Carter said that when he went to the widow Payne’s, he only thought they were going to carry the men out of the way, till they saw what should become of Dimer, and that he never laid hands upon them; and went along with the company to prevent mischief.
Scardefield, the witness, was then called again, and Richard Mills the younger, being asked whether he would ask him any questions, only desired he might be asked what time he came to his house, and how long he stayed there; to which Scardefield answered, that Mills came to his house about half an hour after one; stayed there about an hour and a half, and went away on foot.
The rest of the prisoners said they had not any witnesses.
Upon which, Mr. Justice Foster opened to the jury the substance of the indictment as before set forth; and told them that whether the prisoners or any of them were guilty in manner as therein they are severally charged, must be left to their consideration, upon the evidence that had been laid before them.
That in order to enable them to apply the evidence to the several parts of the charge, it would be proper for him first to acquaint them how the law determines in cases of this nature; that with regard to the persons charged as principals, wherever several persons agree together to commit a murder, or any other felony, and the murder or felony is actually committed, every person present aiding and abetting is, in the eye of the law, guilty in the same degree, and liable to the same punishment as he who actually committed the fact. And the reason the law goes upon is this, that the presence of the accomplices gives encouragement, support and protection to the person who actually commits the fact; and at the same time contributes to his security.
That it is not necessary that the proof of the fact, in cases of this nature, should come up to the precise form of the indictment; for if the indictment charges that A did the fact, and that B and C were present, aiding and abetting, if it be proved that B did the fact, and that A and C were present aiding and abetting, they will be all guilty within the indictment.
That accessaries before the fact are those who, not being present in any sense of the law at the time the fact is committed, have advised or otherwise approved the fact to be done. These persons, in the case of wilful murder, will be liable to the same punishment as those who committed the murder by their instigation, advice or procurement.
He then summed up the evidence very largely, and applied it to the case of the several prisoners, and concluded, that if upon the whole, the jury should be of opinion that either of the principals (Tapner, Cobby, Hammond, or the others charged as principals in the indictment) did strangle the deceased, and that the prisoners Tapner, Cobby, and Hammond were present aiding and abetting, they will be within this indictment.
And if they should be of opinion that the prisoners charged as accessaries before the fact, did advise, consent to, or procure the murder, they likewise will be guilty within this indictment, though they were not present when the fact was committed.
The jury, after some little consideration, gave their verdict, that Tapner, Cobby, and Hammond were guilty of the murder, as laid in the indictment: And