
    Orange N. Stephens and Samuel Everett v. The State of Ohio.
    On an indictment charging two persons with the commission of a joint offense, both can not he convicted upon proof that each one committed an act constituting an offense similar to the act charged in the indictment.
    The Supreme Court will not reverse the judgment of the court of common pleas, for error in the charge of the court, unless the hill of exceptions shows that the error complained of, was in a matter material to the issue.
    This is a writ of error to the court' of common pleas of Columbiana county.
    
      The plaintiffs were indicted for selling, without license, one-half gill of whisky to Thomas Donaghy, contrary to the statute, etc. Plea, -not guilty. g
    At the August term, 1843, they were tried by a jury, found guilty, and sentenced to pay a fine of twenty dollars and the costs of prosecution. During the trial, a bill of exceptions was taken, showing that the counsel prayed the court to charge the jury as follows:
    1. That the defendants can not be legally convicted of *the offense charged in the indictment, unless the evidence in the cause establishes the fact that the offense was committed in the county of Columbiana.
    2. That the boundary of said county, so far as the same is bounded on or by the Ohio river, extends only to low-water mark on the western or northwestern side of said river.
    3. That if the offense charged in the indictment was committed on the Ohio river nearer the Yirginia shore than low-water mark on the Ohio side of said river, the defendants can not be legally convicted on this indictment.
    4. That if the whisky charged to have been sold by the defendants in this case was sold by the defendants in a wharf-boat in the Ohio river, nearer the Yirginia shure than low-water mark on the Ohio side of the river, but attached to the Ohio shore by ropes or cables, this court has not jurisdiction over or to punish the act of selling.
    Which charge the court refused to give, and thereupon charged the jury as follows:
    “ That true it was that the defendants could not be convicted unless the testimony established the fact that the offense with which they were charged was committed in the county of Columbiana; but if on board a wharf-boat, at the wharf at Wellsville, in Columbiana county, whether the boat were nearer the Ohio shore of the Ohio river than low-water mark or not, the boat being attached to' the Ohio shore by a rope or chain, and by means of a gangway of planks, the defendants had committed' the offense, they were liable, and might be convicted under- the laws of Ohio.”
    The court also charged the jury that if the proof clearly satisfied them that the defendants had committed the offense alleged • against them in the indictment, on a boat floating on the Ohio river, though unattached to the Ohio shore between the upper and lower boundaries of Columbiana county, on said river, they were amenable to the latvs of Ohio, and the offen^ would be within the jurisdiction of the court; and that of crimes and offenses committed on said river between said boundaries/ *the States of Ohio and Virginia had concurrent jurisdiction, each state being governed by its own laws, in its mode of proceeding and in its infliction of punishment.
    And the court also charged the jury “that, ás they should consider the evidence required, they might convict one of the defendants and acquit one, or acquit both or convict both; and that, if the evidence showed only that the defendants had separately been guilty of the offense charged against them, though it did not show that they were both together engaged in the same act, they might be convicted.”
    Whereupon the defendants’ counsel excepted to the refusal of said court to charge the jury as prayed by said defendants, as aforesaid, to the jury, and prayed the court to seal a bill of exceptions to said refusal to charge as prayed, and also to said charge, which is now here done. -
    Upon this bill of exceptions the following assignment of errors is predicated: ,
    1. The court refused to charge the jury, as asked by the defendants’ counsel, that if the offense charged in the indictment was committed on the Ohio river, nearer the Virginia shore thau low-water mark on the Ohio side of said river, the defendants could not be legally convicted on this indictment.
    2. The court refused to charge the jury, as asked by the defendants’ counsel, that if the whisky charged to have been sold by the defendants in this case was sold to them on a wharf-boat on the Ohio river-, nearer the Virginia shore than the low-water mark on the Ohio side of the river, but attached to the Ohio side by ropes or cables, this court had not jurisdiction over or to punish the act of selling.
    3. That the court refused to charge the jury that the boundaries of said Columbiana county, so far as the same is bounded on or by the Ohio river, extends only to low-water mark on the western or northwestern side of said river.
    4. That the court erred in charging the jury that whether the boat were nearer the Ohio shore of the Ohio river at low-water mark or not, the boat being attached to the Ohio Lahore by a rope or chain, and by means of a gangway of plank, if the defendants had committed the offense they were liable, and might be convicted under the laws of Ohio.
    5. That the court erred in charging the jury that, if the proof clearly satisfied them that the defendants had committed the offense alleged against them in the indictment, on a boat floating on the Ohio river, though unattached to the Ohio shore between the upper and lower boundaries of Columbiana county, on said river, they were amenable to the laws of Ohio, and the offense would be within the jurisdiction of the court.
    6. That the court erred in charging the jury that, if crimes and offenses committed on said boundaries of the States of Ohio and Yirginia, had concurrent jurisdiction, each state being governed by its own laws, in its mode of proceeding and its infliction of punishment.
    7. That the charge of the court is erroneous, in various other respects, upon record.
    And the questions arising upon this record are reserved for decision here.
    Loomis •& Mason, and Wright, Coeein & Miner, for the plaintiffs.
    Th. Umbstaetter, for the state.
   Birchard, J.

The error last assigned will be first disposed of. The indictment charges both plaintiffs, in precise terms, with the commission of a joint offense. The act charged, was a joint act. In preparing indictments, great accuracy is required, in order that the accused may be informed of the nature of the accusation and prepared to meet it by proof. This indictment was faultless in this respect. On its face it contained all the requisites of good pleading. But of what avail was it to the plaintiffs? They met it in the usual form; and, having ^closed their defense, the jury wore instructed that the plaintiffs in error might be found guilty of the joint offense of which they were accused, “if the evidence only showed that'they had separately been guilty of it, although it did not show that they were both together engaged in the same act.”

In giving this instruction there was error. It was equivalent to saying to the jury: “You may convict them of the joint offense alleged against them, although the proof satisfies you that they are not guilty of it, provided it convinces you that each one separately has committed an offense of a like nature.” If this were the law, it would be of little use to require an indictment. In fact it could not be said, with much propriety, upon the supposition that there was proof to make the charge of the court applicable, that the plaintiffs in error were convicted upon an indictment. If the proof only showed that they had separately engaged in distinct acts, it by no means supported the indictment; and the verdict was wholly without proof to sustain it.

As the bill of exceptions sets forth no evidence tending to show that the several instructions prayed for, as well as those given, touching the jurisdiction of the Ohio river, were material to the issue, my brethren are of the opinion.that they should be regarded as abstract propositions; and that, whether in accordance with the law or not, the plaintiff can take nothing from them on error. The questions presented by that part of the bill of exceptions, for that cause, have not been considered. I confess my inability to discover a reason, satisfactory to my own mind, for the distinction taken between the different parts of the bill. Judgment reversed, and cause remanded for further proceedings.  