
    James Barnhouse v. The State.
    An indictment for incest which charges the criminal act to have been com- ' mitted continuously through a specified period of years, is to be regarded as charging several distinct offenses, and is bad for duplicity.
    Error to the Court of Common Pleas of Vinton county.
    The plaintiff in error was convicted in the Court of Common Pleas of Vinton county, on a charge of incest.
    The indictment consisted of a single count, and the charging part of it is as follows : “ That James Barnhouse and Nancy Barnhouse, on or about the first day of November, in the year of our Lord one thousand eight hundred and sixty-five, with force and arms, in said county of Vinton, and state of Ohio, and from said time continuously until about the 9th day of September, 1876, at the county aforesaid, being then and there persons of the age of sixteen years and upward, unlawfully, wilfully, and feloniously did have sexual intercourse together, he, the said James Barnhouse, then and there being a brother of the said Nancy Barnhouse, and she, the said Nancy Barnhouse, being then and there a sister of the said James Barnhouse, they, the said James Barnhouse and Nancy Barnhouse, then and there having knowledge of their said consanguinity and relationship.”
    A motion was made by the accused to quash the indictment. The motion was overruled, and James Barnhouse was put upon his separate trial.
    On the trial, at the May term, 1877, the state was permitted, against the objection of the plaintiff in error, to give evidence tending to prove various acts of sexual intercourse between the parties as charged, and extending through the period laid in the indictment.
    The trial resulted in the conviction and sentence of the plaintiff in error. To reverse this sentence, the present proceeding in error is prosecuted.
    
      H. G. Jones and J. M. MeGillivray, for plaintiff in error.
    
      G. L. White, prosecuting attorney, for the state.
   White, J.

The court erred in not quashing the indictihent. Where an indictment consisting of a single count charges the defendant with more than one offense, it is bad for duplicity. The indictment in the present case is- defective on that ground.

Nor is the defect cured by section 90 of the code of criminal procedure. That section has relation to the form of the indictment and the manner of describing the offense; but it does not affect the rule of the common law, which forbids the charging of more than one offense in a single count.

The indictment in question would be bad at common law in not laying any of the offenses at a time certain. It is said by Hawkins that, “ It is laid down as an undoubted principle in all the books that treat of this matter, that no indictment whatsoever can be good without precisely showing a certain year and day of the material facts alleged in it.” 2 Hawk. P. C., c. 25, s. 77.

Where the offense is laid as committed “on or about” the day mentioned, as in the present case, the allegation, at common law7, is insufficient. United States v. Crittenden, Hemp. 61; 1 Bishop’s Criminal Procedure, sec. 390.

But if one offense is w7ell charged in an indictment, and another offense, in the same count, is ineffectually charged, either for want of certainty as to time or otherwise, the averments as to the latter may be rejected as surplusage. But if both offenses are effectually charged, the count, as already stated, will be bad.

Under section 90 of the code of criminal procedure, no indictment can be deemed invalid for omitting to state the time at which the offense was committed, in any case where time is not of the. essence of the offense, nor for stating the time imperfectly.

The objection to the present indictment is not that it omits to state the time of the commission of the offense, but that, under the section of the code referred to, several distinct offenses are effectually charged in the same count, and that the count is, for this reason, bad for duplicity.

The statute defining the offense provides that, “if any brother and sister, being of the age of sixteen years or upward, shall have sexual intercourse together, having knowledge of their consanguinity,” they shall be deemed guilty of a misdemeanor.

A single act of sexual intercourse, where the other conditions exist, is all that is required, under the statute, to complete the offense.

The indictment, therefore, in the present case, can only be regarded as charging a series of offenses committed within the period specified in the indictment.

Judgment reversed, and the discharge of the plaintiff in error ordered.  