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where the larceny of the property belonging to different persons may constitute a single offense; as, for instance, where it is all in one bundle, or in one package, for it is unnecessary to do so, inasmuch as in such a case there is a single and indivisible act, and it may be a single crime: State v. Nelson, 29 Me. 329; 1 Hale P. C. 531; Clem v. State, 42 Ind. 420; 13 Am. Rep. 369; Ben v. State, 22 Ala. 9; 58 Am. Dec. 234. If the information alleged that the property of the two owners was stolen at the same time and by the same act, so that it could be affirmed that there was a single larceny, we should perhaps be able to sustain the information. But the difficulty that arises cannot be solved by assuming that there was a single act, unless as a matter of law it can be adjudged that the larceny of property belonging to different owners, committed on the same day, constitutes a single crime; for there are no facts alleged tending to show that there was one indivisible offense. As there is only a single count, we are required to decide whether the larceny of property belonging to two different persons can as matter of law be considered to constitute one offense; for no more than one offense can be properly charged in one count of an indictment or information, although different offenses may be charged in different counts.

It is well known that every larcenous taking is a trespass against the owner. An essential element of the crime of larceny is trespass, although the trespass may be constructive, and not actual. Assuming, as we must, that the element of trespass is essential to the crime of larceny, we must ascertain what the implication is, where it is charged that there was a trespass against two or more persons. It seems clear to us that the implication is, that the trespasses were separate and distinct. If Gunnison had sued the appellant for the trespass, and had alleged that the appellant carried away his, Gunnison's, property, and that of Parham also, we suppose it to be plain that Gunnison could not recover the value of Parham's property, for the implication would be, that there were distinct causes of action. If this is the implication, then the information is double. We can perceive no escape from this conclusion. We cannot infer, for the sake of upholding a conviction of a crime, that what would ordinarily be regarded as two distinct trespasses is in fact only one. The authorities require the conclusion we have suggested. In the case of Phillips v. State, 85 Tenn. 551, the goods belonged to dif

ferent persons, but were taken on the same night from the same room, and it was held that there were two distinct offenses. In speaking of the trespass to the different owners, it was said: "The wrong to one of them was no wrong to the other; and if the wrong to each was not a complete crime within itself, there is no wrong at all, because two acts involving the distinct rights and property of different individuals cannot be coupled in order to constitute one offense against the law." Possibly the language used is a little too broad; but restricting it to due bounds, nevertheless, the prin ciple declared decides the case againt the state. Suppose, for the sake of illustration, that the appellant had been convicted of stealing Gunnison's property, and was subsequently indicted for stealing Parham's property, would the conviction be prima facie a bar to the second prosecution? To our minds it is clear that it would not be, although it is possible that if it appeared that the property of both owners was stolen in a single and indivisible act, the first conviction would bar further prosecution. If the first prosecution would not be a bar, and we think it would not be, it must be for the reason that prima facie there are two offenses.

Resuming our consideration of the authorities, we quote from the case of Morton v. State, 1 Lea, 498, the following: "Every larceny includes a trespass to the person or property of the owner of the thing stolen. A larceny of the property of O'Brien was no trespass to the person or property of Corbitt, and vice versa." In the case of State v. Thurston, 2 McMull. 382, it was held that taking cotton belonging to three persons constituted three distinct offenses. The doctrine is carried much further-possibly too far-in Commonwealth v. Andrews, 2 Mass. 409, for it was there held that the offenses were distinct, although there was a single act. But well-reasoned cases in California go to the same length: People v. Alibez, 49 Cal. 452; People v. Wasson, 65 Cal. 538; People v. Yoakum, 53 Cal. 566. The common-law rule as stated in State v. Nelson, 8 N. H. 163, is this: "If one steal at the same time the goods of A and also other goods of B, there are two distinct larcenies: 8 East, 521." Some of the cases say that the rule is, that "the plea of autre fois acquit or convict is sufficient, whenever the proof shows the second case to be the same transaction with the first": Roberts v. State, 14 Ga. 8; 58 Am. Dec. 528; Holt v. State, 38 Ga. 187. Without going into an examination of the decisions of other courts in detail, we cite,

as sustaining the doctrine that unless the transaction is indivisible and the same, the offenses are distinct, Vaughan v. Commonwealth, 2 Va. Cas. 273; Teat v. State, 53 Miss. 439; 24 Am. Rep. 708; Burns v. People, 1 Park. Cr. 182; People v. Saunders, 4 Park. Cr. 196; Regina v. Morris, 10 Cox C. C. 480.

It is difficult to reconcile the doctrine of our later cases with that asserted in Clem v. State, 42 Ind. 420, 13 Am. Rep. 369, but it is not important that we should attempt to do so in this instance; nor is it necessary to determine which is the better doctrine, for, assuming that the doctrine of Clem v. State, 42 Ind. 420, 13 Am. Rep. 369, is sound, it in no wise impeaches our conclusion; for it is there held that the crime must be the product of one and the same act, and conceding this, the information before us is bad.

In the case of State v. Elder, 65 Ind. 282, 32 Am. Rep. 69, it was said: "When the same facts constitute two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second, although the offenses were both committed at the same time and by the same act." Much to the same effect is the reasoning in State v. Hattabough, 66 Ind. 223, and Siebert v. State, 95 Ind. 471. See also Davidson v. State, 99 Ind. 366. We know that there are decisions hostile to the conclusion we here assert, but we are satisfied that our conclusion is right on principle, and sustained by the decided weight of authority.

It may not be amiss to say that we intimate no opinion as to what the rule should be upon a motion in arrest, for here the attack was made upon the information promptly, and the state had ample time and opportunity to cure the error. Judgment reversed.

INDICTMENT DUPLICITY. An indictment is open to the objection of duplicity where two or more distinct offenses are charged in one count: Reagan v. State, 28 Tex. App. 227; 19 Am. St. Rep. 833, and note; note to State v. Shores, 13 Am. St. Rep. 886.

Joinder in one indictment of two felonies, which differ neither in character nor in the punishment attached thereto, is not a good ground for quashing the indictment: Sarah v. State, 28 Miss. 267; 61 Am. Dec. 544, and note; Hampton v. State, 8 Humph. 69; 47 Am. Dec. 599, and note; State v. Blakesley, 43 Kan. 250.

RHODES V. STATE.

[128 INDIANA, 189.]

ABORTION, INDICTMENT FOR, WHEN SUFFICIENT. - An indictment for criminal abortion, which charges that an instrument was feloniously introduced into the womb of a pregnant woman with the intent to produce a miscarriage, such operation not being necessary to save her life, is sufficient, without describing the nature of the wound it produced or the character of the disease that resulted therefrom. Such an indictment is not bad because it shows both miscarriage and death. INDICTMENT NOT BAD FOR DUPLICITY WHEN. - An indictment is not bad for duplicity because it charges an accessary before the fact as a principal. DECLARATIONS AND EXCLAMATIONS MADE IN LAST ILLNESS ADMISSIBLE IN EVIDENCE WHEN. — Upon the trial of a prisoner indicted for criminal abortion, the declarations and exclamations indicative of pain and suffer. ing, made by the woman in her last illness, and not referring to the past, are competent evidence. STATE CANNOT CONTRADICT ITS OWN WITNESS WHEN. - Where the state is neither surprised nor prejudiced by the testimony of a witness called by it, it cannot contradict him by introducing evidence of contradictory statements made by him out of court. EVIDENCE THAT VICTIM OF ABORTION WAS BURIED BY COUNTY INADMIS- In a prosecution for criminal abortion, evidence showing that the woman upon whom the abortion was committed was buried at the expense of the county is not competent.

SIBLE.

REASONABLE DOUBT, INSTRUCTIONS CONCERNING, WHERE EVIDENCE PURELY CIRCUMSTANTIAL. In a case where the evidence as to the defendant's guilt is purely circumstantial, the evidence must lead to the conclusion so clearly and strongly as to exclude every reasonable hypothesis consistent with innocence. In a case of that kind an instruction in these words is erroneous: "The defendant is to have the benefit of any doubt. If, however, all the facts established necessarily lead the mind to the conclusion that he is guilty, though there is a bare possibility that he may be innocent, you should find him guilty." It is not enough that the evidence necessarily leads the mind to a conclusion, for it must be such as to exclude a reasonable doubt. Men may feel that a conclusion is necessarily required, and yet not feel assured beyond a reasonable doubt that it is a correct conclusion.

JUROR WITH DEFECTIVE EYESIGHT NOT COMPETENT. - A person whose eyesight is so defective that he cannot see the expressions of witnesses testifying nor observe their deportment or demeanor is not competent to serve as a juror, even in cases where the testimony consists entirely of the statements of the witnesses, much less in a case where various articles are placed before the jury and used as illustrative of the testimony, none of which are seen by him. And the defendant is not negligent in such a case, where his counsel fully examines the juror, and such juror answers the questions asked him in such a way as to disarın suspicion of his disqualification, and there was nothing to indicate that his eyesight was defective.

INDICTMENT for abortion.

W. P. Rhodes, R. P. De Hart, A. L. Kumler, and T. F. Gaylord, for the appellant.

A. G. Smith, attorney-general, and G. P. Haywood, prosecuting attorney, for the state.

ELLIOTT, J. The indictment upon which the appellant was convicted charges him with having feloniously introduced an instrument into the womb of a pregnant woman with the intent to produce a miscarriage.

The appellant's counsel insist that the court erred in overruling the motion to quash the indictment, and allege several objections, but all of them are without substantial merit. It is said that the indictment is bad because it does not show that the woman miscarried or died, but this point is not supported by the record, for it does appear that there was a miscarriage and death. Good pleading does not require any such particularity as counsel insist upon. It is sufficient, in such a case as this, to charge that an instrument was feloniously introduced into the womb of a pregnant woman, without showing what kind of a wound it produced or what disease it caused. Where the felonious use of an instrument is shown, and it appears, as it does here, that the operation was not necessary to save the woman's life, it is not incumbent upon the state to go further, and describe the nature of the wound or the character of the disease which resulted.

The objection that the indictment is bad because it shows both miscarriage and death has not even the poor merit of plausibility.

The indictment is not bad for duplicity. An accessary before the fact may be charged as a principal.

The other questions on the case arise on the ruling denying the motion for a new trial.

Complaint is made of the ruling of the court in admitting the declarations and exclamations of the woman upon whom the abortion was committed, but the complaint is groundless. The declarations and exclamations were indicative of pain and suffering, were made by the woman in her last illness, and they did not refer to the past. They were clearly competent: Board etc. v. Leggett, 115 Ind. 544, and authorities cited.

Dr. Smith was called as a witness by the state, and, so far as we can discover, gave no testimony different from that which the state required and expected from him. There is

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