Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-19


same countst that the defendant did ''slIr, u
of and bite of the ear" etc.
From the Circuit Court of Jefferson
county, Hon. ]. P. Swami, J., presiding
on motion quashed the indictment and
the State appealed.
Attorney General Heiskell, for the
State.
J. r. Cooke, for defendant.
OPINION.
| The charging party of the Indictment
in this case is, that the defendant on etc.,
"unlawfully, maliciously and feloniously,
did slit, cut off, and bite of, the ear of
John Tarwater, whereby the said John
Tarwater is manned and disfgured, ETC., "
and it is insisted, for defendant, that the
indictment is bad, becauses it charges two
or more distinct offenses in one court.
1t is provided among other things, 10 the
Code s 4, COG, that no person shall un-
lawfully and maliciously slit, cut
off, OF bite off the nose, ear,
or lip of another, or any part of either of
them, whereby the person is MANNED or
disfgured; and it is argued for the de-
PENDANT, that the three offenses of slit
ting, cutting off and biting off, the nose,
ear or lip of another, are embraced in the
statute, and cannot be included in one
count of the same Indictment. If hi
were valid objection at common law, it
was, probably, the intention of the Legis-
lsture to guard against it, in Code s.
8, l21, which provides that Can offense
may be charged In an Indictment, in diff
ferent forms, SO as to meet the evidence
in the case, and where it may have been
committed by different means, the means
may be alleged in the same count in the
alternative"
While each of the acts of Sitting, cut
ting off, and biting off, may be commit
ted separately, and be indictable, we can
not say that they may not be committed
as parts Of the same transaction, so as to
constitute one offense, nor that, if they
are jointly charged, the proof of either
would not be sufficient to support the in
dictment. The defendant cannot be em-
barrassed in his defense, nor could the
court be at loss to pronounce judgment,
as where feloDies of different nature and
punishable in different manner, or dis
tinct felOnies and misdemeanors, are en-
bracec 10 the same Indictment. In Wbar-
tons Or. Law, I'd Ed, 141, it is said,
"WheTe statute, makes
two OF more distinct acts connected with
the same transaction, indictable, each one
of which may be considered as rep
a stage in the same Of
Tense, it has, in many cases, been
ruled that they may be coupled in one
count. Thus, setting up gaming table,
it has been said, may be an entire offence,
keeping a gaming table and inducing
others to bet upon it, may also constitute
a distinct offence. Yet, when both are |
by the same person at the |
same time, they constitute but one
offence, for which one count is sufficient, |
and for which, but one penalty can be |
Inflicted. An indictment which charges
the prisoner with the offences of falsely |
making, forging and counterfeiting; of |
causing and procuring, to be falsely |
made, forged and counterfeited, and of |
acting and assisting in the said |
false making, forging and counterfeitIng, |
s good Indictment, though all of these
charges are contained in single count. "
% q COuul III Ill luulClHuenI Is uOI OO-
nurrable for duplicity, which charges that
defendant destroyed and maliciOusly |
caused certain property to be destroyed;
nor a count which charges that the de-
PENDANT did administer to and cause to be
administered to, and taken by three GER
ain persons, quantity of arsenic.
Wat. Arch. G. P. 4. And, in this case,
be three acts charged may constitute one
lffense, and De punishable as such, or the
iverments may be Givisible, as upon iu-
lictments for murder, burglary and lar
,eny, robbery and larceny, larceny of
more articles than one, the battery of two
II more persons, or the libel of two or
more persons, where it is one single act
md the like. Rose, CT. Ev. %. Ed. 30, 81.
This view of the case is not in conflict
With the opinion in Whiteside VS.. The
State 4 Cold. 1S2, 1873. There the
harge was in the distinctive, but here
he various acts are connected by the
opulative conjunction. 1t follows that
be Circuit Court erred in quashing the
and the judgment is reversed
nd the Csnse remanded.
NELSON, Judge.