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 verdict of not guilty on one of the counts, or the entry of a nolle prosequi on that count. n1 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 reference. n2 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. ol Even in good counts, it is unsafe to attempt to supply a material 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. p § 428. There may be cases, it seems, in which counts may be transposed after verdict, so as to invest the second with the incidents 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 satisfied as to which fired the gun. It was held, that the jury were n State v. Rust, 35 N. H. 438. n1 Com. v. Holmes, 103 Mass. 440 (Ames, J. 1869). n2 Sampson v. Com. 5 W. & S. 385. o Com. v. Miller, 2 Pars. 480; see State v. Lea, 1 Cold. (Tenn.) 175. ol State v. Longley, 10 Ind. 482. p See R. v. Dent, 1 C. & K. 249; 2 Cox C. C. 354; R. v. Martin, 9 C. & P. 213; Sampson v. Com. 5 W. & S. 385; State v. Lyon, 17 Wisc. 237; but see ante, § 420, as to practice in counts for receiving stolen goods. 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 XVII. JOINDER OF DEFENDANTS. 1. WHO MAY BE JOINED, § 429. 3. HOW MISJOINDER MAY BE EXCEPTED, 4. SEVERANCE ON TRIAL, § 433. 1. Who may be joined. [See as to Virginia Practice, Code 1866, chap. ccviii. § 13.] § 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. s 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. t1 And even parties to the crime of adultery may be indicted jointly; u though where two are jointly indicted for fornication or adultery, and are tried together, and one party is found guilty and the other not guilty, no judgment can be rendered against the former. 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. w1 § 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 partners, sell the libel at their respective shops, they must be indicted separately. Two or more cannot be jointly indicted for perjury, z or for seditious, obscene, or blasphemous words or the like, because such offences are in their nature distinct. z1 If A. and B. are jointly indicted and tried for gaming, and the evidence 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 (e. g. as with larceny and receiving, or receiving at distinct times), b the indictment must charge 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 indictment 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 first, and the accessaries after the conviction of the principals. Elliott v. State, 26 Ala. 78; though see Young v. R. 3 T. R. 106; R. v. Kingston, 1 East, 468. 2 Sprague, 7; Horne v. State, 37 Ga. 80. c Com. v. Miller, 2 Pars. 480; Peo y R. v. Benfield, 2 Bur. 985. Post, ple v. Hawkins, 34 Cal. 181; R. v. 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.g In an indictment for conspiracy, less than two cannot possibly be joined ;h a wife and husband together 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 ; 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.j 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 unknown, or there are co-defendants, dead or absent or previously convicted, the case is otherwise. 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 Misjoinder may be 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, g R. v. Kinnersley, 1 Stra. 193; R. v. Sudbury, 12 Mod. 262; 2 Salk. 593; 13 East, 412; 1 Ld. Raym. 484; State v. Allison, 3 Yerger, 428; People v. Howell, 4 John. 296; Turpin v. State, 4 Blackf. 72; State v. Mainor, 6 Ired. 340; post, § 2339, 2483, 2503, 3199. h Com. v. Manson, 2 Ashm. R. 31; State v. Covington, 4 Ala. 603; State v. Tom, 2 Dev. 569; U. S. v. Cole, 5 McLean, 513; R. v. Gompertz, 9 Q. B. 824. Post, § 2339, 3199. i Breckenbridge's Miscellanies, 223. VOL. I.22 j R. v. Kenrick, 5 Q. B. 49; R. v. Cooke, 5 B. & C. 538; 7 D. & R. 673; State v. Buchanan, 5 Har. & J. 500; ante, § 242-51; post, § 2295, 2339. k Penn. v. Hurson, Addis. R. 334. 1 State v. Egan, 10 La. R. 698; R. v. Scott, 3 Bur. 1262; Klein v. People, 31 N. Y. 229. Post, § 2483, 3199. m Ante, § 242-251; post, § 2295. n R. v. Gompertz, 9 Q. B. 824. Post, § 3359. o Young v. R. 3 T. R. 103-106; R. v. Clarke, 2 East, 2; 2 Camp. 132. 337 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 conspiracy, 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.p Several receivers. Although as a rule several receivers cannot be jointly charged in the same count with separate and distinct acts of receiving, q yet it is too late, after verdict, to object 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. 8 4. Severance on Trial. § 433. Where several persons are jointly indicted, they may be tried separately, at the election of the commonwealth 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 officer may elect whom he will try first, u which, however, in New York, is entirely at his discretion. v They cannot claim separate trials as a matter of right, although they sever in their pleas; but the court in its discretion may allow them to be tried separately. w After the jury have been p R. v. Kenrick, 5 Ad. & El. N. S. People v. Stockham, Ibid. 424; Slay (5 Q. B.) 49. v. Com. 12 Casey, 305. |