away of deer (q). So two may be jointly convicted of maintenance (r). But in all such cases, with the exception of conspiracy, riot, &c. though several defendants be jointly indicted, yet each might have been severally charged; and the rule is the same where a duty is thrown upon a body of persons, for each is severally liable for omissions as well as acts (s), and consequently, though several be charged jointly in the same indictment, some may be convicted and the rest acquitted, for the law looks upon the charge as several against each (†). And the rule holds, though the parties concurring in the same act, be guilty of offences which differ in degree. Thus if a wife join with a stranger in the murder of her husband, they may be jointly indicted, though the wife be guilty of petit treason, the stranger of murder only (u). And the offence may be alleged to have been committed jointly by all whom the law considers as principals in the commission of any offence; and, therefore, in the cases of high treason, petit larciny, mayhem, and all misdemeanors inferior to felony, the act of one being in law the act of the rest, they may all be charged jointly with the commission of the offence (x). In cases of felony, where several are present, some committing the act, the others aiding and abetting, the latter may be charged either as principals or as abettors (y). And where a statute creates a new felony, it possesses all the incidents to a felony at common law, and therefore makes all the aiders and abettors principals (). 1 (q) 2 Haw. c. 25. s. 89. (r) 1 Vent. 302. (s) R. v. Hollond, 5 T. R. 607. (t) 2 Haw. c. 25. s. 89. (x) R. v. Johnson, 7 East,65. 4 Bl. Com. 361 Hale, 615. (y) Vide the Coalheavers' case, Leach, 78. (z) Ib. Where several are guilty of different felonies in respect of the same transaction, though the act cannot, unless they be all present actually or constructively, be jointly charged, yet it is the common practice to join the principal and his accessories before and after the fact, in the same indictment (x). Several present at the death of a man may be charged with different degrees of homicide in the same indictment: thus, if A. with malice abet B., who gives the blow without malice, it is murder in the former, and but manslaughter in the latter, and so it may be charged in the indictment (y). But if the bill charge both with murder, and the grand jury find it murder in one, and but manslaughter in the other, there should be a new bill for manslaughter against the last (z). But unless the offence arise wholly out of the same joint act or omission, the rule fails. Thus, if several jointly work at a trade within the statute of Elizabeth (a), they cannot be jointly indicted; for the want of qualification, by serving an apprenticeship, occasions the crime, and that defect is several in its nature and confined to each (b). So several cannot be jointly indicted for the same perjury (c), nor as common scolds (d), nor for the same barretry (e), nor for the non-repair of the street before their houses (f). And a misjoinder of this kind is fatal (x) 2 Hale, 173. (y) 3 Buls. 206. 2 Haw. c. 29. s. 7. Taylor and Shaw's case, Leach, 398. Mackally's case, 9 Co. (z) 3 Buls. 206. (a) ·5 Eliz. c. 4. (b) 1 Salk. 382. 1 Vent. 302. 2 Roll. 81. (c) R. v. Phillips, Str. 921. 3 Leon. 230. Salk. 382. 6 Mod. 24. (d) Str. 921. (f) 2 Haw. c. 25. s. 89. in arrest of judgment (g), and would be equally objectionable on demurrer. Kingston (h) and eight others were indicted for a joint contempt in disobeying an order of sessions, directing the payment of certain costs by commissioners, of whom the defendants were nine. The first count alleged, that notice of this order had been served upon four of the defendants named in the indictment, and also upon a fifth commissioner, who was not included in the indictment; and then charged those four and two others jointly with the contempt in refusing to obey the order. And upon a general demurrer it was held, that the count was bad; because it charged six with the contempt, four only having been personally served, and that it was necessary to allege a personal service upon all who should be charged with the contempt. Where several are concerned in executing the same treasonable design or conspiracy, it is desirable to include them all in one indictment. In the reign of Charles the second, Sir Geoffery Palmer, attorney general, being directed to proceed against Messenger and others, who had conspired to pull down bawdy-houses, &c. proceeded by four separate indictments; and with this Kelynge, C. J. found fault: because by that means, he said, the king's evidence would be broken, whereas if all had been put into one indictment, the evidence as to the main design would have been entire against all; and then the assembling in several places to the same intent, had made the matter more foul, and would have been aptly given in evidence against all to the same jury (i). (g) Str. 921. (i) Though several be jointly indicted for the same crime,yet Since every offence, though jointly charged, is in law the several offence of each defendant, it follows, that one or more may be convicted upon a joint indictment, and the rest acquitted (k). And so it should seem, that in some instances, defendants jointly indicted may be convicted of offences differing in degree: for as two may be indicted jointly for the death of a third, though it be petit treason in the first, and but murder or manslaughter in the second, as alleged in the indictment, and as in a joint indictment it may be laid as murder in one, and but manslaughter in the other, there seems to be no reason why the jury, where two are jointly charged with murder, should not find one guilty of murder and the other of manslaughter, should the evidence warrant such a conclusion. It was holden, indeed, in Turner's case (1), that where several are the indictment is several against each; and, except in an indictment for a conspiracy, riot, &c. they may be put severally upon their trials, Kel. 9. And if in such case some of them be found guilty by one jury, this is no cause of challenge to the rest, for the crime of each is several; one may be guilty, and not another, and the jury are to give their verdict upon the particu lar evidence against each, Kel. 9. Where several prisoners are put upon one jury, and sever in their challenges, the juror challenged by one must be withdrawn as to all; because, the pannel being joint, a juror cannot be withdrawn as to one and serve as to another, 2 Hale, 268. 9 E. 4. 27. Plow. Com. 100. But, in such case, the pannel may be severed, and the same jury returned between the king, and every one of the prisoners, and then they are to be tried severally, and the challenge by one prisoner will not disable the juror as to the rest. Kel. 9. (k) Kel. 9.; except in cases of riot and conspiracy, Str. 193. 194. Com. Dig. Inf. D. 7. (7) 1 Sid. 171. jointly indicted for a burglary, the jury cannot find one guilty of burglary and the other of larciny only; but there the very nature of the case precluded such a finding; for one guilty of the felonious caption and asportation laid to constitute the burglary, must, in construction of law, have been present in the dwelling-house, and, therefore, guilty of the breaking and entering requisite for the commission of the offence. But upon a joint indictment for petit treason, if it turned out that one defendant was servant to the deceased, and the other a stranger; or if, upon a joint indictment for murder, it appeared, that he who abetted, acted of malice prepense, but that he who struck did not maliciously strike, the finding the parties guilty of offences differing in degree, would not be inconsistent. II. Of charging several offences against the same defendant. If several felonies be charged (m) against a prisoner in the same indictment, it is no objection either upon demurrer, or in arrest of judgment; for on the face of an indictment, every distinct count imports to be for a different offence. But if it appear, before the defendant has pleaded or the jury are charged, that he is to be tried for separate offences, it has been the practice for judges to quash the indictment, least it should confound the prisoner in his defence, or prejudice him in his challenge of the jury; for he might object to a juryman's "trying one of the offences, though he might not object to his trying the other. But if the joinder of two distinct felonies be not discovered before the prisoner has |