Commonwealth v. Birdsall.

and aliens, and had no right to notice of any proceedings affecting
the church. The whole case is then reduced to this one simple
question, whether, being such an independent body as they declare
themselves to be, they have any right or title to the lot, with the
building thereon erected, which, as we have seen, was conveyed "in
trust for the German Reformed church;" and can withhold the
possession and enjoyment of it from those who, under the orders of
the proper judicatory, have been chosen to represent that portion of
the congregation who adhere to the faith, order, government and
discipline of their church. To this question there can be but one
answer in law, equity, good conscience, justice, as well to the living
as the dead, and according to the precepts of that divine master
who has taught us to do unto others as we would that others should
do unto us.

Decree affirmed, and appeal dismissed at the cost of the appellants.

NOTE. To the same effect is Schnorr's Appeal, 5 Am. R. 415. The holders of the
legal title to church property are regarded in a court of equity as holding it in trust
for the maintenance of the faith and worship of the founders of the organization,
and any diversion of it to another use is so far a breach of trust as to demand the in-
terposition of the court. Harmon v. Dreher, 1 Speer's Eq. 87; Kniskern v. Lutheran
Church, 1 Sandf. Ch. 439; Attorney-General v. Pearson, 3 Meriv. 353; Baker v. Fales, 16
Mass. 487; Stebbins v. Jenkins, 10 Pick. 172; Watson v. Jones, 1 Zab. 653.

A different rule prevails in New York. In Petty v. Took, 21 N. Y. 267, it was held that
the trustees and a majority of the society could change from Congregationalists to
Presbyterians, and retain possession of the church property against those who adhered
to the faith of the founders of the church and society. See, also, Gram v. The Prus-
Bian, etc., German Society, 36 N. Y. 161; Bunnell v. The Associate Reformed Church, 44
Barb. 282; Robertson v. Bullions, 11 N. Y. 243.— REP.

COMMONWEALTH V. BIRDSALL, plaintiff in errror.

Criminal lawo

-

(69 Penn. St. 482.)

indictment charging separate offenses. Double sentence

An indictment contained two counts: The first charged the defendant with
breaking and entering a store-house; the second charged him with stealing
the goods. He was found guilty under both counts, and the judge imposed
a distinct sentence on each count. Held, not erroneous.

INDICTMENT against James Birdsall. The opinion states the case
The writ of error was brought by defendant.

error.

Commonwealth v. Birdsall.

A. G. Cochran (with whom was R. S. Morrison), for plaintiff in Where a criminal act has been committed, every part of which may be alleged in a single count in an indictment, and proved under it, the act cannot be split into several distinct crimes and a separate indictment sustained upon each. And wherever there has been a conviction for one part, it will operate as a bar to any subsequent proceedings as to the residue. State v. Benham, 7 Conn. 414. Burglary and larceny can both be included in a single count, when they are a part of the same act. Commonwealth v. Tuck, 20 Pick. 356; Commonwealth v. Hope, 22 id. 1; 2 Russell on Crimes, 40; Wharton's Criminal Law, 383; Rex v. Withal, 1 Leach, 102; Josslyn v. Commonwealth, 6 Metc. 236; Larned v. Commonwealth, 12 id. 244.

L. B. Duff, for commonwealth.

AGNEW, J. The indictment in this case contains two counts; the first for willfully and maliciously breaking and entering a storehouse or shop, with intent feloniously to steal, take and carry away goods and chattels. This count is framed upon the second section of the act of 22d April, 1863 (Pamph. Laws, 531), and specifies no particular goods. The second count was for simple larceny, enumerating the goods in detail. The defendant was found guilty under both counts, and on the first was sentenced to pay a fine of six cents, and to imprisonment by separate and solitary confinement in the western penitentiary for four years; and, on the second, was sentenced to pay a fine of six cents, and to imprisonment by separate and solitary confinement in the western penitentiary for one year and six months, to be computed from and after the termination of the first sentence. It is alleged that the conviction and sentence under both counts are erroneous. But the very excellent argument for the plaintiff in error has failed to convince us. The authorities in support of the conviction are to be found collected in Mr. Wharton's Am. Crim. Law (ed. 1868), §§ 415, 416, 417, 421. It cannot be objected in error, he says, that two more offenses of the same nature, on which the same or a similar judgment may be given, are contained in different counts of the same indictment; nor can such objection be maintained either on demurrer or in arrest. § 415. In section 421, he says, where a prisoner is found guilty generally under an indictment containing two counts, neither of which is defective, it is no ground of objection to the verdict that it does not state

Commonwealth v. Birdsall.

upon which count it was found. In our own State the authorities are no less forcible. In The Commonwealth v. Gillespie, 7 S. & R. 469, where an indictment containing nine counts charged two distinct offenses, and in two of the counts several defendants, Justice DUNCAN said: "These several charges, as laid in the indictment, are different modes of laying the same offense. But if the offenses were different, separate offenses, it is no objection, either on demurrer or in arrest of judgment, that separate offenses of the same nature are joined against the same defendant. Even in case of a felony, though it be true that no more than one offense should regularly be charged in one indictment, and that the court would quash the indictment before plea, or if, on the trial, the court should think it might confound the prisoner, they may exercise a discretion in compelling the prosecutor to elect on which charge he will proceed; yet, even in felonies, there is no objection to the insertion of several distinct offenses of the same degree, though committed at different times, in the same indictment against the same offender; and it is no ground of demurrer or in arrest of judgment; and counts where offenses are of the same nature, at common law and on a statute, may be joined." In Harman v. Commonwealth, 12 S. & R. 69, it was said, at the close of the opinion, that where two offenses are charged in separate counts, if the defendant can make it appear that this mode of proceeding will embarrass his trial, the court can protect him by quashing or by compelling the prosecutor to elect.

The case of The Commonwealth v. Sylvester, Brightly's Rep. 331, is directly in point. There this court, on an indictment removed from the mayor's court of Philadelphia, containing two counts, one setting forth a statutory offense, and the other an offense at common law, and a conviction on both counts, held that there was no misjoinder, and sentenced the defendant to pay a fine of $200, the statutory punishment, on the first count, and to pay a fine at common law on the second. Henwood v. Commonwealth, 2 P. F. Smith, 424, is a recent case in which the subject of rejoinder and misjoinder is considered. There the defendants were convicted on the first and third counts of an indictment charging a larceny in the first, larceny as bailees in the second, and a conspiracy to defraud in the third count. In that case the conviction was sustained, this court remarking that neither the interests of justice nor the rights of the defendants are periled by the rejoinder. The plea and the number of challenges are the same, and the punishment the same

Commonwealth v. Birdsall.

The

in kind, to wit: Separate and solitary confinement at labor. difference in the degree, that is, between the maximum in one and the maximum in the other, it is settled, makes no difference.

It has been contended for the plaintiff in error that the larceny and the breaking and entering, charged in the separate counts of this indictment, were done at one and the same time, and, therefore, cannot be punished as separate offenses. If this had appeared in the record, the point would be well taken. But no presumption of identity exists. When, says Mr. Wharton, an indictment charges in one count a breaking and entering a building with intent to steal, and in another count a stealing in the same building, on the same day, and the defendant is found guilty generally; the sentence, whether that which is proper for the burglary only, or for the burglary and larceny also, cannot be reversed on error, because the record does not show whether one offense only or two were proved at the trial; and, as this must be known by the judge who tried the cause, the sentence will be presumed to have been according to the law that was applicable to the facts proved. Am. Crim. Law (ed. 1868), § 417. For this, he cites two cases from 11 Metc. 575-581. There can be no doubt the court of quarter sessions had good reasons for passing the sentence on each count of this indictment; and so the defendant, or his counsel, must have thought, or he would not have suffered three years to run, and when the facts were likely to be forgotten, before taking out a writ of error.

The several sentences in this case are, therefore, affirmed.

CASES

IN THE

SUPREME JUDICIAL COURT

OF

MASSACHUSETTS.

CAREW, plaintiff, v. RUTHERFord.

(106 Mass. 1.)

Conspiracy to extort money - laborers' associations.

conspiracy to obtain from a master mechanic money, which he is under a legal obligation to pay, by inducing his workmen to leave him, and by deterring others from entering into his employment, or by threatening to do this, so that he is induced to pay the money demanded, under a reasonable apprehension that he cannot carry on his business without yielding to the demand, is an illegal conspiracy; and the money thus obtained may be recovered back from the conspiring parties, who are, also, liable for all damages to the business of such mechanic occasioned by such illegal acts.

ACTION in tort, and for money had and received, brought by John Carew against Alexander Rutherford and others, of the Journeymen Freestone Cutters' Association, of Boston.

At the trial in the superior court, before BRIGHAM, C. J., without a jury, the judge found these facts:

"The plaintiff in August, 1868, was a freestone cutter at South Boston, and had contracted to furnish cut freestone for various buildings, among which was the Roman Catholic cathedral in Boston, in large quantity and at a contract price of $80,000. The defendants, and sixteen other persons, all journeymen freestone