
    Hampton vs. State.
    Counts for stealing and receiving stolen goods may be inserted in the same indictment, and the court will neither quash the indictment nor compel the attorney general to elect which count he will proceed upon.
    The indictment against the defendant was in the following words: — “State of Tennessee, Coffee county, June term of the circuit court, in the year of our Lord eighteen hundred and forty-seven. The grand jurors for the State of Tennessee, elected, empannelled, sworn and charged to enquire for the body of the county of Coffee and State aforesaid, upon their oath aforesaid, present that Amos E. Hampton, of said county, yeoman, heretofore, to wit, on the twenty-sixth day of May, in the year of our Lord eighteen hundred and forty-seven, with force and arms, in the county aforesaid, did then and there unlawfully and feloniously steal, take and carry away one brown gelding, of the value of forty dollars, the property of Asa M. Elkins of said county, then and there, being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state. And the grand jurors aforesaid, upon their oath aforesaid, do further present, that the said Amos E. Hampton, of said county, yeoman, heretofore, to wit, on the said twenty-sixth day of May, in the year of our Lord eighteen hundred and forty-seven, with force and arms, in the county aforesaid, did then and there fraudulently and feloniously buy one other brown gelding, of the value of forty dollars, the property of the said Amos E. Elkins, from one William Kilpatrick, the said Amos E. Hampton, then and there, well knowing, when he so bought the said gelding as aforesaid, that the said William Kilpatrick had unlawfully and feloniously stolen said gelding from the said Asa M. Elkins, the said Amos E. Hampton,-then and there by means of said buying intending to defraud the said Asa E. Elkins, the true owner of said gelding, of his right and property to the same, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”
    The defendant moved the court to quash this indictment. This motion was overruled by the presiding judge, March-banks. He then moved the court to compel the attorney general to elect upon which count of this indictment he would proceed. The court overruled the motion, and the defendant on his trial was convicted on the first count, and sentenced to four years imprisonment in the penitentiary, and declared infamous. He was acquitted .on the second count. Prom this judgment on the first count he appealed.
    
      Hickerson, for the plaintiff in error.
    
      Attorney general, for the state.
   TüRley J.

delivered the opinion of the court.

At the June term, 1847, of the circuit court of Coffee county, a bill of indictment was preferred against Amos E. Hampton, the prisoner, charging him in the first count with the of-fence of having stolen a brown gelding, the property of Asa E. Elkins, of the value of forty dollars; and in the second count, with having fraudulently and feloniously bought one other brown gelding, of the value of forty dollars, the property of the said Asa E. Elkins, from one William Kilpatrick, he then and there well knowing that the said William Kilpatrick had unlawfully stolen said gelding from the said AsaE. Elkins.

The prisoner upon his arraignment moved the court to quash the indictment, which was refused; he then moved the court to compel the attorney general to elect upon which count of the bill of indictment he would put the prisoner upon his trial, which was likewise refused- Whereupon .he pleaded not guilty, generally, and went to tidal, and was convicted by the jury upon the first count, and sentenced to confinement in the state penitentiary for the space of four years. Whereupon he appeals to this court, and assigns for error, the refusal of the circuit judge to quash the bill of indictment, or compel the attorney general to elect upon which count he would put him upon trial.

This constitutes no error, as was decided in the case of Wright vs. The State, 4 Humph. 194, in which the court says: “There is no objection to the insertion of several distinct felonies of the same degree in one bill of indictment, but the court will in its discretion, upon application, either quash the bill of indictment in such case, or compel the attorney general to elect upon which count he will proceed, but that such joinder constitutes no ground of demurrer or arrest of judgment, and of course cannot be assigned as error in a revising coui't.” In the case of The People vs. Rynders, 12 Wend., 425, chief justice Savage says: “That there would be an incongruity in incorporating in the same indictment offences of a different character, such for instance as for forgery and perjury, it cannot be denied, and that in such a case' a court would refuse to hear a trial upon both, there can be no doubt; but when of-fences of the same character, differing only in degree, are united in the same indictment, the prisoner may and ought to be tried upon both charges at the same time. Such is this case. The prisoner is indicted for forging the check, and also for publishing it as true, knowing it to be false. These are different offences, and punished with different degrees of .severity, but were properly united, both in the indictment and trial.”

That case and this one are idem. The offences of stealing and receiving stolen goods are different offences, and punished by different degrees of severity, but they differ only in degree, and belong to the same class of crimes, and may be well united, and often must be, if justice is to be administered, for it may be doubtful whether the proof will sustain the charge of larceny, or only the more mitigated offence of receiving stolen goods, knowing them to be stolen, and the indictment must therefore be found so as to meet either charge, and such is the cqmmon practice. Let the judgment be affirmed.  