
    *David Wilson v. The State of Ohio.
    Where distinct offenses are charged in separate counts of an indictment, the jury must either return a general verdict, or else respond to each charge in their finding.
    Where the defendant was charged in one count with an assault with intent to commit murder, and in another count with shooting with intent to kill, which are distinct offenses under the Ohio statute, and the jury returned ■ guilty of “ an assault with intent to kill and murder George Lewis, in manner and form as alleged, etc.,” but said nothing as to the charge of shooting, etc., the finding is insufficient. 
    
    
      Error to the court of common pleas of Lucas county.
    In that court Wilson was tried and convicted upon an indictment containing two sets of counts, upon two distinct statutory offenses, to wit: an “assault with intent to commit a murder,” under section 17 of the act for the punishment of crimes; and a “ shooting with intent to kill,” under section 24 of the same act.
    The jury returned, as their verdict, “ that the defendant is guilty of an assault with intent to kill and murder George Lewis, in manner and form as is alleged in said indictment.”
    Thereupon followed a sentence of imprisonment in the penitentiary for four years, etc.
    Before the jury was sworn at the trial term, the defendant below moved the court to compel the prosecutor to elect upon which class of the counts in said indictment he would undertake to convict the defendant, but the court overruled the motion, and exception was duly taken.
    *The defendant below also moved for a new trial for insufficiency of evidence, and in arrest of judgment, because the indictment charged the defendant with different crimes which have different punishments. Both of these motions were overruled, for which reason a bill of exceptions was taken.
    The overruling of all these motions, and the insufficiency of the verdict to warrant judgment, are assigned for error.
    Spink & Murray, for plaintiff:
    The finding of the jury does not pass upon all the issues submitted to them, .and is not sufficient to sustain the judgment. It is true they have passed upon the issue presented by the sot of counts charging an offense under section 17 of the statute; but upon that set of counts charging an offense under section 24 of the statute, they have not passed; and it seems to us that upon this state of facts, and in despite of the positive prohibition of the constitution of the state that he shall not be twice put in jeopardy for the same offense, the plaintiff in error may still be indicted and tried for the same offense of shooting at George Lewis, with intent to kill. We believe it to be a well-established rule of civil practice, that a jury must pass upon all the issues submitted to them, else their finding is bad. 4 Ohio, 108 ; Thornton v. Sprague, Wright, 165; Patterson v. United States, 2 Wheat. 221. See also French v. Thompson, 5 Vt. 54; Miller v. Tate, 1 Ld. Raym. 324; Hadley v. Stiles, 2 Salk. 664; Garnish v. Train, 3 Pick. 124; Triplett v. Micon, 1 Rand. 269.
    The finding the prisoner guilty of an assault with intent to murder, is not an acquittal on those counts charging the shooting with intent to kill,—nor is it a substantial finding of any kind on them. The reason is obvions. David Wilson may be guilty of both offenses. If guilty, he may have been charged in two separate indictments, tried, convicted and punished for both offenses; and wo presume it will not for a moment be ^claimed that a trial and conviction, or acquittal,-under one indictment, would be a bar to a prosecution under the other. Hurley v. The State, 6 Ohio, 403; 6 Johns. 688; Jones, 163; Caine’s Ab. 478.
    We claim that the court erred in refusing to compel the prosecuting attorney to elect on which sot of counts he would prosecute, while we admit that a grand jury may find as many separate indictments against the same person for the same offense as they see proper, and no objection can bo taken on that account, further than the record, in one case, would be a bar to the further prosecution of the others; yet we claim the rule to be equally well established, that where different offenses are charged on separate counts in the same indictment, it is the -duty of the court, on the request of the defendant, to compel the prosecutor to elect on which set of counts he will proceed; that it does not rest in the discretion of the court to grant or refuse the motion at pleasure, but is so far a duty that their proceedings thereon may bo reviewed on error.
    We claim, that the indictment in this case is defective, for the reason that it contains counts charging different offenses of a different nature and degree. We suppose there can bo no dispute of the proposition that offenses of the same nature and degree may be charged in different counts in the same indictment; and we suppose it to be an equally well-settled rule, that where there are separate and distinct offenses charged, so that the record in one case would not be a bar to prosecution in the other, they can not be joined, even in different counts, in the same indictment. Barton v. State of Ohio, 18 Ohio, 221.
    We further claim that this indictment is defective for the reason that the several counts are good counts, not only for assault with intent to murder, but are also good counts for shooting with intent to kill, and are therefore bad for duplicacy.
    Wm. H. Hall, prosecuting attorney, and J. McCormack, attorney-general, fot the state,
    submitted the case without argument.
    *Spaulding, J.
    We have once before reviewed and reversed the proceedings of the Lucas common pleas upon an indictment for this same offense. Wilson v. The State, 18 Ohio, 143.
    That indictment had but four counts, while this has eight. The merit of an indictment is not always enhanced in an exact ratio with the number of counts.
    Nothing contributes more to the strength and safety of criminal pleadings than brevity.
    Prolixity tends to the embarrassment of both judge and jury.
    “ It has been the constant aim of modern legislation,” said Lord Denman, in Reg. v. O’Connell, 11 Clark & Fin. 15, “to simplify criminal charges, nor is any object worthier of attention in framing the code of every civilized country.”
    For my own part, I do not like the practice of setting forth more than one distinct offense in the same indictment.
    But certain it is, if the prosecutor be permitted to charge the prisoner with divers crimes, subject to different shades of penalties, all in the same indictment, the plea of not guilty, by the accused, puts in issue the truth of all the charges, and we are of opinion that the finding by the jury should be equally extensive.
    “The jury may acquit the defendant of a part, and find him guilty of the residue. They may convict him upon one count of the indictment, and acquit him of the charge contained in another, and, in general, where from the evidence it appoars that the defendant has not been guilty to the extent of the charge specified, lie may be found guilty as far as the evidence warrants, and be acquitted as to the residue.” 1 Chitty’s Crim. Law, 637.
    In the case at bar, the jury have found the defendant guilty of an “assault with intent to murder,” which is punishable by imprisonment in the penitentiary for a term not more than seven years, and have said nothing in regard to the charge of “shooting with intent to kill,” which last crime may be punished by imprisonment in the penitentiary for twenty years.
    *These are distinct and independent offenses, and if permitted to bo joined at all in the same indictment; we think should be responded to by the verdict.
    In the case of Hurley v. The State, 6 Ohio, 404, Wood, Judge, in pronouncing the opinion of the court, takes occasion to say, “A verdict in either a civil or criminal case must -be considered an entire thing.
    “ It must respond to the whole declaration, and to every count in the indictment, or the court can not legally receive it as the verdict of the jury.”
    We are not prepared to take this dictum, of the learned judge to be law without many grains of allowance. The point did not arise in the case, and was not necessarily decided by the court. We are aware, too, of tho reported decisions in several of the states recognizing the doctrine that when an indictment contains two counts, and a verdict of guilty is found upon one, and there is no finding as to the other, the verdict is good, and judgment of acquittal should be entered upon the one not noticed. 4 Scam. 351; 6 Ala. 200; 7 Blackf. 186, etc.
    But we think it prudent in the case of distinct and independent offenses, especially where they arc made so by the statute,'and are subjected to different degrees of punishment, to require the jury, in the absence of a general verdict, to affirm or negative each charge in their finding.
    This may not be absolutely necessary to protect the accused against a second prosecution -for the offense not passed upon by the jury ; but, if there be any doubt at all upon that subject, it is sufficient to warrant us in establishing the rule.
    That it does admit of some doubt, we may gather from pretty high authority:
    In United States v. McKeen, 1 McLean, 444, the judge says, “ On four of the counts, the jury have found the defendant guilty; on one of them there is no finding.....The suggestion is not without some force, that finding the defendant guilty on the' four counts, implies strongly that he is *not guilty of the other count. In this view, however, the question is not clear of difficulty. The finding of the jury is not special as to the facts, but it may be said to be partial, as it does not include all the counts. And there is no precedent in such a case for amending the verdict.
    “ The finding is full on the four counts, but it is admitted that prisoner was in jail, and could not be present; that the indictment was insufficient in law; that the court rendered judgment on the verdict.
    Tho biLl of exceptions shows that upon the trial of the accused, “ after the evidence was closed upon both sides, and the prosecuting attorney opened the cause to the jury, by argument, the court adjourned for dinner, and thereupon the sheriff placed the said Luke Rose, defendant, in jail, where he remained until after the cause was argued on the defense and closed by the state, and the verdict returned by the jury and received by the court, in the absence of said defendant, the prisoner, and while said prisoner was so in jail, but during all said time the counsel of the prisoner was present, and made no objection to said proceedings,” because of the absence of the prisoner.
    D. W. Stambaugh, for plaintiff in error,
    cited 11 Ohio, 472; 18 Ib. 469; 16 Pick. 423; 5 How. (Miss.) 730.
    J. McCormick, attorney-general,
    submitted the case without argument.
    
      
       On an indictment containing two counts substantially alike, a verdict of acquittal upon one, and of guilty upon the other, does not necessarily present such a case of repugnancy as to require an arrest of judgment. 13 Ohio, 453.
      Where an indictment contains two counts for the same offense, one good and the other had, judgment may he given on the good count, upon a general verdict of guilty. Turk v. Ohio, 7 Ohio, 240, pt. 2.
      
        Where an indictment contains three separate counts, and the jury say they find the defendant not guilty on the first, but can not agree on the other counts, it is not error for the court to refuse to receive the verdict and have it recorded. Hurley v. Ohio, 6 Ohio, 399.
    
   *Hitchcock, C. J.,

delivered the opinion of the court.

From the facts disclosed in the bill of exceptions, it appears that, on the trial of this case, the accused was in court from the commencement of the trial until the close of tho opening argument for the prosecution, at which time the court adjourned for dinner. Upon the adjournment of the court, the sheriff took the prisoner into custody, and committed him to jail, where he remained during the residue of the argument, and until after the verdict had been returned, and the jury discharged. The counsel for the ¡irisoner were present during tho trial of the prisoner, and when tho verdict was returned. On account of the confinement of the accused, as before stated, and his absence from the court, he moved for a new trial, which was overruled; and the question presented for the consideration of this court is, whether, under the circumstances, the accused was entitled to a now trial.

In section 11, of article 8, of the constitution of 1802, it is provided: “ That in all criminal prosecutions, the accused hath a right to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses, face to face,” etc. Now an accused person can not enjoy these privileges, especially the last, unless the first count, on which there is no finding, must be disposed of; and if this can not be done by the entry of not guilty, as above suggested, or by a discontinuance, the verdict must- beset aside.”

This opinion was pronounced on a motion for a new trial, and the conclusion was that Judge McLean permitted the district attorney to enter a nolle prosequi on the first count, and then proceeded to render judgment on the verdict.

It is deemed unnecessary to notice further the points made by plaintiff in error.

The judgment of the common pleas will be reversed, and the cause remanded for further proceedings.  