— after stating the facts: The first exception was not insisted on by counsel, but -was not abandoned. It being found as a fact that the juror Goodwin was a party to an *687 action pending and at issue in the Court in which the prisoner was being tried, it is only necessary to refer to the plain language of the law {The Code, §1728), without citation of the cases construing it.
The prisoner objected to allowing the prosecutrix, Esther, to testify as to different occasions, extending over a period of more than a year, in which he, as she alleged, had had carnal intercourse'with her against her will, and this is the ground upon which are based the second and third exceptiоns.
When the point was first presented by counsel, the Judge announced that he would allow the State to introduce evidence tending to show the commission of the offence charged at different times; but would compel the Solicitor, at the close of the State’s evidence, to elect and state which particular act he would rely upon.
While the practice of requiring'the prosecution to elect, in some instances, between the different counts of a bill of indictment, or between distinct transactions, each constituting the offence charged in a particular сount, prevails both in England and in the different States of this country, the weight of authority has established, generally, the rule that it rests in the sound discretion of the
nisi prius
Judge to determine whether he will compel an election at all, and if so, at what stage of the trial. 1 Bishop’s Crim. Pro. Sec., 205;
ibid.,
§§ 6 to 9; 1 Roscoe on Cr. Ev., marg., p. 207; 1 Wharton’s Crim. Law, § 423;
State
v.
Woodard,
The general rule, too, is that the appellate Courts, except in those States, where matters of judicial discretion are held subject to review, do not interfere with the discretion of the inferior tribunal in allowing or overruling motions to put the prosecutor to his election. Bish. Crim. Pro. Sеc., 205; Wharton’s Crim. Law, 423. In the exercise of their
*688
legal discretion judges have been sustained in fixing the time of election at the close of the evidence on both sides; the reason for putting a prosecutor to his election being that the prisoner may not have his attention divided between two оr more charges. The better rule for the exercise of this discretion is, that the election ought to be made, not merely before the case goes to the jury, as it is sometimes laid down, but before the prisoner is called on for his defence at the latest. Roscoe Cr. Ev., marg., p. 208; Bishop’s Cr. Pro., §215;
State
v.
Smith,
22 Vеrmont, 74. It is true that a different rule was adopted in Michigan, and in the interpretation of one particular statute in Alabama. But the Courts of those States stood almost alone in so limiting the sound discretion of the trial Judge, and especially in driving the prosecution to an election before any evidence is heard, or at an early stage in its development.
State
v.
Czanikow,
20 Ark., 160;
Kane
v.
People,
There has been less controversy about the exercise of the legal discretion where testimony as to various transactions, each one constituting, if the evidence is believed, a misdemeanor, has been heard. In such cases nearly all the Courts conceded the right of 'the presiding Judge in his discretion to refuse to drive the prosecution to the election at all, but some go so far as to doubt the power of the Court to compel an election. 1 Bish. Crim. Pro., § 209; Kane v. People, supra.
This Court'has repeatedly held that the presiding Judge might, in his discretion, hear the evidence on a number of counts in a single indictment charging felony, or “on a number of distinct bills, treating each as a count of the same bill,” and refuse to require the Solicitor to elect till the close of the evidence for the State.
State
v.
Hastings,
*689
In State v. McNeill, 93 N C., 552, Justice Merrimon, delivering the opinion, says: “ So that distinct felonies of the same 'nature may be charged in different counts in the same-indictment, and two indictments for the same offence may be treated as one containing different counts, subject to the right of the defendant to move to quash, in case oí inconsistent counts, and the power of the Court to require the prosecuting officer to elect the count or indictment on which he will insist. This certainly may be done, and we can see no substantial reason why the same rule of practice may not apply to several indictments against the same parties for like offences, when the just administration of criminal justice will thereby be subserved.” In State v. Haney, supra, Judge Gaston says: “ It is, however, in the discretion of the Court to quash an indictment or compel the prosecutor to elect on which count he will proceed, when the counts charge offences actually distinct and separate.”
In
State
v.
Morrison,
It is conceded to have been the general, but not the mandatory practice of the Courts to compel an election at the close of the evidence, as his Honor did in this case. But. the proposition that the Judge, in instructing the jury, should tell them to attempt to discard from, their minds all of the testimony touching any trаnsaction except that which was located at the fence and was relied on by the prosecutor for conviction after the election was enforced, is a novel one, the adoption of which in practice would lead to perplexity and confusion, and if the jury cоuld carry out the instruction, would of necessity withdraw from their consideration evidence very important in reaching a verdict. To illustrate this view of the subject we need not go beyond this case. It is material to show that Esther did not consent when the prisoner had intercourse with her at the fence (if the jury find thаt he did), and any outcry she may have made, and any declarations by her as to that transaction, would of course be material. If the jury would otherwise have been in doubt as to whether she was willing on that particular occasion, because she did not make an alarm or offer stubborn resistance, would it not be material to know that the prisoner, being her father, had repeatedly forced her to submit prior to that time, and that on one of these occasions she was heard to cry at night? Would not any juror, from his observation and knowledge of human nature, be prepared to believe that she did not consent, upon less proof of outward manifestation of opposition before, or of grief after he accomplished his purpose, if he believed the further fact that she had been forced repeatedly, and even in the presence of her mother, tо submit to the same terrible ordeal, and no person had been able to prevent it? Might she not have offered less resistance or remonstrance, because she despaired of help and submitted unwillingly to the author
*691
ity of a father upon whom no influence seemed to impose any restrаint.
State
v.
Cone,
Bishop, in his work on Criminal Procedure, says: “ Where several felonies are so mixed that they cannot be separated, evidence of the whole may be given.” Evidently the author had in his mind some such case as this, and the rule laid down by him suggests the question whether his Honor might not have best subserved the ends of justice by refusing to enforce an ehction at all in this case. The Judge who presides at the trial of such cases is clothed with the power to grant a new trial, if upon a review of all of the evidence he has reason to believe that the prisoner has been taken at disadvantage because he was left in doubt about the specific charge that he was to answer. In fact, we apprehend that, in practice, a defendant is not often surprised by the development of evidence as to two or more such similar transactions; and if he is, the salutary corrective is found in thе unlimited discretion of the Court to set aside a verdict. If the State had only offered evidence as to the alleged violation of Esther’s person when the prisoner put her over the fence, it would have been unquestionably competent for the prisoner, on her cross-examination, or by other witnesses, to have shown that he had carnal intercourse with her at other times, as bearing upon the question of force.
State
v.
Jefferson,
We conclude, therefore, as to the second, third and eighth excеptions, there was no error, because—
1. Where there are several counts, each covering separate transactions punishable in the same way, or only one count but testimony as to two or more transactions falling under the charge, the Judge may, in his discretion, refuse or allow a motion to force the prosecutor to elect, and may determine the time when the election is to be made, if at all.
2. In the exercise of this discretionary power, the Courts have generally held that the prosecutor (especially on the trial of felonies or offenсes punishable with infamous punishment) should be compelled to elect at the close of the testimony for the State, except in cases where the evidence of each one of the transactions is so intertwined with and dependent upon the testimony of the others, with attendant circumstances, that the Court does not deem it practicable to confine the prosecutor to one transaction without destroy *693 ing wliat seems to be a prima facie case of guilt against the defendant.
3. It has never been deemed so important to enforce an election on the part of the prosecuting officer on the trial of misdemeanоrs punishable at the discretion of the Court.
4. Where there are several counts in an indictment drawn merely to meet the different phases of the facts that will probably be proven, the Judge will neither quash nor require an election.
The prosecutrix Esther had been impeached on her cross-examination, and when the State offered to corroborate her by the testimony of Joe Parish, as to the fact that she cried when taken out of bed by the prisoner, and to prove that he heard what she told their mother on that occasion, and afterwards heard Esther tell her what was dоne when her father put her over the fence, the prisoner objected, on the ground that it was not competent to introduce, in that indirect way, the declarations of the wife made in the conversation, when she was not competent or compellable to testify against her husband. The test of the validity of such objections is properly made by examining the testimony admitted, not simply the objections stated. We find that, in fact, the witness mentioned no declaration of his mother, except the order to remove Esther to another bed, and that was a part of the
res gestee
of the transaсtion in the house, heard before the Solicitor made his election. Esther had been impeached on' cross-examination, and it was unquestionably competent to corroborate her by proving former declarations consistent with her evidence.
State
v.
Laxton,
Evidence that the prisoner and his wife lived amicably and peaceably would not tend to contradict Esther, or to prove the guilt or innocence of the prisoner, and therefore the objection to the testimony of Joseph P. Gulley was properly sustained. State v. Jefferson, 6 Ired,, 305.
*694 If the prisoner had not forced the prosecuting officеr to elect, there would have been testimony tending to show an assault upon Esther by the prisoner, and an unsuccessful attempt to commit a rape; but there was no evidence of an attempt to commit a rape when Esther was put over the fence. On that occasion, if the jury beliеved her, the purpose of the -prisoner was accomplished. It was not error, therefore, to refuse to instruct the jury, on the evidence, that they might find the prisoner guilty of an assault with an intent to commit rape.
It was within the peculiar province of the jury, upon this story of unnatural and almost incredible brutality, to determine whether the prisoner was guilty. We can only review the errors of the Court below, and we fail to find any erroneous ruling. Evidences of such unusual occurrences between father and child, extending over so long a period of time, should have been dispassionately considered, as we must suppose it was, before the jury returned their verdict.
There is no ercor.
Affirmed.