a gaming table, and inducing others to bet upon it, may also constitute a distinct offence; for either, unconnected with the other, an indictment will lie. w Yet when both are perpetrated by the same person at the same time, they constitute but one offence, for which one count is sufficient, and for which but one penalty can be inflicted. An indictment which charges a prisoner with the offences of falsely making, forging, and counterfeiting, of causing and procuring to be falsely made, forged, and counterfeited, and of willingly aiding and assisting in the said false making, forging, and counterfeiting, is a good indictment, though all of these charges are contained in a single count; and as the words of the statute have been pursued, there being a general verdict of guilty, judgment ought not to be arrested on the ground that the offences are distinct. y So also with charging that the defendant "administered, and caused to be administered," poison, &c. z So "obstruct or resist" process may be joined so as to read "obstruct and resist" in the indictment. a So, in an indictment on the Massachusetts Rev. Stats. c. 58, sect. 2, by which the setting up or promoting of any of the exhibitions therein mentioned, without license therefor, is prohibited, it is not duplicity to allege that the defendant "did set up and promote such an exhibition. So, also, with burglary and larceny, and breaking and stealing. b1

b

A neglect by supervisors of roads, both to open and repair roads may be charged in one count of an indictment against them. c

§ 391. (e.) Double articles in larceny. In all cases of larceny, and like offences, several articles may be joined in a count, the proof of either of which will sustain the indictment, though

w See State v. Fletcher, 18 Mo. (3 Bennett) 425.

x Hinkle v. Com. 4 Dana, 518.

y Rasnick v. Com. 2 Virg. C. 356; State v. Houseall, 2 Rice's Dig. 346; Hoskins v. State, 11 Geor. 92; State v. Morton, 1 Williams (Vt.), 310; Mackey v. State, 3 Ohio St. Rep. 363; Stoughton v. State, 2 Ibid. 562; People v. Tomlinson, 35 Cal. 503; contrà, Kirby v. State, 1 Ibid. 185. See post, § 1466.

z Ben v. State, 22 Alab. 9.

a Slicker v. State, 8 Eng. (13 Ark.) 397; see, also, State v. Locklear, 1 Busbee, 205. Ante, § 368.

b Com. v. Twitchell, 4 Cush. 74. 61 Ante, § 383.

c Edge v. Com. 7 Barr, 275.

d Com. v. O'Connell, 12 Allen, 451; ante, § 361; post, § 619, 628; State v. Williams, 10 Humph. 101; Lorton v. State, 7 Mo. 55; Com. v. Williams, 2 Cush. 583; State v. Cameron, 40 Vt.

where a variety of articles are stolen at the same time and place, and from the same individual, it has been held, that the stealing of such articles at the same time and place is only one offence, and must be so charged. e It has even been ruled that the same count may join the larceny of several distinct articles, belonging to different owners, where the time and the place of the taking of each are the same.f This, however, has been doubted ;g and when averred to be at distinct times, the count is double.g1

§ 392. (f.) Double overt acts or intents. - Laying several overt acts in a count for high treason is not duplicity, h because the charge consists of the compassing, &c., and the overt acts. are merely evidences of it; and the same as to conspiracy. A count in an indictment charging one endeavor or conspiracy to procure the commission of two offences, is not bad for duplicity, because the endeavor is the offence charged. The same rule exists where assaults with two intents are charged.j

§ 393. (g.) Double batteries, libels, or sales. - A man may be indicted for the battery of two or more persons in the same count, k for or libel upon two or more persons, where the publication is one single act, or for a double homicide by one act, l1 or of selling liquor to two or more persons, m or in several forms, m1 without rendering the count bad for duplicity.

Various means used in committing the offence may be stated, without duplicity. m2

555; State v. Johnson, 3 Hill S. C. 1; post, § 565.

k R. v. Benfield, 2 Bur. 984; Kenney v. State, 5 R. I. 385; see 2 Str.

e Ibid; and see, particularly, post, 890; 2 Ld. Raym. 1572; State v. Mc§ 565, 1817 a.

ƒ Com. v. Williams, Thacher C. C. 722; State v. Nelson, 29 Maine, 329; see Com. v. Dobbin, 2 Pars. 380; Ben v. State, 22 Ala. 9.

g State v. Thurston, 2 McMullen, 382; Com. v. Andrews, 2 Mass. 409. Post, § 1817.

g1 State v. Newton, 42 Vt. 537. h Kelyng, 8.

i R. v. Fuller, 1 B. & P. 181; R. v. Bykerdike, 1 M. & Rob. 179.

j R. v. Dawson, 1 Eng. Law & Eq. 62; State v. Dineen, 10 Minn. 407; post, § 620, 635, 712 a.

VOL. I. 20

Clintock, 8 Iowa, 203, contra; and so of a double shooting or stabbing. Shaw v. State, 18 Ala. 547; Com. v. McLaughlin, 12 Cush. 615; see Ben v. State, 22 Ala. 9; R. v. Scott, 4 B. & S. 368.

1 R. v. Jenou, 7 Mod. 400; 2 Bur. 983.

1 See State v. Womack, 7 Cold. (Tenn.) 508.

m State v. Anderson, 3 Rich. 172; State v. Bielby, 21 Wisc. 204.

m1 Osgood v. People, 39 N. Y. 449. m2 Com. v. Brown, 14 Gray, 419; see § 394.

305

§ 394. (h.) Surplusage. The cases are noticed elsewhere in which surplusage will not vitiate the indictment when the offence itself is stated with sufficient precision. n Thus, where a count in an indictment, charging that the prisoner, a slave," with force and arms in the county aforesaid, in and upon one A. (then and there being a free white woman), feloniously did make an assault, and her, the said A., then and there feloniously did attempt to ravish, and carnally know, by force and against her will, and in said attempt did forcibly choke and throw down the said A.," this was held not bad for duplicity or uncertainty. The last allegation is but a minute description of the manner of the assault, and may be rejected as surplusage.o

3. How Duplicity may be objected to.

§ 395. Duplicity, in criminal cases, may be objected to by special demurrer, perhaps by general demurrer, or the court in general, upon application, will quash the indictment; but the better view is that it cannot be made the subject of a motion in arrest of judgment, or of a writ of error;p and it is cured by a verdict of guilty as to one of the offences, and not guilty as to the other, p1 and by a nolle prosequi as to one member of the court.p2

XII. REPUGNANCY.

§ 396. When one material averment in an indictment is contradictory to another, the whole is bad. If an indictment charge the defendant with having forged a certain writing, whereby one person was bound to another, the whole will be vicious, for it is impossible any one can be bound by a forgery.q Where it was averred that the defendant disseised the prosecutor of land, when it appears that he had no freehold whereby he could be disseised, or that the former entered peaceably upon the latter, and then and there forcibly disseised him, or charged the prisoner with feloniously cutting down trees, which is only a trespass, the in

n Ante, § 291; post, § 622; State v. Palmer, 35 Maine (5 Red.), 9. o Green v. State, 23 Mis. 509. p State v. Johnson, 3 Hill S. C. 1; Com. v. Tuck, 20 Pick. 356; Nash v. R., 9 Cox C. C. 424; State v. Brown, 8 Humph. 89; People v. Shotwell, 27 Cal. 394; post, § 3044; but see, ap

parently contra, State v. Fowler, 28 N. H. 184; State v. Howe, 1 Rich. 260, and cases cited ante, § 382.

pl State v. Miller, 24 Conn. 522; State v. Merrill, 44 N. H. 624.

p2 State v. Merrill, 44 N. H. 624. q 3 Mod. 104; 2 Show. 460; see Mills v. Com. 1 Harris, 634.

dictment was held insufficient. The same error has been held to exist where an indictment charged an offence to have been committed in Nov. 1801, and in the twenty-fifth year of American Independence, 8 and where the crime was laid to have been committed A. D. 1830.t A relative pronoun referring with equal uncertainty to two antecedents will make the proceedings bad, in arrest of judgment. So, an indictment for forging a bill of exchange, stating it as directed to John King, by the name and addition of John King, Esq., will be defective, and cannot be cured by the evidence. u But, as will hereafter be more particularly seen, every fact or circumstance laid in an indictment, which is not a necessary ingredient in the offence, may be rejected as surplusage. v

§ 397. Where there was a general verdict of guilty, on an indictment for procuring a miscarriage, in which one count averred quickness, and the other merely pregnancy, and one count averred the abortion of the mother, and the other of the child, the supreme court refused to reverse on the ground of repugnancy.w

§ 398. In indictments for treason, the offence must be laid to have been committed traitorously; but if the treason itself be laid to have been so committed, whether it consist in levying war against the supreme authority, or otherwise, it is not necessary to allege every overt act to have been traitorously committed. x

r Alleyn, 50; 2 Hawk. c. 25, s. 62; Bac. Ab. Indict. G. 1.

s State v. Hendricks, C. & N. 369. t Serpentine v. State, 1 How. Miss. R. 260.

u 1 Leach, 87; 2 Leach, 590.

v State v. Cassety, 1 Richardson, 91; 5 East, 254; 1 Chitty on Pleading, 334, 335. See postea, § 622.

w Mills v. Com. 1 Harris, 634.

x Cranbourn's case, 4 St. Tr. 701; Salk. 633; East P. C. 116.

2. " Feloniously did kill," " Malice aforethought," "Strike." § 399. The word feloniously is essential to all indictments for felony, whether at common law or statutory; y and, in several cases, technical and appropriate words are frequently requisite, in addition to the description of the offence. Thus, in an indictment for murder, it is essential to state, as a conclusion from the facts previously averred, that the said defendant, him, the said C. D., in manner and form aforesaid, feloniously did kill and murder; z a term of art, which can in no case be dispensed with. On the same principle, it must also be alleged that the offence was committed of the defendant's malice aforethought, words which cannot be supplied by the aid of any other; and if any of these terms be omitted, or if the defendant be.merely charged with killing and slaying the deceased, the offence will amount to no more than manslaughter. a Where the death arises from any wounding, beating, or bruising, it has been said, that the word struck b is essential, and that the wound or bruise must be alleged to have been mortal. It cannot be considered safe, however, to omit it where it is applicable.

y State v. Murdock, 9 Mo. 739; State v. Gilbert, 24 Mo. (3 Jones) 360; R. v. Gray, Leigh & Cave, 365; Mears v. Com. 2 Grant, 385; Bowler v. State, 41 Miss. 570; Edwards v. State, 25 Ark. 444. It has, however, been thought that when a statute, creating a felony, does not use the term "feloniously," the latter term may be omitted by the indictment. People v. Olivera, 7 Cal. 403; Jane v. Com. 3 Metc. Ky. 18, sed quære. The word "feloniously," however, is sometimes dispensed with by statute, either expressly or by implication. Peek v. State, 2 Humph. 78; Butler v. State, 22 Alab. 43.

z 1 Hale, 450, 466; 4 Bl. 307; Yel. 205; Cain v. State, 18 Texas, 387. 308

The term was originally introduced in order to exclude the offender from his clergy; R. v. Clerk, Salk. 377; and is not essential to an indictment for manslaughter.

a 1 Hale, 450, 466; East P. C. 345; Sarah v. State, 28 Mississippi, 268; Wharton on Homicide, 260; State v. Fee, 19 Wisc. 562. A killing by misadventure, or chance medley, is described to have been done "casually and by misfortune, and against the will of the defendant." See State v. Raben, 4 Rich. 260; post, § 1071.

b See post, § 1067-8-9; 2 Hale, 184; 1 Buls. 124; 2 Inst. 319; 2 Hawk. c. 23, s. 82; Cro. J. 635; 5 Co. 122; Lad's case, Leach, 112; 2 Hale, 186; 1 Hawk. c. 23, s. 82; Kel. 125.