#### *Boies & Stuke ads. the State.*

Where two persons were jointly indicted for receiving stolen goods, and one of them was acquitted, the acquittal of one does not operate as a discharge to the other.

*Before*Earle, J., *at*Charleston, *May Term,*1841.

The defendants were jointly indicted for receiving stolen góods ; pleaded not guilty, and were tried together. The verdict was, guilty as to Boies, and not guilty, as to Stuke.

There had been a former indictment against them for the same offence,' including the charge of larceny; and on the hearing, this was quashed by the circuit Court; the Attorney general appealed.from this decision, and this motion was still pending when the. -present indictment was found by the grand jury, The counsel for the defendants relied on this to abate the present prosecution, and pleaded it in abatement,, or had leave to do so. But the plea was overruled, and the case was sent to the jury, who, on very clear evidence, convicted Boies.' The Court overruled the other ground taken, that as they were jointly indicted, there must be proof of a joint receiving, and that both must be convicted, or neither ; and the jury were instructed that they might convict both, or either, according to the evidence.

A motion was made in this case, in arrest of judgment, or for a new trial, on the following grounds:

1st. Because the indictment, in this case, charged a joint receiving, and the acquittal of one of the defendants, operated as a discharge to the other.

2d. Because the evidence in this case did not prove a joint receiving, which was *necessary to*the conviction of the defendants, under the charge in the indictment.

3d. That his Honor erred in refusing permission to the defendants to plead in abatement, *nunc pro tunc,*the pen-dency of a prior prosecution for the same cause, ruling that such a plea was immaterial.

4th. That the defendants having been jointly indicted for a joint offence, a conviction against one only, cannot be supported, and his Honor erred in so charging.

*2535th. The verdict was contrary to law and evidence.

*Kunhardt & Yeadon,*for the motion

cited, in support, 2 Eng. Crown Cas. 257.

*H.*Bailey, *Attorney*General, contra,

*Curia, per*

Evans, J.

The first, second and fourth grounds in this case, are founded on the supposition, that as the defendants were indicted for a joint offence, the proof, to authorize the conviction of either, must correspond with the allegation. On the civil side of the Court, if a joint contract be alleged, the proof must correspond; but for torts, the rule is different; a verdict may be rendered against as many as are proved to have participatedun the tort; and for those who are not guilty, the same rule prevails in the criminal Court. The indictment may charge' many, but if the proof be only against one, he may be convicted, and the others acquitted. The authority cited from 2 English Crown Cases, 257, does not, as the defendants’s counsel supposed, sustain his position. It goes no further than to maintain what no one doubts, that successive acts cannot be given in evidence under a count charging a joint act. The third ground was not. argued, and is considered as abandoned. ' The motion is refused.

We concur. J. S. Richardson, John Belton O’Neall, A. P. Butler, D. L. Wardlaw,

Earle, J., absent,