Stephens v. State

14 Ohio St. 386 | Ohio | 1846

Birchard, J.

The error last assigned will be first disposed of. The indictment charges both plaintiffs, in precise terms, with the commission of a joint offense. The act charged, was a joint act. In preparing indictments, great accuracy is required, in order that the accused may be informed of the nature of the accusation and prepared to meet it by proof. This indictment was faultless in this respect. On its face it contained all the requisites of good pleading. But of what avail was it to the plaintiffs? They met it in the usual form; and, having ^closed their defense, the jury wore instructed that the plaintiffs in error might be found guilty of the joint offense of which they were accused, “if the evidence only showed that'they had separately been guilty of it, although it did not show that they were both together engaged in the same act.”

In giving this instruction there was error. It was equivalent to saying to the jury: “You may convict them of the joint offense alleged against them, although the proof satisfies you that they are not guilty of it, provided it convinces you that each one separately has committed an offense of a like nature.” If this were the law, it would be of little use to require an indictment. In fact it could not be said, with much propriety, upon the supposition that there was proof to make the charge of the court applicable, that the plaintiffs in error were convicted upon an indictment. If the proof only showed that they had separately engaged in distinct acts, it by no means supported the indictment; and the verdict was wholly without proof to sustain it.

As the bill of exceptions sets forth no evidence tending to show that the several instructions prayed for, as well as those given, touching the jurisdiction of the Ohio river, were material to the issue, my brethren are of the opinion.that they should be regarded as abstract propositions; and that, whether in accordance with the law or not, the plaintiff can take nothing from them on error. The questions presented by that part of the bill of exceptions, for that cause, have not been considered. I confess my inability to discover a reason, satisfactory to my own mind, for the distinction taken between the different parts of the bill. Judgment reversed, and cause remanded for further proceedings.