the grand ju ceived as a of the jurors, or to the legality of the returns, are to be made nelling of before the indictment is found; and may be received from any ry can be re person who is under a presentment for any crime whatsoever; plea to such or from any person present, who may make the suggestion as ndictment. amicus curia. 2. UNITED STATES v. GOODING, Jan. T. 1827, 12 Wheat. U. S. C. Rep. 461, 478. Error from the circuit court of Maryland. Objections to the form the indict in the discre cussed dur considered upon a mo Per Cur. Story, J. It remains only to consider the point, and suffi whether these objections to the sufficiency of the indictment ciency of could be properly taken at this stage of the proceedings. Un- ment may, doubtedly, according to the regular course of practice, objec- tion of the tions to the form and sufficiency of an indictment ought to be court, be lis discussed upon a motion to quash the indictment, which may be ing the trial granted or refused in the discretion of the court, or upon de- but regular ly they murrer to the indictment, or upon a motion in arrest of judg- ought to be ment, which are matters of right. The defendant has no right to insist that such objections should be discussed or decided du- tion to ring the trial of the facts by the jury. It would be very incon- indictment, quash the venient and embarrassing, to allow a discussion of such topics or in arrest of judgment during the progress of the cause before the the jury, and intro- or on demur duce much confusion into the administration of public justice. er. But, we think, it is not wholly incompetent for the court to entertain such questions during the the trial, in the exercise of a sound discretion. It should, however, be rarely done, and only under circumstances of an extraordinary nature. The circuit court, in the present case, did allow the introduction and discussion of these questions during the trial, and were divided upon the propriety of the practice. We can only certify, that the court possessed the authority, but that it ought not to be exercised except on very urgent occasions. VIII. RELATIVE TO A VIEW. COMMONWEALTH V. KNAPP, July T. 1830, 9 Pickg. Mass. Rep. 497, 515. On a trial jury, upon Indictment for murder.. Upon the first trial of this cause, the prisoner's counsel moved for murder, that the jury might view the house where the murder was committed their own re and the ground in the vicinity; and the Attorney General expres- conded by sed his desire that the motion should be granted. But per curi- the wish of am, we refused such a request in another case, and it does not on both quest, se the counsel sides and the consent appear to us that a view is necessary. It is attended with many of the pris inconveniences. We know not what the jury may hear and oner, were what impressions may be made upon them while they are taking permitted to view the view. The case should be decided by the evidence given in where the court. The jury not being able to agree upon a verdict, were murder was discharged of the cause. the place committed, with them hibited and explained and to take Upon the second trial the jury themselves requested that they might be permitted to see the place of the murder, and the counplans which had been ex sel on both sides expressed their desire that permission should be allowed. The prisoner likewise gave his consent. The court, but court granted the request, but with hesitation, because they said wasallowed this cause was without precedent, and if it should turn out to be to speak to incorrect, they had doubts whether they could hold the prisoner taking the to his consent. The court directed that no person should go no person them while view. with the jury except the officers having them in charge, and that no person should speak to them, under penalty of a contempt. Plans were exhibited and explained to the jury in court, and they were permitted to take them with them. IX. JOINDER OF DISTINCT OFFENCES, AND OF SEV- COMMONWEALTH V. GILLESPIE AND ANOTHER, Jan. T. 1822, 7 Sergt. & Rawl's Penn. Rep. 469. S. P. BURK V. THE STATE, 2 Har. & Johns. Rep. 426. It is no ob The defendants were convicted of selling lottery tickets not jection on demurrer or authorised by the laws of the state of Pennsylvania. in arrest of distinct of same na ture, are same indict demeanor judgment, Per Cur. Duncan, J. The defendants have moved for a new that several trial, and in arrest of judgment. The reason in arrest of judgfences of the ment is, that the offences could not be laid in the same indictment. These several charges, as laid in the indictment, are different joined inthe modes of laying the same offence. But if the offences were dif ment, whe ferent, separate offences, it is no objection either on demurrer or ther in mis in arrest of judgment, that separate offences of the same nature, or felony; are joined against the same defendant. Even in case of felony, court might though it be true that no more than one offence should regularly in their dis be charged, in one indictment, and that the court would quash pel the pro the indictment before plea, or, if on the trial, the court should secutor, in think it might confound the prisoner, they may exercise a discretion in compelling the prosecutor to elect on which charge he whatcharge he would will proceed, yet even in felonies, there is no objection to the in but the cretion,com felony, to elect on in the same for the same act, when several. So also several For persons may be dictment, in different of sertion of several distinct offences of the same degree, though proceed. Several per committed at different times, in the same indictment against the sons may same offender; and it is no ground of demurrer, or in arrest of be charged judgment, and counts, where offences are of the same nature, indictment, counts at common law, and on a statute, may be joined; 1 Chit-act ty C. L. 175. In misdemeanor, no objection can be made to mits of the joining several in the same indictment, in any stage of the pro-agency of ceedings; 2 Burr. 984. Nor does it form any objection, that se veral are joined in the same indictment, for the same act. though torts are in their nature several, and each one must an-charged in swer for his own independent crime, yet when the act admits of the same in the agency of several, as assault and battery, or libel, they may different be indicted jointly or severally. Not so of perjury, because the counts, for assignment must be of the very words uttered, and the words of fences, tho one cannot be applied to another; or where the criminality aris- its discre es in consequence of some personal disqualification, as for exer- tion, might quash such cising a trade not having served a due apprenticeship. Nor is indictment the objection maintained, that several persons could not be severally indicted in the same bill for separate offences. For though it might be in the discretion of the court, to quash such indictment, yet it cannot be taken advantage of in arrest of judgment. For they are considered as several indictments in point of law; Ld. Hale, 2 H, H. P. C. 174, says, "it is in common experience at this day, that twenty persons may be indicted for keeping disorderly houses, and they are duly convicted on such indictments, for the word seperalite makes the several indictments." 2. the court, in In misde meanor sev in the same KANE V. THE PEOPLE, Dec. T. 1831, 8 Wend. N. Y. Rep. 211. Error from the Supreme Court. Walworth, Chancellor. In cases of felony, where two or more eral distinct distinct and separate offences are contained in the same indict- offences may be join ment, the court, in its discretion, may quash the indictment, or ed and tried compel the prosecutor to elect upon which charge he will pro-indictment. ceed; but in point of law, it is no objection that two or more offences of the same nature, and upon which the same or a similar judgment may be given, are contained in different counts of of the same indictment. It therefore forms no ground of a motion in arrest of judgment; neither can it be objected by way of demurrer, or on a writ of error; Rex v. Young, 2 Peak's N. P. 228, n. It is every day's practice to charge a felony in different ways in several counts, for the purpose of meeting the evidence as it may come out upon the trial; each of the counts on the face VOL. VI. 4 The defend ant must of the indictment purports to be for a distinct and separate offence, and the jury very frequently find a general verdict on all the counts, although only one offence is proved; but no one ever supposed that formed a ground for arresting the judgment. If the different counts are inserted in good faith, for the purpose of meeting a single charge, the court will not even compel the prosecutor to elect; and in case of mere misdemeanors, which are only punishable by fine or imprisonment, the prosecutor is permitted to join and try several distinct offences in the same indictment. X. JOINDER OF DISTINCT OFFENCES IN THE SAME COUNT. COMMONWEALTH V. SYMONDS, Oct. T. 1806, 2 Mass. Rep. 163. 2 Ed. 164. The defendant was indicted for disturbing a house of public ged with ha worship on the Lord's day, contrary to the statute. not be char vingcommit ted two dis ees in any Upon a conviction in the sessions, the defendant appealed, and tinct offen now, after a trial and conviction in this court, moved, in arrest of judgment, that the indictment contained in one count two distinct offences, described in two distinct sections of the statute, and for which distinct, and different fines were provided. And for these reasons the court arrested the judgment. one count of the indict ment. XI, PLEAS. The court will not di rect an im mediate en try of the ty to an in (A) GUILTY. COMMONWEALTH V. BATTIS, Oct. T. 1804, 1 Mass. R. 95, 2 ed. Indictment for murder. The prisoner pleaded guilty. The court informed him of the consequence of his plea, and that he was under no legal or moral obligation to plead guilty; but that pica of guil he had a right to deny the several charges, and put the governdictmentfor ment to the proof of them. He would not retract his plea; a capital of whereupon the court told him that they would allow him a reafence, but will give a sonable time to consider of what had been said to him—and retime to the manded him to prison, and directed the clerk not to record his prisoner to pleas at present. He was again placed at the bar, and again the same, pleaded guilty; upon which the court after an examination of that he may witnesses as to his sanity, and whether any promises, persuaproper, re sions, or hopes of pardon were held out to him, passed sentence reasonable consider of if he think tract his plea. of death. (B) IN BAR. 3. first of two the prisoner might have been convic facts con second, an on the first can be no second. A COMMONWEALTH V. ROBY, March T. 1832, 12 Pick. Mass. Rep. 496. See THE STATE V. COOPER, 1 Green's N. J. Rep. pp. 361-376. Indictment for the murder of Maria Leonard. The indictment Unless the alleged that the prisoner gave the deceased a wound on the 2nd indictments of May, 1831, and that she died in consequence of it on the 17th was such as of July following. The prisoner pleaded a special plea in bar, in which he alleges ted upon by that on the first Monday of June 1831, he was indicted for a proof of the felonious assault upon Maria Leonard on the 2nd of May, tained in the with intent to kill and murder her: at the same term he pleaded not guilty, and was tried and convicted. To this plea there was conviction a general demurrer. Per Cur. Shaw, C. J. Upon the defendant's plea in bar to bar to the the indictment pending against him, for the alleged murder of conviction Maria Leonard, several questions of law have been presented for upon an in The principal an assault the consideration and decision of the court. question is, whether the proceedings in the Municipal Court, to murder, set forth in the defendant's plea in bar, and appearing upon oyer pleaded in of the record, are sufficient in law to bar the present indictment. bar to an in [The learned chief justice, after reviewing the cases, again pro- murder; for ceeds:] But a more important and often a more difficult question the offences arises in the application of the principle in question-that no man in their le shall be twice put in jeopardy for the same offence-to particular er, and in cases, from the consideration whether the offence for which the no party stands charged, is the same offence of which he has before been acquitted or convicted; and this is the main inquiry in the for the one present case. This must be determined by well established au- ed of the thorities. Mr. Justice Blackstone states it thus: that the pleas of a former acquittal and former conviction, must be upon a prosecution It must for the same identical act and crime; 4 Bl, Com. 336. therefore appear to depend upon facts so combined and charged as to constitute the same legal offence or crime. It is obvious, therefore, that there may be great similarity in the facts, where there is a substantial legal difference in the nature of the crime; and on the contrary, there may be considerable diversity of circumstances, where the legal character of the offence is the same. As where most of the facts are identical, but by adding, withdrawing, or changing, some one fact, the nature of the crime is changed; as where one burglary is changed as a burglarious dictment for with intent cannot be dictment for are distinct ter, case could a par ty on trial be convict other. |