Plaintiffs in error were tried and convicted on an information charging John Smith as principal in the first degree and J.W. Chancey as principal in the second degree to committting murder in the first degree. The jury found them guilty of assault with intent to commit murder in the first degree and the Court sentenced them to a term of ten years in the state penitentiary. This appeal is from that judgment.
Appellants press sixteen assignments of error for our consideration but all may be grouped under these heads: (1) sufficiency of the information, (2) materiality of a hat as evidence worn by the victim at the time of the assault, (3) admissibility in evidence of statements made by defendants when they were arrested, (4) improper argument to the jury by the prosecuting attorney, (5) refusing charges requested by defendants, (6) whether or not under the information the jury can acquit the principal in the first degree and find the principal in the second degree guilty, or find the principal in the second degree guilty of a higher degree of the offence than the principal in the first degree, (7) sufficiency of the evidence to support the verdict.
It is first contended that the information is not *Page 193 sufficient to charge the defendant Chancey as principal in the second degree with assault to commit murder in the first degree.
If this question had been seasonably raised it might have been fatal to the information but Section 142 of the Criminal Procedure Act provides that if the defendant does not move to quash the information or indictment before or at the time of pleading to it, he shall be taken to have waived all objections which are grounds for motion to quash. The information in this case was filed after the effective date of the latter act and the objection was not raised until after verdict and motion for new trial.
With reference to the assignment based on improper argument to the jury by the prosecuting attorney, it appears that no objection was raised to the argument at the time and that it was never seasonably called to the attention of the trial court. He was consequently not called on to rule on the propriety of the argument. It is further shown that this objection was not raised in the motion for new trial nor any where else until an amendment was attempted to the latter motion months after. This Court has repeatedly condemned improper argument to a jury on the part of a prosecuting attorney but in this case, the record not showing that the question was brought to the attention of the trial court, it would be highly improper to reverse him on the showing made.
A majority of the Court have reached the conclusion that the following charge was prejudicial as to the defendant Chancey and that the cause should be reversed as to him:
"In the event you should find both defendants guilty *Page 194 of any of the offenses embraced in the information, it would not be permissible under the information or under the law to find one of them guilty of one of the offenses embraced in the information and to find the other one guilty of some other one of the offenses embraced in the information, because if the principal in the first degree is guilty, and the principal in the second degree is guilty, if they are both guilty, they must be guilty of the same offense."
Mr. Justice BUFORD and Mr. Justice ADAMS are of the opinion that the information was fatally defective and that the cause should be reversed as to both defendants on the information and the charge.
It follows that the judgment is affirmed as to defendant Smith and reversed as to defendant Chancey.
WHITFIELD, CHAPMAN, and THOMAS, J. J., concur.
BROWN, C. J., concurs.
BUFORD and ADAMS, J. J., dissent.