The petition complains only of the failure of the court to pass upon the alleged error of the trial court in authorizing a conviction of the appellants, or any of them, for aiding and abetting in the commission of the crime, when the indictment charges no aiding and abetting, but is merely a joint indictment against each of the defendants, charging them jointly as principals with the commission of the crime.
The correct rule appears to be that where a defendant is alone indicted and charged as principal with the commission of a crime, and the evidence discloses that while he did not actually commit the crime he was present and aided and abetted another, or others, in so doing, there can be no conviction under that indictment for aiding and abetting, for the reason that he has not been brought into court charged with aiding and abetting. But where two or more defendants are jointly indicted charged as principals with the commission of a crime, and there is nothing said about aiding or abetting, if the evidence discloses that one of them was the chief perpetrator and the other or others present and aiding and abetting, an instruction authorizing their conviction for aiding and abetting is proper because they are all regarded as principals.
In Hollin v. Com., 158 Ky. 427, this whole question was gone into and exhaustively considered; all the authorities were reviewed and that conclusion was reached.
The conclusion is obviously logical, for if an aider and abettor of others in the commission of a crime is a *Page 656 principals, and where they are all jointly charged as principals, when the evidence discloses that some one of them aided and abetted while the other was guilty of the principal act, then obviously they are all guilty as principals. But when one alone is charged with being principal, and no other is charged in the indictment with him, then if the evidence shows he was only an aider and abettor, to authorize his conviction as such, without charging the principal with him, would be to convict him of a crime of which he was not charged, and of which he had no notice when he came into court.
An examination of the cases relied upon by appellants will disclose that they are not in conflict with this rule.
Petition for rehearing overruled.