It is submitted, that a joint plea, by several defendants, in an indictment, is, in law, a joint and several plea as to each; but whether the trial shall be separate or not is a matter of sound discretion in the Court below. State v. Smith, 2 Ire. 452. And if such an order was made, it must be presumed to be right, it being the exercise of a discretion from which there is no appeal. State v. Lamon, 3 Hawks. 175, and various other cases. In the exercise of such a discretion the Superior Court exercises supreme powers. As, therefore, the Court had the power to order a separate trial in its discretion, and as such an order reconciles the apparent variance, the existence of such an order should be presumed, as it is a presumption of law, that as to manner and form of proceeding, Courts of original supreme criminal jurisdiction, act rightly. Kimbrough's case, 2 Dev. 431; State v. Seaborn, 4 Dev. 305; State v. Ledford, 6 Ire. 5. By applying this presumption to the case before the Court, it will become manifest that there was no variance; for, although six may have been originally indicted, yet the Court granted one of them a separate trial; and the indictment, therefore, alleged that the perjury was committed on the trial of the indictment against five. The two cases may have, very probably, been tried at the same time, and the jury having found the defendants guilty, the Court may have rendered judgment against all. It cannot be urged that the indictment should have stated the order for the separate trial, as it is only required by the Act of 1842, ch. 49, digested in Rev. Code, ch. 35, sec. 16, that the indictment should state the substance of the offence charged upon the defendant, without setting forth any part of any record or proceedings, and the indictment in this case is framed under that act; as, therefore, the indictment does not profess to state the whole proceedings in the first case, and as the law does not require it to be stated, it is submitted that no counter presumption *Page 57 can be made from its silence in this respect; and as the Court below had the right, and might have ordered a second trial, which would cure the apparent variance, this Court should presume that the order was made; for it is not only the settled rule of this Court to affirm every judgment not seen to be erroneous, (Thomas v. Alexander, 2 Dev. and Bat. 385,) but every judgment of the Superior Courts is presumed to be right, unless it appears to be erroneous. Fleming v. Halcombe, 4 Ire. 268.
It is further submitted, that it does not clearly appear from the Judge's statement, as a fact, that any variance existed, as it is only stated as a reason offered by counsel; but however that fact may be, it was the exclusive province of the Judge below to decide whether the record offered in evidence was the one described in the indictment; for the question of nul tiel record is a question of fact, not a question of law, to be tried as such by the Judge. State v. Isham, 3 Hawks 185. The determination of a question of fact, whether tried by a judge or jury, cannot be reversed; therefore, the decision of the Judge below, as to the fact of the record, is conclusive. State v. Raiford, 2 Dev. 214. By admitting the record to be read as proving the allegation of the indictment, his Honor necessarily adjudged it to be the record recited. As this Court cannot re-examine, and consequently correct, this decision, even if erroneous, it becomes an immaterial enquiry whether the record produced did, in fact, agree with that recited, as this Court will not do that indirectly which they refrain from doing directly, which is the thing asked of your Honors in the first point. The allegation of a bill of indictment, wherein the State was plaintiff, and Conrad Crayton and four others, (naming them,) were charged with an assault and battery upon the body of Isaac Harvell, is not proved by the production of a record which sets out a bill of indictment, wherein *Page 58 the State is plaintiff, and Conrad Crayton and five others (naming them) are charged with an assault and battery upon the person of Isaac Harvell. The variance in respect to the defendants is fatal. The indictment offered in evidence does not correspond with that which is described; and, in pleading, it is a familiar rule, that although a description is made with more particularity than need be, still all the particulars must be proven, and hence the rule applicable to pleadings differs from that applicable to deeds or wills; for, in the latter, if there be several particulars of description, one which does not correspond may be rejected, provided the identity of the thing can be sufficiently made out by the others; otherwise in pleading. The reason is, that pleadings may be instituted anew; but in regard to deeds and wills, and the like, there is no chance for a second trial. Miller v. Cherry, in Equity at this term.
It was insisted by Mr. Bailey, that as the issue upon the plea of nultiel record was tried by the Judge in the Court below, his decision of the fact was not the subject of review in this Court. Mr. Bailey failed to take the distinction between matter of law, which is involved in an issue, and matter of fact. What amounts to a variance is clearly a question of law, and is the subject of review in this Court, as well when it arises upon an issue on the plea of nul tiel record, when the Judge presents it to himselfand decides it, as when it arises upon an issue on the plea of non estfactum, when the Judge gives it in charge to the jury. Our books furnish abundant illustration, e. g., the proceedings to charge bail, ca. sa. bonds, and the like.
Mr. Bailey also insisted that the fact that the bill of indictment offered in evidence was against Conrad Crayton and five others, did not appear, except by way of inference, from what the defendant's counsel requested the Judge to decide, and his refusal.
The record of that indictment ought to have been sent as a part of the case; but it is obvious that the fact was conceded to be as stated by the defendant's counsel. The State, *Page 59 however, is precluded from taking any objection on this account, for the case sets out that the State introduced the record of "an indictment against Conrad Crayton and others," without naming them, or saying how many. This certainly does not prove the allegation of the indictment against Conrad Crayton and four others, (naming them,) and makes a wider variance than that which the defendant's counsel insisted upon. There is error. Venire de novo.
PER CURIAM. Judgment reversed.