
    Joseph Lesslie v. The State of Ohio.
    Where an indictment is for but one offense, though charged in several count* in different ways, and the defendant is convicted upon some of the counts and acquitted upon others, the granting of a new trial upon his motion.' opens the case for retrial upon the counts on which he was acquitted as well as those on which he was convicted.
    Error, to the court of common pleas of Montgomery county.
    At the December term, 1866, of the court of common pleas of Montgomery county, an indictment was presented against Joseph-391] *Lesslie, containing three counts, each charging him with murder in the first degree, in causing the death of Mary Miranda Caylor, by means of a pistol-shot.
    Lesslie was first put upon his trial upon this indictment at the-April term', 1867, of the court; and the jury at that trial returned their verdict finding him “guilty of murder in the first degree as charged in the first count of the indictment, and not guilty as-charged in the second and third counts of the indictment.”
    Lesslie moved the court to set aside this verdict and grant him anew trial, on the grounds: That the verdict was against the law, the evidence, and the charge of the court; that one of the jurors, had, previous to the trial, formed and expressed an opinion against the defendant; that one Clark, who called talesmen to the jury, and who had the custody of the jury, was not a qualified officer of the court; and that counsel for the state, in argument to the jury, improperly alluded to the fact that the defendant had not testified in-his own behalf; and for other irregularities in the trial and argument.
    At the same term the motion was granted, as follows:
    “This cause came on to be hoard, on the motion of defendant for' a new trial, and the evidence for and against the same, and was argued by counsel; on consideration whereof, the court do order-that the same is hereby sustained, and said verdict is hereby set aside and a new trial granted.”
    At the December term, 1868, Lesslie was again put upon his-trial upon said indictment, and upon that trial the jury returned a, verdict finding him “guilty of manslaughter as charged in the third count of the indictment preferred against him, and not guilty a& charged in the first and second counts of said indictment.”
    
      Lesslie moved the court to release him from the charges contained in the indictment, and discharge him from custody, on the grounds: That, on the first trial, he was found guilty of murder in the first degree as charged in the first count of the indictment, and not guilty as charged in the second and third counts; and that this verdict of guilty was set aside and a new trial granted him; and that, upon the second trial, he was found not guilty upon the first And second counts of the indictment, *and guilty of man- [392 slaughter upon the third count; and that this verdict of guilty of manslaughter was irregular, illegal, and void.
    This motion was overruled, as was, also, a motion in arrest of judgment; and thereupon Lesslie was sentenced for a term of ten ■years in the penitentiary.
    To reverse this sentence, and to procure Lesslie’s discharge, this writ of error is prosecuted.
    
      Howard & Howard, and Conover & Craighead, for plaintiff in error:
    We claim that the court below ei'red in putting Lesslie on trial a~ second time on the second and third counts of the indictment, and in all the subsequent proceedings which resulted in his conviction and sentence upon the third count. Having, upon the first trial, been found guilty on the first count, and not guilty on the second and third .counts; and having, on the second trial, been found not guilty on the first and second counts, and guilty of manslaughter on the third count, Lesslie was entitled to a discharge by reason of his having been duly acquitted upon each and every count of the indictment; and because the second trial upon the second and third counts, and the result thereof, was illegal and void. The second trial was legal only as to the first count of the indictment, on which Lesslie had been convicted on the first trial, and as to which only his motion for a new trial could properly apply. Campbell v. The State, 9 Yerg. 333 (2 Lead. Cr. Cases, 498); Wharton’s Am. Cr. Law, sec. 553; 1 Bishop’s Cr. Law, sec. 849; Sutcliffe v. The State, 18 Ohio, 469 ; Mount v. The State, 14 Ohio, 295 ; Poage v. The State, 3 Ohio St. 229; Slaughter v. The State, 6 Humph. 410; The State v. Spear, 6 Mo. 644; Esmon v. The State, 1 Swan, 14; The State v. Ross, 29 Mo. 32 ; The State v. Kittle, 2 Tyler, 471; Lithgow v. The Commonwealth, 2 Virginia Cases, 279; Brenman v. The People, 15 Ill. 511.
    The rule deduced from all the cases and stated in the elementary books is, that if the accused could have been legally convicted on the first trial, that is, if the indictment be valid, and the court have 393] jurisdiction, an acquittal, not produced *by any fraud of the accused, entitles him to his discharge. Wharton’s Am. Cr. Law, secs. 551, 541; 2 Lead. Cr. Cases, 552, notes, and cases cited.
    
      David A. Houk, assistant prosecuting attorney, for the state:
    The three counts are for the same crime, with no material difference as to the statement of the offense.
    Proof that would legally support a conviction on anyone of the-three counts would, necessarily, support a conviction upon either or both of the other counts.
    The verdict on the first trial, of guilty on the first, and not guilty on the second and third counts, if not bad for repugnancy, was, to-say the least, somewhat anomalous, because it was, in effect, saying that the defendant was guilty and yet not guilty of precisely the same crime.
    “A verdict in either’a civil or a criminal case is an entire thing.” Hurley v. The State, 6 Ohio, 404; Wilson v. The State, 20 Ohio, 30.
    The first verdict having been set aside, and a new trial awarded to the defendant, at his request and on his motion, he should, upon principle, be placed in no better position, in entering upon the-second trial, than he occupied when he entered upon the first; and in support of the proposition that he was rightfully and legally-tried the second time upon the whole indictment, we cite the fol lowing authorities: Morris v. The State, 1 Blackf. 37; Wallace, Jun., 127; Livingston’s Case, 14 Gratt. (Va.) 592; The State v. Stanton, 1 Iredell, 424; Wharton’s Cr. Law, secs. 550, 3056-3058; Commissioners v. The State, 3 Hill (S. C.) 329; United States v. Harding, 6 Penn. L. J. 23.
   White, J.

The three counts of the indictment, in this case, relate to the same person killed and to one act of killing. They are all founded upon the same transaction, and are intended to meet the-facts as they maybe found from the evidence on the final trial. A conviction upon all or any one of the counts would have subjected the plaintiff in error to but one punishment. This is not the case-394] of separate and ^distinct offenses set forth in different counts of the same indictment. The several counts are inserted solely for the purpose of meeting the evidence as it may appear on the trial, the crime charged being substantially the same in each count.

It is no objection, at common law, that an indictment contains' several counts for separate and distinct misdemeanors, provided, the judgment upon each is the same. But in cases of different felonies thus charged, the indictment might, on motion of the defendant, be quashed, or the prosecutor would be put to his election upon which charge he would proceed. Where, however, the same felony was charged in different ways in several counts, in order to meet the facts of the case, no such objection could be made.

The rule of practice is thus stated by Tindal, C. J. (2 Clark & Fin. 240, 241): “In cases of felony, where the indictment contains several counts, a proceeding altogether unknown to ancient times, it is well known in practice that the various counts have been introduced, not for the purpose of charging the prisoner with divers and distinct felonies, but for the purpose of meeting any difficulty which might arise on the trial from the misdescription of the offense in a single count. And if the prosecutor in any charge of felony should offer evidence tending.to prove two distinct charges of felony, he would be stopped immediately by the presiding judge, and directed to make his election upon which single charge of felony he intended to proceed. . . . The practice in the case of a prosecution for a misdemeanor so far differs from that in a prosecution for felony, that there may be (though it is not usually the case) several counts for distinct offenses contained in one and the same indictment. In that ease, the prosecutor is not always put to his election, as in cases of felony; but the trial may proceed, and the sentence be passed, for several offenses distinct from each other.”

The ground of the motion for the discharge ,of the defendant, below, after his conviction upon the third count, on the second trial, was that he had, on the first trial, been acquitted of the same count. The logical result of this position, as applied to this case, would seem to be, that, on the new trial being granted, he was entitled-to his discharge from the whole ^indictment; for the first .[395- and third counts were substantially alike, and were both in fact, for the same offense, and if the verdict of acquittal on the third count remained in force, and operated as a bar to a re-trial upon, that count, it would be equally effective against a further proseculion on the first count, and could be formally pleaded in bar as a former acquittal. A verdict of acquittal not only operates to dis charge the defendant form the indictment on which he has been tried, but constitutes a bar to any other substantially like it for the ■same offense.

Where the' indictment, though consisting of several counts, is founded upon a single transaction, the verdict is a unit, and lays the foundation for but a single judgment. A verdict of guilty upon one of the counts, and of not guilty upon the others, is followed by the same legal consequences as a verdict of guilty upon all the counts; and when, in either case, the verdict is set aside and a new trial granted on the defendant’s motion, the case is opened for retrial upon the counts upon which he was acquitted, as well as those upon which he was convicted. If this were not so, the value and object of the rule allowing a single offense to be chai-ged in different ways in several counts would be greatly impaired, and often defeated.

But where the several counts of an indictment are for separate and distinct offenses, the verdict is necessarily several in its nature, and the finding as to each offense constitutes the basis of a separate judgment. It is the same in effect as if rendered on separate indictments.

In such case, the granting of a new trial, on conviction of one offense, has no connection with the verdict of acquittal of others, •and the latter may well be allowed to stand and have effect, though "the former should be set aside.

The position taken by counsel for the plaintiff in error is supported by authorities cited in their brief. But it seems to us that in these cases a correct principle was misapplied.

We think the principle contended for properly applies, where "there is a conviction and an acquittal on different counts for separate and distinct offenses, or where part of the defendants are ac-396] quitted and part convicted of the same *offense, but that where all the counts are for the same offense, and are varied merely to meet the proof, it has no just application.

Judgment affirmed.

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