FIRST DEPARTMENT, MARCH TERM, 1875. of the Crown, in the chapter which treats of indictments, in stating the requisites thereof,* says: "Fifthly, that regularly every indictment must either charge a man with some particular offense, or else with several of such offenses, particularly and certainly expressed, and not with being an offender in general." Hale's Pleas of the Crown† thus states the law as to the joinder of offenses: "If there be one offender and several capital offenses committed by him, they may be all contained in one indictment, as burglary and larceny; larcenies committed of several things, though at several times, and from several persons, may be joined in one indictment." In East's Pleas of the Crown the same rule is recognized, and the case of Thompson is cited. In that case, upon a general verdict of guilty, it was objected that there were two several capital charges in the same indictment, which it was said tended to deprive the prisoner of so many challenges as he would be entitled to if the indictments were distinct, namely, twenty upon each. Another objection was, that it would tend to perplex the prisoner in his defense. But seven judges (being all who were present at the conference) held the indictment good." 66 Chitty's Criminal Law § says: " In cases of felony, no more than one distinct offense, or criminal accusation, at one time should regularly be charged upon the prisoner in one indictment, because if that should be shown to the court, before filed, they will quash the indictment, lest it should confound the prisoner in his defense, or prejudice him in his challenge to the jury; for he might object to a juryman trying one of the charges, though he might have no reason so to do in the other, and if they do not discover it until afterward, they may compel the prosecutor to elect on which charge he will proceed. But this is only matter of prudence and discretion. which it rests with the judges to exercise. For, in point of law, there is no objection to the insertion of several distinct felonies of the same degree, though committed at different times, in the same indictment against the same offender; and it is no ground of either demurrer or arrest of judgment. * In the case of misdemeanors, the joinder of several offenses will not in general vitiate in any stage of the prosecution. For in offenses inferior to * Vol. 2, page 322. * * Vol. 2, page 173. FIRST DEPARTMENT, MARCH TERM, 1875. felony, the practice of quashing the indictment, or calling upon the prosecution to elect on which charge he will proceed, does not exist. But on the contrary, it is the constant practice to receive evidence of several libels and assaults upon the same indictment. It was indeed formerly held, that assaults on more than one individual could not be joined in the same proceeding, but this is now exploded; for though two persons cannot join in a civil action, the reason is that the damages are several, which cannot apply to criminal proceedings where no compensation is given to the prosecutor, and public security is the object to be obtained." And again the same work declares: "So when he is charged with several offenses at the same time of the same kind he may be sentenced to several terms of imprisonment, one after the conclusion of the other." Archbold's Criminal Pleadings + contains the same doctrine: "If different felonies or misdemeanors be stated in several counts of an indictment, no objection can be made to the indictment on that account in point of law. In cases of felony, indeed, the judge in his discretion may require the counsel for the prosecution to select one of the felonies and confine himself to that. This is what is technically termed putting the prosecutor to his election. But this practice has never been extended to misdemeanors." It cannot be necessary to refer in detail to the numerous cases decided in England, sustaining the rule as laid down by the eminent and standard authors to whom we have referred. A reference to the works we have cited will show that these cases are very numerous, but the universally acknowledged authority of the writers quoted, renders that labor unnecessary. We content our selves with the citation of a single very recent and famous one, known as that of the "Tichborne Claimant." The trial was before the Court of Queen's Bench, and the judges composing the court were the Lord Chief Justice of England, the Hon. Justice MELLOR, and the Hon. Justice LUSH. "The indictment upon which the proceedings were founded was filed Easter Term, 1872, against Thomas. Castro, alias Orton, alias Tichborne. First count of indictment charged defendant with perjury, committed in evidence given by him on the recent trial of Tichborne v. Lushington. Second count charged defendant with perjury in an affidavit sworn by him in the *Vol. 1, page 718. Waterman's Edition of 1853, vol. 1, p. 95. FIRST DEPARTMENT, MARCH TERM, 1875. chancery suit, Tichborne v. Tichborne. Defendant pleaded Not Guilty."* The jury found a separate verdict of guilty on each count, and a general verdict of guilty on both counts. The sentence and judgment of the court was pronounced by Mr. Justice MELLOR, and was couched in the following language: "The sentence of the court, which I now pronounce, is, that for the perjury alleged in the first count of this indictment upon which you have been convicted, you be kept in penal servitude for the term of seven years, and that for the perjury alleged in the second count of this indictment, of which you have also been convicted, you be kept in penal servitude for the further term of seven years, to commence immediately upon the expiration of the term of penal servitude assigned to you in respect of your conviction upon the first count of this indictment; and that is the sentence of the court." It may not be improper to add, that so well settled does the law of England seem to be in that regard, that no question was made as to the regularity of the sentence, and not a single objection interposed, or exception taken thereto. And it will further be observed, that the indictment upon which the prisoner was convicted, was of two separate and distinct offenses: the one of perjury in giving evidence upon a trial, and the other of perjury in making an affidavit in a separate and distinct action. It furnishes, therefore, an answer to the position of the counsel for the relator, that there was no case upholding the joinder of disconnected offenses, and the awarding of cumulative sentences thereon. The law of Massachusetts, Connecticut and Pennsylvania is in accordance with that of England, as the following cases will show: In Carlton v. The Commonwealth, the Supreme Court of Massachusetts decided: "Two or more distinct offenses may be included in one indictment, in several counts, where the offenses are of the same general nature, and where the mode of trial and the nature of the punishment are also the same. When a defendant is found guilty, generally, on an indictment which charges him with several distinct offenses, it is not necessary that separate sentences should be awarded. A single sentence is legal, if it do not exceed the sum of the several * See the Tichborne trial; the summing up by the Lord Chief Justice (unabridged edition, London: Ward, Lock & Tyler). + See page 285. Pages 286, 287. §5 Metcalf, 532. FIRST DEPARTMENT, MARCH TERM, 1875. sentences which might be awarded." This case was followed in Booth v. The Commonwealth; in Josslyn v. The Commonwealth; in Crowley v. The Commonwealth; in Kite v. The Commonwealth; § in Commonwealth v. Hills;|| and in Commonwealth v. Carey. T The same rule prevails in Connecticut. It was held in State v. Tuller : ** "It is essential to the administration of justice, that several distinct offenses should be joined in cases of misdemeanor; and in some cases of felony, that the same offense should be laid differently in different counts; and the rule precludes the right of the prisoner to insist upon an election of counts, or that the jury should be required to find specially on each count. Where there are several counts in the information, and a general verdict is rendered, the jury will be presumed to have found the prisoner guilty upon all the counts; and the court will impose a sentence, in accordance with the facts proven upon the trial." In the very recent case (January 9, 1872) of Commonwealth v. Birdsall,++ the Supreme Court of Pennsylvania have examined the question and reaffirmed its correctness. upon Many other of the States have adopted the same rule. The ordinary limits of an opinion do not permit us to cite in detail the numerous cases decided in this country. Very many of them are referred to in the United States Digest of Criminal Law,‡‡ and in the American notes to Hale, Chitty and Archbold, before referred to. With a single citation therefore, from a standard American treatise the criminal law,§§ we will then refer to some of the New York cases. In discussing this question, that author | says: "The law imposes certain penalties for assault and battery, which penalties are designed to cover the assault as well as the battery. To sentence the defendant for the penalties for an assault as averred in the first count, and then again for an assault and battery as averred in the second count, would expose him to a double punishment for the same offense. The only legitimate course, when the several counts are simply successive stages of one offense, is, in accordance with the view already given, to impose the *5 Metcalf, 535. 10 Cushing, 530. ‡‡ Pp. 335, 336. +6 Metcalf, 236. +11 Metcalf, 575. $11 Metcalf, 581. **34 Conn., 281. ++ 69 Penn., 482. 7th ed., Vol. 3, § 3397. FIRST DEPARTMENT, MARCH TERM, 1875. sentence on the count containing the highest offense, dropping the rest. This, to repeat once more the distinction so important to keep in mind in cases of this class, is on the supposition that the several counts are simply for separate stages or modifications of the same offense. Here, it stands to reason there can be no cuulative punishments; yet it equally stands to reason, that where two distinct offenses are coupled in the same indictment, and there is a general verdict of guilty, then a cumulative punishment can be imposed, or, according to the Pennsylvania practice, which is more exact, a distinct punishment on each count." Much stress was, however, made upon the argument by the counsel of the relator, that whatever might be the common law of England and other States upon this question, the common law of New York was different, and did not allow the practice adopted in this case. It is scarcely necessary, perhaps, in answer to the objection which assumes the wide difference between the common law of England and of New York, to cite section 17, of article 1, of our Constitution. Whatever result in answer to the assumed antagonism of the two could be evolved by reasoning thereon, is rendered unnecessary by express adjudication of our highest courts. Kane v. The People * was a case in our Court of Errors, then our highest appellate tribunal. The plaintiff in error in that case was convicted upon an indictment containing two counts, and averring, in words at least, two distinct offenses. His counsel (the late Judge PAIGE) made, as his fourth point,† the one we are now dis"There is a misjoinder of offenses in the indictment; there being two counts against the defendants below, as directors of different companies." cussing in these words: The chancellor, whose opinion was unanimously concurred in, in answer to this position says: "The fourth objection is for a misjoinder of counts in the indictment. If there ever was anything in this objection, it should have been addressed to the discretion of the court below before conviction. In cases of felony, when two or more distinct and separate offenses are contained in the same indictment, the court in its discretion may quash the indictment, or compel the prosecutor to elect upon which charge he will proceed; but in point of law, it is no objection that two or more * 8 Wend., 203. + Page 207. Pp. 210, 211. |