1. CRIMINAL law : separate offenses: state must elect. The testimony introduced on the part of the prosecution tends to establish the following facts: On the evening of May 30th, 1880, the defendants, to- , . , . ' getner m a buggy, with a led horse, came near the house of one Ouch Kelly. At that time, Ellen McNamee and John Kelly, a youth of about sixteen years of age, were coming south, in the direction of Cuck *299Kelly’s bouse. Tbe defendant, Darbysbire, asked tbe defendant, Brown, for tbe buggy to take Ellen McNamee buggy riding. Brown consented. Brown took tbe led borse and went with Cuck Kelly to tbe bouse. Darbysbire took tbe buggy and went back, and met tbe prosecutrix and John Kelly. Darbysbire asked tbe prosecutrix to take a buggy ride, and said be wanted to take ber to a dance. Sbe said sbe would not ride with him, but would walk with him to tbe bouse. Defendant got John Kelly to bold bis borse, and be got out of tbe buggy. Sbe put ber arms around Kelly’s neck, and tbe defendant pulled ber away. Defendant got John Kelly to drive the buggy back, and be and tbe prosecutrix walked along together. They went south till they came close to a branch or slough, and there, tbe prosecutrix testifies, tbe defendant bad intercourse with ber. "When they left there, sbe testifies be pulled her along to a straw stack, not far distant, and there bad intercourse with ber again. Tbe defendant, Brown, remained at tbe bouse of Kelly about five minutes, and then rode on tbe led borse in tbe direction that Darbysbire bad gone. He met John Kelly returning with tbe buggy, and got in the buggy and came back with him. In a few minutes be drove tbe buggy with tbe led borse back, and bitched them in a ravine near tbe straw stack. About tbe time that Darbysbire was leaving tbe straw stack, tbe prosecutrix saw Brown near it. Sbe went around tbe straw stack and started across a rye field toward borne, followed by tbe defendant Brown. As sbe was about to climb a fence be seized ber and dragged ber back, and bad intercourse with ber near tbe fence. At this time Darbysbire was driving away in tbe buggy. Tbe prosecutrix. testifies that sbe hallooed, and that these several acts were comxpitted forcibly, and without ber consent, and notwithstanding ber resistance. Tbe testimony on behalf of tbe prosecution being closed, tbe defendants asked “ that tbe State be required to elect .whether it seeks to connect these defendants, or either of them, with tbe transaction, or act, occurring at tbe straw pile, and *300immediately contiguous thereto, in which it claims Frank .Darbyshire carnally knew the prosecutrix, or the transaction at or near the fence near Aspergreen’s, in which it accuses the defendant, George Brown, of having had carnal knowledge of prosecutrix, for that the whole record discloses the acts and transactions to be different and independent transactions.” The State resisted this application upon the ground that the evidence discloses but one transaction, constituting but one offense. The court denied the application. If it should be conceded that the defendants were conspirators, so that each was accessory to, and responsible for, the acts of the other, still the evidence of the prosecution tends to establish two distinct offenses. If the defendants were so connected with all that was done, that each is responsible for the act of the other, each was a principal in one act, and an accessory in the other. The acts of violence of the defendant Darbyshire and of the defendant Brown cannot be so blended together as to constitute but one transaction. Could an acquittal of the defendants, on account of what occurred at the straw stack, be pleaded in bar of a prosecution for what occurred in the field? Manifestly, it seems to us, it could not be so pleaded. If it could not be so pleaded, the transactions constitute distinct offenses. The court, we think, should have required the State to elect Qn which transaction it would proceed. In refusing to do so, and putting the defendants upon trial for two distinct offenses, there was error. !
