Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-03-21


This WAS an indictment containing two counts tie
first against Polly Baily for perjury and the second
against the defendant, John W. Lea for subordina-
ton OF perjury In the second count the manzer u
winch the perjury was committed By the said Poly
nally Is attempted to be set out without shy refer
eeee 70 me anfecedent count and the a1bordinzlon
cnsrged against the said Lea consists in fslonisnsT
procuring the said Polly Baily 70 commit the per
jury 10 tins second couns-omitfinl also in dks
oreeen Of the accusation any notice Ct the arpr-
H,sn1 contained IN the frat count The counsel q
Lea moved the Circuit Court 70 quash he 7ndlotz
mens upon the ground "a stated il sr1u.serf-
Hislo.noer Of persons and Offences and theeanpon
t1e Attorney General for the State wi.h fs 1900
ne eoqrt entered nolls proaiqui Is % the saf
Folly bally bgt the counsel 81 - .f ius;.fss -.
his motion 70 qunsh, which was anssaip.5 - -
orceit Court and the State sppsais
IL Is now commended By the counsel cf Ia. 49, a.
Indictment az 70 hum Is fatally detective uDon zsrv
GROUNDS: ana TINS u conceded 70 be 20 81 he AZ
torney General, unless the count azsiEst he sr,.
ed (Iea) can be supported By the srermenss = -
first CONT against Pelly BailE ard on ne .rl.-
hand it is not denied BY the COUNSEL az "a -, Z.
this can be done the indictment against rim = 80
So that the case resolves ints he qnssskon wls.S-
er the count 2gainst the prisoner fea1 can e - 49,
aid from the antecedent count against Polly BriIev
We not able TO perceive why these parties Tess
not properly joined In the same Indictment s~5
charged in separate counts, though their oaeness
be distinct They were Of the same nature-adnir-
N4cA-
Campbell W. the State 3, Yerg. 39S
But il Is not material 70 consider this e. il 1,
disposed Of BY the nolle prosequi. Undoubtedly
as We think, one count IN an Indictment incosi-
plete and imperfect in itself when standing aldno
may, framed with that view, be supported By he
ayerments Of another Contained in the same indcf-
nent- And this is SO, although the other count may
be bad, and may have been euashed, OF being geo.
nolle prosequi may have been entered upon t.
provided the united avermenfs Of the two, / e. he
principal count and the matter borrowed from the
other-c0nstitute together 3 complies accusation.
and statement Of the offence
But 70 have this effect. the count upon which the
prisoner is 20 be tried must contain = rafereBee IN
apt and proper words, to the matter or thing en-
bodied in the other count-relied up TO supply is
dsfects-so as to appropriate and make such for
eign matter its own. And = want Of proper aver
menks IN q subsequent count win not Be aided by
such allegations IN former count, where there Il
no reference to such former count for the finding
Of the omitted fact or aTermenE Each count must
be complete indictment within itssif char~inr Al
The facts and circumstances that make the crime
But it is not the less so by incorporating into il
by apt syermentz, the allegation IN former could
IN the same Indictment But this must be Clearly
done By reference to something certain. before lie
former count can be looked to. Nr. Chitfy. in his
work on criminal law, Il Gritty Or, Law, 2lg-25e3
says: every separate count shorld charge the BE-
PENDENT as II he had committed dissinct oence BE-
cause it IS upon the principle Of the joinder Of Of
fences, that the loinder Of count Is admitted And
though every count should appear upon the face cf
IL. to charge the defendant with distinct offence.
Yet one count may refer to mater in any other
count so avoid unnecessary repetiens and though
The first count should be defective or be rejecfed
BY the grand jury, this circumstances viii not ritz
lte the residue; but the ether count refers 70 =
writ or warrant improperly set forth in the frst
he whole Indictment viii be invalid.
The same doctrine prevails in civil proceedings.
IN Chitty's pleading, $50, the rule Is thus stated
In forming second or subsequent count, for The
Iame cause Of action, care should be taken -
Ivoid any unnecessary repetition Of the same mat
er, and by an inducement in the first count applY-
ng any matter TO the following counts to such IN
lueement, much Unnecessary pr0h,dty may b.
.yoided and this is usual in actions for words and
proper to be attended to in all c1ses.
But unless the second count expressly refers %
he first, defect therein viii be sided BY the prs
ediHg court for though both counts are in the same
declaration Yet they are as distinct as Il they
we're inseparate declarations. and consequently they
must independently contain AL necegsary alegafIcns
,r the lattes count must expressly refer to the for
ner. In support of this practice thus laid down BIZ
he same author in his two works, the one upon
criminal and other civil pleading HIM Bla., 13l-2
with other authorities cited. In Bac. Alb,
Jpleas and pleading, B. ~ lss-h there be
no difference in the one count to the other,
he rule is stated to be, that any thing in the
first count which not right could not help any de-
ect in the record for though they both were put IN
me declaration, yet they were az distinct as
{ they had been in two several setons
% we understand the rule TO be as laid down IN
Theaton's Or. Law, 154. 2Og, to which we have
by East, 1913. Opinion Of Lawrence s.
But if the count can derive no aid from another
without an express reference to the material mat
er in that other-vhere the several counts in ths
Indictment are but 90 many different modes Of laying
he same ofence-it is equally clear that where
IS here-the counts not only embrace distinct Of
ences but different offenders the reference is necss
AIRY, and without it each count must stand or fall
lpon its own allegations.
This being So and the count against the defendant
-ea BY itself being bad because Il does not proper
y state the guilt or perjury upon Polly Baily-
Without which the accessorial Office Of subordlna-
ion Of perjury cannot exist; and forasnuch, Is We
hink it does not refer to the aTerments or matter
f the first count as to enable US to lock to them
hold the Circuit Judge did not err in quashng Is,
nd affirm his Judgment. WMoHT.
A true copy. W. Z. CAswEIL, Clerk