1. No exception lies to the refusal of the court upon the motion of the defendants, to direct the district attorney, before opening the case to the jury, to elect which of several distinct counts he would proceed upon ; nor to the similar refusal upon a motion to the like effect after the government had presented their evidence in the case, and before the defence was opened. The very object of the introduction of different *63counts into the indictment, adapted to meet the case as disclosed upon the evidence, might be defeated by granting such a motion. However proper it might be in some cases for the presiding judge thus to confine the public prosecutor, and require such election, yet his refusal so to do is not a matter to be reviewed on exceptions taken to a higher court. ' Matters within the discretion of an inferior tribunal are not grounds of exception under the statute. Reynard v. Brecknell, 4 Pick. 302 Commonwealth v. Wood, 4 Gray, 11.

2. It is objected to the fourth count, that it does not set forth by whom the larceny was committed. But the objection cannot be maintained, the offence charged upon the defendants being that of receiving stolen goods, knowing them to be stolen. Of course a larceny must be proved by the evidence, but the party committing it need not be named in the indictment. Rex v. Jervis, 6 Car. & P. 156. Commonwealth v. King, 9 Cush. 284. Roscoe Crim. Ev. (3d ed.) 868.

3. As to the conviction of Joseph Slate on the first count, it is said that no judgment should be entered thereon, as the charge in the indictment was a joint one, and the jury have found the other defendant, Susan Ryther, not guilty on that count. Some authority to this effect seems to be found in the case of Rex v. Messingham, 1 Moody, 257. But from subsequent cases, and upon principle, there can be no question as to the propriety of convicting one and acquitting another of the defendants, when the charge does not involve from its character, as in the case of a charge of a conspiracy or a riot, the united act of two or more individuals to constitute an offence in either. In all other cases the joinder of two or more persons in an indictment does not require that all should be found guilty or none.

The case of Regina v. Dovey, 2 Denison, 92, and other cases subsequent to that of Rex v. Messingham, explain and illustrate the principle and the extent to which it is to be carried in the matter of charging a joint felony in receiving stolen goods, knowing them to be such. To sustain a joint charge against two for one and the same offence, there must be a *64joint receipt at one and the same time; and a receipt of goods by one of the parties at one time and place, and a subsequent receipt by another, will not sustain the joint charge, but will authorize the conviction of the party who first received them. He is properly found guilty of the offence of receiving stolen goods. So the entire acquittal of one of two parties charged exonerates that party, but leaves the indictment valid and effectual as against the one found guilty by the jury. There is nothing in the present case to take it out of the ordinary rule of entering judgment of conviction against a party found guilty by the jury, where the evidence has been found insufficient to sustain the indictment against another alleged participator.

4. The evidence as to certain articles found on the premises of the defendants by the officer who executed the search warrant, was, for the purposes and under the limitations stated, properly admitted by the court. Exceptions overruled.