
    No. 281.
    The State of Louisiana vs. Calvin and Wiley Stanley.
    1. Though the offences denounced by Section 794, Revised Statutes, viz: first, inflicting a wound less than mayhem with a dangerous weapon; and second, inflicting a like wound with intent to kill, are separate and distinct offences, yet it is settled that they may be conjunctively charged in the same count of indictment without duplicity. 33 An. 1294.
    2. A verdict of guilty of one o£ said offences so charged and silent as to the ot her, operates as an acquittal of the latter, and is responsive to the indictment.
    
      APPEAL from the Sixteenth District Court, Parish of East Feliciana. Brame, J.
    
    
      J. Henry Shepherd, District Attorney, for the State, Appellee:
    1. nn indictment which charges that the defendants, with a dangerous weapon, and with intent to kill, did inflict a wound less than mayhem, is not had for duplicity because the statute employs the disjunctive “or” instead of “and.” 33 An. 1294.
    2. Under Section 794, Kevised Statutes, a count alleging that the defendant inflicted a wound less than mayhem with a dangerous weapon, and with intent to kill, is not double. 33 An. 1294.
    3. Where a statute makes two or more distinct acts, connected with the same transaction, indictable, although one of the acts be sullieiont to constitute the crime, the offences may be alleged cumulatively; the rule that the defendant mustnot be charged with two or more offences in any count does not apply to cumulative offences denounced in the same statute. 15 An. 498.
    4. In an indictment upon a statute which denounces two or more cumulative offences there may be alleged in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has or, and it will not be double, and it will be established at the trial by proof of any one of them. Bishop’s Crim. Proc., Vol. 1,486. Bishop on Statutory Crimes, Sec. 244. Several offences, distinct in kind and degree, can not be inciuded in the same count; but this rule does not apply to cumulative offences denounced in the same clause or section of a criminal statute. Such a clause may, and often does, enumerate several offences to the same act, and in such cases they may he charged cumulatively in one count. State vs. Pont, 2 An. 887; State vs. Bogan, 2 An. 838; State vs. Banton, 4 An. 32; State vs. Puller, 14 An. 668; State vs. Markham, 15 An. 498. The extract cited above from State vs. Adam et al., 31 An. 717.
    .5. If a statute makes it a crime to do this or that, mentioning several things disjunctively, the indictment may, as a general rule, embrace the whole in a single count, usingthe conjunction “and” where “or” occurs in the statute. Bishop’s Crim. Proc., Sec. 586, Vol. 1; Archhold’s Crim. Proc., 283, 298.
    
      W. F. Kernan an$ J. D. Wall for Defendant and Appellant:
    In all prosecutions for the violations of tlie laws of this State, the utmost strictness of pleading and construction of the provisions of thepenal statutes are required. 32 An. 565; 89 An. 906.
    1. Two distinct offences can not be charged in the same count. 35 An. 53; 89 An. 959; 37 An. 382; 31 An. 487; 30 An. 61, 311; 32 An. 812; Bishop’s Crim. Proc., Vol. 1, 2d Ed., Sec. 444-5-6; Archbold, Vol. 1,'95; 295,297, 8th Ed; Wharton, Vol. 1, Sec. 382, 7th Ed.
    2. Two offences that grow out of the same act may he incorporated in separate counts. 30 An. 61; 32 An. 812; 38An.9l; 31 An. 487; 85 An. 53; 37 An. 382.
    3. Kev. Stat., Sec. 794, denounces two separate and distinct offences. 81i. 549; 41 An. 775.
    4. Where two offences grow out of the same act and are cumulative, they may he charged, and then only, in the same count. 2 An. 837; 15 An. 498 ; 31 An. 717; 82 An. 565; B7 An. 218, 662, 779; 38 An. 458; 39 An. 214; 41 An. 775.
    
      5. Tliese defects are of substance, and not of form, and therefore may be urged in arrest of judgment. 10 An. 30; 32 An. 565; 40 An. 744 ; 30 An. 1242; 21 An. 442; 35 An. 565; 5 An. 327; 10 An. 229; 20 An. 147; lb., 408.
    Several offences, distinct in kind, can not be included in the same count unless cumulative and denounced in the same clause or section of a criminal statute. 32 An. 565.
   The opinion of the court was delivered by

Fenner, J.

The defendant, Wiley Stanley, was indicted on the-charge that he did “feloniously, with a dangerous weapon, namely,, a shot gun, and with intent to kill, inflict a wound lest than mayhem upon one Broaden,’.’ etc., under Section 794, Revised Statutes, which reads: “Whoever shall, with a dangerous weapon, or intent to kill, inflict a wound less than mayhem upon another person, shall, on conviction,” etc. He was found “guilty of inflicting a wound less, than mayhem with a dangerous weapon.”

He filed a motion in arrest of judgment on two grounds, viz: first, that the indictment charges two sep rate and distinct offences in one and the same count; second, that the verdict is not responsive to-the charge in the indictment.

The first ground is conclusively disposed of by our decision in State vs. Richards, 33 An. 1294, where a like objection urged on the same ground against the indictment similarly drawn under the same section of the Revised Statutes was overruled by us.

The second ground has no merit. The verdict is responsive to one-of the two distinct charges, conjunctively joined in the indictment, and its silence as to the other operates an acquittal thereof. State vs. May, 42 An. 82; Wharton’s Crim. Law, Sec. 3180.

Judgment affirmed.  