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A treatise on the criminal law of the United States online

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stolen by some person, v And the joinder of embezzlement with
larceny has equal sanction, v^

§ 421. Defective count. — Where a prisoner is found guilty
generally, under an indictment containing two counts, one of
which is defective, it is no ground of objection to either verdict or
sentence that it does not state upon which count it was found, v^

Conviction on only one count. — If the jury find the defendant
guilty on one count, and say nothing in their verdict concerning
other counts, it will be equivalent to a verdict of not guilty on
such counts, w And so, where the jury convict on. one count, and
are imable to agree on the other, the defendant may be sen-
tenced on the first count, w^

General verdict — effect of. — On an indictment containing
two counts relating to the same transaction, where a general ver-
dict of guilty is rendered, such a verdict is in effect a finding
as to both counts, the lesser crime being thus merged in the
greater, and judgment must be for the greater, tv^

Costs. — Where a count for a misdemeanor is joined to a count
for felony, the jury cannot, in acquitting the prisoner, impose costs
upon him ; and though such a verdict be rendered and judgment
ordered, the county is liable for the costs, x

2. Where an Election will be compelled.

§ 422. As a general rule when two offences charged form
parts of one transaction, yet are of such a nature, that the
defendant may be found guilty of both, the prosecutor will not
be called upon to elect upon which charge he will proceed ; for in
such case the joinder of counts cannot prejudice the defendant,

v R V. Craddock, 1 £ng. R 563 ; S. Cases, 235 ; Kirk r. Com. 9 Leigh, 627 ;

C. 2 Den. C. C. 31; R. v. Huntley, 8 Stoltz v. People, 4 Scam. 168; State

Cox C. C. 260; see State v. Hazard, 2 v. Fhinney, 42 M^e, 384; R. v.

R. I. 474. Ante, § 418 ; post, § 31 76. Craddock, 2 Den. C. C. 31 ; Latham v.

ri Post, § 1944. R. 9 Cox C. C. 516; Kenwood v. Com.

v'^ See fully post, § 3208 ; Montgom- 52 Penn. St. 424. Ante § 385 ; post, §

ery v. State, 40 Ala. 684; Frazer v. 550, 3176, 3208.

People, 54 Barbour, 306 ; Arlen v. w^ U. S. v. Davenport, Deady, 264.

State, 18 N. H. 563; Scott v. State, 31 %fi Manly v. State, 7 Md. 135 ; Cook

Mis. (2 George) 478. v. State, 4 Zabr. (N. J.) 843. Ante, §

to Weinzorpflin v. State, 7 Blackf. 418; post,§ 3176, 3397.
186 ; Guenther v. People, 10 E. P. x County of Wayne v. Common-
Smith, 101 ; Morris v. Sute, 8 Smedes wealth, 26 Penn. State R (2 Casey)
& Mar. 762; Com. v. Bennet, 2 Yirg. 154.


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which is the only ground on which this application to the discre-
tion of the judge can be founded to make the prosecutor elect, x^
Thus the prosecutor will not be compelled to elect where a count,
charging a person with being accessary before the fact, is joined
with 'one charging him with being accessary after, y So the
defendant may be indicted as a principal in the first degree in
one count, and as principal in the second degree in another
count. 2 On the same principle where there are counts in an
indictment for forging a bill, acceptance, and indorsement, the
prosecutor is not driven to elect on which he will proceed, z^

Time. — It has been said in Iowa that when the repugnancy
is of record, the time for an application to elect is before plea ;
and the court has refused to permit a plea to be withdrawn in
order to let in a motion to require an election, s^ But as the re-
pugnancy may not appear until the evidence is developed, it is
not in such case just to compel an election until the prosecutor
knows what to elect. Hence the motion has been held in time if
made before verdict, though after verdict clearly too late, s?

§ 423. Election not forced when offences are connected. — The
right of election, in this country, a if not in England, is confined
to cases where the indictment contains charges which are actu-
ally distinct, and grow out of different transactions, b The court
will not compel the prosecutor to elect upon an indictment charg-
ing the prisoner with larceny and receiving stolen goods, &c.,
where it appears by the indictment that the charges relate to the
same transaction, modified to meet the proof, c In New York,

x^ R. V. Austin, 7 C. & P. 796 ; K a3 Wash v. Stete, 14 Sm. & M. 120 ;

V, Hartall, Ibid. 475; R. r. Wheeler, Womack v. State, 7 Cold. 608; John-

Ibid. 1 70 ; Reg. v. Pulham, 9 C. & P. son v. State, 29 Ala. 62 ; State v. Sims,

281 ; People v. Costello, 1 Denio, 83 ; 3 Strobh. 137; £lam o. State, 26 Ala.

State v. Hogan, R. M. Charlton, 474; 48.

Dowdy V, Com. 9 Gratt. 727; State v. a Com. v. Man son, 2 Ashmead, 31 ;

Jackson, 17 Mo. (2 Ben.) 544 ; Sarah Sute v. Flye, 26 Maine, 312; State v.

V. State, 28 Miss. (6 Cush.) 267; Mayo Jacob, 10 La. An. R. 141.

V, State, SO Alab. 32; State v. Bell, 27 h State v. Hogan, R. M. Charlton,

Md. 675. 474 ; State v. Nelson, 14 Rich. (S. C.)

y R. V, Blackson, 8 C. & P. 43; L. 169; ante, § 416.

Tompkins V. State, 17 Oreo. 356. c State v. Hogan, Charlton, 474;

z R. V, Gray, 7 C. & P. 164. Engleroan v. State, 2 Carter (Ind.), 91 ;

2i R. v. Young, Peake's Add. Caa. Dowdy r. Com. 9 Gratt. 727 ; State r.

228. Daubert, 42 Mo. 242 ; State o. Bell, 27

z^ State V. Abrahams, 6 Iowa, 117. Md. 675.

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the law has been similarly stated, and in eases of felony, where
two or more repugnant offences are contained in the same indict-
ment, it may be quashed, or the prosecutor compelled to elect
upon which charge he will proceed ; but such election will not be
required to be made when several counts are inserted in an
indictment solely for the purpose of meeting the evidence ae it
may transpire on the trial, the charges being substantially for the
same offence, d In cases of misdemeanor punishable by fine and
imprisonment, the prosecutor may join several distinct offences
in the same indictment, and try them at the same time, e unless
the number of counts is so great as to embarrass the trial./
Even in felonies, when the offences are part of the same act, no
election will be compelled, ff

Whether a court will compel a prosecuting oflBcer to elect which
count to proceed on, rests in the discretion of the court, and can-
not be assigned for error, ff^ But when two distinct felonies are
put in evidence, this rule, in its strictness, cannot be applied.
Thus in a remarkable trial in Tennessee, in 1870, the defendant,
Womack, was indicted for the murder of Williams and Massey.
The proof showed that Womack shot Williams, and killed him.
Massey ran up, and caught hold of Womack, and held him, beg-
ging him not to shoot Williams again. Womack, in struggling
to get away from Massey, either fired his pistol by accident or
purposely. The ball struck Massey and Willed him. This testi-
mony went to the jury without objection, and at the close of the
testimony defendant asked the court to require the state to elect
upon which homicide it would proceed, which the court declined
to do. It was held by the supreme court, that it was suflBlcient

d See People v. Austin, 1 Parker ^ K v. Trueman, 8 C. & P. 727 ; see

C. R. 154; Lanergan v. People, 89 N. State v. Hazard, 2 R. I. 474; ante, §

Y. 89. Post, § 1062; ante, § 416. 414; see post, § 1944.

e Kane r. People, 8 Wendell, 208 ; g^ State t7. Leonard, 22 Mo. (1

State V. Early, 8 Harrington, 561 ; Jones) 449 ; Bailey v. State, 4 Ohio

State V. Haney, 2 Dev. & Bat. 890 ; (N. S.), 440 ; State v. Hood, ^1 Maine,

U. S. V, Dickenson, 2 McLean's C. C. 868; George v. Stote, 89 Miss. 570;

R. 325. State v. Bell, 27 Md. 675; Com. v. Sul-

/ Stete V. Nelson, 29 Maine, 824; livan, 104 Mass. 552; State r. Tuller,

Tompkins r. State, 17 Ga. 856. But 84 Conn. 281 ; People v. Baker, 8 Hill

in complicated cases, great variety of N. Y. 159; Johnson v. State, 29 Ala.

counts is admissible, to prevent failure 62 ; Nelson v. People, 28 N. Y. 298.
of justice.


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to make the objection in this manner, and the court below erred
in refusing to require the prosecution to elect. ^

Election as to felonies in evidence. — The last ruling, however,
does not depend on pleading alone, but on an essential principle
of penal justice. No matter whether there is one count or twenty,
if the prosecutor put in evidence distinct felonies, committed at
distinct times, the court, if required, will compel an election.^

8. Advantages of Alternative Statements^ in Distinct Counts.

§ 424. Every cautious pleader will insert as many counts as
will be necessary to provide for every possible contingency in the
evidence ; and this the law permits. Thus he may vary the own-
ership of articles stolen in larceny ; h of houses burned in arson \i
or of the fatal instrument in homicide.y The reason for this is
thus excellently stated by Chief Justice Shaw : —

" To a person unskilled and unpractised in legal proceedings,
it may seem strange that several modes of death, inconsistent
with each other, should be stated in the same document ; but it
is often necessary, and the reason for it, when explained, will be
obvious. The indictment is but the charge or accusation made
by the grand jury, with as much certainty and precision as the
evidence before them will warrant. They may be well satisfied
that the homicide was committed, and yet the evidence before
them leave it somewhat doubtful as to the mode of death ; but,
in order to meet the evidence as it may finally appear, they are
very properly allowed to set out the mode in different coimts ;
and then if any one of them is proved, supposing it to be also
legally formal, it is sufficient to support the indictment. Take
the instance of a murder at sea : a man is struck down, lies some
time on the deck insensible, and in that condition is thrown
overboard. The evidence proves the certainty of a homicide, by
the blow or by the drowning, but leaves it uncertain by which.
That would be a fit case for several counts, chai^ng a death by
a blow, and a death by drowning, and perhaps a third, aHeging a
death by the joint results of both causes combined." k

^ Womack v. State, 7 Cold. 608; i K v, Trueman, 8 C. & P. 727;
see post, § 1944. Newman v. State, 14 Wise. 393.

g^ R. V. Vandercomb, 2 Leachj 816; j See post, § 1062.
R. V. Hinley, 2 M. & R. 524. k Bemis's Webster case, 471 ; see

h State V, Nelson, 29 Maine, 324; also State v, Johnson, 10 La. Ann. R.
Com. V. Dobbin, 2 Parsons, 380. 456 ; U. S. «. Pirates, 5 Wheat. 184.


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§ 425. How generally the same practice exists in England
may appear from the very pertinent inquiry of Alderson, B., in
a recent case : " Why may there not be as many counts for re-
ceiving as there are for stealing — one for each? It is really
only one offence, laying the property in different persons. It is
one stealing, and one receiving; and because there was some
doubt as to the person to whom the property really belonged,
the property is laid five different ways. If a late learned judge
had drawn the indictment, you would very likely had it laid in
fifty more." I

A verdict of guilty on four counts, charging the murder to
have been committed with a knife, a dagger, a dirk, and a dirk-
knife, is not repugnant, inconsistent, or void, since the same kind
of death is charged in all the counts, m

4. JBow Second and 8ul%equent Counts are to he prefaced.

§ 426. As both in civil and criminal pleading, two counts
charging the same thing would be bad on special demurrer for
duplicity, — though the fault in civil pleading is cured by plead-
ing over, — it has been usual by inserting the word " other " in
a second count to obviate this difficulty, through the fiction that
the cause of action thus stated is new and distinct. The rule is
clear, that when two counts setting out the same offences occur
judgment will be arrested. " Neither, as we think," says Lord
Denman, in a case in 1846, " can one offence, whether felonious
or not, be properly charged twice over, when with one indict-
ment or two; and as special demurrers are not necessary in
criminal cases, we think that if the two counts in an indictment
necessarily appear to be for the same charge, the objection might
be taken in arrest of judgment. But still the court would, if
possible, hold them not to be for the same offence ; and certainly
the omission of the word ' other ' would not of itself make the
same ; though the insertion of the word * other ' would make
them different." m^ In New Hampshire, however, it is said
that where the same offence is described in different counts, it is

/ Reg. V. Beeton, 2 Car. & Kir. 961, (N. J.) 601 ; ante, § 416 ; see post, §
Alderson, B.; see also People v. 8176.-
Thompson, 28 Cal. 214. m^ Campbell v. R. 11 Ad. & £1. N.

lit Donnelly v. State, 2 Datch. (N. S. 800.
J.) 463 ; affirmed in error, 2 Datch.


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not necessary to allege the offence described in each of the
several counts to be other and different from that described in
the others, n

Even according to the strictest .practice, the omission in an
indictment, containing two counts, of an averment that they
are different descriptions of the same offence, is cured by a ver-
dict of not guilty on one of the counts, or the entry of a noUe
prosequi on that count, n^

The relative " said" used in one of the subsequent counts of
an indictment referring to matter in a previous count, is always
to be taken to refer to the count immediately preceding where
the sense of the whole indictment does not forbid such a ref-
erence. V?

5. Effect of one Count upon others, and herein of the
Transposition of Counts.

§ 427. Where the first count of an indictment is holden to be
bad, a subsequent count may be sustained, even though it refers
to the first count for some allegations, and without repeating
them. Generally, however, one bad count cannot help another
bad count, which is defective in a distinct way. o^

Even in good counts, it is unsafe to attempt to supply a ma-
terial averment by mere reference to a preceding count. Time
and place may be thus implied, but not, it seems, descriptive
averments, which enter into the vitals of the offence, jp

§ 428. There may be cases, it seems, in which counts ^may be
transposed after verdict, so as to invest the second with the in-
cidents of the first, or vice versa. Thus, in a late English case,
A. and B. were indicted for the murder of C, by shooting him
with a gun. In the first count A. was charged as principal in
first degree, B. as present, aiding and abetting him ; in the
second count B. as principal in first degree, A. as aiding and
abetting. The jury convicted both, but said they were not satis-
fied as to which fired the gun. It was held, that the jury were

n State v. Rust, 85 N. H. 488. oi State v. Longley, 10 Ind. 482.

ni Com. V. Holmes, 108 Mass. 440 p See R. v. Dent, 1 C. & K. 249; 2

(Ames, J. 1869). Cox C. C. 354 ; R. v. Martin, 9 C. & P.

n^ Sampson v. Com. 5 W. & S. 213; Sampson v. Com. 5 W. & S. 385;

885. State v. Lyon, 17 Wise. 287; bat see

Com. V, Miller, 2 Pars. 480 ; see ante, § 420, as to practice in counts for

State V, Lea, 1 Cold. (Tenn.) 175. receiving stolen goods.


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not bound to find the prisoners guilty of one or other of the
counts only (Maule, J., dissentiente) ; and that notwithstanding
the word " afterward " in the second count, both the counts
related substantially to the same person killed, and to one killing,
and might have been transposed without any alteration of time
or meaning, q

The effect of a bad count after verdict will be considered
hereafter, r


1. Who mat be jotmED, $ 429.

2. Where a particular number of
defendants is necessart, as in riot
or conspiracy, § 431.

$ 432.

4. Severance on trial, § 433.
6. Verdict and judgment, § 434.

1. Who may he joined.

[See as to Virginia Practice^ Code 1866, chap, ccviii. § 18.]

§ 429. When more than one join in the commission of an
offence, all, or any number of them may be jointly indicted for
it, or each of them may be indicted separately. 8 Thus if
several commit a robbery, burglary, or murder, they may be
indicted for it jointly t or separately ; and the same where two
or more commit a battery, or are guilty of extortion, or the
like, fi And even parties to the crime of adultery may be in-
dicted jointly ; u though where two are jointly indicted for
fornication or adultery, and are tried together, and one party is
found gifllty and the other not guilty, no judgment can be ren-
dered against the former, v Whenever property has been obtained
under false pretences, and the false pretences were conveyed by
words spoken by one defendant in the presence of others, all of
whom acted in concert together, it was holden that they might
all be indicted jointly, w Where two persons are jointly indicted
and one only is tried, a separate count charging him alone with
the crime is unnecessary, w^

q R. V. Downing, 1 Den. C. C. 52. u Com. v. El well, 2 Met. 190; Stote

r Post, § 81 76, 3208. v. Mainor, 6 Iredell, 340.

s State V. Gay, 10 Mqi( 440; U. S. v State v. Mainor, 6 Ired. 340.

V. 0*Callahan, 6 McLean, 596. to R. ». Young, 3 T. R 98. Post,

t 2 Hale, 173. §2144.

fi R. V. Atkinson, 1 Salk. 382; R. w^ State v. Bradley, 9 Rich. Law

». TraflFord, 1 B. & Ad. 874; Kane v. (S. C), 168.

People, 8 Wendell, 203.


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§ 430. Offences necessarily several. — Here there can be no
joinder, x Thus though where a libellous song was sung by two
men, it was holden that they might be indicted jointly ; y and
though a similar rule was held, where two or more persons join
in any other kind of publication of a libel, yet if the utterance
of each party be distinct, as if two booksellers, not being part-
ners, sell the libel at their respective shops, they must be in-
dicted separately. Two or more cannot be jointly indicted for
perjury, 2 or for seditious, obscene, or blasphemous words or the
like, because such oflEences are in their nature distinct, a^ K A.
and B. are jointly indicted and tried for gaming, and the evi-
dence shows that A. and others played at one time when B. was
not present, and B. and others played at another time when A.
was not present, no conviction can be had against them, a

If the offence charged does not wholly arise from the joint act
of all the defendants, but from some personal and particular act
or omission of each defendant («. ff. as with larceny and receiv-
ing, or receiving at distinct times), b the indictment must chai^
them severally and not jointly, c So it has been held that when
A. strikes B. on one day, and C. strikes B. on another, A. and
C. cannot be included jointly in one count, d

Persons holding different offices with separate duties, cannot
be jointly indicted for a misdemeanor in office. Thus an indict-
ment charging such an offence against the inspectors, clerks, and
judge of an election, was held bad on demurrer, e

Principals in the first and second degree, and accessaries before
and after the fact, may all be joined in the same indictment, and
they may be convicted of different degrees ;f or the principals
may be indicted firat, and the accessaries after the conviction of
the principals.

a; Elliottt;. State, 26 Ala. 78; though 2 Sprague, 7; Horne v. State, 87

see Young ». R. 3 T. R 106; R. v. Ga.80.

Kingston, 1 East, 468. c Com. v. Miller, 2 Pars. 480; Peo-

y R. V, Benfield, 2 Bur. 985. Post, pie v. Hawkins, 84 Cal. 181 ; R. ».

§ 2541. Messingham, 1 M. C. C. 257; see R.o.

z R. r. Phillips, 2 Str. 921. Parr, 2 M. & Rob. 846.

z^ State V. Roulstone, 8 Sneed d R. v. Devett, 8 C. & P. 639. Post,

(Tenn.), 107. § 486 a.

a Elliott V. State, 26 Ala. 78. e Com. v. Miller, 2 Par. 481.

b Post, §486 a; U. S. r. Kazinski, / Klein v. People, 81 N. Y. 229; 2


Hale, 178. Post, § 8197.

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2. Where a Particular Number of Defendants is necessary^ as in
Riot or Conspiracy,

§ 431. In riot and conspiracy, when one cannot be indicted
for an offence committed by himself alone, the acquittal of those
charged in the same indictment with him as co-defendants, must
of course extend to him.^ In an indictment for conspiracy,
less than two cannot possibly be joined \h a wife and husband
t<^ether not being sufficient. It has been doubted whether a
charge of conspiracy could be sustained against two defendants
one of whom is found by the jury to be insane ;i but it is clear
that one defendant may be tried alone, when his co-conspirators
are alleged to be unknown, or when such co-conspirators are dead,
or absent, or previously convicted./

In an indictment for riot, when the offence is not charged to
have been committed with persons unknown, unless three of the
defendants are proved to have been concerned, they must all be
acquitted.* Where there is an allegation of defendants un-
known, or there are co-defendants, dead or absent or previously
convicted, the case is otherwise. I The effect of charging the
offence to have been committed by persons ^' unknown," has
been further considered under another head, m

From the peculiar character of the pleading in conspiracy, a
new trial as to one defendant is a new trial as to alL n

3. How Miyoinder may he excepted to.
§ 432. Misjoinder of defendants may be made the subject of
a demurrer, motion in arrest of judgment, or writ of error ; or
the court will in some cases quash the indictment, o If, however,

^ R. V. Kinnerflley, 1 Stra. 193; R. ^ y R. r. Kenrick, 5 Q. B. 49; R. v.

V. Sudbury, 12 Mod. 262; 2 Salk. 593; Cooke, 5 B. & C. 588; 7 D. & R. 673;

13 East, 412; 1 Ld. Raym. 484; State State v. Buchanan, 5 Har. & J. 500;

V. Allison, 3 Yerger, 428; People v. ante, § 242-51; post, § 2295, 2339.

Howell, 4 John. 296 ; Turpin r. State, k Penn. v, Hurson, Addis. R. 334.

4 Blackf. 72; Stete v. Mainor, 6 Ired. I State t;. Egan, 10 La. R. 698 ; R.

340 ; post, § 2339, 2483, 2503, 3199. v. Scott, 8 Bur. 1262; Klein v. People,

h Com. V. Manson, 2 Ashm. R. 31 ; 31 N. Y. 229. Post, § 2483, 3199.

Stete V. Covington, 4 Ala. 603; Stete m Ante, § 242-251; post, § 2295.

r. Tom, 2 Dev. 669 ; U. S. v. Cole, 5 n R. v. Gompertz, 9 Q. B. 824. Post,

McLean, 513 ; R. v. Gompertz, 9 Q. B. § 3359.

824. Post, § 2339, 3199. o Young v. R. 3 T. R. 103-106; R.

t Breckenbridge's Miscellanies, 223. t*. Clarke, 2 East, 2; 2 Camp. 132.

VOL. 1.-22 337

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two be improperly found guilty separately on a joint indictment,
the objection may, in general, be cured by producing a pardon,
or entering a nolle prosequi as to the one of them who stands
second on the verdict.

Death of one, — Where two persons are indicted for a con-
spiracy, and one of them dies before the trial, and it proceeds
against both, it is no mistrial, and entry of a suggestion of the
death on the record is unnecessary./?

Several receivers. — Although as a rule several receivers can-
not be jointly charged in the same count with separate and
distinct acts of receiving, q yet it is too late, after verdict, to ob-
ject that they should have been indicted separately, r

Concert Justifies joinder, — Although the acts are several, yet
there can be no exception to a joinder, if concert be inferred.
And this is good though the only evidence for the prosecution is
of separate acts, at separate times and places, done by several
persons charged as accessaries upon which a conviction is had. s

4. Severance on Trial,

§ 433. Where several persons are jointly indicted, they may
be tried separately, at the election of the conunonwealth to do
so. The latter may sever as a. matter of right ; but the question
of severance is usually and properly raised by the defendants
themselves, t Where they elect to be tried separately, and
where the application is granted by the court, the prosecuting

Online LibraryFrancis WhartonA treatise on the criminal law of the United States → online text (page 39 of 88)