Page:Federal Reporter, 1st Series, Volume 8.djvu/267

 UNITED STATES V. 8T0NE. 253 �Eeverting to the Alabama cases, before cited, it will be found, that it was held that a common-Iaw indiotment for larceny could not sus- tain a conviction for the statutory oflfences described in the sections "of the Penal Code already cited. So, here, a common-law indictment for larceny — if we had any such thing in our practice, as we have not, all our indictments being contrary to the form of the statute — would not do, showing plainly that, as in the Alabama cases, the in- dictment should charge the offence in the language of the statute; and it was done in those cases without the separation we haye here into counts charging distinct offences, which I have endeavored to show was immaterial. It is the same in Tennessee. State v. Callicutt, 1 Lea. (Tenn.) 714. The form of indictment given undei* the English statute for plundering or stealing is a single count, charging that the defendant "did plunder, steal, take, and carry away, against the form," etc., etc. It is stated, however, that you may add separate counts distinguishing between "in distress " and "wreeked," etc. Arch. Crim.Pl. (4th Am. Ed.) 214; 2 Arch. Crim. PI. (8th Am. Ed.) 1332. But there is no objection to stating the same offence in dif- ferent ways in as many different counts as you may think necessary. 1 Arch. Crim. PI. (6th Ed.) 93, and notes ; Id. (8th Ed.) 292, and notes. And where the statute says the doing of this or that shall con- stitute the offence, the indictment may charge them all in one count, or in separate counts, at the election of the pleader. 1 Bish. Crim. Proc. (2d Ed.) §§ 436, 435, 434. But whatever form is adopted the verdict should be, in a case like this, general on the whole indict- ment, rather than separate on each count, and it is not error to so direct the jury as to relieve them of the confusion of finding a sepa- rate verdict for the different acts of the same offence, for all of which there was the same punishment. There may be cases of different grades, or punishment, or different offences, where the court should direct separate findings on the separate counts, but surely this is not oneof them. 1 Bish. Crim. Proc. (2d Ed.) §§ 1005, 1009, 1010, 1011. And, where the offence may be charged in one count, reciting all the statutory acts or elements, it seems to me more fitting to find a general verdict, and not to confuse with asking the jury to point out the particular act by following the separation of the pleader. The evidence will indicate on which act the verdict is predicated, if it be at all material to know it, in the subsequent proceedings. I fail, therefore, to see any injury to the defendant in the directions on that point of which so much complaint has been made in the argu- ment. The jury were properly told to find a general verdict, and it ��� �