State v. Bell

delivered the opinion of this Court.

The only error assigned in this record is the action of the Circuit Court in requiring the State’s Attorney to elect, upon which of the first four counts, in connection with the fifth or last count, he would proceed to trial. “The application for a prosecutor to elect, is an application to the discretion of the Judge, founded on the supposition that the case extends to more than one charge, and may, therefore, be likely to embarrass the prisoner in his defence.” Regina vs. Trueman, 8 C. & P., 727 (34 Eng. C. L., 605). In this case the application was made after the traverser had pleaded to the indictment, and the jury had been sworn, and is alleged to have been made too late; this objection, however, was properly waived by the Attorney General in the argument. In Burk vs. The State, 2 H. & J., 426, it was decided that “after a prisoner has pleaded generally to an indictment, having two counts, the jury may be sworn and charged upon one of the counts only, to the exclusion of the other.” It follows from this that in a case where the prosecutor ought to be required to elect, the motion for that purpose may be made at any time during the trial.

*678“When the indictment contains several counts, charging two or more distinct offences, the Court will, on motion, order it to be quashed, or compel the prosecutor to elect on Avhich charge he will proceed. But such election will not be required to be made when several counts are introduced solely for the purpose of meeting the evidence as it may transpire, the charges being substantially for the same offence.’' Whar. Am. Cr. Law, s. 416, and cases there cited; see also secs, 422, 423. We think the above citation from Wharton contains a correct statement of the rule, and applying it to the indictment before us, Ave are of opinion that the several counts Avere properly joined ; and as they do not charge distinct offences, but evidently relate to the same transaction, the attorney for the State ought not to have been required to elect. In the case of Regina vs. Strange, 8 C. & P., 172 (34 E. C. L., 341), where the indictment was under the Statute, 7 Will., 4, and 1 Vic., ch. 85, and charged the offence in various forms, as in this ease, it Avas held by Lord Denman, O. J., and Mr. Justice Park, that the prosecutor could not be compelled to elect on Avhich charge he should proceed, and Ave entirely concur in the propriety of that decision. We have deemed it proper to express our opinion upon this question, on account of its intrinsic importance, and for the purpose of settling the practice in the State ; although the alleged error is- not one which can be revieAved and corrected by an appellate Court. It is well settled that such motions are addressed to the discretion of the inferior Court, and a Avrit of error will not lie from its decision thereon. Bailey vs. State, 4 Ohio N. S., 440 ; State vs. Leonard, 22 Miss., (1 Jones,) 449. In this case no benefit could accrue to the State even if we had power to revieAv and reverse the decision of the Circuit Court; the defendant in error could not be again put upon his trial on the second, third, and fourth counts, because having been *679acquitted of the assault charged in the fifth count, he has virtually been acquitted upon all.

Writ of error dismissed.