The opinion of the Court was delivered by
The indictment in this case contains four counts. In the first, the appellant “ and other evil-disposed persons, to the jurors unknown,” are charged with burglary and larceny in breaking into and entering the dwelling house of one Elias D. Pruitt, with intent to steal the goods of said Pruitt, and stealing therefrom bacon of the value of forty-five dollars and lard of the- value of twenty-five dollars. In the second count the same parties are charged with the simple larceny of the same goods. In the third count Benjamin Strickland and Abner Strickland are charged as accessories before the fact to the larceny charged in the second count. And in the fourth count Benjamin and Abner Strickland are charged with the offense of receiving stolen goods, by buying and receiving the goods so stolen as above charged, from the parties charged with the stealing. All of the counts in the indictment, except the second, conclude in the usual form, “ contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State,” but the second count contains no such conclusion either against the statute or against the peace and dignity of the State. The jury found a verdict of not guilty upon all the counts of the indictment except the second, and upon that their verdict is, “we find Wm. B. Strickland guilty under the second count of this indictment.”
A motion in arrest of judgment was made in the Circuit Court on two grounds: 1st. Because the second count of the indictment, under which defendant was convicted, is fatally defective in not containing the necessary conclusion. 2d. Because the indictment is fatally defective in that it contains a count for burglary, a felony, and a count for receiving stolen goods, which is a mere misdemeanor, as two such counts cannot be joined in the same indictment. The motion was refused by the Circuit Judge, and an appeal was taken upon the same grounds as were relied upon in support of the motion below.
We will consider the second ground first. Since the case of the State vs. Boise and Strike, (1 McM., 189,) followed by the cases of the State vs. Posey, (7 Rich., 490,) and State vs. Nelson, (14 Rich., 169,) there can be no doubt of the correctness of the decision below, so far as this ground for the motion is concerned.
Now, as the count in this indictment, under which the appellant has been convicted, contains neither of these required conclusions, it is very clear that the judgment must be arrested, unless this defective count can be aided by incorporating into it the nécesáary conclusions from some of the other counts containing such conclusion. It is doubtless true that where an indictment containing several counts, all of which are ignored except the last, in which the party charged is designated as “ the said A B,” without further description, reference may be had to the first count in which the party charged is designated by his proper name and “additions,” as required by the Statute of Additions, (1 H., 5 Ch., 5,) or, to use the language of Chitty in his work on Criminal Law, p. 250, “ though every count should appear upon the face of it to charge the defendant with a distinct offense, yet one count may refer to the matter in any other count so as to avoid unnecessary repetition, as for instance to describe, the defendant as ‘ the said, &e.’; and though the first count should be defective or be rejected by the grand jury, this circumstance will not vitiate the residue.” A.n instance of the application of this principle will be found in the case mentioned by Gould, J., in Phillips vs. Trebling, (2 H. Bl., 131,) where the in-
In the first count the prisoner was particularly described, and, the grand jury having ignored the first three counts, an objection was raised that the remaining counts merely described him as “the said A B,” without the addition of his degree, estate, mystery or place of residence; but the Judges held that the description was sufficient, as the latter counts might refer to the former. So also in the case of Commonwealth vs. Clapp, (16 Gray, 237). The complaint was by Henry H. Dean, of Easton, in the County of Bristol, charging “Eustis K. Clapp, of Easton, in the County of Bristol,” as a common seller of liquors, with a second count for a single sale, in which the defendant was described simply as “ the said Eustis K. Clapp.” The defendant having been convicted on the second and acquited on the first count, a motion in arrest of judgment was made upon the ground of insufficient description of the defendant in the second count; but the Court held that reference might be had to the first count to make the description complete.
Thus while these authorities establish the proposition that, so far as the description of persons is concerned, one count in an indictment may refer to matter in a preceding count so as to avoid unnecessary repetition, and that if the count so referred to is ignored by the grand jury or rejected by the petit jury, it will not vitiate the other count, they are very far from establishing the proposition contended for by respondent in this case — that in an indictment containing several counts, one of which is fatally defective, in that it omits a material allegation, such defect can be supplied by reference to another count, under which the defendant has been acquitted, containing no such defect, especially when, as in this case, the defective counts contains no words as “ the said, &c.,” or any like words inviting such reference. It seems to us that there is a vast difference between allegations as to mere matters of description and allegations essential to the legal charging of the offense.
It is a well-established rule of criminal pleading that every indictment for certain offenses must contain certain words. For exam•ple: “Every indictment for treason must contain the word ‘traitorously,’ every indictment for felony must contain the word ‘feloni-ously.’” Now, if in an indictment for some felony, containing several counts, all of the counts should contain the word “feloni-ously” except one, and upon that alone the defendant should be
That these views are not without the support of adjudicated cases may be seen by reference to the following cases: State vs. Soule, 20 Maine, 2 App., 19; Commonwealth, vs. Carney, 4 Gratt., 546; Baker vs. The State, 4 Ark., 56; United States vs. Davenport, 1 Deady, 264. The case of Davis vs. The State, (19 Ohio, 270,) cited by the counsel for respondent, we do not think in point. That case, in brief, was this: By the Constitution of the State of Ohio it was required that all prosecutions should be carried on “ in the name and by the authority of the Slate of Ohio.” This did appear in the caption of the indictment, and all that the case decides is that, it having so appeared in the caption of the indictment, it need not again be averred in each successive count; and hence when the indictment contained several counts, and a nolle prosequi was entered as to the first, the remaining counts will not thereby be rendered defective for want of that averment. Now, as “ the caption of the indictment is no part of the finding of the grand jury,” ( Vandyke vs. Dare, 1 Bail., 65,) and as it may be amended at any time by the journals of the Court, (The State vs. Williams, 3 McC., 301; Vandyke vs. Dare, supra,) it is very clear that this case throws no light on the question under consideration, as the nolle prosequi could not be regarded as extending to the caption. The case of Rice vs. State, (3 Heisk., 220,) principally relied on by the respondent’s counsel, does seem to support his view. In that case the Court does say that while “ it is held that each count in an indictment must be a complete indictment in itself. * * * * This, we think, refers to the description of the offense and not to the formal conclusion. And it seems that the good and bad counts may, by apt reference and averment, become so incorporated in each other that the principal count and the matter borrowed for the other may constitute, together, a complete accusation. The count of the indictment now in judgment, which charges the larceny, does not conclude ‘ against the peace and dignity of the State,’ and, if it stood alone, would be bad for the want of the proper conclusion. But the last count does have the proper conclusion, and we