too plain for controversy, since there is no statutable provision altering the general principle in this particular. the purposes of the act. It is by no means necessary, that every equipment for a slave voyage should have been taken on board at Baltimore; or, indeed, that any equipments exclusively applicable to such a voyage should have been on board. The presence of such equipments may furnish strong presumptive proof of the object of the voyage, but they do not constitute the offense. The statute punishes the fitting out of a vessel with intent to employ her in the slave trade, however innocent the equipment may be, when designed for a lawful voyage. It is the act combined with the intent, and not either separately, which is punishable. Whether the fitting out be [*473 fully adequate for the purposes of a slave voyage may, as matter of presumption, be more or less conclusive; but if the intent of the fitment be to carry on a slave voyage, and the vessel depart on the voyage, her fitting out is complete, so far as the parties deem it necessary for their object, and the statute reaches the case. The second instruction is conceived in very general terms, so general, indeed, that it cannot be supported if it is to be understood in its obvious sense. It asks the court to instruct the jury that evidence that the defendant caused the vessel to be fitted out by Captain Hill, or anyone else, will not support the first count in the indictment, in which the defendant is charged with fitting her out himself. This obviously covers the case where the fitting out is by the instrumentality of any other persons, however innocent of his design, even though the defendant himself should be personally present, either really or constructively, and superintending the whole operations. To this extent it is clearly unmaintainable. But, in a more restrictive sense, it involves the question, whether evidence that the owner commanded, authorized and superintended the fitment through his agents, without his personal pres- But we are also of opinion, that any preparaence, would support this count. We are of tions for a slave voyage, which clearly manifest opinion in the affirmative. The act of Congress or accompany the illegal intent, even though does not require that the fitting out should be incomplete and imperfect, and before the deby the owner personally, without the assistance parture of the vessel from port, do yet constior agency of others. The act itself is of a nature tute a fitting out within the purview of the which forbids such a supposition. The fitment statute. This was held by this court upon full of a vessel is ordinarily, and, indeed, must be consideration in the cases of The Emily and done through the instrumentality of others. It Caroline (9 Wheat. Rep., 381), and The Plattsis not a single act, but a series of subordinate burg (10 Wheat. Rep., 133). Those cases, inoperations, requiring the co-operation of per-deed, arose upon the construction of the slave sons in various trades and arts, all conducing trade acts of 1794, 1800 and 1807; but the to the same end. It would be against the plain language of those acts is almost literally tran472*] sense of the *legislature, to interpret its scribed into the statute of 1818, and the conlanguage to mean that the act which it pun-struction adopted therein must govern the ishes, and which must or may be done by many in the ordinary course of business, shall only be punishable when the extraordinary fact occurs of its being done by one person. If done by others under the command and direction of the owner, with his approbation and for his benefit, it is just as much in contemplation of law his own act, as if done by himself. To The fourth instruction respects the sufficiency this extent, at least, the maxim may be safely of the averments of the first count; and it is applied, qui facit per alium, facit per se. And contended that there ought to have been a it cannot be material whether it be done in his specification of the particulars of the fitting absence from, or his presence in, the scene. out, and that it is not sufficient to allege the act Especially there can be no doubt that the prin- itself without them. The indictment, in this ciple ought to be applied with increased force, respect, follows the language of the statute, where the owner resides at the same port, or and is as certain as that is. We cannot perneighborhood, and superintends the course of ceive any good reason for holding the governthe operations, even if he does not see them. ment to any greater certainty in the averments Even in the highest crimes, those who are pres- of the indictment. The fitting out of a vessel ent, aiding and commanding, or abetting, are may, and must, consist of a variety of minute deemed principals; and, if absent, in treason acts and preparations, almost infinite in their and in misdemeanors, they are still deemed detail, and the enumeration would answer no principals; though it may be necessary, in valuable purpose to the defendant to assist him treason, to lay the overt acts precisely accord-in his defense, and subserve no public policy. ing to the fact, from considerations peculiar to that offense. This instruction ought, therefore, to have been refused. The third instruction turns upon the point. whether the fitting out, in the sense of the act of Congress, means a complete equipment, so that a partial equipment only will extract the case from the prohibitions of the statute. This objection appears to us to proceed from a mistaken view of the facts applicable to the case. If the vessel actually sailed on her voyage from Baltimore for the purpose of employment in the slave trade, her fitment was complete for all present case. In either view, therefore, our answer to the third prayer is, that a complete equipment is not necessary to be proved, but any partial preparation, which demonstrates or accompanies the illegal intent, will bring the case within the statute, and support the charge in the first count of the indictment. The fitting out of a vessel is a sort of business which is as clear and definite as any other; and we might just as well in an indictment upon the act for building a ship with the illegal intent, require that the government *should particularize the acts of build- [*474 ing through their whole details, as those of equipment. The building of a ship is not an act more certain in its nature than the fitting out of a ship. The particular preparations are matters of evidence, and not of averment. Every man may well be presumed to know what are the fitments of a vessel for a voyage, without more particularity. The objection proceeds upon the supposition that ordinary equipments only, though combined with the illegal intent, are not within the act; and that extraordinary equipments only for such a voyage are provided for. This has been already shown to be an incorrect exposition of the statute. It imputes no guilt to any particulars of the equip ment, but to the act combined with the illegal intent. ed with. The present case is a fit illustration of the rule; the fitting out is a compound of various minute acts, almost incapable of exact specification. The fifth instruction turns upon a doctrine applicable to principal and accessory in cases of felony, either at the common law or by statute. The present is the case of a misdemeanor, and the doctrine, therefore, cannot be applied to it; for in cases of misdemeanors, all those In general, it may be said that it is sufficient who are concerned in aiding and abetting, as certainty in an indictment to allege the offense well as in perpetrating the act, are principals. in the very terms of the statute. We say in Under such circumstances there is no room for general, for there are doubtless cases where the question of actual or constructive presence more particularity is required, either from the or absence; for whether present or absent, all obvious intention of the legislature, or from the are principals. They may be indicted and punapplication of known principles of law. At ished accordingly. Nor is the trial or convicthe common law, in certain descriptions of of- tion of an actor indispensable to furnish a right fenses, and especially of capital offenses, great to try the person who aids or abets the act; each nicety and particularity are often necessary. in the eye of the law is deemed guilty as a prinThe rules which regulate this branch of plead- cipal. In the present indictment, the [*476 ing were sometimes founded in considerations offense is in the third and fourth counts laid by which no longer exist either in our own or in aiding and abetting, in the very terms of the act English jurisprudence; but a rule, being once of Congress. If the crime, therefore, could be established, it still prevails, although if the case supposed to be of an accessorial nature, it is truly were new, it might not now be incorporated alleged, according to the fact, and not mereinto the law. So, again, in certain classes of ly according to the intendment of law. We do statutes, the rule of very strict certainty has not consider that the terms “aid” and “abet,” sometimes been applied where the common law used in this statute, are used as technical phrasfurnished a close and appropriate analogy. Such es belonging to the common law, because the are the cases of indictments for false pretenses, offense is not made a felony, and, therefore, the and sending threatening letters, where the pre- words require no such interpretation. The tenses and the letters are required to be set forth statute punishes them as substantive offenses, from the close analogy to indictments for per- and not as accessorial, and the words are, therejury and forgery. Courts of law have thought fore, to be understood as in the common parsuch certainty not unreasonable or inconven- | lance, and import assistance, co-operation, and ient.and calculated to put the plea of autre fois encouragement. These remarks furnish an anacquit, or convict, as well as of general defense swer to the seventh instruction, which must at the trial, fairly within the power of the pris- share the fate of the fifth. oner. But these instances are by no means The sixth instruction is that which has preconsidered as leading to the establishment of sented the most difficulty. It embraces two any general rule. On the contrary, the course propositions; the first is, that the second, fifth, has been to leave every class of cases to be de- and sixth counts in the indictment, ought to 475*] cided *very much upon its own peculiar have contained an averment that the vessel was circumstances. Thus, in cases of conspiracy, built, fitted out, &c., within the jurisdiction of it has never been held necessary to set forth the the United States; the second is, that the fifth overt acts or means, though these might mate- and sixth counts do not allege the offense in the rially assist the prisoner's defense. So, in cases words of the statute, those words being, “with of solicitation to commit crimes, it has been held intent to employ the vessel" in the slave trade, sufficient to state the act of solicitation, without &c., whereas each of these counts avers, “with any averment of the special means. And in intent that the said vessel should be employed" endeavors to commit a revolt, which is by stat- in the slave trade, which imports a very differute in England made a capital offense, it has al-ent state of facts. In order to understand these ways been deemed sufficient to allege the of exceptions, it is necessary to attend carefully to fense in the words of the statute, without set-the very words of the act of Congress. The ting forth any particulars of the manner or the second section enacts, "that no citizen or citimeans. These cases approach very near to the zens, &c., shall, after the passing of this act as present; and if any, by way of precedent, ought aforesaid, for himself, themselves, or any other to govern it, they well may govern it. The person or persons whatsoever, either as master, case of treason stands upon a peculiar ground; factor, or owner, build, fit, equip, load, or oththere the overt acts must, by statute, be special-erwise prepare, any ship or vessel, in any port ly laid in the indictment, and must be proved as laid. The very act, and mode of the act, must, therefore, be laid as it is intended to be proved. If the party be only constructively a principal, as an absent and distant coadjutor or leader, it may be necessary to aver the fact accordingly. There is great good sense in the rule which has been laid down, that where the offense is made up of a number of minute acts, which cannot be enumerated upon the record without great prolixity and inconvenience, and the danger of variance, they ought to be dispens or place within the jurisdiction of the United States, nor cause any such ship or vessel to sail from any port or place whatsoever within the jurisdiction of the same, for the purpose of procuring any negroes, &c., to be transported, &c., as slaves." The third section enacts, "that every person or persons so building, fitting out, equipping, loading, or otherwise preparing, or sending away, or causing any of the acts aforesaid to be done, with intent to employ such *ship or vessel in such trade or business, (*477 after the passing of this act, contrary to the true intent and meaning thereof, or who shall in any wise be aiding or abetting therein, shall severally, on conviction thereof by due course of law, forfeit," &c., &c. The first point turns upon the interpretation of the words "such ship or vessel," in each of these sections. To what do they refer? The only ship or vessel spoken of in either section, is such as have been built, fitted out, &c., in some port or place of the United States. "Such ship or vessel" must, therefore, refer to a ship or vessel so built, fitted out, &c., as its antecedent, or the relative 'such' can have no meaning at all. The word is sensible in the place where it occurs, and it is the duty of the court, when it can, to give effect to every word in every enactment, if it can be done without violating the obvious intention of the legislature. This is a penal act, and is to be construed strictly, that is, with no intendment or extension beyond the import of the words used. There is no certainty that the legislature meant to prohibit the sailing of any vessel on a slave voyage, which had not been built, fitted out, &c., within the jurisdiction of the United States. If a foreign vessel, designed for the slave trade, and fully fitted out for that purpose, were, by accident or design, to anchor in our ports, it would not be reasonable to suppose that the legislature could have intended the sailing of such a vessel from our ports to be an offense within the purview of our laws. Yet, if the construction contended for on behalf of the United States be adopted, that would be the result. But it is sufficient to say, that the word "such" has an appropriate sense, and can be reasonably referred only to the ship or vessel previously spoken of; and such ship or vessel is not merely one built, fitted out, &c., but one built, fitted out, &c., in a port or place within the United States. The whole description must be taken together. If we were to adopt any other construction, we should read the words as if "such" were struck out, and the clause stood, “any ship or vessel." Such a course would not be defensible in construing a penal statute. It is remarkable that in the slave trade acts of 1794 (2 U. S. L., 383), and of 478*] 1807 *(4 U. S. L., 94), the word "such" is omitted, and seems to have been introduced into the act of 1818, ex industria. We must take the law as we find it, and, upon examination of its language, we are of opinion, that this exception is well taken. The cases of the United States v. Lacoste (2 Mason's Rep., 129), and The United States v. Smith (2 Mason's Rep., 143), have been cited at the bar as containing a different opinion expressed in the Circuit Court in Massachusetts. I owe it in candor to acknowledge, that the fact is so; but I have no recollection that the point was made at the argument, and I am confident that it never was insisted upon in the view which has been presented by the argument in this court. My own error, however, can furnish no ground for its being adopted by this court, in whose name I speak on the present occasion. The other point is equally fatal. There is a clear distinction between causing a vessel to sail, or to be sent away, with intent to employ her in the slave trade, and with intent that she should be employed in that trade. The former applies to an intent of the party causing the act, the latter to the employment of the vessel, whether by himself or a stranger. The evidence may fully support these counts, and yet may not constitute an offense within the act of Congress; for the employment by a mere stranger would not justify the conviction of the party charged with causing her to sail, or to be sent away, with intent to employ her in the slave trade, as owner. There is no reason, in criminal cases, why the court should help any such defective allegations. The words of the statute should be pursued. It remains only to consider the point, whether these objections to the sufficiency of the indictment could be properly taken at this stage of the proceedings. Undoubtedly, according to the regular course of practice, objections to the form and sufficiency of an indictment ought to be discussed upon a motion to quash the indictment, which may be granted or refused in the discretion of the court, or upon demurrer to the indictment, or upon a motion in arrest of judgment, which are matters of right. The defendant has no right to insist that such objections should be discussed or decided during the trial of the facts by the jury. It would *be very inconvenient and embarrassing [*479 to allow a discussion of such topics during the progress of the cause before the jury, and introduce much confusion into the administration of public justice. But, we think, it is not wholly incompetent for the court to entertain such questions during the trial, in the exercise of a sound discretion. It should, however, be rarely done, and only under circumstances of an extraordinary nature. The Circuit Court, in the present case, did allow the introduction and discussion of these questions during the trial, and were divided upon the propriety of the practice. We can only certify, that the court possessed the authority, but that it ought not to be exercised except on very urgent occasions. A certificate will be sent to the Circuit Court of the District of Maryland, according to this opinion. CERTIFICATE.-This cause came on, &c. On consideration whereof, it is ordered and adjudged, that the following opinions be certified as the opinions of this court on points of division to the Circuit Court aforesaid. First. That the testimony of Peter L. Coit, set forth in the record, was under the circumstances of the case, admissible as competent evidence against the defendant, Gooding. Second. That the opinions prayed for by the counsel for the defendant, Gooding, in the first and sixth prayers, set forth in the record, were correct in law and ought to have been given by the court. Third. That the opinions prayed for in all the other prayers of the defendant, were incorrect in law, and ought to have been refused. Fourth. That the objections taken to the form and sufficiency of the indictment by the defendant's counsel, were not matters of right which the defendant might insist upon, and discuss, and require to be decided during the trial of the issue by the jury; and that the same should, according to the regular course of practice, have been discussed on a motion to quash the indictment, or on demurrer, or on motion in arrest of judgment; but that the 480* court had, nevertheless, *competent authority, in the exercise of a sound discretion, to permit such objections to be discussed and decided during the trial. Cited 2 Pet. 364; 19 How.94; 21 How. 164; 2 Wall. 380 13 Wall. 550; 1 Otto, 438; 2 Otto, 234; 6 Otto, 33, 361, Bald. 104, 116, 119, 294. 295; 1 Sprague, 519; 2 Sprague, 80, 83; 2 Cliff. 301: 2 Bond. 335; 2 McLean, 115; 6 McLean, 33, 467; 13 Bank. Reg. 290; 3 Wood. & M. 355; 3 Ben. 31, 33. [PRACTICE.] THE UNITED STATES v. MARCHANT & COLSON. Where two or more persons are jointly charged in the same indictment with a capital offense, they have not a right, by law, to be tried separately, without the consent of the prosecutor, but such separate trial is a matter to be allowed in the discretion of the court. Tdelivered by Mr. Justice STORY: The question, which comes before us upon a certificate of a division of the opinion of the judges of the Circuit Court of Massachusetts, is this, whether two or more persons, jointly charged in the same indictment with a capital offense, have a right, by the laws of the country, to be tried severally, separately, and apart, the counsel for the United States objecting thereto, or whether it is a matter to be allowed in the discretion of the court. We have considered the question, and are of opinion that it is a matter of discretion in the court, and not of right in the parties. And it has become my duty briefly to expound some of the reasons which urge us to that conclusion. The subject is not provided for by any act of Congress; and, therefore, if the right can be maintained at all, it must be as a right derived from the common law, which the courts of the United States are bound to recognize and enforce. The crimes act of 1790, ch. 9, provides, in the 29th section, for the right of peremptory challenge in capital cases; and this right, to the extent of the statute, must, 481*] *in all cases, be allowed the prisoners, whether they are tried jointly or separately. Upon a joint trial, each prisoner may challenge his full number, and every juror challenged as to one, is withdrawn from the panel as to all the prisoners on the trial, and thus, in effect, the prisoners in such a case possess the power of peremptory challenge to the aggregate of the numbers, to which they are respectively entitled. This is the rule clearly laid by Lord Coke, Lord Hale, and Sergeant Hawkins, and, indeed, by all the elementary writers.1 shall be returned than twenty-four." The common practice under this statute used to be, for the sheriff to return forty-eight jurors, although the precept named but twenty-four. It was, indeed, held, at an early period, that the statute of Westminster did not apply to criminal cases; but, notwithstanding this, the usual practice prevailed, unless the court directed a larger number to be returned. And it was not until the reign of George II. that a larger number was required by law to be returned at the assizes. The history of this branch of the subject is very clearly stated in 3 Bac. Abr. tit. Juries, b. 6, and in Kelyng's Rep. 16. It is obvious, that on joint panels, returned for joint trials, at the assizes, a defect of jurors might, from this limitation, often take place. And it became a question, in very early times, whether, under such circumstances, the court had power, against the will of the prisoners, to sever the panel, and to try them severally, if they insisted upon their right of several challenge. It was decided, upon full consideration, that the court had this power. To this effect are the cases in Plowden, 100; in Dyer, 152, b., and in Kelyng's Rep., 9; and the doctrine has received the sanction of Lord Hale, and other writers of the highest authority. *Whether, then, prisoners, who are [*482 jointly indicted, can, against their wishes, be tried separately, does not admit of a doubt. It remains to consider, whether they can insist upon a several trial. The sole ground upon which this claim can rest must be, if maintainable at all, that they have a right to select their jury out of the whole panel, and that as upon a joint trial, one may desire to retain a juror who is challenged by another, and, if challenged by one, he must be withdrawn as to all; this right of selection is virtually impaired. But it does not appear to us that this reasoning can, upon the principles of the common law, be supported. The right of peremptory challenge is not of itself a ht to select, but a right to reject jurors. It excludes from the panel those whom he prisoner objects to, until he has exhausted his challenges, and leaves the residue to be drawn for his trial according to the established order or usage of the court. The elementary writers nowhere assert a right of this nature in the pris oner, but uniformly put the allowance of peremptory challenges upon distinct grounds. Mr. Justice Blackstone, in his commentaries (4 Bl. Comm., 353), puts it upon the ground, that the party may not be tried by persons against whom he has conceived a prejudice, or who, if he has unsuccessfully challenged them for cause, may, on that account, conceive a prejudice against the prisoner. The right, therefore, of challenge, does not necessarily draw after it the right of selection, but merely of exclusion. It enables the prisoner to say who shall not try him; but not to say who shall be the particular jurors to try him. The law presumes, that every juror sworn in the case is indifferent and above legal exception: for oth One consequence of this, in ancient times, was, that embarrassments often arose at trials at the assizes, on account of a defect of suffi-erwise he may be challenged for cause. cient jurors. The statute of Westminster 2, ch. 38, ordained, that in one assize no more 1.-Hawk. P. C., b. 2, ch. 41, s. 9; 2 Hale's Pl. C. 268: Co. Litt. 156; Beauchamp's case, 9 Edw. IV., folio 27, pl. 40: Plowd. Rep. 100; Kelyng's Rep. 9. What jurors, in particular, shall try the cause, depends upon the order in which they are called; and the result is a mere incident following 2. See also 2 Hale's P. C. 263. the challenges, and not the absolute selection of the prisoner, resulting from his power of challenge. This view of the general principle of the common law is very much confirmed by other considerations. It is laid down by Hawkins (Pl. Cr., b. 2, ch. 41, s. 8), that where several persons are arraigned on the same indictment, and severally plead not guilty, it is in the election of the prosecutor, either to take out joint venires against them all, or several against 483*] *each of them. This plainly supposes that it is in the election of the prosecutor whether there should be a joint or separate trial. If there had been any known right in the prisoner to control this election, it seems incredible that so accurate and learned an author should not have stated it, when the occasion indispensably required him to take notice of a qualification so important to his text. His silence is, under such circumstances, very significant. could not demand, as matter of right, a separate trial to enable him to exercise it. In a separate or joint trial, he could at any time be defeated by the crown of such choice, by its own admitted prerogative. The circumstances already alluded to, of the right of each prisoner on a joint trial to exercise his full right of peremptory challenge, and the small number of jurors usually returned on the panel at the assizes, accounts in a very satisfactory manner for the language used in some of the cases, as to the necessity of directing separate trials where the prisoners refused to join in their challenges. The plain reason was, that otherwise there could be no trial at all, for defect of jurors, at the same assizes; and, therefore, the court, in furtherance of public justice, were accustomed, without the consent of the prisoners, to direct a separate trial. In this way the reason of the practice is understood by Lord Hale (2 Hale P. C., ch. 34, p. 263), and by Hawkins (Hawk. P. C., b. 2, ch. 41, s. 9), and by other more recent writers on common law. In this manner the language of Lord Holt in Charnock's case (12 Howell's StateTrials, 1454; S. C., 3 Salk., 81), is to be inter preted; for it is manifest, that he could not intend that there could not be a joint trial where the prisoners challenged separately, for no rule was better settled in his time than that they could. Indeed, in Rex v. Grahme (12 Howell's State Trials, 646, 673), the same learned judge uses similiar language in a sense which admits of no other interpretation; and this was the answer given to it when cited in a later case for the like purpose. But a still more direct conclusion against the right may be drawn from the admitted right of the crown to challenge in criminal cases, and the practice under that right. We do not say that the same right belongs to any of the states in the Union; for there may be a diversity in this respect as to the local jurisprudence or practice. The inquiry here is, not as to what is the state prerogative, but, simply, what is the common law doctrine as to the point under consideration. Until the statute of 33 Edw.I., the crown might challenge peremptorily any juror, without assigning any cause; but that statute took away that right, and narrowed the challenges of the crown to those for cause shown. But the practice since this statute has uniformly been, and it is clearly settled, not to compel the crown to show cause at the time of objection taken, but to put aside the juror until the whole panel is gone through: Hawkins, on this point, says (Pl. Cr., b. 2, ch. 43, s. 2, s. 3). if the king challenge a juror before the panel is perused, it is agreed that he need not show any cause of his challenge, till the whole panel be gone through, and it appears that there will not be a full jury without the person so challenged. And if the defendant, in order to oblige the king to show cause, presently challenge, touts paravaile; yet it hath been adjudg-jection, and stated, that Lord Holt's language ed, that the defendant shall be first put to show all his causes of challenge before the king need to show any." And the learned author is fully borne out by the authorities which he cites, and the same rule has been recognized down to the present times.1 484*] *This acknowledged right of peremptory challenge existing in the crown before the statute of 33 Edw. I., and the uniform practice which has prevailed since that statute, to allow a qualified and conditional exercise of the same right, if other sufficient jurors remained for the trial, demonstrate, as we think, that no such power of selecting his jury belongs, or was ever supposed to belong, by the common law, to the prisoner; and that, therefore, he *That case is Rex v. Noble and others, [*485 in 1713, before Lord Chief Justice Parker, and reported in the State Trials, (9 Hargr. St. Tr. 1; S. C., 15 Howell's St. Tr. 731.) In that case, which was an indictment for murder, Noble moved the court for a separate trial, and the motion was denied. He was convicted, and when brought up for judgment, he moved in arrest of judgment this very matter, that there was a mistrial, because (to use his own words) "we were severed in our challenges, and yet were tried together by the same jury," and he relied upon the language of Lord Holt, in Charnock's case, as in point. The court overruled the obreferred solely to the public inconvenience, on account of a probable defect of jurors, and not to any matter of right in the prisoners. Sentence was accordingly passed upon the prisoner, and he was executed. There is a curious and learned commentary appended in a note to this trial, which was printed before the execution of Noble, in which an attempt was made to question the correctness of the decision. But it is therein admitted, that Noble's counsel declined to argue the point, though requested; from which we cannot but infer, that they thought the objection unfounded. The decision itself has never since been questioned, or denied. We have, therefore, in the present case, not merely the absence of any authority ell's State Trials, 311; Rex v. Horne Tooke, 25 Howell's State Trials, 1, 24; 1 Chitty's Crim. Law, 533; Rex v. Campion, 1 Howell's State Trials, 1050. 1-Hale's P. C., ch. 36, p. 271; 3 Bac. Abr. Jury E. 10; Rex. v. Conigsmarke, 9 Howell's State Trials, 1; Rex v. Stapleton, 8 Howell's State Trials, 502; Rex v. Borosky, 9 Howell's State Trials, 1; Rex v. Gray, Id. 127, S. C., T. Raym. 473; Rex v. Grahme, 12 Howell's State Trials, 646; Rex v. Cook, 13 How-| Pl. 35 2.-1 Chitty's Crim. Law, 535; See Starkie's Crim. |