Commonwealth vs. William McLaughlin, 12 Cush. 612

Dewey, J. No sufficient cause is shown for arresting the judgment in this case. It is true, as stated in the authority cited by the counsel for the defendant, that generally speaking, offences differing in their natures, one being a felony, and the other a misdemeanor, ought not to be joined. But the practice in this commonwealth has fully sustained a joinder of such counts where they have been a kindred line of offences. It is allowed always where several counts are introduced for the purpose of meeting the evidence as it may transpire on the trial, all the counts being substantially for the same offence.

Carlton v. Commonwealth, 5 Met. 532. It is held that the introduction of several counts which merely describe the same transaction in different ways, cannot in general be made the subject of objection on arrest of judgment. In case of The People v. Rynders, 12 Wend. 426, it was held that where the offences are of the same character, differing only in degree, they may be united in the same indictment and different counts. The case of Harman v. Commonwealth, 12 S. & R. 69, is to the same effect.

The first count charged the defendant with the commission of a rape, and the second with an assault with an intent to commit a rape. The court, in their opinion, say, that considering the general rule to have been as stated, the case is not within it. The case of Burke v. State, 2 Har. & Johns. 426, was like it, and the court held in the same manner. In Regina v.

Jones, 8 Car. & Payne, 776, an indictment in which, in the first count the party was charged with stabbing with intent to murder, and in a subsequent count, with a common assault, it was held that the latter did not vitiate, and that judgment iright be entered on the count- charging the felony, and this was approved by all the judges, upon a case reserved. In felonies, it is usual to charge the offence in several distinct counts to meet the evidence, and the party may well be convicted upon the one less aggravated. Commonwealth v. Hope, 22 Pick 1; Josslyn v. Commonwealth, 6 Met. 236.

Certainly, where the offence charged in the second count is necessarily embraced in the charge in the first count, and all the evidence, to sustain it, might have been given under the first count, and a conviction of the charge well authorized as a substantive part of the first count, it cannot be objected that the same is stated in a second count, nor is a verdict of not guilty on the first count inconsistent with a verdict of guilty on the second count. In such case, the party is not embarrassed on his trial, or precluded from a full opportunity for defence against the charges.

The verdict of not guilty on the first count, so far from operating to defeat the verdict of guilty on the second, in the present case, in fact removes the objection in arrest, as effectually as if the entering judgment on one count only, which is said in 1 Chit. Crim. Law, 255, to avoid the motion in arrest for misjoinder of counts, after verdict. Motion in arrest decreed.