The judgment of the court was pronounced by
Preston, J.The defendant having been indicted and convicted of the crime of murder, and sentenced to the penitentiary for life, has appealed. Three other individuals were charged in the same indictment, as his aiders and abettors. After the evidence for the State was closed, the defendant’s counsel moved the court, that the case of these individuals should be first submitted to the jury, that in case of their acquittal, he might have the benefit of their testimony in his behalf. The district court overruled the motion, and the prisoner’s counsel took a bill of exceptions and appealed.
It was settled in the case of The King v. Frazer and Ross, that “In criminal prosecutions, where there are several defendants on trial, and it appears, on closing the evidence on the part of the prosecution, that against one or more of them no evidence has been given, the court will, in its discretion, direct an issue to go up to the jury, on the part of the defendant or defendants against whom no evidence had appeared; and on verdict of not guilty being recorded, will suffer such defendant or defendants so acquitted, to give evidence on the part of the prisoner or prisoners remaining at the bar on trial.” 1 McNally, 56.
But it seems to be equally well settled, that if there be any testimony against all the persons accused, a separate verdict will not be allowed; but the jury should pass upon the case, as to all the prisoners together. Whart. Crim. Law, 667. Bul., Nisi Prius, 285. Commonwealth v. Marson, 2 Ashmead, 32.
It is not shown by the bill of exceptions, that there was no testimony in this case against the persons accused as aiders and abettors, and therefore we are unable to say, that the district court did not wisely exercise the discretion confided to it by law. That it was a matter in the discretion of the court, we infer not only from the case cited from McNally, but from the case of The United States v. Marchand, in which the Supreme Court held, that the allowance of a separate trial of persons jointly accused, was not a matter of right, but of sound discretion to be exercised by the court. 12 Wheat. 480. The same principle must apply to separate verdicts.
The defendant offered to prove that within a month previous to the homicide of which he was accused, the deceased had, while in the parish prison, declared to a fellow-prisoner that he would kill the defendant. The object of the evidence was to alleviate his offence into manslaughter or excusable homicide.
Foster informs us, that in eveiy case of homicide upon provocation, how great soever it be, if there is sufficient time for passion to subside and for reason to interpose, such homicide will be murder. — p. 296. The time that intervened between the utterance of the words and the perpetration of the homicide, forbid the idea that the offence might be reduced to manslaughter on account of the menaces. For even if the defendant heard of them, which does not appear by the bill of exceptions, and was excited to such a degree at the moment, as to have alleviated an immediate homicide into manslaughter, yetthere was sufficient time for his passion to cool and reason to resume her sway.
Besides, East, in commenting upon Lord Morley’s case, relied upon by the counsel of the accused, concludes, that “menaces of bodily harm, to be a sufficient provocation to reduce the offence of killing to manslaughter, should at least be accompanied by some act denoting an immediate intention of following them up by an actual assault.” 1 East, 233.
*423Nothing of the kind is pretended in the bill of exceptions. On the contrary, it is stated that “the accused sought, pursued and killed the deceased.”
We know of no case in which it has been held that menaces without dangerous action will excuse a homicide. Blackstone, on the contrary, informs us, that “ no affront by words or gestures only, is a sufficient provocation, so as to excuse or extenuate such acts of violence as manifestly endanger the life of another.” Vol. 4, p. 200.
The judgment of the district court is therefore affirmed, with costs.