— The general rule as to the joinder of defendants, as laid down in works of good authority, is, that where the same evidence, as to the act. which -constitutes the crime, applies to two or more, they maybe jointly indicted. — Commonwealth v. Elwell, 2 Met. 190. If the offence arise out of the same act, though the parties stand in different relations, they may be joined. If several be engaged in the commission of the same offence, though each may act a different part in the commission of that offence, they may be joined. 1 Waterman’s Archb. Cr. Pl. 96 ; Wharton’s American Or. Law 110.
In Waterman’s Archb. Cr. Pl. 97, the statute of 14 and 15 Viet., c. 100, § 15, is quoted, which enacts, that any number of accessories to a felony, -or receivers of stolen property, may be charged with substantive felonies in the same indictment. In reference to that statute, and immediately after quoting it, the following statement is made : “ But this is the only case, in which several persons can be joined in the same indictment, for several offences committed by them independently of each other.”
We have no statute similar to that of 14 and 15 Vic. above referred to. We are, therefore, clear in the opinion, that an indictment would be fatally defective, if upon its face it charged several defendants for several offences committed by them independently of each other, some of which were committed by some of the defendants at one time, and some of which were committed by others of the defendants at a different time.
Where these facts do not appear upon the face of the indictment, but do appear on the trial from the evidence, the *81defendants are as much entitled to the benefit and protection of the rules of law above laid down, as if the indictment had fairly stated the facts, and thus given them an opportunity to demur to it, or to move in arrest of judgment. The mere form in which an indictment may be drawn by the prosecuting attorney, ought never to be allowed to evade or destroy any substantial legal right of the defendant. However unobjectionable, on its face, an indictment may be, a conviction under it cannot lawfully result from proof of the indentical facts which would, if distinctly stated in it, vitiate the indictment, and enable the defendants, even after conviction, to arrest or reverse any judgment rendered on it against them.
The charge of the court below is not sustained by any of the cases cited by the Attorney General, and therefore we need not express our opinion as to-the merits of those cases, further than to say that, if they are in conflict with our views as above expressed, we could not follow them.
For the error in the charge of the court below, its judgment is reversed, and the cause remanded.