| Miss. | Oct 15, 1889
delivered the opinion of the court.
Ball was properly denied the benefit of his former conviction for intoxication and profanity, both because autrefois convict must be pleaded specially, and because the evidence shows clearly that he was guilty of disturbing religious worship at the China Grove camp-meeting by other modes than by being drunk and profane, and, therefore, there was a want of identity of the two charges. Badon was rightly convicted with Ball, if he participated in the nocturnal disturbance in which Ball and many others appear to have been engaged; and the jury thought he was, and we are not able to say that they did not have sufficient evidence on which to reach this conclusion. He failed to furnish any explanation of his being out at 2 o’clock A.M., and in bad company. The jury doubtless concluded that he was one of the crowd, composed of Ball and others, who made night hideous, and terrified men, women and children by their disgraceful conduct, in firing pistols about the camp-ground for hours, on that Saturday night and Sunday morning.
We agree with the counsel for the appellants in the proposition, that two persons cannot be convicted of distinct and independent offenses, upon an indictment which charges an offense as committed jointly. In order to convict both, a joint offense must be proved. Bishop on Cr. Law, § 802; Regina v. Dovey & Gray, 2 E. Law & Eq. R. 532.
It may be that Strawhern et al. v. State, 37 Miss. 422" court="Miss." date_filed="1872-07-01" href="https://app.midpage.ai/document/strawhern-v-state-7998449?utm_source=webapp" opinion_id="7998449">37 Miss. 422, has been misinterpreted as sustaining the right to indict several persons for distinct offenses, and to convict such of them as may be proved severally guilty. It is not authority for a propositen so subversive of the rights of persons accused of crimes, as that would be. The correct doctrine on this subject is announced in Elliott v. State, 26 Ala. 78" court="Ala." date_filed="1855-01-15" href="https://app.midpage.ai/document/elliott-v-state-6505459?utm_source=webapp" opinion_id="6505459">26 Ala. 78, and authorities cited above.
Affirmed.