63 Ind. 192 | Ind. | 1878
This was a prosecution charging the appellant with having perpetrated an assault and battery upon Elihu Ervin. Conviction. ' ■
On the trial, the State gave evidence of an assault and battery committed by the defendant upon the person of Elihu Ei’vin, and aftenvard offered evidence of a subsequent, but distinct and separate, assault and batteiw, perpetrated by the appellant upon the same person. To the latter evidence, the defendant at the proper time objected, on the ground, in substance, that the State, having given evidence of the first assault and battery, had thereby elected to put him.upon trial for that offence, and could not then give evidence of a subsequent assault and battery ; but the objection was overruled and the evidence admitted.
“ 6. Two difficulties between the defendant, and the prosecuting witness have been put in evidence, although .they transpired near each other, yet so far apart that they .constitute .different transactions. The .prosecutor has elected to rely upon the second transaction for a, conviction, and you will have nothing to do with, what; took place at the first difficulty-.”. .
•There was but a single charge pf assault and battery; and the question arises whether, upon, such charge, the State may give evidence of sev.eral offences, and then select one upon which to rely.for a conviction, and abandon the others. Ve are of opinion that this can not be legally-done. ■ .. • . • , •
When the State gave evidence of the first assault and battery, she elected to try him for that offence, and she, could not afterward abandon the election thus made, and put in evidence of another offence.
The case of the The State v. Bates, 10 Conn. 372, is in point. In that case the prosecution was for adultery. The State had given evidence tending to establish one act of adultery, and then gave evidence of several other acts of adultery with the same person. The defendant objected to the evidence not confined to one ac.t of adultery; but the objection was overruled.
The court said, The only question in this case, regards the admissibility of the evidence offered on the part of the State.' The information charges but one offence, and that hi 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,
The judgment below is reversed, and the cause remanded for a new trial.