
    The State, v. Silas Anderson.
    Two or more separate offences may be joined in the same indictment, provided the punishment be identically the same fur each; and a genera! verdict would suffice, although there might be a defective count in the indictment. Arch Cr PI., 61, and State o. Poole, 2 Tread., 494.
    A count in an indictment is defective, which does not allege the place where the offence was committed, so as to give the Court jurisdiction.
    When there are two counts in an indictment, one defective, and the other framed in reference to an Act of Assembly, imposing'a penally of doubtful application to the offence charged; the verdict being guilty generally, the Court will order a new trial.
    Where, there are two counts in an indictment, framed under different Acts of Assembly, although the offences charged in both are of the same class, and punished in the same way. yet if the amount of punishment under one act be greater than under the oilier, or the one act has been in any part repealed by ti e other, a general verdict of guilty will not bn sustained.
    Offences, under the Acts of 1817 and 1S34, it would seem are different offences, but still, according to rules of criminal pleading, may be joined in the same indictment, but. not in the same count; yet on a general verdict of guilty, the Court would order a new ^rial, not knowing on which count sentence should be passed.
    Tried before Mr. Justice Withers, at Abbeville, Spring Term, 1847.
    Indictment for unlawful trading with a slave.
    Judge’s Report:
    The indie'ment contained two counts: the 1st charged the defendant, in character of vendor of spirituous I.quors, with having given to Soloman, belonging to Tenant Lomax,spirituous liquors: the 2d count was framed under the A. A. 1817.
    The testimony was as follows:
    
      David Leslie, said, that on the 14th of February, 1845, after 10 o’clock at tiiglit, they gave to a negro, by the name of Sol-oman, belonging to Tenant Lomax, an empty bottle, their names having been placed at the bottom, secured by tallow: lhat they directed the negro to go to the defendant’s, and all three took positions, near Isis door: they gave the boy 25 cents: that the boy tapped at the door; defendant asked “who’s there,” or “who is that?” The boy gave no answer, but tapped again, and went to the back door, which was opened, and he went in. This witness was confident it was Anderson’s voice. Soon after the boy came out with the bottle filled with whiskey, which was produced in Court and identified. The house was in the village of Abbeville; was the same occupied and used by Anderson, when on a former occasion he was accused and convicted of retailing; that Anderson staid there when in the village, slept there at night, though he had possession of a place some miles from the village to which he resorted sometimes. People did resort there for liquor; it was sold there according to common fame, though he hod no personal knowledge on the subject.
    
      Doctor Branch confirmed the above detail generally, being one of the three pnsent, Mr. Spicrin being the other. The doctor said he passed defendant's house frequently; saw' crowds there, and the place exhibited every appearance of a retail shop.
    Two records were exhibited against the defendant for retailing; the one charging the act to have been done on the 3d of February, 1845, and showing defendant’s conviction.
    The defendant undertook to prove an alibi on the night fixed by the witnesses for the State, and it appeared that in the indictment the date was stated to be the 15th of February. This ground of defence utterly failed; for although three witnesses said he went to his country place on the 15th, (which was Saturday.) yet Mr. Leslie said he took a memorandum on the occasion, (which was confirmed by Dr. Branch,) and both were positive that the transaction was not on Saturday the 15 th, but the night before.
    On the identify of Anderson as the person dealing with the negro, a witness by the name of John M’Cord was introduced, who said, that between the 15th of February and the next Court, he had a conversation with Mr. Leslie, about the matter in question, who having detailed the circumstances, said, that they had been a long time after Silas Anderson, and had fixed him, but that he did not think he heard any voice he could distinguish; however, all the law required was that the boy should go in without the liquor and come out with it. Mr. Leslie, however, on the trial, spoke confidently as to Anderson’s voice; and doctor Branch stated, that as they were leaving the house that night, Mr. Leslie said he would swear positively to Anderson’s voice. It was said to be a peculiar one, and well known.
    
      It was also insisted for the defence, that the boy was in defendant’s charge or employment. On this subject, Uriah Marse said, that Anderson had left with him the key of his house on the night of the 15th, that he might shut up the house; he did lock an outer door; and that when defendant left, between sunset and dark, he saw Soloman piling boards at Anderson’s. (This witness also said he was often about Anderson’s, and did not think he kept liquor for sale, and never saw slaves of other people resorting there habitually.)
    
      John A. Hunter said, he thought defendant had Soloman in bis employment; that he was getting timber for him on the 15th February. About that time and previous, boy was often working there, and frequently left his tools in Anderson’s shop. Before that he had heard Anderson ask the boy several times to eat his breakfast. He thought the boy was sold on the 13th February; that he then went from Anderson’s and came back there; generally took his tools from and brought them back there; that on the 14th and 15th February, Anderson had no shop there for trading. Opposed to this was Dr. Branch’s statement—that on the day after the trading he saw the boy engaged on a roof of a barn and stable of a Mr. Lomax. He said the boy worked about; that though he did not know under whose care Soloman was when the trading took place; the next day be was certainly working at Lomax’s.
    It was further slated by Mr. Leslie, that when the negro came out from Anderson’s, they searched his pockets for the 25 cts., and did not find it.
    I recited from my notes the testimony to the jury; and in relation to the 1st count (for giving liquor to the slave,) explained to them the Act of 1834, and the rule of evidence prescribed by it. They were charged that the defendant could not be convicted on that count, unless he was a vendor in the sense of the Act, and it was suggested (I think) that one single act might not be insufficient. But it wras left to them to determine whether from the proof in the present case, joined to the fact that he had been convicted for retailing upon a transaction of date anterior to the present, to wit, February 3d, 1845, he was a vendor of spirituous liquor. I intimated an impression that they might not feel warranted in convicting him on that count—that the question, however, remained as to his guilt under the 2d count, framed in reference to the Act of 1817, and I held that although the rule of evidence laid down in the Act of 1834 was enacted as sufficient testimony, in the class of cases therein contemplated, it was not thereby extinguished as a rule of evidence at common law, and, therefore, they were to consider whether the fact, that the negro went in with a bottle empty, and came out with it filled, was enough to satisfy them of the trading: that if guilty under either count, he should and might be convicted. No instruction was given as to referring their finding to either count. Not having the indictment before me, I know nothing as to the matter embraced in the 3d ground for arrest of judgment.
    The jury returned a verdict of guilty generally.
    Defendant appealed, and moved fora new trial, on the grounds:
    1st. Because his Honor charged the jury, that the fact that defendant had been once tried and convicted of retailing without a license, was sufficient to fix upon him the character of a vendor of spirituous liquors, within the meaning of the terms of the Act of 1834.
    2d. Because his Honor charged, that although the rule of evidence established by the 5lh clause of the Act of’34, was not applicable to either count in the indictment, yet that such evidence was not only competent, but evidence on which they might convict the defendant.
    3d. That although the charges in the different counts are repugnant and inconsistent, yet his Honor charged the jury, that if satisfied that defendant was guilty on either count, they might find him guilty generally.
    4th. Because there was no evidence given but to one transaction—the giving or selling a bottle of liquor to a slave—and yet by the verdict, the defendant is found guilty of both giving and selling, the same bottle of liquor to a slave.
    And in arrest of judgment on the two last grounds, and also on the following:
    1st. Because there are two counts in the indictment, under different. Acts of Assembly, charging different and distinct offen-ces, and punishable differently, and the verdict is guilty generally.
    2d. The offences charged being in their nature inconsistent and repugnant, the defendant, according to the evidence, could be guilty of but one—and a verdict of gudty generally, cannot be referred to either count.
    3d. Because in the second count the offence is not charged to have been committed within the District of Abbeville, nor with force and arms.
    4th. Defendant, by the warrant and recognizance, is charged with and required to answer to an indictment for trading with a slave, the property of William Tenant—and indicted, tried and convicted, for trading with a slave the property of Tenant Lo-max.
    John H. Wclson, for the motion.
    Whitner, Solicitor, contra.
    
   Evans J.

delivered the opinion of the Court.

There are two counts in the indictment. The first is framed on the Act of 1834, and charges, that the defendant being a vendor of spirituous liquors, did deliver a pint of whiskey to a slave. The second is on the Act of 1817, for dealing, trading^ and trafficking with a slave for a pint of whiskey. Both these counts were intended to cover the same transaction. The second count is clearly defective. There is no place alleged where the offence was committed so as to give the Court jurisdiction. There is a general verdict of guilty, and the question is, whether any judgment can be pronounced on the verdict. In order to meet the proof, it is usual to charge the defendant with several distinct misdemeanors in different counts in the same indictment, and it would seem, from the authorities, (see Arch. Cr. Pl., 61; Rex v. Jones, 2 Camp., 131,) that two or more separate offences, as assaults and libels, may be joined in the same indictment, provided the punishment be the same. That is the criterion, and hence this Court decided in the State v Boise, and Stuke, 1 M'M., 189, that larceny, which is a felony at common law, might be joined with a count for receiving stolen goods, which is only a misdemeanor by statute, because both are now by our law punished in the same way; and in such case, where the punishment is identically the same for each, 1 suppose a general verdict would suffice, although there might be a defective count in the indictment, on the authority of the case of the State v. Poole, 2 Tread., 494, which I believe has been followed ever since. In that case, it was held, that where there is one good count in the indictment to which the evidence applies, a general verdict, will be supposed. But in the case under consideration, although the offences charged in both counts are of the same class, and both punished in the same way by fine and imprisonment, yet both the fine and imprisonment under the Act of 1817, are much greater than under the Act of 1834. It was decided in the case of the State v. Evans, 3 Hill, 190, that so far as regards the classes of persons named in the Act of 1834, retailers, vendors, and distillers, that Act must be considered as a repeal of the Act of 1817. Such persons could only be punished under the Act of 1834, for the offences therein named. Offences under these Acts, it would seem, are different offences, but still, according to rules of criminal pleading, may be joined in the same indictment, but not in the same count. Yet, on a general verdict of guilty, the Court would not know on which count to pass the sentence. From any thing which the Court can know, the jury not regarding the defendant as a vendor of spirituous liquors under the Act of 1834, have convicted him on the defective count framed on the Act of 1817, on which no sentence can be passed. If the verdict had indicated on which count the jury found him guilty, no difficulty would exist, in determining whether any and what sentence should be passed on the defendant. If the conviction had been on the second, which is the deiectivecount, no sentence could be passed, and if the jury had found him guilty on the first count, I am very strongly inclined to the opinion that he does not come within that description of vendors of spirituous liquors, in whose favor the Act of 1834 was passed, to mitigate the severity of the punishment imposed by the Act of 1817. We do not see any ground to arrest the judgment, but for the reasons before stated, anew trial must be granted, and it is so ordered.  