
    Commonwealth versus Malbone Briggs et ux.
    
    Upon the trial of husband and wife upon an indictment for receiving stolen goods, the declarations of the wife, though criminating both, are admissible in evidence to prove her guilt, and the jury must take care that they do not operate to the pre judice of the husband.
    Where an indictment for an offence alleges in aggravation a former conviction for & similar offence, and the jury find a general verdict of guilty, if no evidence was produced showing the identity of the defendant with the person formerly convicted, the verdict cannot be sustained.
    The defendants were jointly indicted and tried for receiving and secreting a piece of broadcloth, a shell comb, and a quantity of money, knowing that they had been stolen. Trial before Morton J.
    Before the trial commenced, the counsel for Malbone moved that he should be tried separately, and assigned as a reason, that evidence of the declarations of his wife might prejudice him. This motion was objected to by the attorney-general and was overruled.
    
      It appeared that a piece of broadcloth was found in Malbone’s house, and the attorney-general offered in evidence the declarations of the wife in relation to it. These were objected to, but admitted.
    The indictment set forth the record of a former conviction of Malbone of a similar offence, with the usual allegations of identity. Upoi. the trial the identity was not denied, nor was any evidence offered to prove it. No question was made to the jury upon the point.
    The jury returned a general verdict of guilty against Malbone, and of not guilty in favor of his wife.
    The defendant Malbone moved for a new trial, 1. on ac count of the admission of the testimony above mentioned ; and 2. because there was no evidence of the identity of the Malbone Briggs named in the former conviction and the present defendant, to support the verdict.
    
      Williams and Warren, in support of the motion,
    insisted that the declarations of the wife and co-defendant were improperly received in evidence. [Morton J. They were admitted only as against the wife to show that she knew that the broadcloth was stolen.] We objected that they would affect the husband, and that they were immaterial in respect to the wife. At least the jury should have been instructed that the declarations were evidence only against the party by whom they were made. 2 Stark. Ev. 54 ; Hutcheson v. Peck, 5 Johns. R. 196.
    The allegation of identity was important, the punishment under the 12th section of St. 1804, c. 143, for a second offence, being more severe than the punishment under the 10th section for a first offence. As the verdict stands, the Court must give sentence under the 12th section. The omission then to prove the allegation, although no question was made in regard to it, is a sufficient reason for granting a new trial. Bell v. Janson, 1 Maule & Selw. 204 ; United States v. Porter, 3 Day, 283 ; Penson v. Lee, 2 Bos. & Pul. 330; Bridge v. Austin, 4 Mass. R. 116; Sutton v. Mitchell, 1 T. R. 20 ; 1 Stark. Ev. 437, note 1 ; Rex v. De Berenger, 3 Maule & Selw. 67.
    
      Morton 'Attorney-General)
    said, in regard to the last point, that as neither the prisoner nor his counsel made any ques tion jf his being the person formerly convicted, the jury were warranted in inferring that his identity was conceded. But the question of his identity may yet be tried, when he is asked why sentence should not be passed. 4 Bl, Comm. Append, p. 5, § 3. [Wilde J. While the verdict stands, it is found that he is the same person.] The former conviction is set forth in aggravation of the recent offence, and the allegation may be rejected as surplusage, and I ask for judgment on the other part of the indictment. Sufficient is properly found to sustain a judgment. St. 1805, c. 88, § 2; Regina v. Rhodes, 2 Ld. Raym. 887 ; Regina v. Ingram, 1 Salk. 384.
   Per Curiam.

The first objection is, that the declarations of the wife, being admitted in evidence, must have had an effect upon the jury prejudicial to the husband. We do not see how this evidence could have been rejected, for it was necessary to prove the guilt of the wife. The jury must be presumed to have understood that they were not to let it operate against the husband. We should not grant a new trial if this objection stood alone.

As to the other point, it is said by the attorney-general that the prisoner did not deny his identity with the person formerly convicted. But the plea of not guilty is a denial. No presumptions are to be made against the prisoner. The government must prove every essential allegation. It was the right of the prisoner to take advantage of the omission on the part of the government. The attorney-general refers to the statute allowing in some cases an acquittal of part of the offence charged and a conviction of the residue ; but that is to be done by the jury. Here "they have convicted of the whole charge. The Court cannot separate the part improperly found, and punish for the residue. 
      
       See 1 Chitty on Crim. Law, (3d Amer. ed.) 595, n. B, Roscoe’s Dig Crim. Ev. (Amer. ed.) 113.
     
      
       See Revised Stat. c 137, § 11.
     