By the Court. —
Lumpkin, J.
delivering the opinion.
There are numerous points in this case, and, involving as they do the life or death of a fellow-creature, they are entitled to the most careful and patient examination.
[1.] Manuel Studstill and Jonathan Studstill wore jointly indicted as principals, in the second degree, in the County of Lowndes, for the murder of one William Slaughter. At the last December Term of the Superior Court, the case against Manuel Studstill was called, when counsel for the defendant stated, that there was a preliminary plea of autrefois acqiát to be first disposed of, before the party was prepared to announce himself ready for trial on the merits. Accordingly, issue was joined, a Jury impanneled, when a verdict Was rendered in favor of the State; whereupon, and before any farther proceedings were had against Manuel Studstill, the Solicitor General proposed to put Jonathan Studstill on his trial. To which he objected, on the grounds that the defendants having severed, and the State having elected to proceed first against Manuel Studstill, it could not suspend the prosecution against him, but must go through with it. This objection was overruled, and the prisoner wascompelled to announce whether or not he was ready for trial; and this is the first error complained of in the bill of exceptions.
It will be perceived, that Manuel Studstill cautiously abstained from announcing himself ready for trial on the merits of the indictment, but instead thereof, he pleaded a former acquittal in bar of the prosecution. No step was taken, therefore, in the main trial. All that was done was merely to remove an obstacle out of the way. After this, the case stood as though it had never been called. Concede, however, that the practice was irregular, has the defendant been prejudiced by it % He could not possibly have been injured, and he may have been benefited by the course pursued. The record shows that Manuel Studstill was iutroduc[10]*10ed as a witness by Jonathan Studstill; whereas, had Manuel Stud-still been first tried and convicted, he would thereby have been rendered incompetent to testify. 1 Greenlf. Ev. 417 to 424.
[2.] The defendant proposed to continue the case on account of the absence of one Samuel Spencer, by whom he expected to prove that William Holliday, who was subpcEnaed as a witness on the part of the State, to testify to a conversation between defendant and Samuel Mattox, in which defendant confessed his guilt, admitted to Spencer, that he, (Holliday,) at the time of the alleged conversation, was beastly drunk, and by reason thereof utterly incapable of understanding any thing. The Court refused to grant the continuance, and this decision is excepted to.
Had Holliday been offered, during the progress of the trial, in support of the prosecution, we should hold that the Court erred in not allowing the motion — due diligence having been shown to procure the attendance of Spencer. But the presiding Judge certifies that Holliday was not, in fact, sworn. Consequently, the necessity for the presence of Spencer was obviated. Had the State agreed, in the first instance, to dispense with the testimony of Holliday, the application for postponement would have been unavailing. The failure to introduce him answers the same purpose. It cures the error.
[3.] The Solicitor General offered in evidence, the original indictment, verdict and judgment against Samuel Mattox, the principal in the first degree, to which the defendant objected on two grounds : 1st. That certified copies alone were admissible; and 2dly, Because the record was between different parties, to wit: the State of Georgia and Samuel Mattox. These objections were overruled, and the prisoner excepted.
The State offered Capt. Sanderson, to prove the acknowledgments of Mattox, the principal in the first degree, that he (Mattox) shot the gun when William Slaughter was killed. This testimony was objected to by the defendant, on the ground that Mattox was not upon his trial, and that he could not be criminated by the confessions of a third person. The evidence was received by the Court, and the prisoner excepted.
In order to avoid repetition, I have found it convenient to consolidate these two grounds. They depend on the same principle.
I would remark merely, in relation to one of the points,, that original documents,, such as bills, answers, declarations, de[11]*11crees, verdicts, &c. are always admitted to establish a fact in the same Court where the proceeding was had; especially where they are in paper, viz-: before enrolment. Copies are at best but secondary proof, and exemplifications of judicial proceedings are admitted only from convenience and the necessity of the case. In some instances the originals are still exacted, as in an indictment for perjury, in a bill or answer; also, on trials for forgcry.
As to the main question, that is, how far the record of the -conviction of Samuel Mattox, the principal in the first degree, and his confessions as to his own guilt are admissible, it is one not without difficulty. It is very desirable, if practicable, to define and apply some definite rule in such cases. It obviously will not do to hold, on the one hand, that as against the accessory and principal in the second degree, it is entirely res inter alios acta, and no proof whatever of the guilt of the principal; and that the whole question of the principal’s guilt is just as open as though there had been no previous trial. Neither, on the other hand, will it .do to maintain, that this record is conclusive evidence of the principal’s guilt. In the case of principal and surety in civil contracts, the doctrine is'now well settled, that a verdict and judgment against the former, is only prima facie evidence against the latter. It would be strange if, in criminal cases, the accessory or principal in the second degree, were not permitted to show that the offence alleged to have been committed did not amount to felony, or not that species of felony with which the principal was charged; as for example, -in the case before us, that the homicide was manslaughter and not murder; or, lastly, that the principal himself was manifestly innocent.
[4.] We apprehend this to be the correct doctrine, that the record is conclusive evidence of the conviction of the principal; that it is prima facie evidence of his guilt, and that the burthen of proof is thereby cast upon the accessary or principal in the second degree, to establish his innocence by some new and incontestible evidence; as that, in the present case, there was no murder, or that Samuel Mattox was elsewhere, or in a condition, from disease or some other cause, that rendered it impossible for him to have perpetrated the crime.
[5.] And we are of the opinion, that the confessions of Samuel Mattox as to his own guilt, were rightly admitted to inculpate [12]*12him, though not to implicate others; and the Court very properly discriminated as to the object for which this proof was allowed.
In South Carolina, in the State vs. Sims, (2 Bailey’s Ref. 20,) the Court held, that the record of the conviction of a slave before a Court of Magistrates and Freeholders, as principal in the felony, might be given in evidence on the trial of an indictment against a free white man as accessory before the fact, and that the confessions of the slave of his own guilt as principal, were admissible iq. evidence on the trial of a free white man as accessory before the fact.
Whether, under our Statute, which renders slaves testimony incompetent against a free white citizen, those propositions bo maintainable, we forbear to express any opinion. As between free white persons, however, the authorities all agree, and we think the position incontrovertible, that the record of the conviction of the principal is evidence against the accessory, subject to be rebutted by showing, satisfactorily, that the principal was not guilty; and if the prisoner may, in his defence, resort to parol testimony to establish that, notwithstanding the record, the crime was not, in fact, committed, or that his principal .was innocent, it follows, necessarily, that it may be offered on the part of the prosecution to show his guilt; and nothing can be better for this purpose than the free and voluntary confessions of the party.
[6.] John C. Sanderson was offered as a witness in defence of the accused, to prove that the prisoner was a.man of weak mind, although it was admitted that he was neither idiot, lunatic nor insane ; the object of the proof being to weaken the force of his confessions. The Court rejected the evidence, and this decision is excepted to.
All persons are considered by our Code capable of committing crime, who are neither idiot, lunatic, nor insane, and who have arrived at thejlage of fourteen years, and before that age, if they know the distinction between good and evil; and if capable of committing crime, they are liable to be convicted upon their own confession. We cannot, therefore, recognize the distinction which is sought to be ingrafted on the law. It would lead to endless metaphysical|discussions on the philosophy of the mind. Besides, experience teaches that, in point of fact, the cunning and crafty are. much more likely to conceal and misrepresent the truth, than those who are less gifted. It is the trite observation [13]*13of all' travelers, that if you wish to learn the truth with respect to the health of a country, you must interrogate the children and servants about the matter.
Mrs. Bailey, a witness for the State, swore on the'trial, that she had never conversed with one Samuel Spencer on the subject of the murder. The defendant offered John J. Underwood to testify that, at the request of Spencer, he prepared an affidavit for Mrs. Bailey, which she qualified to, without alteration, for the purpose of attacking her credibility. The Court, as we think, very properly rejected this testimony. Fifty persons, who had seen and talked with Mrs. Bailey concerning the transaction, might, any one of them, have communicated to Spencer what she know or said about it, and thus have enabled him to have her oath drawn up, without any personal interview between deponent and himself.
[7.] The Court charged the Jury that criminal negligence was¡ an unlawful act done, or a lawful act done without due caution and circumspection ; in other words, a lawful act done carelessly and negligently of human life. And to the instruction thus given, the defendant excepted, upon the ground that the Court should have gone further, and charged that the result of the negligent act should be a probable consequence of the act; and that, if tho result was beyond tho range of probability, it reduced the crime to involuntary manslaughter, to which there could be neither accessory before the fact, nor principal in the second degree.
If the charge as given, or as it is contended it should have been given, was applicable to tho facts as proven, it might, perhaps, be sufficient to say that it is no just cause of complaint that the instructions are too general, provided they are right. But the evidence shows that Mattox shot at the boy; negligence, therefore, has nothing to do with the matter. Nor can we sanction the position assumed by counsel, that, owing to the distance, it was improbable that the ball would reach its object; and that, consequently, the killing is reduced to involuntary manslaughter. Can he who takes deliberate aim at another with a rifle, and kills him, be said not to have intended it 1 "We think not. He might, it is true, suppose the chances to be against it; still he.puts forth all his skill to reach the mark, and he succeeds. It is enough, as tho act itself was unlawful, if the killing was the possible consequence of the act. To hold otherwise, would be to trifle with human life.
[14]*14[8.] The Court charged the Jury that if Mrs. Bailey had sworn to the truth, the defendant was guilty; and the prisoner complains of this misdirection. What was the testimony of Rachel Bailey ? That she was present when William Slaughter was shot — that he rode to the creek and stopped. The two Stud-stills and Mattox were together at the time. Jonathan Studstill, the defendant, hallooed at the lad, and bade him go on or come back. Manuel Studstill gave Mattox the gun, and. both he and Jonathan told Mattox to shoot. They both said the old gun would not hit a beef fifteen steps. Witness told them if it would not hit ahouse that distance, not to shoot. They were all in a laugh. The gun fined, and the boy fell. The distance was upwards of two hundred yards.
It-will be recollected that this witness was formerly the wife of Mattox, who perpetrated the deed. She would naturally, therefore, represent the transaction in the most favorable light. She does not remember whether the gun was fired with a rest; yet Manuel Studstill swears that it was. She knows nothing of their thrusting the pine-knot into the skull to conceal the bullet, while the unfortunate and unoffending b.oy was still alive — of the misrepresentation which they made to his miserable parents, as to the cause of his death — of the enmity existing between one of the parties and the elder Slaughter, the father of the boy, &c. But take the affair as narrated by her, and what is there to mitigate the offence from murder to manslaughter % It is not pretended to be voluntary manslaughter. It is insisted that it is at most but involuntary manslaughter. Let us investigate this point.
Involuntary manslaughter consists in the killing a human being, without any intention to do so, but in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence in an unlawful manner. It cannot, surely, be gravely argued, that to send a bullet wilfully into the brain of a peaceable youth, is a lawful act! I dismiss then, without comment, this branch of the definition. If it be involuntary manslaughter, at all, it was in the commission of an unlawful act. And the Code expressly declares, that where such involuntary killing shall happen in the commission of an unlawful act, which, in its consequences, naturally tends to destroy the life of a human being, the offence shall he deemed and adjudged to he murder. Prince, 623.
[15]*15I repeat the question, then, does not the discharge of a. rifle, loaded with ball, with deliberate aim at another, even at the distance of two hundred yards and upwards, naturally tend to destroy life 1 Let the fatal result of this wanton deed of merciless cruelty furnish the1 answer. And' this is the view of the case which should have been submitted-to'tire Jury. . And we believe with the presiding Judge, that if Mrs. Bailey swore to the truth— and the only doubt is that she may have suppressed a part of it, on account of her peculiar relation to the parties — that Jonathan Studstill was guilty, as a principal in the second degree, of being present, and aiding and abetting the fact to be done.-
We have reserved to the last the14th exception on the-record. Before any evidence was submitted, the defendant moved the Court to instruct the Jury to find a verdict of not guilty, on the following grounds:
1st. Because the indictment does not charge Samuel Mattox, the principal in the first- degree, as' being of the County of Lowndes.
2d. Because in the indictment, Sarnuel Mattox, the principal in the first degree, is no where directly charged with the offence of murder.
3d. Becatise it is no where charged in the indictment, that Samuel Matto-x and the defendant committed the crime jointly.
4th. Because there is a variance between the name of the foreman of the Grand Jury, in the inside and on the back of the bilí of indictment.
The 1st, 3d and 4th- of these grounds are easily disposed! of
[9.] The Constitution of the State of Georgia requires that all crimes should be prosecuted in the County where they are committed. The residence of the defendant is wholly immaterial as' to fixing the venue. It need not be charged that he live in any particular County.- It is sufficient if the offence is stated to have been committed in the County where it is prosecuted. It is this which gives jurisdiction to the Court. And this is distinctly done-in this indictment.
The indictment, after charging Samuel Mattox with the murder, alleges that Jonathan Studstill, at the time and place of the murder, “ was feloniously, wilfully, unlawfully, and of his malice aforethought, present, aiding, helping, abetting, comforting, assisting and maintaining the said Samuel Mattox in the-[16]*16felony and murder aforesaid, in manner and form aforesaid, to do and commit.” It is clearly charged that Samuel" Mattox and the defendant committed the offence jointly.
[10.] In the body of the bill of indictment, the foreman’s name who found it is written in full, “ Thomas M. Boston>” when on the back, it is indorsed, with the usual abbreviations, “ Thos. M. Boston.” The variance, we think, is immaterial.
[11.] Tho 2d specification under the 4th head, namely, that Samuel Mattox is no where charged, directly, in the indictment, with the offence of murder, is deserving of the most mature reflection and consideration.
~We believe that this objection would be fatal at Common Law; for it is well settled by the standard writers on Criminal Law, that in addition to the description of the offence in the body of the indictment, there must be an express allegation in the conclusion, that the principal feloniously murdered the deceased — the word murder being considered a term of art which cannot be supplied by any other. Long’s case, 5 Coke, 245. 1 Chitty’s Crim. L. 239 to 244. 4, Black. Com. 306 to 309. 3 Bac. Abr. 554. Dyer, 304. No paraphrases or circumlocution whatsoever, says Hawkins, will supply these words of art, which the law has appropriated for the description of the offence ; - as murdravit in an indictment for murder; lepit in an indictment for larceny; mayhemiavit in an indictment for mayhem; felonice'm. an indictment for any felony whatever, &c. 2 Hawkins’ Pl. Cr. 224.
Indeed this doctrine is not controverted by the State’s counsel; but it is argued that while this is the rule in an indictment against the principal in the first degree, it does not obtain in an indictment against an accessory or principal in the second degree. No authority has been read in support of this distinction, and it would soem to us not warranted by principle. The precedents in Chitty and other works on Criminal Pleading, do not sustain it. See 3 Chitty’s Crim. L. 763, et passim. The indictment must be quashed, therefore, unless there be'some provision in the Penal Code which will save it.
The first section of the 14th division declares, that “ every indictment or accusation of the Grand Jury shall be deemed sufficiently technical and correct, which states the offence in the terms and language of the Code, or so plainly that tho nature of the [17]*17offence charged may be easily understood by the Jury.” Prince, 658.
This provision was obviously intended to sweep away all technical exceptions to indictments; and such is the character of the one under discussion. It is so denominated in the books. The Supreme Court of Indiana, in Dias vs. The State, 7 Blackf. R. 20, call it a “ technical allegation.” And while, under the Common Law, they very properly hold that it is indispensable to the indictment, yet they use this language : “ The law is well settled, whether wisely or otherwise we need not stop to inquire, that such description of the offence in the body of the indictment is not sufficient in a charge of murder.”
Can we, then, give effect to our own Code, and sustain this objection! By reference to the definition of murder, it will be found that the offence is stated in the very terms and language of the Code. But were it otherwise, is it not stated so plainly that the nature of the offence charged may be easily understood by the Jury! After charging the defendant with the offence for which he is prosecuted, as is usual in the beginning of indictments, it proceeds : “ For that one Samuel Mattox, on the seventh day of September, in the year eighteen hundred and forty-three, with force and arms, in the County aforesaid, in and upon one William Slaughter, in the peace of the State then and there being, feloniously, unlawfully, wilfully, and of his malice aforethought, then and there did make an assault; and that he, the said Samuel Mattox, a certain riflo gun, of the value of twenty dollars, the property of Manuel Studstill, then and there being found, the said rifle gun then and there being charged with gun powder and a leaden bullet, which rifle gun he, the said Samuel Mattox, in both hands then and there had and held at and against and upon him, the said William Slaughter, then and there feloniously, unlawfully, and of his malice aforethought, did discharge and shoot off; and that he, the said Samuel Mattox, with the leaden bullet aforesaid, by force of the gunpowder aforesaid, out of the rifle gun aforesaid, so by him, the said Samuel Mattox as aforesaid, discharged and shot off, him, the said William Slaughter, in and upon the left side of the head of him, the said William Slaughter, then and there feloniously, unlawfully, wilfully, and of his malice aforethought, did strike and wound, giving to the said William Slaughter, then and there, with the le'aden bullet aforesaid, out of the said rifle gun, so [18]*18aforesaid discharged and shot off, in and upon the said left side of the head of him, the said William Slaughter, .one mortal wound of the breadth of one inch and depth of two inches, of which said mortal wound he, the said William Slaughter, on and from tho said 7th day September, in the year aforesaid, until the 8th day of September, in the year aforesaid, at the house of one Moses Slaughter, in the County aforesaid, did languish, and languishing did live, on which said 8th da.y of September, in the year aforesaid, about the hour of nine o’clock in the morning, he, the said William Slaughter, atthehouse of the said Moses Slaughter, in the County aforesaid, of the mortal wound aforesaid, died.
„ And the Jurors aforesaid, upon their oaths aforesaid, do say, that the said Manuel Studstill and the said Jonathan Studstill, on the said 7th day ofSej>tember, in the year aforesaid, in the County aforesaid, and State aforesaid, then andtherefeloniously, wilfully, and unlawfully, and of their malice aforethought, were present, aiding, helping, abetting, comforting, assisting and maintaining the said Samuel Mattox in the felony and murder aforesaid, in manner and form aforesaid, to do and commit,” &c.
Can any man of ordinary understanding listen to the reading of this indictment, and not comprehend rightly the nature of the offence charged 1 Not only would the Jury understand the crime of murder to be charged against Samuel Mattox, but it is apparent that no other offence could be intended; for it is alleged everywhere throughout the indictment, that tho killing was done with malice aforethought. And it is this ingredient which distinguishes this species of homicide from every other.
But the Code goes further, and prescribes the forth of every indictment or accusation. And in this statutory form the identical allegation is omitted — the leaving, out of which, it is insisted, is fatal to the indictment. After stating tho offence, together with the time and place of committing the same, with sufficient certainty, that is, in the terms and language of the Code, or so plainly that the offence charged may be easily understood by the Jury, the indictment concludes, “ contrary to the laws of said State, tho good order, peace and dignity thereof.” The complaint is that it does not, as at Common. Law, contain the repetition, “And-the Jurors aforesaid, upon their oaths aforesaid, do say, that the said Samuel Mattox and the said Manuel Studstill and Jonathan Stud-still, him, the said William Slaughter, in manner and form afore[19]*19said, feloniously, wilfully and of their malice aforethought, did kill and murder,” &c. It is answer enough that the .sovereign power of the State has seen fit to dispense with this formality, and to declare that the indictment is sufficiently technical and correct without it.
And we are thoroughly persuaded that these admirable provisions of our Penal Code, like many portions of our Judiciary, have 'not received that liberal interpretation of which they are susceptible, and which was no doubt intended by their framers. The age is past for the civil and criminal justice of the country to be defeated by the absence or presence of one or more “ absque hoes,” “ then and theres,” “ videlieits,” &c. And for one, I rejoice to see edifices built, although they may be “ with the granite of Littleton, the cement of Coke, the trowel of Blackstone, and the masonic genius of a hundred Chief Justiciaries, and covered with the moss of many generations,” swaying beneath the sturdy blows so unsparingly applied by the hand of reform. Why should the spirit of progress which is abroad in the world, and which is heaving and agitating the public mind in respect to the arts, sciences, politics and religion, halt upon the vestibule of our temples of justice ? Why not penetrate, fearlessly,, the precincts of the Bar and the Bench, and remodel the principles and practice of the old Common Law, to accommodate it to the enlightenment of a rapidly advancing civilization? Our Courts should co-operate cordially with the Legislature in building up s. modernized jurisprudence, upon the broadest foundations.
And which, I would inquire, are Juries most likely to comprehend, the artificial pleadings of the Common Law, or the simplicity allowed by the Code ? The former is felt by all to be a restriction upon the attainment of justice; and has just the excrescence which the Assembly designed to lop off.
The Judiciary Act of 1799 intended, unquestionably, to abolish all distinction in actions, and to make every writ sufficiently technical, which contained a simple recital of the material facts necessary to a proper understanding of the case by the Jury. And the defendant’s answer was to be of the same character, confessing what was true, denying what was otherwise, and altering anything which required modification. And upon the declaration and answer thus inartificially drawn, the case was to' be submitted. But this wise and beneficent system, so creditable to our [20]*20fathers, was .disregarded by the Courts; and the consequence is, that the 'Legislature is now busily engaged, at each successive session, in retracing our steps, and bringing us back to the point at which we ought to have started half a century ago. Shall we run the same round on the criminal side of the law 1 I trust not. Give to these provisions their proper and legitimate construction, and we shall need no' Statute to simplify indictments.
Upon the whole matter, the Court is of opinion, and doth decide, that judgment on said indictment ought not to be arrested, which is ordered tobe certified to said Superior Court.