UNITED STATES v. GODDARD, 25 F. Cas. 1341

THE COURT (THRUSTON, Circuit Judge, contra) refused to quash any of the indictments, because it did not appear to them that the cows were all stolen at the same time and place.

It is true that they were all averred to have been stolen in this county, and six of them on the 14th of October, 1833; but as the day was immaterial, and perhaps could not be exactly ascertained in evidence, and it was competent for the United States to prove that they were stolen on different days, and, if so, were separate acts of stealing, and separate offences, the court could not say they were not, and would do wrong-to quash them, especially as the cows belonged to divers persons.

If they had all been contained in one indictment, the defendant might have objected to it, and perhaps have obliged the attorney of the United States to make his election as to which theft he would prosecute; and, if they had. been charged in separate counts, as they should if they were separate offences, the-punishment might be exactly the same as if' they had been charged in separate indictments; for each offence must have its separate punishment, and the only difference-would be in the costs.

If one only of the-six should be retained for trial, who should say which it should be? and perhaps the one-selected might be the only one which the-United States could not support. See U. S. v. Beerman [Case No. 14,560], March term. 1838.