son (y); and Lord Hale speaks of a bill, containing two offences, as burglary and theft, forcible entry and detainer as usual in practice (z). And it is the common practice to charge the forgery of a bill or note, and the uttering of it with a guilty knowledge in different counts of the same indictment. So a count for embezzling Bank notes may be joined with a count for larciny (a).

A prisoner may be indicted for petty treason and murder at the same time, and may be found guilty of the murder, and acquitted of the treason (b).

If the special description of the offence in the indictment include a more general offence, the prisoner may be found guilty of the latter and acquitted of the former. Thus if an indictment for burglary be laid with a felony to the amount of 40s., the prisoner may be acquitted of the burglary, and be found guilty of stealing in the dwelling-house to the amount of 40s. (c).

So under an indictment for burglariously breaking in and stealing, the charge may be modified by shewing a stealing without any breaking in (d).

So under an indictment for stealing in a dwelling-house

(y) Leach, 531. Qu. whether this be consistent with the oath of a grand juror?

99.

case an acquittal of the larciny would amount to an acquittal of the burglary; for though the

(z) 2 Hale, 163, 173. Yel. allegation of the theft be a suf

Ford's case. (a) R. v. Johnson, 3 M. & S. 539. See the precedent infra. (b) Leach, 512. Fost. 328. Fost. 328. 106. 10 St. Tr. 36.

(c) Leach, 102. 816.

ficient allegation of the felonious intention, yet when acquitted of that, the matter stands as if he had been indicted for the breaking without any felonious intent. See 1 Hale, 560. East, P. C. 348. 518. 1 Sid.

(d) Leach, 816, But in such 171.

and putting in fear, the prisoner may be convicted of a simple larciny (e).

And in general whenever an offence, as described in the indictment, is made up partly of facts and circumstances which constitute a less aggravated offence, and partly of circumstances peculiar to itself, the defendant may, if the evidence warrant such a conclusion, be found guilty of the more simple and acquitted of the more serious offence. So that where the indictment charges the defendant with petit treason, he may be found guilty of murder, or of any inferior species of felony, the treason being a circumstance of aggravation of which the defendant may be acquitted, and yet found guilty of the substantial part of the charge (ƒ).

(e) Leach, 771.

(f) Fost. 328. 1 Hale, 378, 449. 2 Hale, 184, 302. 2 Haw. c. 47. s. 8. Radbourne's case, Leach, 513. 2 Haw. c. 23. s. 95.

But the converse of the proposition is not so clear, for, by charging the defendant with murder, where the facts amount to petit treason, he is barred of his right to a peremptory challenge of thirty-five, and the judgments are different; and, on this account, Mr. Justice Foster, though he was satisfied that petit treason and murder are in law but one offence, said, that if, on an indictment for murder, the prisoner appeared

to have been guilty of petit

treason, it would not be advisable to direct the jury to acquit, least the defendant should afterwards plead auter-foits acquit, but that he (if the case occurred) should discharge the jury of that indictment, and direct a fresh one to be preferred, Fost. 328.; and see the case of Swan and Jefferies, Fost. 304. So if the indictment charge a misdemeanor below felony, and the offence upon trial appear to be felony, it seems the defendant ought not to be found guilty of the misdemeanor, but should be indicted afresh for the felony. See R. v. Cross, 12 Mod. 520. 634.

So a man indicted for murder may be acquitted of the murder and found guilty of manslaughter, because manslaughter is included in the charge of murder. The of fences differ only in the circumstance of malice prepense, which, taken from a charge of murder, reduces it to manslaughter, and added to circumstances amounting to manslaughter, constitutes murder (g). And for this reason it is in many instances unnecessary to subjoin to a special count describing the aggravated offence other counts, which differ only in the omission of the particular allegations in which the aggravation consists (h).

But the above rule must be understood with this limitation, that a charge of felony cannot be modified into a misdemeanor, since the defendant would thereby lose the benefit of full counsel, of a copy of the indictment, and of a special jury (i). Judgment, therefore, cannot be pronounced as for a trespass, where the defendant has been convicted of stealing that which is not the subject matter of felony (k).

So if the indictment charge a felony, and the facts found by a special verdict amount to a misdemeanor only, judgment cannot be given as for a trespass (1). And if two be indicted for felony, and it turn out to be felony in one, and but trespass in the other, the latter is intitled to an acquittal (m).

And it is improper to prefer two indictments at the

same time for the same act, one laying it as a felony, and the other as a misdemeanor (n).

And since different judgments are required, it seems that the joinder of a count for a felony, with another for a misdemeanor, would be holden to be bad upon demurrer, or after a general verdict, upon motion in arrest of judgment (o). But it is no objection to an indictment, that it charges different misdemeanors upon the defendant in different counts, for the judgment is of the same (p) nature. And the joinder is good although the indictment for one of the offences be positive, and the judgment for the other discretionary (9).

III. Of the Joinder of different Persons and different Offences.

But though an indictment would be vicious which alleged that several persons, jointly, committed an offence, which from its nature must have been the several offence of each; yet if, in the same indictment, as found by the grand jury, several offences be alleged to have been committed by several persons, no advantage it seems can be taken, either upon demurrer or in arrest of judgment, though the court will, in its discretion, either quash the indictment altogether, or use such measures as shall obviate any inconvenience (r) to the defendants which might otherwise arise. For the charging the offences to have been committed severally, makes each such charge a separate indictment. And though there are instances where indictments have been quashed for charging several of

(n) Doran's case, Leach, 608. (o) 3 T. R. 108.

(p) 3 T. R. 108. 2 Burr. 984. 8 East, 41. R. v. Jones, 2 Camp. 132.

(q) R. v. Darley Hill, 4 East,

174.

(r) 3 T. R. 106. Kingston, 8 East, 46.

R. v.

fences to have been committed by several persons, as against several officers, quod colore officiorum suorum separaliter (s), extorsive ceperunt, &c.; yet there are a great number of authorities which shew that an indictment charging the offences to have been committed separaliter, would be good.

Thus, though an indictment against four persons for erecting four several inns, and selling victuals to travellers ad commune nocumentum (t), was quashed, yet it was for want of alleging that they did the acts separaliter, which would have made the charges as several indictments.

And according to Lord Hale (u), "It is common experience at this day, that twenty persons may be indicted for keeping disorderly houses, and they are daily convict upon such indictments, for the word separaliter makes them separate indictments."

But it seems, that to warrant such a joinder in the same indictment, the offences must be of the same nature, and such as will admit of the same plea and the same judgment (x).

It does not appear to have been allowable to join charges of different felonies against different persons, in the same indictment, unless such felonies arose out of the same transaction.

But where the felonies have been immediately connected, as in the case of a principal and his accessories, either before or after the offence, it has been the usual course to include them in the same indictment (y).

(s) 2 Hale, 174.

(t) 2 Roll. Rep. 345, and per Lawrence, J. 8 East. 47. 2 Hale, 174.

(u) 2 Hale, 174, 3 T. R. 106.

(r) 8 East, 46. 2 Hale, 174. 3 T. R. 106. 2 Camp. 132.

(y) 2 Hale, 173.