
    John Griffin v. The State of Ohio.
    1. A person summoned as a juror for the trial of a criminal case, was challenged for cause by the defendant, and the challenge was overruled; whereupon he was peremptorily challenged on behalf of the state, and excluded from the panel. Held, that the overruling of the defendant’s challenge could not have prejudiced him, and is therefore no sufficient ground for reversal of the judgment.
    2. Where there are several counts in an indictment, it is no valid ground of objection that they differ in stating the time of the commission of the crime or offense charged; nor is a verdict inconsistent which finds the defendant guilty under several counts in which the time is differently stated.
    3. A verdict will not be set aside as inconsistent, or uncertain, because it find» differently as to counts in which there is no material difference.
    4. Where, on the trial of a capital case, a witness attending court under a subpena, on behalf of the state, departs without leave, after the trial has commenced, it is competent for the court to suspend the progress of the trial for the purpose of enforcing, by attachment, the attendance of such witness. The time proper to be allowed for that purpose must be determined by the sound discretion of the court, in view of all the circumstances of the case. Where there is no reason to believe that the defendant has been thereby prejudiced or deprived of a fair trial, a delay'thus’ allowed by the court, from time to time, to the extent of three days, will! not necessarily invalidate the verdict subsequently rendered against the-defendant, nor require the court to set the same aside.
    Error to the court of common pleas of Butler county.
    At the October term, 1868, of the court of common pleas of Butler-county, John Griffin was indicted for the murder, in the first degree, of one Uzile Prickett, by means of a pistol-shot. The indictment, contained four counts. In the first and second counts the murder is-charged to have been committed on the 12th day of June, 1868; and in the third ,and fourth counts, on the 13th day of June, 1868.
    At the January term, 1869, upon Griffin’s plea of not guilty, he-was tried to a, jury, and was found guilty as charged in the first, second, and fourth counts, in the indictment, and not guilty as-charged in the third count.
    Griffin moved for a new trial and to set aside the verdict, alleging" the following reasons, among others:
    1. Thirty-six men having the qualifications required by law to-try a capital case, were not summoned for a jury to try the case. 4SÍ5] *2. Wm. A. McMakin, one of the jurors summoned to try the. case, was not a householder, and did not possess the qualifications of a juror to try the case.
    3. The court overruled Griffin’s challenge of McMakin for cause, and also his challenge to the array.
    4. The jury was guilty of misconduct, and were under improper-influences.
    5. The prosecuting attorney, in his argument to the jury, improperly referred to matters not in evidence.
    6. The court adjourned the trial of the case, against the jirotest of GriffiD, from Monday, February 22d, at 3 o’clock, p. m., to-Thursday, February 25th, at 4 o’clock, p. m., in order to compel the attendance of Joseph Kelly, as a witness, without affidavit as to-the materiality of his-testimony, and the witness being at that, time out of the State- of Ohio; this delay being, on account of the prejudice and excitement against Griffin, greatly to his injury..
    A motion in arrest of judgment was also filed, on these alleged grounds:
    1. T.he indictment is repugnant as to time.
    2. The verdict is inconsistent.
    Both these motions were overruled, and exception taken.
    It appears from the bill of exceptions, that of the thirty-six mem named in the venire, thirty-five of them answered to their names, and one did not. One of the thirty-five was excused by the court, for the reason that he was a mail-carrier. The other thirty-four, were examined on their voir dire, five of whom were challenged by Griffin for the cause that they had entertained and expressed an opinion as to his guilt or innocence. This challenge was sustained. The other twenty-nine men were put in the box. Vm.A. McMaki n, whose name appeared on the venire as the twenty-seventh in number, when examined on his voir dire, answered, to the interrogatory of the prosecuting attorney as to whether he was a householder,, that he lived with his father-in-law. Thereupon the state challenged him as not being a householder, but afterward withdrew the challenge. Thereupon Griffin challenged McMakin as not being a householder. Upon further examination of McMakin by the-court, touching his qualifications *as a householder, he testi- [440' fied that he owned a house of his own in Butler county; that a year ago the then last September, his mother-in-law died, leavinghis father-in-law alone with a son then about seventeen years old; that to accommodate his father-in-law, he and his wife and one child left their own house and moved into the father-in-law’s, to-keep it; that he and his wife furnished two or three sleeping-rooms with their own goods, and that all the rooms, except those thus furnished, were occupied in common by the family; that the old gentleman furnished all the provisions for the use of the family, and that his, McMakin’s, wife did the cooking for all; that ho and his wife had exclusivo control of one room, their sleeping-room, and that they all ate in common, at one table. The challenge for cause was then overruled, and McMakin retained his seat in the box; and exception was taken. The twenty-nine men being in the box, the state challenged McMakin. peremptorily, and Griffin challenged one other peremptorily. The state declined to-challenge further. Griffin was then called upon to challenge fifteen others of those in the box, but he made no further challenges-peremptorily or for cause.
    It further appears, that the case was called for trial on Monday morning, February 22,1869, and that then one Joseph Kelly was in attendance, as a witness, under subpena, on behalf of the state, and that about 3 o’clock, p. m., of that day, after the jury had been sworn, Kelly when called did not answer to his name, but had departed from the court without leave, and an attachment, on appli'Cation by the state, was issued against him for contempt, and placed in the hands of the sheriff. That day the state offered all its testimony but that of Kelly, and on motion of the prosecuting ¡attorney, the court adjourned, as shown by the affidavit of Griffin, ¡until the next morning, Tuesday the 23d, for the purpose of obtaining Kelly’s presence, and from day to day until Thursday the :25th, at 4 o’clock, p. m., against Griffin’s protest, when Kelly was ■¡brought into court and testified as a witness in favor of the state. It appears that Kelly went into the State of Kentucky on Monday evening, the 22d of February, and there remained until about 12 441] o’clock at night, of February 24th, when he was arrested *by ■ officers of Covington, in that state, and delivered in Cincinnati, fin this state, to the sheriff of Butler county, who took charge of ¡him under the writ of attachment, and the next day brought him .into court.
    
      M. N. Maginnis and Alex. F. Hume, for Griffin :
    1. In a capital case the statute requires “thirty-six jurors, having "the qualification of electors, being householders,” to be summoned to try the case. S. & C. 1181. This requirement is imperative; and if not complied with, and a conviction is had, the conviction is erroneous. People v. McKay, 18 Johns. 412.
    William A. McMakin, one of the thirty-six jurors summoned to try this case, did not possess the qualifications of an elector and was not a householder. 14 Barb. 456; 19 Wend. 475.
    It makes no difference that he was challenged peremptorily by the state, and did not sit as a juror. If he was not a householder the court erred in overruling Griffin’s challenge; and, if there was ■ error at all, Griffin was injured.
    If McMakin was not a householder, the requisite thirty-six jurors possessing the qualifications required by statute were not summoned.
    2. It was an abuse of power, to the prejudice of Griffin, for the •court to continue the case from 3 o’clock p. ai., of the 22d, to 4 o’clock p. m., of the 25th February, to enable the state to get a witness who was all the time out of the State of Ohio, and who was brought back to the state by fraud and force. And there was no showing, for all that unparalleled delay, that he was a material witness. During all the time the jurors must have been affected by the excitement, to the great prejudice of Griffin.
    
      3. The indictment is repugnant as' to time, charging the same offense to have been committed on two different days — the 12th and 13th of June, 1868. The court erred in not arresting the judgment on that ground. The State v. Hendricks, C. & N. 369; quoted in U. S. Dig. of Crim. Cases, 346 ; The State v. Horcewick, 2 Mo. 226 ; Jane v. The State, 3 Mo. 61; The State v. Brown, 2 Murphy, 224; The State v. Walker, 2 Murphy, 229; 1 Ld. Raym. 581; 10 Mod. 249; Hawk. b. 2, chap. 25, sec. 82.
    *4. The verdict is inconsistent. It finds Griffin guilty as [442 •charged in the first, second, and fourth counts, and not guilty as •charged in the third.
    The first and second counts charge the murder to have been committed on the 12th of June, 1868, and the fourth count on the 13th of June, 1868. The same offense can not be committed on two different days. Therefore the verdict is in this respect inconsistent.
    The third count is,'in substance, the same as the other three ■counts. A verdict that finds him guilty and also not guilty of the same substantive charge is inconsistent and repugnant.
    
      Elijah Vance, prosecuting attorney, for the state:
    There was no challenge to the array by Griffin, but only peremptorily. Mimms v. The State, 16 Ohio, 221.
    It is not true that the jury was guilty of misconduct, or was subjected to improper influences. Neither is it true that the counsel for the state, in the argument to the jury, improperly referred to matters not in evidence. There is nothing whatever in the record to sustain either of these allegations in the motion for a new trial.
    The delay in the trial, to obtain the presence of the witness, Nelly, was, under the circumstances, proper. There was no other way for the court to maintain its dignity and authority and promote the ends of justice.
    The indictment is not repugnant. There are no contradictory averments in the same count. And the averment as to the time is not material. It does not enter into the nature of the offense. Wharton’s Am. Cr. Law (ed. of 1852), 110, 111, 114, 220, 142; People v. VanSantvord, 9 Cowen, 660; 1 Dev. (N. C.) 140; 6 Wheeler’s Am. Com. Law, 14, 15; 5 Wheat. 184; Mills v. Com. 1 Harris, 634.
    The verdict is general, or equivalent to a general verdict. 4 Ohio St. 440; and should not be disturbed. 2 Ohio St. 562.
    
      
      Ransford Smith, also for the state:
    1. Repugnancy in an indictment must, to be fatal, exist in one-448] of the counts, for each count is considered, in law, as *containing a distinct and substantive charge. If counts appear to be-only different, though repugnant, ways of stating a single offense,, the courts will not compel a separation or election, nor will a general verdict on all the counts be arrested. U. S. v. The Pirates, 5 Wheat. 186.
    2. The presumption that the different counts charge substantive-offenses — that they are mere joinders of different offenses — is an absolute presumption of law. 1 Harris, 634; Colt’s case, 3 Hill.
    3. Time is immaterial. The same testimony would suppoi’t either-count or all.
    4. Bepugnancy in an indictment of even one count, to be fatal must be in some material averment. Time is immaterial.
   Scott, J.

It is claimed that the court below erred in overruling-the prisoner’s challenge of McMakin, who was summoned as a juror, with thirty-five others, for the trial of the case. It does not appear that there was any challenge to the array, either by the defendant, or the state. The defendant’s challenges were to the polls only. He challenged McMakin on the ground that he was not a.householder. Whether the state of facts shown by McMakin when examined on his voir dire would make him a householder or not, we-need not inquire, for McMakin was thereupon peremptorily challenged by the state, and did not sit as a juror in the case. The plaintiff in error thereby obtained all the benefit which could have-arisen from the sustaining of his challenge, and that too without having to resort to his own right of peremptory challenge. It is clear, then, that the ruling of the court on this question did not. prejudice him, and therefore it furnishes no ground of complaint.

Did the court err in overruling the motion in arrest of judgment?' It is claimed by counsel for plaintiff in error, that this motion should have been sustained for two reasons: 1. Because the indictment is-repugnant and uncertain, in charging the same crime to have been committed on two different days, to wit, on the 12th and 13th days-of J uno, 1868. There are four counts in the indictment, and the repugnancy here suggested does not exist between the several parts-444] *of any one of them, but only arises upon the comparison of one count with another. In contemplation of law, each count of the indictment charges the defendant with a distinct substantive •offense, and any question as to its sufficiency must be determined by its own averments alone. If objection be taken to it on the ground of repugnancy or inconsistency, the question is whether its several averments are congruous or incongruous with each other, and not as to its harmony with the statements in other counts of the :same indictment. Th e only purpose for which several counts are introduced into one indictment, is to vary the allegations so as to meet the proofs on the trial. This variance between the several counts 'is therefore no ground of objection, so long as it does not present the case of different offenses which can not be joined in the same indictment.

It is claimed that the judgment should have been arrested, for the further reason that the verdict was inconsistent. The alleged inconsistency is, in the first place, that the jury found the defendant .guilty as charged in the first, second, and fourth counts of the indictment, whilst the first and second counts charge the murder to have been committed on the 12th day of June, and the fourth count on the 13th day of June. We find no inconsistency in this. The words, “ as charged in the indictment,” when they occur in a verdict, must be understood as referring to the material and not to the immaterial averments of the indictment. Nothing is better settled than that the precise day when an offense is charged to have been committed is, in general, immaterial. The plaintiff in error might well be found guilty under a count charging the murder to have been committed on the 12th of June, though the proof might show the 13th of June to have been the true date of its perpetration.

It is further alleged, that the verdict was inconsistent in finding the plaintiff in error guilty as charged in the first, second, and fourth counts, and not guilty as charged in the third count, whilst the third count is substantially the same as the other three. This is a technical objection, and a technical answer to it is sufficient. As we have already said, the theory of the law is, that each count of the indictment ^charges a distinct offense; hence it follows, [445 that the finding of the jury as to a particular count is independent •of and unaffected by the finding upon another count. If the evidence justified a verdict of guilty as to the first, second, and fourth counts, the prisoner was not prejudiced by an acquittal under the third count.

The overruling of the motion of plaintiff in error for a new trial in the court below is also assigned for error. This motion was based upon supposed errors of law, which have already been considered, and also upon certain allegations of facts occurring on the trial, which are not fully shown, by the bill of exceptions or otherwise, to be true. We can not assume the existence of facts from, mere statements made in a motion for a new trial. In so far as the motion was based on alleged misconduct of the jury, the charge of misconduct was sustained only by the affidavit of the prisoner, to-whom its truth could not have been personally known, and was' fully refuted by the affidavits of the officers in charge of the jury. And as to the charge stated in the motion, that the counsel for the state improperly referred to matters not in evidence in the argument of the case to the jury, it is wholly unsustained by any part of the record.

The plaintiff in error also alleged, in his motion for a new trial, that the court had erred in adjourning the trial of the cause, against his protest, from Monday, February 22d, at 3 o’clock, p. m., from day to day, until Thursday, February 25th, at 4 o’clock, p. m., in order-to compel the attendance of Joseph Kelly, a witness on the part of the state, who, during that time, was out of the state, and that the-trial of the case was thereby delayed until the officers of the court, acting under its process, unlawfully and forcibly brought the said witness from Kentucky into court, where he testified against the-plaintiff in error. It is now.claimed that the facts here stated made-it the duty of the court to grant the motion for a new trial. The-fact of the adjournments complained of is shown only by the affidavit of the plaintiff in error. But, assuming that the trial of the case was delayed by successive adjournments for three days, until the attachment issued against the absconding witness was returned 446} by the proper ^officer with the person of the witness in custody, was this such an abuse of discretion by the court as prevented a fair trial and required the verdict of the jury to be set aside ?' íhe witness, Kelly, was present in court, and under subpena as a witness in the case for the state, when the jury was impaneled and the trial commenced. He then left the court, without leave, and hastened to escape beyond its jurisdiction. From his own affidavit, there is no reason to doubt that he was attempting to evade the dis-charge of his duty as a witness, and thus prevent the due administration of justice. It was the clear duty of the court not to be indifferent in regard to the success of such an attempt, but to afford the state all proper means of compelling the attendance of the witness, and to suspend the progress of the trial until process of attachment could be executed, or its execution be ascertained to be-impracticable. Applications for temporary adjournments, in such cases, are addressed to the sound discretion of the court;, and the extent to which such adjournments may be prolonged from time to-time must necessarily depend on the particular circumstances of the case. As to the character of the showing made to the court on-behalf of the state, both in respect to the materiality of the evidence-of the absconding witness and the probability of the speedy execution of the order of attachment issued against him, we find nothing in the record, except the unverified statements in the motion for a new trial. The progress of the trial was suspended, by adjournments, for about three days, and the attendance of the witness was thereby enforced. It is not shown that the plaintiff in error was in fact prejudiced by this delay, and we are unable to say that it was not fully warranted by the circumstances of the ease. We certainly can not say that the discretion properly vested in the court was clearly abused.

Judgment affirmed.

Day, C. J., and Brinkerhoff, Welch, and White, JJ., concurred.  