Hilderbrand v. State

Napton, Judge,

delivered the opinion of the court.

The defendant was indicted by the grand jury of Jefferson county, for stealing a mare — was convicted, and sentenced to the penitentiary for two years. The indictment contained thiee counts. The first count charged that defendant, on the 20th day of June, in the year eighteen hundred and thirty-eight, with force and arms, at the county, &c., one certain mare, of the value of thirty dollars, then and there being found; then and there did feloniously steal, take and lead away, contrary, &c.

The second count was for stealing a bell collar of the value of twenty-five cents.

The third coant charged, that defendant on, &c., at, &c., “one mare, and one bell collar on said mare, then and there being found, of the value of twenty-five dollars, lawful money, of the goods and chattels of one Allen Harness; then and there being found; then and there feloniously did steal, take and lead away, to the evil example,” &c.

To the first count of this indictment, there was a general demurrer, which was overruled by the court. After verdict, defendant moved in arrest of judgment and for a new trial.

prisoner with stealing a mare of the value of $30. Second count, with steal-Indictment containing three counfcha^ged ing a bell collar cents^Thírd5 count, with ing amare and value of1$25f the There was a eral verdict of though the*third* count was double, adifferenTde ^ree and punishable in a different man-was either general or special, nor any Umdefern wasSÍ1 ’ cured by verdict, and could not be taken advantage of by motion in. arrest or writ of Under the act concerning crimes-and'punishments,.felonies and misdemeanors cannot be jbinod in the sanie indictment, and the offence-charged in the second count being only a misdemeanor, there was a misjoinder of counts-, and the verdict being general, it was impossible for the circuit, court to direct what judgment should be entered.

The first count is obviously defective for want of venue. Time and place must be laid to every material fact in an indictment — Arch. Cr. Plead. 16, and athorities there cited.

The third count is double. Two distinct offences of a different degree, and punishable in a different manner, are joined in the same count. To this count there was,, however, no demurrer either general or special, nor any motion to quash. I have not seen any case in which this objection has been made available by motion in arrest or writ of error. I incline to think a verdict would cure this defect — Archbold’s Plead. p. 55.

But the seeond count is for petit larceny, an offence? upon which the verdict and judgment must beessentialty different from what they must be on a charge of steal-a mare. Our law on this subject is conceived to be essentially different from the practice sustained by the English authorities. In England, offences of the same could be joined in an indictment, and the only way to object to such joinder, was to move to strike out objectionable count, and force the prosecutor to rely on some particular count or counts. Our statute has, entirely a new meaning to the word ^ony» aQd has drawn a plain and obvious distinction between felonies and misdemeanors, founded solely on the punishment prescribed. The judgment in the two cases-ke ent'rety-different, and though in England an indictment might include counts for grand larceny and pet-it larceny, the practice cannot be admitted under our statutory provisions; there was, then, a misjoinder of counts and a general verdict,, and upon the verdict it was impossible for the court to direct what judgment sjj0ui¿ |je entered; for these reasons, the judgment is ro- , T , mi- v . versed, Judge lomplans concurring m this opinion,