
    Wright vs. The State.
    I, It is no ground in law, either of demurrer or arrest of judgment, that several distinct felonies of the same degree, though committed by defendant at different times, should be inserted in the same indictment, yet if shown to the court before plea, it is within the descretionary power of the court to quash the indictment, or after plea, to compel the prosecutor to elect on which count he will proceed.
    
      % The indictment charged in one count, that Wright committed a rape on the body of Tabitha Webbf on a given day; and in another, that he on the same day had carnal knowledge of Tabitha Webb, she being under ten years of age: Held, that he was intended to be charged with but one offence.
    3. The principles of the case of McGowen vs. The State, 9 Yerger, 384; Payne vs. The State, 3 Humphreys, 357, recognized.
    4. The court charged the jury, that if the female assaulted, consented through fear, or consented after the fact, or was taken at first with her consent, if she was afterwards forced, the offence was committed: Held that there was no error in this charge.
    Wright was indicted in the Circuit Court of Knox county, at the October term, 1842. The indictment contained two counts. The first for a rape committed on the body of Tabitha Webb, on the 15th day of August, 1842, in the county of Knox; the second for having on the same day, in said county, had carnal knowledge of said Tabitha Webb, she being a female child, under the age often years.
    The defendant pleaded not guilty, and an issue thereupon was submitted to a Jury at the January term, 1843, Scott, Judge, presiding.
    It appeared that the defendant had gone to the house of the mother of Tabitha Webb after dark, in the county of Knox, and that the mother sent her daughter Tabitha, who was over ten years of age, after water, and that Wright went with her to which she made no objection. There were some circumstances going to show, that she was willing to go with him, and was willing to receive his dalliance; but her screams when violence was attempted, the bruises on her body, and her efforts to escape the assault of the prisoner, left no doubt of her unwillingness to assent to the desires of the defendant. These facts,' together with the acknowledgment of the defendant, left no doubt of his guilt. There was proof introduced to show that the mother was a prostitute, &c. &c.
    The Judge, charged the jury, that it was no difference if the person abused consented through fear, or that she was a common prostitute, or that she assented after the fact, or that she was taken at first with her own consent, if she was afterwards forced against her will.
    The jury returned a verdict of guilty on the first count, and not guilty on the second. A motion for a new trial was made and overruled.
    The defendant, by his attorney, Swan, then moved in arrest of judgment, and assigned the following as the ground of his motion.
    “The indictment joins offences differing in their nature, circumstances and name, constituting different and distinct felonies.
    “The first count charges, that the defendant, in and upon one Tabitha Webb, spinster, violently, feloniously and unlawfully, did malte an assault, and her the said Tabitha Webb, then and there unlawfully and feloniously did ravish and carnally know, contrary to the form of the statute in such case made and provided.
    “The second count charges, that the defendant, in and upon one Tabitha Webb, spinster, a female child, under the age of ten years, &c., unlawfully and feloniously did make an assault, and her the said Tabitha Webb, then and there wickedly, unlawfully and feloniously did carnally know and abuse, contrary to the form of the statute, &c.; differing from the charge in the first count, in nature, circumstance and name, and constituting a separate and distinct charge.”
    This motion was overruled and defendant appealed in error.
    
      Swan, for plaintiff in error.
    
      Attorney General, for the State.
   Turrey, J.

delivered the opinion of the court.

At the February term, 1843, of the Circuit Court of Knox county, the prisoner, Andrew j. Wright, was put upon his trial on a bill of indictment containing two counts, one of which' charged him with the offence of rape, committed upon the body of Tabitha Webb; the other with the offence of having had carnal knowledge of Tabitha Webb, she being under age of ten years. The jury found him guilty on the first, and not guilty on the second; and sentenced him to ten years imprisonment in the jail and penitentiary of the State; and judgment was given accordingly. And a writ of error is thereupon prosecuted to this court.

We are glad to be freed from the necessity of entering into an investigation of the disgusting details of this offence, as exhibited in the bill of exceptions, as it is not insisted that a new trial ought to be granted upon the facts proven to the jury, but several legal objections are taken to the proceedings on the trial, which it is contended vitiate the verdict, and for which the judgment should be reversed. Werwill examine them as they arise in the argument of the prisoner’s counsel.

1st. The court was asked to compel the Attorney General to elect upon which count of the indictment he would put the prisoner upon trial; which the Judge refused to do. In this it is insisted there is error; because the two offences cannot be legally joined in the same bill of indictment. Is this objection sustainable? We think not. Mr. Chitty in his Treatise upon criminal law, vol. 1st, page 235, says, “In cases of felony, no more than one distinct offence or criminal transaction, at one time, should regularly be charged upon the prisoner in one indictment; because, if that should be shown to the court before plea, they will quash the indictment, lest it should confound the prisoner in his defence, or prejudice him in his challenges to the jury; and if they do not discover it till afterwards, they may compel the prosecutor to elect on which charge he will proceed. But this is only matter of prudence and discretion, which rest with the judges to exercise. For in point of law, there is no objection to the insertion of severaldistinct felonies of the same degree, though committed at different times, in the same indictment, against the same offender, and it is no ground, either of demurrer or arrest of judgment.”

For which positions are cited, 3 T. R. 105-6; 2d East PI. Cr. 515; 2d Campb. 131; 3d Campb., 132; Burn’s Justice, Indict, 4; 2d Hale, 173; 2d Leach, 1003; 8th East, 41.

These authorities are conclusive upon the question, showing that in point of law there is no objection to the insertion of several distinct felonies of the same degree in one bill of indictment, but that the court will in its discretion upon application, either quash the bill of indictment in such case, or compel the Attorney General to elect upon which count he will proceed; and that such joinder constitutes no ground of demurrer or arrest of judgment, and of course cannot be assigned as an error in a revising court. But it is also to be observed, that the two of-fences charged in this bill of indictment are not distinct and different. The wrong charged in both counts is the same, the person upon whom it was inflicted is the same, and the time of its perpetration the same, and the two counts were necessary to meet an unascertained fact, which, when ascertained, would characterise the offence, viz, the age of the person injured; if she were above the age of ten years, the offence would be rape; if under, the unlawful .carnal knowledge of a female child; for both of which the punishment is the same. The case of The People vs. Rynelers, 12th Cowen, 425, which has been cited as authority, by the prisoner’s counsel, does not controvert these principles, but sustains them. Chief Justice Savage, who delivered the opinion of the court, says; “That there would be an incongruity in incorporating in the same indictment, offences of a different character, such for instance, as forgery and perjury cannot be denied; and that in such case a court would refuse to hear a trial upon both, there can be no doubt. But when offences of the same character, differing only in degree, are united in the same indictment, the prisoner may and ought to be tried upon both charges at the same time. Such is this case. The prisoner is indicted for forging the check, and also for publishing it as true, knowing it to be false. These are different offences, and punished with different degrees of severity, but were properly united, both in the indictment and the trial.”

2d. The second ohjection taken is, that the court erred in forcing the prisoner to challenge jurors, who, upon examination, stated that they had formed opinions relative to his guilt or innocence, upon rumors.

This question has been fully examined in the case of McGowan vs. The State, 9th Yerger, and is there settled against the prisoner; the principle of that decision has been followed ever since by this court, and we see no reason to change it.

3d. It is contended, that the charge of the Judge is erroneous in this, that he said ‘to the jury, “It is no difference if the person abused consented, through fear, or that-she was a common prostitute, or that she assented after the fact, or that she was taken first with her own consent, if she were afterwards forced against her will.” This charge is correct in every particular, and fully sustained by authority.

We have thus examined all the objections taken for the prisoner, and find that none of them vitiate the proceedings in the court below, and we, therefore, affirm the judgment.  