The opinion of the court was delivered by
McÉnery, J.The defendant, John Frank, was indicted as acees-' sory with Thomas Hunter as principal, under Section 790, B. S., with shooting with intent to murder while lying in wait.
Both defendants, in separate trial, were found guilty without capital punishment, and sentenced for life to hard labor. The deféndant Frank appealed from the verdict and sentence against him.
The accused was arraigned and pleaded not guilty. Afterward, on the motion of his counsel, the court ordered the plea of not guilty to be withdrawn.
The’record does not show that the accused, after the plea was withdrawn, pleaded personally to the indictment. He was not afterward arraigned.
The withdrawal of the plea had the effect of leaving the accused in the position as though no arraignment had been made and no plea entered; There was no issue pending between the State and the accused.
The arraignment can not be dispensed with. If he refuses to plead to the indictment, the plea of not guilty is entered for him.
The record shows that on motion of the District Attorney the plea of not guilty was entered for the defendant. But the record does not show that the defendant had been called to the bar for arraignment and had refused to plead to th,e indictment.
The absolute requirement of the law, that the accused must plead personally to the indictment on arraignment, can not be cured by the fact that he was brought into court, -and tried without objection, because there was no issue between the accused and the State, without which it was irregular to proceed to trial. State vs. Epps, 27 An. 227; State vs. Christian, 30 An. 368; State vs. Ford, 30 An. 311; State vs. Revels, 31 An. 388; 1 Bishop Crim. Pro., Sec. 733; 3 Wharton Crim. Prac., Sec. 3355; 1 Archbold’s Crim. Prac., p. 351.
There are other bills of exceptions which require only a brief notice.
*160Joseph Oartor was among the first fifteen grand jurors drawn. He was discharged, and another drawn in his place. For this reason a motion was filed by the defendant to quash the indictment. It is not pretended that the grand jury which found the indictment was not qualified to do so. The only error alleged is in the organization of the grand jury. The defendant had no interest in the discharge of the alleged disqualified juror. This was within the discretion of the District Judge, and he seems to have exercised it with due and proper caution. The grand jury which found the indictment was qualified in every respect. The defendant therefore has no cause to complain.
The defendant asked for a continuance on account of an absent witness and the materiality of his testimony. The facts disclosed in the affidavit show that his testimony could not aid the defendant. The continuance was within the sound discretion of the District Judge. He has not exercised it arbitrarily.
The charge of the District Judge was given in writing and is in the record. It covers the special charges asked for by the accused, and there was no necessity to repeat what he had said in substance. The accused was indicted as accessory with the principal for shooting with intent to murder while lying in wait. The defendant alleges that the District Judge erred in not instructing the jury at his request that they could bring in a verdict for a less offence denounced in See. 791, R. S., which is of the same generic class as that denounced in Sec. 790, and is included in it.
The principal was convicted and sentenced under Sec. 790, R. S., Although generic in character, the offences denounced in the two sections are distinct. If the accused had committed and procured the commission of the offence under Sec. 791, he would nevertheless be amenable for the manner in which the principal committed the offence. Wharton Cr. Law, Sec. 134.
The conviction of the principal is prima facie evidence of the guilt of the accused.
The complete proof of guilt and the-conviction of the accessory makes him liable to the same punishment inflicted upon the principal. R. S. 972.
The accused was therefore either guilty or not guilty of the specific charge preferred against him. The District Judge properly declined to charge as requested by the defendant.
*161The written documents B, O and D offered in evidence and received over the objection of the defendant were taken from the principa), and were offered and received as the declarations of the accused. It was a question of fact for the jury to find whether the accused had written them. They were properly admitted.
The motion in arrest of judgment contains several reasons assigned by the accused for a reversal of the sentence and verdict. They are directed to the confection of the indictment. The indictment contains all the essential requisites which the defendant claims are omitted therefrom. In all respects we find that the indictment is properly framed.
It is therefore ordered that the sentence and verdict appealed from be annulled, avoided and. reversed, and it is further ordered that this case be remanded, to be proceeded with according to law and the views herein expressed.