
    Summerfield v. The Commonwealth.
    June, 1843.
    Criminal Law — Bail—What Is No Ground (or Allowing— Case at Bar. — A prisoner haying been examined by the county court and remanded for trial for the offence of feloniously passing two counterfeit half eagles, one of them to J. C. and the other to W. M., two indictments are found against him, in one of which he is charged with passing one of the counterfeit coins to J. C. on the 13th of October 1842, in the other with passing the other 768 *coin to W. M. on the same day. Upon a trial of one of the indictments, the jury iind the prisoner not guilty. IIbod, his acquittal in that case does not entitle him to be let to bail in the other.
    At a court held for Giles county the 18th of January 1843, for the examination of Elijah Summerfield, “ charged with having feloniously passed, on or about the 13th day of October last past, in the county of Giles, two certain base and counterfeit pieces of coin, purporting to be gold half eagles or five dollar pieces, such as are current in this commonwealth, one of which he passed in payment to John M. Cunningham, and the other to William B. Mason, the said Elijah Summerfield knowing the said coin to be base and counterfeit,” the court. was of opinion “ that the prisoner is guilty of the offence wherewith he stands charged, and that he be further tried in the next circuit superior court for the county of Giles. ” In the warrant for convening the court, the charge was set forth in the same terms as in the record of the examination.
    In the circuit court, at May term 1843, two indictments were found against the prisoner ; in one of which he was charged with passing a counterfeit half eagle to John M. Cunningham on the 13th of October 1842, in the other with passing a like coin to William B. Mason on the same day. A trial being had on the first mentioned indictment, the jury found the prisoner not guilty, and he was acquitted. Whereupon, on the motion of the attorney for the commonwealth, the trial of the other indictment was postponed till the next term, and the prisoner was remanded to jail.
    He now applied, by petition to the gefieral court, to be let to bail on the indictment last aforesaid. The transcript of the record filed with his petition did not shew what was the evidence against him, either in the court of examination, or upon his trial in the circuit court.
    *Eyons, W. B. Preston and N. Harrison, for the petitioner,
    submitted a written argument of the case.
    Two alternatives, they said, were presented by the record. Either the charge for which the prisoner was remanded was but one offence in law, and would consequently authorize but one indictment ; or it constituted two substantive and distinct offences, which might either be comprised in a single indictment, or made the subject of two. In either view, the petitioner is bailable. In the former, he is of course bailable, for then the second indictment ought never to have been permitted by the court, and he can never be required to answer it. It is obvious from the record, that neither the committing magistrate nor the examining court made any discrimination of the charge, but considered the whole of it as constituting a single offence. The court examined and remanded the prisoner as for a single offence. Nor does it follow that there was error in doing so. It is certainly not impossible for a man to pass two different pieces of coin, and to two different persons, under such circumstances as to make it but a single simultaneous and continuous act of passing; as much so as the uttering of several forged receipts, which it has been decided may constitute only one offence. 1 Chitty’s Cr. E. 2S3 ; 2 Russ, on Crimes 468; Thomas’s case, 2 Reach 882.
    At all events the offences here might have been ioined in the same indictment. 1 Chitty’s Cr. E. ch. 5, p. 237, 249, 2S3. And as they were charges of the same character, and not even differing in degree, it was not proper to disjoin them. The people v. Rynders, 12 Wend. 429 ; The people v. Gates, 13 Wend. 311; Harman v. The commonwealth, 12 Serg. & Rawle 72. There was certainly no necessity in this case for two indictments ; the prisoner did not ask that the charges might be separately tried, and the court would have been justified in overruling his application, if he had asked 770 it. *The consequence of the separation has been oppressive, for he is now in prison on a charge of which otherwise he would probably have been acquitted.
    
      But conceding- not only that the record shews two offences, but that two indictments were admissible, the case of Green v. Commonwealth, 11 Eeigh 677, is relied upon as establishing that the acquittal of the prisoner on the first indictment furnishes such a presumption of his innocence in the other case as entitles him to be let to bail. Green’s case is in fact stronger than this. There the offences were not only separate and distinct, but had relation to separate and distinct periods of time. Here both the indictments have reference to the same period, that is, the 13th of October 1842. There, there was obviously more discrepancy in the charges, and less dependency in the proof, so that an acquittal in the first case was a more uncertain criterion as to the others. It might there have been urged, that though the commonwealth had failed on one indictment, she might succeed on others; that though the prisoner had been acquitted of aiding and abetting the embezzlement, yet the evidence might shew conclusively that he was guilty of the larceny. The presumption “that the commonwealth has put the prisoner upon his trial in the case in which the proof against him was strongest,”, is at least as fair in respect to this petitioner as it was in respect to Green : and if Green’s acquittal in one case furnished such a presumption of his innocence in twenty-three others as entitled him to bail, the acquittal of this petitioner surely furnishes an equivalent presumption in respect to the single case yet pending against him.
   PER CURIAM.

Petition rejected.  