, séem to have been of opinion that exceptions to grand jurors for favor, even before they are impaneled and sworn, ought not to be allowed. That was a case in which the defendant, who was indicted for murder in the first degree, pleaded in bar that one of the grand jurors who found the indictment was a nephew of the murdered man and was therefore disqualified. The plea was demurred to, and the demurrer having been sustained by the court, the defendant removed the record to the Supreme Court in order that the question might be there determined. The learned judge who gave the opinion in the case affirming the judgment below, after reviewing the authorities bearing upon the question, and commenting upon the qualifications prescribed by statute for grand jurors and the causes for which they might be challenged, recited the language of the oath taken by them when impaneled, and then observed: “This language seems to indicate that the grand juror may be called upon to act in cases both of enemies and friends. If the first, his oath is that neither malice, hatred, nor ill will shall influence his deliberate and impartial judgment. If the last, no considerations of passion or friendship shall disturb the just discharge of his duties. The grand jury only presents the charge against an accused person; it does not try that charge. This is for the petit jury, and it is well enough that they are subject to the variety of challenges above specified ; but as to the grand juror, his qualifications are simply those the statute has prescribed.”
[114] ; The authorities which have been cited show conclusively that objections to grand jurors on the ground that they have formed and expressed opinions of the guilt of a person accused of crime, before they were impaneled and sworn, cannot be pleaded in abatement to the indictment. There was, therefore, no error in the judgment of the Superior Court that the defendants’ pleas, so far as they were based upon that ground, were insufficient. This disposes of the objection of the defendants to Mr. Sumner, the foreman of the grand jury who indicted them. That objection was in the nature of a challenge to the jury for favor, and could not, as has been shown, be pleaded in abatement.
The next error assigned is that the Superior Court overruled that portion of the defendant Davis’s plea in abatement in which it is alleged that there were not twelve members of the grand jury in favor of finding a true bill against that defendant; that a number of members desired to take a separate vote upon the question of his guilt, but the foreman ruled, as matter of law, that a true bill could not be found against the defendants Hamlin and Allen, unless a true bill was also found against the defendant Davis, and refused to allow a separate vote to be taken upon the question of finding a true bill against Davis alone, and that the grand jury believing that a true bill ought not to be found against Davis, nevertheless found a true bill against him for the sake of finding a true bill against Hamlin and Allen. This ground of abatement, though demurred to by the State’s Attorney, was properly overruled by the court. The State’s Attorney had no authority, by demurrer or otherwise, to admit the truth of the allegations contained in that part of the plea, because the law, in furtherance of justice, requires that the proceedings of grand juries should be conducted in secret, and that the secrets of the jury-room should not be revealed. The jurors, as has been shown, are sworn to secrecy—the secrets of the cause, their own and their fellows’, they will duly observe and keep. “ The secrets of the cause ” must relate to the persons accused, the witnesses, who they are and what they testified. Their own and their fellows’ secrets [115] must refer to tlie deliberations and the votes of the grand jurors themselves. And it was early decided that a grand juror should not be allowed to swear what was given in evidence before them, because lie is sworn not to reveal the secrets of his companions. 12 Vin. Abr. B. a. 5, 20, Evidence H. 4: State v. Fassett, 16 Conn., 465. It was also decided at ail early day that the cleric of a grand jury could not be compelled to testify what took place before that body. 12 Vin. Abr. 38, Evidence B.
It was contended upon the argument in the case of The State v. Eassett, that the witnesses called before the grand jury, as they were not sworn to secrecy, might testify to what took place before that body, although the grand jurors might not. In answer to that claim, Chief Justice Williams said: “ Such a practice would nullify the rule. If it be the object of the law to keep secret the proceedings before the grand jury, it is necessary that the law should impose silence upon those whom it compels to be before them. If it intends they shall be public, then the doors of the grand jury room as well as of the court room should bo open to all. If others called there by law may testify to what took place within those walls, it would be idle to close the mouths of the grand jury. * * And we can have no hesitation in saying that the principle which would prevent disclosure by a grand juror must extend to all persons required by law to be present; for such persons are equally interested in the administration of the penal law. 1 Greenl. Ev., § 288. They are not permitted to disclose who agreed to find the bill of indictment, or who did not agree; nor to detail the evidence on which the accusation was founded. Sykes v. Dunbar, Selw. N. P., 815 [1059]; Huidekoper v. Cotton, 3 Watts, 56.” And in Regina v. Marsh, 6 Ad. & EL., 236, which was an indictment for a misdemeanor, the court refused to receive the affidavit of a grand juror as to the number of grand jurors who concurred in finding the bill. See also Regina v. Russell, 1 Car. & Marsh., 247; State v. Baker, 20 Mo., 338.
The allegations in that part of the defendant Davis’s plea in abatement, which is now under consideration, could not, if [116] they are true, be proved, except by the testimony of the grand jurors themselves. The grand jurors could not have been allowed to give testimony in respect to them. And the admission of the State’s Attorney could not be received by the court in proof of them. When the plea containing those allegations was filed, the State’s Attorney should have objected to its allowance; and the court, upon such objection, would have ruled it out. But as that course was not adopted, the demurrer to the plea cannot be allowed to operate as an admission of the truth of the allegations pleaded, or to have any other operation or effect than an objection or exception to the filing and allowance of the plea.
The next question is whether the indictment charges the defendants with the crime of murder in the first degree according to the requirement of the statute. The General Assembly, by a statute enacted in the year 1846, divided the crime of murder into two degrees—murder in the first degree and murder in the second degree. They declared in that statute that murder which is perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in perpetrating or attempting to perpetrate any arson, rape, robbery or burglary, shall be murder in the first degree, and that all other kinds of murder shall be murder in the second degree; that murder in the first degree shall be punished by death and murder in the second degree by imprisonment in the state prison for life; and that the jury before whom any person indicted for murder shall be tried, shall, .if they find such person guilty thereof, ascertain in their verdict whether it is murder in the first or second degree.
“It is apparent from this statute,” said Waite, J., in giving the opinion of the court in the case of The State v. Dowd, 19 Conn., 387, “that it was not the design of the legislature to create any new offense, or change the law applicable to murder, except so far as the punishment was concerned. The crime still remains as it was at common law; and in the more aggravated cases the person convicted is liable to the original punishment, while others whose crimes are less aggravated are punished with less severity.”
[117] The common law form of indictment which charge^ the defendant with committing the homicide “feloniously, wilfully, and of his malice aforethought,” was therefore sufficient to sustain a verdict of murder in the first as well, as the second degree. State v. Verrill, 54 Maine, 408; Pike v. The State, 49 N. Hamp., 399; Green v. Commonwealth, 12 Allen, 155; Kennedy v. The People, 39 N. York, 245; Fitzgerald v. The People, 37 id., 413; Commonwealth v. Flannagan, 7 Watts & Serg., 415; Fahenstock v. The State, 23 Ind., 231; Hogan v. The State, 30 Wisc., 437; State v. Lessing, 16 Minn., 75; State v. Lloyd, 9 Cal., 54; Wall v. The State, 18 Tex., 682. But as that form of indictment did not, in terms, charge the crime to have been committed “deliberately and premeditatedly,” the defendant could not know, with certainty, whether he was to be tried for murder in the first degree, or only for murder in the second degree. The General Assembly therefore passed another act in 1870, by which they directed that in all indictments for murder the degree of the crime charged shall be alleged. The object of that statute was to give to the defendant information from the indictment itself, whether he is to answer to a charge of willful, deliberate, and premeditated murder, or murder of a lower degree. And the object is accomplished by any allegation which communicates to the defendant, with reasonable certainty, that information. That the addition to an indictment in the common law form of an allegation that the crime therein charged was murder in the first degree, would be sufficient, cannot be doubted. But the counsel for the defendants insist that no other allegation will satisfy the requirement of the statute. We are of opinion, however, that where the indictment charges the crime to have been committed by the defendants feloniously, willfully, deliberately, premeditatedly, and of their malice aforethought, as the present indictment does, it is equivalent to an allegation in an indictment in the common law form, that the crime charged therein is murder in the first degree, and is therefore sufficient.
The only remaining question raised by the assignment of [118] errorjá is, -whether the two counts in the indictment are properly joined. The defendants Hamlin and Davis claim that tlugy are not, because the first count charges all of the defendants as principals in the crime of murder, and the second •fcharges the defendants Hamlin and Allen as principals and the defendant Davis as an accessory before the fact. This error, like the one last considered, is assigned by Hamlin as well as by Davis, although Hamlin neither demurred to the indictment nor moved in arrest of judgment for its insufficiency ; it being claimed by him that the demurrer to the plea-in abatement gives him the right to avail himself of any substantial defect in the indictment. This claim, however, is not sustainable. For although it is a general rule that a demurrer to any pleading reaches back to the first defect and requires the court to render judgment against the party who commits in his pleading the first substantial error, it does not apply to pleas in abatement. Belayse v. Hester, Lutw., 1592; Rich v. Pilkington, Carth., 171; Hartop v. Hislop, 1 Salk., 212; Clifford v. Corry, 1 Mass., 495; Ellis v. Ellis, 4 R. Isl., 110; Dean v. Boyd, 9 Dana, 169; Ryan v. May, 14 Ill., 49; Crawford v. Slade, 9 Ala., 887; Knott v. Clements, 13 Ark., 335; Steph. Plead., 144; 1 Chitt. Pl., 465, 669. But being unwilling that either of the defendants should- be prejudiced by the inadvertence of counsel, we will consider the question as though it were in all respects regularly and properly presented.
By the common law an accessory could not be put upon his separate trial without his consent, until the conviction of the principal; for by that law the legal guilt of the accessory depends upon the guilt of the principal; and the guilt of the principal can only be established in a prosecution against himself. 3 Greenl. Ev., § 46; 2 Swift Dig., 368. But by statute accessories before the fact may be prosecuted and punished as if they were the principal offenders. The object of this statute was to abolish all distinction between an accessory before the fact and the principal in respect to the grade of the offence and the punishment, and to do away with the provision of the common law which made the conviction of [119] the principal a condition precedent to the convictio I' (ho accessory. An accessory may, therefore, bo indicted ('líber as a principal, that is, he may be charged in the indictment with having actually committed the offence as a principa", r he may be indicted as accessory as for a substantive offen-- or he may be joined in the indictment with the principal or principals at the option of the prosecutor. 1 Arehb. Cr. PL & Ev. (8th Am. Ed. by Pomeroy), 71; Regina v. Hughes, Bell, 242; Regina v. Manning, 2 Car. & Kir., 886 in note. But it is contended by the counsel for the defendants that a party cannot be cliai’ged as the principal offender in one count and as an accessory in another, because a person cannot at the same time be present as a principal and absent as an accessory before the fact; and if he be so charged, the counts will be repugnant. A claim similar to this was made in the case of The People v. Valencia et al., 43 Cal., 552. The defendants were indicted for the murder of one Hewitt. The indictment, like the one in the case before us, contained two counts. The first count charged Pancho Valencia as the principal and Guadalupe Valencia as an accessory. The second count charged Guadalupe as the principal and Pancho as an accessory. The statute provided that accessories might be indicted, tried and punished as principals. The indictment was demurred to, but the demurrer was overruled and the judgment overruling the demurrer was affirmed by the Supreme Court. The defendants contended that the indictment did not conform to the provisions of the statute, because it charged each defendant with two offences, and because the two counts were repugnant. But the court said it was apparent that only one offense was charged, which was the murder of Hewitt; that the principal and the accessory are alike guilty of the same offense, but the rules of pleading required that an accessory should be charged as such and not as a principal; that, had only one of the defendants been indicted, if it were doubtful whether the evidence would show that he was the principal or an accessory, he should bo charged in one count as the principal and in another count as an accessory; that .there would be neither two offences [120] charged in the indictment nor would the two counts bo inconsistent; and that the same rule would obtain where two or more are charged in the same indictment. In this state it is not necessary, as it is in California, to state in an indictment against an accessory the acts which show that he aided and abetted the crime, and thus became in law a principal; but it is sufficient to charge him directly as a principal, and proof that he was an accessory before the fact will support the charge. There is nonobjection, however, to the joinder of a count charging two or more parties as principals with a count charging one or more of the same parties as principals and the others as accessories before the fact, as the proof inquired to support the latter count will also be sufficient to support the former. And the two counts, being for one and the same crime and supported by the same evidence, would not be repugnant, or otherwise opposed to the rules of criminal pleading. State v. Tuller, 34 Conn., 280; 1 Bish. Cr. Pro., § 426; 1 Chitt. Cr. Law, 248; Archb. Cr. Pl. & Ev., 69. The objection that the two counts in the indictment are improperly joined, must, therefore, be overruled. But if two such counts could not bo properly joined, the misjoinder could not be taken advantage of by motion in arrest of judgment or on error. 1 Cliitt. Cr. Law, 248; Archb. Cr. PI. & Ev., 69; 1 Bisli. Cr. Pro., §§ 424, 426, 447.
[Note.—Judges Sanford, Beardsley, and Hovey of the Superior Court sat in the place of Judges Park, Carpenter, and Pardee, in this and the next following case.]
Upon the whole, the record discloses no error in the proceedings of the Superior Court, and the judgments against the defendants Hamlin and Davis are affirmed.
In this opinion the other judges concurred.