Boies & Stuke ads. the State, 2 McMul. 252

Curia, per Evans, J. The first, second and fourth grounds in this case, are founded on the supposition, that as the defendants were indicted for a joint offence, the proof, to authorize the conviction of either, must correspond with the allegation. On the civil side of the Court, if a joint contract be alleged, the proof must correspond; but for torts, the rule is different; a verdict may be rendered against as many as are proved to have participatedun the tort; and for those who are not guilty, the same rule prevails in the criminal Court.

The indictment may charge' many, but if the proof be only against one, he may be convicted, and the others acquitted. The authority cited from 2 English Crown Cases, 257, does not, as the defendants’s counsel supposed, sustain his position. It goes no further than to maintain what no one doubts, that successive acts cannot be given in evidence under a count charging a joint act. The third ground was not. argued, and is considered as abandoned. ' The motion is refused. We concur. J. S. Richardson, John Belton O’Neall, A. P. Butler, D. L. Wardlaw, Earle, J., absent,