
    David C. Stockwell v. The State of Ohio.
    1. Upon a trial under an indictment containing but a single count, charging an illegal sale of liquor by the defendant to a person in the habit of becoming intoxicated, the prosecution should be so restricted as to prevent the case from going to the jury upon evidence of more than one transaction.
    
      2. Where, on such a trial, the state has offered evidence tending to prove several distinct substantive offenses, either of which, when duly proved, would warrant conviction, it is the duty of the court, upon motion, .to require the prosecutor, before the defendant is put on his defense, to elect upon what particular transaction he will rely for a conviction.
    Error to the Court of Common Pleas of Portage county.
    This case was an indictment under the third section of ■ the Act of May 1, 1854 (S. & C. 1431), for selling intoxicating liquors to "Warren Bancroft, a person in the habit of getting intoxicated, with but one count, charging a single act of sale to have been made on the 20th day of December, 1871.
    The following portion of a bill of exceptions taken on the trial, presents the only question upon which the court here finds it necessary to pass :
    “ Be it remembered, that on the trial of this cause at the Court of Common Pleas of Portage county, in the State of Ohio, at the January term thereof, a. d. 1872, the state, to maintain the issue on its part, offered evidence tending to prove that on divers days during the months of September, October, November and December, during the year 1871, at said county of Portage, the defendant had sold intoxicating liquor to one Warren Bancroft; also, evidence tending to show that said Warren Bancroft was then and there "a person in the habit of getting intoxicated; also, evidence, tending to show that said defendant, at the time of said sales, knew that said Warren Bancroft was then and there a. person in the habit of getting intoxicated; and thereupon the defendant asked the court to require the state to elect and inform the defendant which specific act of sale, which it had given evidence tending to prove, the state relied on to sustain the indictment herein, and defendant also excepted to -the introduction of evidence tending to prove any sale of intoxicating liquors to said Bancroft, except the specific sale charged in said indictment.
    “But said court refused to require the state to make such election, and refused to rule out any of said evidence, to which ruling the defendant excepted.
    “And thereupon the defendant, having offered evidence tending to contradict all the evidence offered as aforesaid by the state, and said cause having been argued by counsel, the court charged the jury, among other things, as follows r
    “ To convict the defendant, the state is not bound to prove-the offense to have been committed on the precise day named in the indictment, but if the jury, from the evidence offered, find that the defendant had, on or about the time ■ charged in the indictment, and previous to the finding of same by the grand jury, unlawfully sold intoxicating liquor to said Bancroft, such sale would be sufficient to sustain the indictment, and the jury might consider all the evidence tending to show any of said sales between the 1st of September, a. d. 1871, and the first day of the present term.”
    The defendant below having been found guilty, and adjudgecLfco pay-a fine and be imprisoned, a reversal of this judgment is here asked, on the ground that the court erred in refusing to require the state to elect as aforesaid, and in the charge to the jury.
    
      J. D. Horton, for plaintiff in error:
    On an indictment containing' but one count, the state-must be confined to the proof of one single, specific offense. The defendant is indicted for a single act — the issue is whether he is guilty of that act, and the evidence must be confined to that issue. Roscoe Cr. Ev. 81; 1 Greenl. 51; 1 Phillips’ Ev.; Cowen & Hill and Edwards’ Notes, 765; 2 Bishop Cr. Pro., secs. 211, 212, 213; 2 Greenl. Ev. sec. 86; 1 Russell on Crimes, 839; People v. Jeness, 5 Mich. 305; 
      Lovell v. The State, 12 Ind. 18; People v. Hopson, 1 Denio, 574; Elam v. The State, 26 Ala. 48; Hugh v. The State, 35 Ala. 48; Kinchlow v. The State, 5 Humph. 9; State v. Bates, 10 Conn. 372; State v. Smith, 22 Vt. 74; v. Croteau, 23 Vt. 14.
    The plaintiff in error was indicted for a single offense; he was tried for many offenses; he was convicted for some one of the many for which he was tried, but for which one no human being can tell, and there is no device known among men by which it can be ascertained. If the proceedings in this'case be correct, then'a man may at any time be indicted ‘ for one offense, tried for fifty, and compelled to make defense against all, found guilty for a. different offense from that for which he was indicted, and in conclusion have no idea for what he is convicted.
    But there is still another serious question in this case, which is that the defendant in the Common Pleas might have been — and perhaps was — convicted without having Peen found guilty by the agreed verdict of the jury; that the jury might, in fact — and perhaps did — render a verdict without ever agreeing together; for while one juryman might have thought him guilty of one act of crime, another might have thought him not guilty of that, but guilty of some ether act; and thus, while the jury might have brought in a verdict of guilty, and each juryman thought him guilty of some one offense, yet no two jurymen might have agreed ■as to the identical offense proved. If this practice can be sustained, a defendant may at any time be convicted, and yet no two of the jury ever agree as to the identical offense proved.
    I claim, therefore, that the court erred : 1. In allowing evidence to be given of more than one offense; 2. In refusing to require the state to elect on which offense it relied to sustain the indictment; 3. In charging the jury that to convict they might “consider all the evidence offered tending to show any of said sales between the first of September, a. d. 1871, and the first day of the present term.”
   •Scott, Chief Judge.

As the precise time laid in the indictment is immaterial, the plaintiff in error might well have been convicted, on proof that he committed the offense charged,at any of the times in regard to which evidence was offered by the state. But the indictment contained but one count; the plaintiff in error stood charged by the grand jury with one single misdemeanor, with one specific criminal act. To this charge he had pleaded not guilty. A single issue was thus formed, which it was the province of the jury to determine, according to the evidence, under the instructions of the court. No evidence should have been admitted which was not relevant to that issue, and as that issue was limited to a single transaction, the evidence should have been restricted accordingly. The rule on this subject is thus clearly stated in 1 Bishop on Crim. Pro., sec. 460 : “ Where there is a single count, in an indictment for a misdemeanor, as well as in an indictment for felony, whatever the number of counts, the court will restrict the prosecutor, by so compelling him to elect as-shall prevent his giving evidence of more than the one transaction.” And in this doctrine, so far as we are aware, the adjudged cases agree. The People v. Jeness, 5 Mich. 305; Lovell v. The State, 12 Ind. 18; The People v. Hopson, 1 Denio, 574; Elam v. The State, 26 Ala. 48; Kinchlow v. The State, 5 Humph. 9; The State v. Bates, 10 Conn. 372.

In this case, the prosecutor offered evidence of a number of. distinct offenses, of the same character, extending over a period of four months, and for either of which, if fully proved, a conviction might have been sustained under the-indictment. So far as appears, this was done without objection. Whether, after offering evidence of a particular offense which would sustain the charge made in the indictment, the state should be permitted, against objection, to-offer evidence in proof of another substantive offense, is a question addressed, perhaps, to the sound discretion of the coui’t under the circumstances of the case. State v. Smith, 10 Conn. 74.

But, be this as it may, it was the clear right of the defendant to know, before entering on his defense, for what particular transaction he was being tried.

Having been arraigned .on a single charge, he should not have been required to defend against many charges. We are clear in the opinion that the court erred in' not requiring an election to be made by the prosecutor, when asked for by the party on trial. Of course, we do not- mean to 'controvert tbe doctrine that in classes of cases in which guilty knowledge, a particular intent, or a scienter, are essential ingredients in the offense charged, it is competent to prove these, if possible, by evidence of other criminal acts committed by the defendant about the same time. But such' evidence is only competent when it tends to prove some fact necessary to constitute the offense on trial.

The court also erred in directing the jury to consider all the evidence tending to prove any of the sales in regard to which evidence, had been offered. Under this charge, it was quite possible that part of the jury might base their verdict upon one act, and part upon anothef, and a verdict be thus rendered without an actual agreement of the jury. And it is very clear, that'after verdict, the plaintiff in error could not legally know of what particular specific offense he had been found guilty.

Judgment reversed, and cause remanded for new trial.-

Day, Wright, Johnson, and Ashburn, JJ., concurred.  