The State of Connecticut against Bates, 10 Conn. 372

Bissell, J. The only question in this case, regards the admissibility of the evideuce offered on the part of the state. The information charges but one offence, and that in a single count. Is the state, under such an information, confined to a single offence, in the proof ? Or may the prosecutor, having given evidence of one act of adultery, still be permitted to introduce proof of any number of acts, committed, indeed, with the same person, but at different places, and at different times ? I do not see upon what principle such a claim can be supported.

It is, obviously, opposed to the usual course of proceeding ; and would, to say the least of it, be exceedingly inconvenient in practice. The accused comes prepared to defend against a single charge This he may do successfully — and having done so, may find himself overwhelmed, by a multitude of others, of which the information gave him no notice, and against which he cannot be supposed to be prepared.

And the prosecuting attorney, instead of shaping his case, at the outset, in the most favourable manner, may detain the court and jury, by proving any number of offences, and then elect upon which to claim a conviction. And why should this be done? He is gUpp0se(j to y)Pj in possession of the proofs, and should make his election from the first. In this there can be no hardship ; and such is the well settled rule in all analogous cases.

Thus, in an action of assault and battery, if the declaration contains but one count, the plaintiff, after proving one assault, cannot waive that and proceed to give evidence of another. 3 Stark. Ev. 1440. Stante v. Pricket, 1 Campb. 473. Burgess v. Freelove, 2 Bos. & Pull. 425. 2 Phil. Ev. 143. The same rule prevails in trespass.

And even when the action is laid with a continuando • or the trespass is alleged to have been committed diversis diebus et vicibus; if the party waive, as he may do, his right to prove any act within the days mentioned in his declaration, and prove a trespass on a day anterior to the first day mentioned, he must be confined to that act, and will not be permitted to prove any other. 3 Stark. Ev. 1441. Pierce v. Pickens, 16 Mass. Rep. 170.

And so again, if the defendant be indicted for a burglary and a subsequent stealing, the prosecutor having failed to prove the burglary, on the day laid in the indictment, cannot be permitted to prove a larceny committed in the same house, on a previous day. Rex v. Cole, 1 Phil. Ev. 137. 2 Leach 708. 2 East's P. C. 519. I think the same rule should be applied to the case under consideration ; and that the evidence was improperly admitted. Consequently, a new trial must be granted. The other Judges were of the same opinion, except Peters, J., who was absent. New trial to be granted.