Page:Federal Reporter, 1st Series, Volume 8.djvu/266

262 FEDERAL EBPORTEB. �to find a verdict on each separate count, The case in Sprague's Ee- ports was passed by the court to counsel early in the proceedings, and attention called to ita construction of the words "plunder" and "steal;" but the questions on the form of the indictment were not raised at the bar, nor suggested to the court, otherwise than by the requests for instructions, handed up after the argument. This will aocount for any surprise so far as the court may be concerned ; and if the fact were that any testimony had been excluded, or ruling made, to the prejudice of the defendant, because of the failure of the court to detect this peculiarity of the indictment, and because of the supposition that we were trying separate offences under it, or any injury could have resulted, I should now grant a new trial. But it is plain to me that no harm bas been done him by this mode of pleading and trial. Even if they had been separate offences — or separate indictments, for that matter — they could have been Consoli- dated under our statutes and'tried together, Eev. St. § 1024. Again, when so consolidated into one indictment, with separate counts, a general verdict is proper, and will be sustained if any of the counts be good and charge an oEfence. T. & S. Code, (Tenn.) § 5217; 2 King's Dig. (2d Ed.) §§ 2185, 2003, and cases cited; 1 Arch. Crim. PI. (8th Ed.) 292, and notes; U. S. v. Pirates, supra.- 5 Wh. 184; U. S. V. Patterson, 6 M. L. 466, 469; U. S. v. Peterson, 1 Wood & M. 305 ; U. S. V. Seagrist, 4 Bktchf. 420. This last case is a direct authority for disregarding the unnecessary separation of a statutory offence into several counts where it is made out by proof of acts of differing character, but all included in the statutory definition of the offence. It was a case where the defendants were indicted very much as in this case, under the second section of the act of March 3, 1835, (4 St. 776, — now Bev. St. § 6359,) for endeavoring to make a revolt or mutiny, etc., etc. The court says : �" It is practically unimportant whether the provisions of the second section are expounded as so many instances or methods in which the offence of an endeavor to make a revolt or mutiny may be manifested, or whether they are taken distributively, and understood to be so many separate and distinct offences, each being sufficient of itself to sustain an indictment. The three counts of this indictment are so framed as to secure to the United States the advantage of either construction. It appears to me, thevefore, that the court did not err in instructing the jury that, if the acts charged in the indictment were satisfactorily sustained by the evidence, and if the defendant committed those acts with intent to resist the master in the free and lawful exercise of his autliority on board of the vessel, they would amoant, in law, to an en- deavor to make a revolt." At pages 423, 424. ��� �