Richardson v. The State.

In the case at bar the parties appeared without notice, which cured the defect of want of notice. See Stephenson v. Farmer, 49 Ind. 234.

The judgment is affirmed, with costs.

RICHARDSON v. THE STATE.

CRIMINAL LAW.-Assault and Battery.-Evidence of Two Offences.—Election by the State.-Where, in a prosecution for assault and battery, the State has given evidence, on the trial, of one as ault and battery, committed by the defendant upon the person of the prosecuting witness, she thereby elects to claim a conviction for that offence, and can not properly give evidence of another and distinct assault and battery, committed by the defendant upon the person of the prosecuting witness, and elect to abandon the former, and to claim a conviction for the latter, offence.

From the Delaware Circuit Court.

G. H. Koons and W. March, for appellant.

T. W. Woollen, Attorney General, and A. V. Marsh, Prosecuting Attorney, for the State.

WORDEN, J.-This was a prosecution charging the appellant with having perpetrated an assault and battery upon Elihu Ervin. Conviction.

On the trial, the State gave evidence of an assault and battery committed by the defendant upon the person of Elihu Ervin, and afterward offered evidence of a subsequent, but distinct and separate, assault and battery, perpetrated by the appellant upon the same person. To the latter evidence, the defendant at the proper time objected, on the ground, in substance, that the State, having given evidence of the first assault and battery, had thereby elected to put him upon trial for that offence, and could not then give evidence of a subsequent assault and battery; but the objection was overruled and the evidence admitted.

Richardson v. The State.

During the progress of the cause, the court required the prosecuting atttorney to elect on which of the offences he would rely, and he elected to rely upon the second. The court thereupon charged the jury, amongst other things, as follows:

"6. Two difficulties between the defendant, and the prosecuting witness have been put in evidence, although they transpired near each other, yet so far apart that they constitute different transactions. The prosecutor has elected to rely upon the second transaction for a conviction, and you will have nothing to do with what took place at the first difficulty."

There was but a single charge of assault and battery; and the question arises whether, upon such charge, the State may give evidence of several offences, and then select one upon which to rely for a conviction, and abandon the others. We are of opinion that this can not be legally done.

When the State gave evidence of the first assault and battery, she elected to try him for that offence, and she could not afterward abandon the election thus made, and put in evidence of another offence.

The case of the The State v. Bates, 10 Conn. 372, is in point. In that case the prosecution was for adultery. The State had given evidence tending to establish one act of adultery, and then gave evidence of several other acts of adultery with the same person. The defendant objected to the evidence not confined to one act of adultery; but the objection was overruled.

The court said, "The only question in this case, regards the admissibility of the evidence offered on the part of the State. The information charges but one offence, and that in a single count. Is the State, under such an information, confined to a single offence, in the proof? Or may the prosecutor, having given evidence of one act of adultery, VOL. LXIII.-13

Nelson et al. v. Neely.

still be permitted to introduce proof of any number of acts, committed, indeed, with the same person, but at different places, and at different times? I do not see upon what principle such a claim can be supported. It is, obviously, opposed to the usual course of proceedings; and would, to say the least of it, be exceedingly inconvenient in practice. The accused comes prepared to defend against a single charge. This he may do successfully-and having done so, may find himself overwhelmed, by a multitude of others, of which the information gave him no notice, and against which he can not be supposed to be prepared. And the prosecuting attorney, instead of shaping his case, at the outset, in the most favorable manner, may detain the court and jury, by proving any number of offences, and then elect upon which to claim a conviction. And why should this be done? He is supposed to be in possession of the proofs, and should make his election from the first. In this there can be no hardship; and such is the well settled rule in all analogous cases." For analogous cases, see 2 Greenl. Ev., sec. 624, and notes.

The judgment below is reversed, and the cause remanded for a new trial.

NELSON ET al. v. Neely.

PRACTICE.-Parties.- Witness.-Default.-Answer struck out.—Where one of several defendants, who has been subpænæd as a witness on behalf of the plaintiff, refuses to appear and testify on the trial, the court may order that his answer be struck out, and that he be defaulted.

SAME.-Joint Answer.-In such case a joint answer by him and a co-defendant may be struck out, so far as the former is concerned.

PROMISSORY NOTE.-Partnership.-Note executed by one partner, in name of co-partner.-Judgment NonObstante.-Interrogatories to Jury.-Payment.

Nelson et al. v. Neely.

In an action against A., B. and C., as makers, on a promissory note purporting on its face to have been executed by A., in the individual names of A., B. and C., wherein B. and C. answered by a verified denial, the jury, with their general verdict against A., and in favor of B. and C., found specially, in answer to interrogatories, that A., B., C. and D. were partners at the time the note was executed; that D.. was a resident of another State and unknown to the payee as a partner; that the note in suit was executed for personal property sold, and money loaned, by the payee to A., for the partnership, in the regular course of the partnership business; and that such property and money had passed into the partnership fund.

Held, that, as to B. and C., the answers to the interrogatories are inconsistent with and control the general verdict, and that judgment should be rendered against them.

Held, also, there being no plea of payment, that it was not necessary, to warrant such a judgment, that the jury should have found specially that the note was unpaid.

From the Madison Circuit Court.

H. D. Thompson, R. Lake and W. R. Pierce, for appellants.

J. A. Harrison, for appellee.

BIDDLE, J.-The appellee brought this action against the appellants, on the following promissory note:

"September the 1st, 1864. "$704.33. Four months after date we promise to pay to the order of B. Neely seven hundred and four thirty-three one hundredths dollars, value received, without any relief whatever from valuation or appraisement laws."

Signed,

"JOHN NELSON,

"WEEMS HEAGY,
"JOHN COBURN,

"By JOHN NELSON."

Coburn answered the complaint by a denial, sworn to.

Nelson and Heagy answered by a general denial.
Nelson also pleaded his discharge in bankruptcy.
Reply.

No question is made on the pleadings.

Upon calling the case for trial, Nelson, who had been

Nelson et al. v. Neely.

served with a subpoena by plaintiff, requiring him to appear and testify in the case, was absent.

The court, on motion of the plaintiff, struck out the answer of Nelson, because, as the bill of exceptions informs us, of his failure and refusal to attend and appear in person as a witness at the trial of this cause, but in disobedience of said subpoena had gone to Indianapolis, out of the jurisdiction of said court; whereupon Nelson was defaulted. Trial by jury; a general verdict against Nelson, and in favor of Coburn and Heagy.

With the general verdict, the jury, in answer to special interrogatories, found the following facts:

That the defendants entered into partnership with Henry Nelson, prior to the 1st day of September, 1864; that they were equal partners; that the partnership continued until the year 1865; that Henry Nelson resided in the State of Illinois, and the other defendants in Madison county, Indiana; that said partnership was formed, in part, for the purpose of buying hogs in Madison and other counties of Indiana, to be shipped and sold for the benefit of the firm; that they bought and shipped a large number of hogs, for the joint use of the firm; that, during the partnership, the defendants did the buying for said firm, in this and other counties of Indiana; that, by the agreement of partnership, the defendants were to do the firm business of buying hogs in Indiana; that, in transacting the business of the partnership, each of the defendants bought hogs for the firm; that John Nelson did the greater part of buying hogs in this county, for the firm; that John Nelson, during the existence of the partnership, and while he was buying hogs for the firm, borrowed money of the plaintiff, on the credit of the defendants. as partners; that John Nelson, about the 1st day of September, 1864, and during the time he was so buying hogs, executed the note in suit; that John Nelson signed his own name,