
    Withers against The Commonwealth. Same against Same.
    
      Saturday, January 16.
    Two indiectments for conspiracy, found at different sessions, may be tried by the same jury, notwithstanding the objection of the defendant, if the Court, in its disretion, think proper to allow it; especially if the right of the defendant to challenge four of the jurors on each indictment is allowed.
    An abuse of such discretion, even if such abuse existed, would not be error.
    In Error.
    THESE were two writs of error, to the Court of Quar1 ^. ter Sessions of Chester county, to remove the proceedings and sentences against the plaintiff in error, Augustus Withers, upon two indictments, for conspiracy and cheating.
    At February sessions 1818, the plaintiff in error, and a certain Joseph Withers, were indicted for conspiring against, and cheating Benjamin Hickman. Joseph Withers died before the trial. At the August session following, the plaintiff in error was again indicted for conspiring with Joseph Withers against one William Thomas, and cheating the said Thomas. At the ensuing November sessions, these two indictments were, by order of the Court below, tried by the same jury at the same time, without the consent of the plaintiff in error, and, as appeared by the special entries on the record, after he had expressly objected. He was allowed, however, the privilege of challenging four jurors on each indictment,
    Edwards, for the plaintiff in error,
    now argued, that the proceeding to try both indictments by the same jury, contrary to the wishes of the plaintiff in error, was erroneous; as the offences were distinct, he had a legal right to distinct trials. He cited 4 Bl. Com. 349. 2 Str. 870. 920.
    Hemphill, contra,
    contended, that it was like combining two offences in different counts of the same indictment, for which there wei'e many authorities. Rex v. Benfield.
      1 Hale’s P. C. 560, 561. Cowp. 325. 1 Chit. Cr. Law, 296. 2 Hale 174. In cases of felony it is matter of prudence and discretion in the judges, to admit several felonies to be charged in one indictment: but in misdemeanors several offences may be charged in the same bill. All the evidence in these cases, was applicable to each indictment, by way of corroboration, and to shew the intent. In 4 Johns. Rep. 497, it is held, that two persons included in the same bill, may be tried together against their consent, if there are no peremptory challenges. In the present instance, every right of challenge, that could be enjoyed under the law, was granted. He further suggested, that the entry on this subject.made in the Court below, was not properly a part of the record, so as to be the subject of remark on a writ of error; and that the consequence of allowing it would be, to introduce something like bills of exceptions in criminal cases.
    Edwards, in reply,
    observed, that the offences charged in the indictments, were of distinct dates, and were distinct transactions. That the case in 4 Johns. Rep. proves, that where peremptory challenges are allowed, the prisoner may have separate juries; and, therefore, as under the laws of Pennsylvania, the defendant has a right to a peremptory challenge of four, in cases not capital, he has a right to separate trials. The other authorities only shew, that different offences relatingto the same transaction, may be joined: .as burglary, and larceny; riot, and assault and battery; composing, and publishing a libel. The entry of the order of the Court on the record, .was made expressly with the design of bringing the subject before this Court.
    
      
       2 Burr. 984.
    
   The opinion of the Court was delivered by

Gibson J.

I have found no case exactly like the present; but there is a strong analogy between it and those in which several counts for separate and distinct offences are included in the same indictment: for these are necessarily tried together ; and, in cases of misdemeanor, it has never been held that separate offences could not be joined. As to felonies, a different rule prevails, and the Court goes so far as to quash where distinct offences are charged ; or, if no motion for that purpose be made in time, to compel the prosecutor to select a particular offence, to which alone, the prisoner is held to answer. Butin no case has such joinder been considered a cause of demurrer, or ground for a motion in .arrest of judgment, but merely as a subject for the discretion of the Court, and, therefore, not a matter in which error could 'be assigned in a superior Court. The only solid reason for the distinction in regard to felonies, is, that the prisoner, having a right to challenge peremptorily, may choose to have a particular juror to try one of the offences, and yet be altogether averse to him with regard to the other; and thus if the Court did not interfere, he would in some measure lose the benefit of his right. With us, this reason applies also to misdemeanors — as a defendant may peremptorily challenge four jurors; but whether a Court would therefore quash an indictment comprising two or more misdemeanors, would, I apprehend, depend on a sound exercise of discretion, having regard toi the particular circumstances of each case : the Court would take care that the right to challenge should be fully preserved, by allowing the defendant peremptory challenges for each offence, or by quashing the indictment, as might seem most expedient. In the present case, the prisoner was allowed his challenges on each indictment, and has therefore no ground for complaint* But had it been otherwise, we could view these two charges only as if they had been included in the same indict- , ment. It would therefore seem that the Court, by whom they were tried, were the only Judges of the proper exercise of their own discretion; and that an abuse of discretion, even if it existed, would not be the subject of error. The judgment in each case must be affirmed.

Judgment affirmed. 
      
       See, on this subject, Young and others v. The King. 3 Term Rep. 98.
     