
    The State vs. Nelson, a Person of Color.
    
      Indictment — Joinder of Distinct Offences — General Verdict— Arrest of Judgment — New Trial.
    
    Tlie joinder in one indictment of three counts, the first for burglary, the second for an entirely distinct burglary, and the third for petit larceny (which is a misdemeanor) in the same transaction alleged in the second count, with a general verdict of- guilty, is no ground for arresting the judgment.
    A general verdict of guilty is understood to find-the higher offence, if there is testimony to support it; and such verdict is no ground for new trial. The jury, however, should be distinctly instructed as to the effect of a general verdict of guilty, and that they may convict on the one count or the other, and it is more satisfactory that they should do so.
    Where distinct felonies are charged in separate counts, it is a proper exercise of the discretion of the Judge to require the prosecuting officer to select one of the felonies and confine himself to it; and this he should do, although no motion to that effect be made by the prisoner’s counsel.
    New tria'l ordered, because of the gravity of the effect of the general verdict of guilty — the report leaving it doubtful whether the jury had been fully instructed as to the effect of such finding, and that they might convict on any one of the counts, and because the discretion above mentioned had not been exercised.
    BEFORE W. W. LEGARE, ESQ., DISTRICT JUDGE, ORANGE-BURG, FEBRUARY TERM, 1867.
    Tbe report of tbe Judge, presiding in tbe District Court, is as follows:
    “In tbis case, tbe prisoner was indicted, in tbe first cobnt, for burglary; in tbe second count, for burglary, at another time and place; and in tbe third count, for larceny, at tbe same time and place, and based upon tbe same facts as was tbe second count for burglary, tbe alleged value of tbe property stolen being $11.
    
      
      “ No motion was made, before verdict rendered, to quash the indictment on account of joinder of distinct offences, nor to force the solicitor to elect on which count he would rest the case.
    
      “ The case was gone into; and tbe proof, upon tbe first count, was clear that tbe prisoner was caught upon tbe premises of Mr. D. Louis, in, tbe night of September 1,1866, with a bunch of keys, one of wbicb would open tbe door of tbe corn-crib, wbicb was within fifty yards of tbe dwelling-house; that a bag of rice was found a few minutes after bis arrest, and in tbe same place where be was first seen; that two barrels of rice, were in tbe corn-crib, and a portion of tbe rice was missing tbe next morning, answering in amount to that found with tbe bag; that tbe prisoner confessed, when taken before tbe military authorities, that tbe key wbicb was found in bis possession, and wbicb would open tbe lock on tbe corn-crib, was tbe same with wbicb he had gone into the crib. Some evidence was given of maltreatment, on tbe part of tbe soldiers, of tbe prisoner, when be was brought before tbe military authorities; but it was not clear, whether tbe maltreatment took place before or after tbe confession. Tbe lieutenant in command said to tbe prisoner that be bad better tell tbe truth, or words to that effect.
    “In my charge to tbe jury I directed them, that if they were satisfied that tbe confessions were made under tbe influence of hope or fear, induced by tbe agency of others, these could not be allowed to influence their decision.
    “ Upon tbe second count, it was proved that, upon tbe night of tbe 20th of October, 1866, tbe bouse of N. Austin Bull was entered, and clothing, to tbe value of $11, taken out; and that tbe same clothing was found, some time afterwards, on tbe person and in tbe bouse of a woman, tbe reputed wife of tbe prisoner.
    “The third count, for larceny, was based upon the same facts as was tbe second count. Tbe case was submitted to tbe jury, and the following verdict rendered: 'We find the defendant guilty.’ •
    . “ The value of the property, alleged to have been stolen in the third cojint, being less than f 20, this count charges a misdemeanor, under the Act of December, 1866. So, we have two distinct felonies and a misdemeanor charged in the same indictment — two distinct offences, with different penalties. This, however, is allowable according to the rules of criminal pleadings; but the verdict must be framed so as to secure the several counts. See The State vs. Priester, Cheves, 105.
    “This is a' case of distinct offences, charged in different counts, with a general verdict of guilty — the verdict pointing to neither with adequate certainty, so that the meaning of the jury may be ascertained.
    “ I see no good reason, however, for believing that the finding of the jury, if restricted to the first count, could not be sustained by the evidence.”
    The defendant appealed, and now moved this'Oourt, in arrest of judgment, on the grounds:
    1. Because two distinct felonies and a misdemeanor are charged in the same indictment.
    2. Because the jury found a general verdict of “guilty,”' upon the indictment, which contained counts charging different and distinct offences, and punishable differently, without indicating which count they intended.
    8. Because the finding of the jury is contrary to the evidence adduced.
    
      Hutsons and Legare, for appellant.
   The opinion óf the Court was delivered by

Inglis, J.

The joinder of two or more really distinct burglaries in separate counts in the same indictment, with a general verdict of guilty found upon the trial thereof, is no sufficient ground for arresting the judgment. Nor is a similar joinder, under the same circumstances, of a burglary, with intent to commit larceny, with a larceny itself, though the latter, by reason of the value of the goods stolen, be, under the Act of 1866, (18 Stat. 407,) a petit larceny, and so only a misdemeanor. Where an indictment charges the same transaction in one count as a felony, and in another as a misdemeanor of such nature that the latter is or may be included in the former, it is merged in it if the higher offence has been consummated; and the jury, even if there were no charge of the less offence in a separate count, might convict of this under the count for the greater, if the evidence, in their judgment, warranted no more. A general verdict of guilty is understood to find the higher offence, if there is testimony to support it; and the finding of such verdict is not a ground for a new trial even. It is proper, however, that the jury should be distinctly instructed as to the effect of their general finding in such case, and that they are at liberty to distinguish, and, according to their views of the evidence, convict on the one count or the other, and it is more satisfactory that they should do this. The report of the District Judge leaves the Court in doubt whether, the jury were, in the case of this appellant, fully instructed on this subject.

If really distinct felonies be charged in separate counts of an indictment, no objection, in point of law, can be made on this account. But it is a proper exercise of the discretion of the Judge, in such case, to require the prosecuting officer to select one of the felonies and confine himself to it. 1 Archb. Cr. Pl. & Pr. 95. The reason usually assigned is, that, by the multiplication of distinct charges, the prisoner may be confounded in his defence, or prejudiced in his challenges, or the attention of the jury may be distracted. A motion of the prisoner’s counsel is not to be waited for in such case. We think the course here indicated ought to have been pursued on the trial of the present appellant. And, as the consequence of the conviction, referred, as the rule requires, to the count charging the higher offence, will be so grave, it will be more satisfactory, and, it is hoped, better subserve the ends of justice, to remand the prisoner’s case to the District Court for another hearing. It is not, however, by this intended to intimate any opinion, either way, on’the effect of the evidence.

A new trial is granted.

Dunkin, C. J., and Wardlaw, A. J., concurred.

New trial ordered.  