Joslyn v. The State.

ordinarily be regarded as two distinct trespasses, is, in fact, only one. The authorities require the conclusion we have suggested. In the case of Phillips v. State, 85 Tenn. 551, the goods belonged to different persons, but were taken on the same night from the same room, and it was held that there were two distinct offences. In speaking of the trespass to the different owners it was said: "The wrong to one of them was no wrong to the other; and if the wrong to each was not a complete crime within itself, there is no wrong at all, because two acts involving the distinct rights and property of different individuals can not be coupled in order to constitute one offence against the law." Possibly the language used is a little too broad; but restricting it to due bounds, nevertheless, the principle declared decides the case against the State. Suppose, for the sake of illustration, that the appellant had been convicted of stealing Gunnison's property, and was subsequently indicted for stealing Parham's property, would the conviction be prima facie a bar to the second prosecution? To our minds it is clear that it would not be, although it is possible that if it appeared that the property of both owners was stolen in a single and indivisible act, the first conviction would bar further prosecution. If the first prosecution would not be a bar, and we think it would not be, it must be for the reason that prima facie there are two offences.

Resuming our consideration of the authorities, we quote from the case of Morton v. State, 1 Lea (Tenn.), 498, the following: Every larceny includes a trespass to the person or property of the owner of the thing stolen. A larceny of the property of O'Brien was no trespass to the person or property of Corbitt, and vice versa." In the case of State v. Thurston, 2 McMullan (S. C.), 382, it was held that taking cotton belonging to three persons constituted three distinct offences. The doctrine is carried much further-possibly too far-in Commonwealth v. Andrews, 2 Mass. 409, for it was there held that the offences were distinct, although there was a single

Joslyn v. The State.

act. But well-reasoned cases in California go to the same length. People v. Alibez, 49 Cal. 452; People v. Wasson, 65 Cal. 138; People v. Yoakum, 53 Cal. 566. The common law rule as stated in Nelson v. State, 8 N. H. 163, is this: "If one steal at the same time the goods of A. and also other goods of B., there are two distinct larcenies. 8 East Crown Law,

521." Some of the cases say that the rule is that "the plea of autre fois acquit or convict is sufficient, whenever the proof shows the second case to be the same transaction with the first." Copenhaven v. State, 14 Ga. 8; Holt v. State, 38 Ga. 187. Without going into an examination of the decisions of other courts in detail, we cite, as sustaining the doctrine that unless the transaction is indivisible and the same the offences are distinct, Vaughan v. Commonwealth, 2 Va. Cases, 273; Teat v. State, 53 Miss. 439; Burns v. People, 1 Parker Crim. C. 182; People v. Saunders, 4 Parker Crim. C. 196; Regina v. Morris, 10 Cox C. C. 480.

It is difficult to reconcile the doctrine of our later cases with that asserted in Clem v. State, supra, but it is not important that we should attempt to do so in this instance, nor is it necessary to determine which is the better doctrine, for, assuming that the doctrine of Clem v. State, supra, is sound, it in no wise impeaches our conclusion; for it is there held that the crime must be the product of one and the same act, and, conceding this, the information before us is bad.

In the case of State v. Elder, 65 Ind. 282, it was said: "When the same facts constitute two or more offences, wherein the lesser offence is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution to a final judgment will not be a bar to the second, although the offences were both committed at the same time and by the same act." Much to the same effect is the reasoning in State v. Hattabough, 66 Ind. 223, and Siebert v. State, supra. See, also, Davidson v. State, 99 Ind. 366.

Bingham et al. v. Walk et al.

We know that there are decisions hostile to the conclusion we here assert, but we are satisfied that our conclusion is right on principle, and sustained by the decided weight of authority.

It may not be amiss to say that we intimate no opinion as to what the rule should be upon a motion in arrest, for here the attack was made upon the information promptly, and the State had ample time and opportunity to cure the error. Judgment reversed.

Privileged Communications.

ATTORNEY AND CLIENT. Communications made by an agent of the client to his attorney concerning the client's business are not privileged communications as between the agent and the attorney, and, with the client's consent, the attorney may testify to them. EVIDENCE.-Res Gesta.-Where the question at issue is whether the husband or the wife was a member of a partnership, conversations between the wife and a member of the partnership relating to the management of the business are admissible as part of the res gesta.

SUPREME COURT.-Conflicting Evidence.—Where the evidence is conflicting the Supreme Court will not pass upon its sufficiency.

PRACTICE-Appeal.-Sufficiency of Complaint.-Where some of the defendants file a cross-complaint alleging the same facts alleged in the complaint, and asking the same relief, they can not upon appealing from a judgment in favor of the other defendants question the sufficiency of the complaint.

SAME. Where evidence is objected to on the ground of its incompetency and immateriality, an objection can not be made on appeal on account of the incompetency of the witness.

SAME.-Objections to Evidence.-Only such objections to the admission of evidence as are made in the court below will be considered on appeal. NEW TRIAL. Surprise.-Testimony of Adverse Party's Witness.-It is no cause for a new trial that the unsuccessful party was surprised by the testimony of a witness called by his adversary.

Bingham et al. v. Walk et al.

SAME.-Motion.-Counter-Affidavits.- Counter-affidavits controverting the facts contained in affidavits filed in support of a motion for a new trial may be received.

From the Marion Circuit Court.

F. Knefler and J. S. Berryhill, for appellants.
W. W. Herod and W. P. Herod, for appellees.

MILLER, J.-This case was brought by Henry H. McGaffey, as administrator of the estate of Wheelock P. Bingham, deceased, against Julia C. Walk, Harriet A. Bingham, widow, and George M. Bingham and others, children of Wheelock P. Bingham, to determine the right of property of a jewelry store in the city of Indianapolis.

The complaint avers that the defendant Walk and the decedent were equal partners in the jewelry store, which was of the value of more than thirty thousand dollars; that, after his appointment and qualification, the administrator called upon the defendant Walk and demanded of him an accounting of the partnership and firm affairs; that, upon such demand, the defendant Walk refused to account or to settle the business of the firm as surviving partner, asserting that Wheelock P. Bingham was not, at the time of his death, and never had been, his partner in said business ; that the estate of the deceased had no interest in the assets of the firm, but that the defendant Harriet A. Bingham was, and always had been, his partner in business.

The defendants Walk and Hattie A. Bingham answered jointly, by a general denial of the complaint, and, in a second paragraph, alleged that they were, and always had been, partners, composing the firm of "Bingham & Walk," and Wheelock P. Bingham was not a partner in the firm, and had no interest therein.

The appellants George M. Bingham and other children. of Wheelock P. Bingham filed a general denial to the complaint, and also a cross-action against Walk and Harriet A. Bingham, charging that their father was a full partner in

Bingham et al. v. Walk et al.

the business with Walk; that he refused to settle as a surviving partner, and asking for the appointment of a receiver to wind up the business of the firm and distribute the proceeds according to law.

The cause was submitted to the court for trial upon the complaint and cross-actions, and resulted in a finding and judgment for the appellees Walk and Harriet A. Bingham.

The administrator of Wheelock P. Bingham refuses to join in this appeal.

The sufficiency of the complaint is challenged by an assignment of error in this court; the objection being made that it does not show that Wheelock P. Bingham was indebted at the time of his death, so as to require any portion of the assets of the partnership to be applied to their liquidation, and that therefore the administrator was not an interested party within the meaning of section 6050, R. S. 1881.

The administrator and the children of the deceased were not, in interest, adverse parties.

In their pleadings they allege, substantially, the same facts and ask the same relief. They were alike unsuccessful in the litigation.

The appellees were their adversaries, and, as between them, the litigation was upon their cross-actions. We could not reverse a judgment in favor of the appellees because some of the pleadings of their adversaries are insufficient. We do not, therefore, pass upon the sufficiency of the complaint as a cause of action.

One of the causes for a new trial, the overruling of which is assigned as error, was the alleged insufficiency of the evidence to sustain the finding of the court. The other cause relates to the admission of evidence over the objection of the appellants.

The evidence, as it comes to us in the record, is very conflicting, and we can not, therefore, under the well established rules of this court, pass upon its sufficiency.