form it was thus presented, was not the statement of the use of several or various means, but it was a statement that appellant resorted to but one mode or means to accomplish the death of the deceased, namely, by the effect of two co-operating causes which in combination, and not singly, produced or caused death. The pleader, having thus fairly and clearly stated that two co-operating causes when acting in combination produced death, could not, in fairness, under the rules of pleading, claim that his allegations, single and restrictive as they were, authorized a conviction for only

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one of the causes, but, under the restricted form of his allegations, he was required to prove that the two causes cooperated, and that death resulted from their combined effect. If the pleader had desired to rely upon the two causes separately as well as upon their combined effect, he easily could have done so by stating in one count that the means used by the appellant to kill were beating, kicking, bruising, and by administering poison, and by any other means which the pleader thought the evidence might show were used. The pleader could have gone further and stated that the deceased was killed by means unknown, and thus have proved any means upon the trial. Moreover, under our statute (section 4734, Comp. Laws 1907), the means could have been stated in the alternative in the same count. Again, the means could have been stated as continuous; that is, that whatever means were used were applied and continued for a shorter or longer period of time, and that death was ultimately caused by the means so described. Where this form of pleading is used, the prosecutor need not establish anything more than that death resulted from any one or more of the means alleged, or that it was produced by a combination of two or more of the means described. This rule has so often been passed upon and enforced by the courts that it has become established beyond dispute. Among numerous other cases that might be cited we refer to the following well-considered cases: King v. State, 137 Ala. 47, 34 South. 683; State v. McDonald, 67 Mo. 17; Howard v. State, 34 Ark. 436; Smith v. Commonwealth, 21 Grat. (Va.) 811; Anderson v. United

States, 170 U. S. 492-500, 18 Sup. Ct. 689, 42 L. Ed. 1116; Joy v. State, 14 Ind. 143; Merrick v. State, 63 Ind. 327; State v. Edmundson, 43 Tex. 163; Commonwealth v. Macloon, 101 Mass. 23, 100 Am. Dec. 89; State v. Fiester, 32 Or. 254, 50 Pac. 561; People v. Davis, 56 N. Y. 95; Jackson v. State, 39 Ohio St. 37; State v. Hewes, 60 Kan. 765, 57 Pac. 959; Commonwealth v. Stafford (Mass.), 12 Cush. 619; Gonzales v. State, 5 Tex. App. 584; State v. Smith, 24 W. Va. 820-821. See, also, Wharton on Homicide (3d Ed.), section 563; Bishop's Directions and Forms (2d Ed.), sections 20-21, 535. Bishop, in section 21, just referred to, in summarizing the benefits and advantages resulting from stating the means applied by the accused in the commission of crimes in one count, is very careful to state, however, that the statement must be strictly limited to one, and only one, transaction. He says:

"This method, namely, charging the offense, whatever it is, in one count, as committed in all the ways known to the law and not inevitably inconsistent with one another, within the probable range of the proofs, and directing the jury that they may find a verdict of guilty on being satisfied of the truth of so much of the allegation as constitutes the offense, is abundantly sustained by the authorities; while it is practically superior, above all comparison, to the cumbcrsome indictment of many counts. Let it be borne in mind that what is thus to be set out is simply one transaction, which, and only which, is to be given in evidence to the jury. The charges therefore is homogeneous. The prisoner, the counsel, the court, the jury, all have before them the one thing and no more." (Italics ours.)

If thus but one transaction is referred to, the accused cannot require the state to elect as between different means that it is alleged caused the death. The whole case is submitted to the jury, and it is for them to say from the evidence what the means were that were used and what one caused death, and, if any one caused it, the charge is sustained. The doctrine just stated is illustrated in the foregoing cases under various circumstances! If the cases are critically examined, it will be found that in all of them it is made apparent that only one transaction was intended to be charged and described. In other words, it is clear from the cases that

the pleader intended to state, and did state, that the means alleged in the indictment or information were the means used by the accused to kill the deceased, and that the charge referred to and covered but one transaction. This is especially illustrated in the cases of State v. Edmundson and Commonwealth v. Macloon, supra. In those cases the means used to produce death were applied during a period of several months, and yet the acts of the accused were treated in the information as a single transaction. This fact is also frequently referred to in most, if not all, of the other cases cited. Moreover, some of the cases also illustrate that different means may be stated in different counts, and, if it is clear that only one transaction is intended to be referred to, the prosecutor is not required to elect between counts, although different means are pleaded in each count. In the case at bar the pleader, however, adopted the method of stating not only different means in different counts, but he also referred to two separate and distinct transactions, one occurring and having been completed on the 26th day of November, and the other occurring and having been completed on the 27th day of the same month. The district attorney recognized this situation when he admitted that the state should elect, but the difficulty is that in adding the third count and upon which the state elected to ask a conviction the pleader simply reiterated the statements contained in the first two counts, and left the matter, in so far as charging two transactions, one occurring on one day and the other upon the next, just as they were in the two counts, which, by the election, were eliminated from the case. The state, therefore, surrendered nothing and the accused gained nothing by such an election. There is one, and only one, ground upon which the court's ruling in denying appellant's second motion can be sustained, which is that the pleader in the third count stated but a single means as causing the death of the deceased, namely, the co-operation of two distinct causes which produced the mortal sickness from which it is alleged the deceased languished and finally died. The pleader had a right to accuse appellant of having used one, two, or more means, or of causing death by applying

two distinct means as co-operating causes, the joint effect of which produced death. As we have seen, the pleader could have availed himself of charging all these means by pleading in a certain way. He did not choose to do so, but specifically alleged that the appellant committed an assault upon the deceased and used certain means on one day, and that he committed another assault and applied certain other means on another day, and that the effect of the means so described co-operating together produced a mortal sickness which caused death. The effect of the allegations in the third count is that the two causes, one arising from the beating and bruising and the other from the administering of the poison, co-operating together, produced death. This being so, the court was right in not requiring the state to elect, since in legal effect there was but one cause of death alleged, namely, the joint effect of the beating and bruising co-operating with the effect produced by the poisoning. It is also clearly shown by the record that the trial proceeded upon this theory. The physicians testified that death did not result from either the beating alone, or from the effects of the poison alone, but that it was caused by the co-operating influence of the effects of both, and this thus constituted but a single, and the real, cause of death. This, in legal effect, is just what was charged as the means of death in the third count. But, notwithstanding this, the court ruled and instructed the jury that they could find the appellant guilty if they believed from the evidence beyond a reasonable doubt that the deceased died. from the effects of the beating and bruising and kicking alone, or from the effects of the poison alone, or from the combined effects of both. As we have seen, this charge might have been proper if the information had been different, but, in view of the language contained in the third count of the information, there was no distinct charge left upon which to base a finding that death was caused except from the co operating causes, which in and of itself excluded the charg that either one of those causes produced, or could have produced, death. The court therefore erred in charging the jury as aforesaid.

But the court further erred in instructing the jury as stated above, because there was no evidence before the jury upon which they could find the appellant guilty of having committed murder by the means of beating, kicking, and bruising. The first count was eliminated from the case, and, as we have seen, the third count did not contain a sufficient statement that the beating, kicking, and bruising produced death. In the third count it was charged that death was caused by two co-operating causes. This being the charge, it would have to be sustained by proof in order to convict. In referring to this point, the author of Wharton on Homicide (3d Ed.), section 563, at page 848, says: "But an indictment charging the death to have been occasioned by two co-operating causes, if the evidence fail to support one of the causes, is insufficient." From this it further follows that, although there had been a sufficient charge left in the infor mation that death resulted from the beating and bruising, yet, there being no evidence in support of this charge, the instruction that a conviction could be based thereon cannot be sustained. The Attorney General recognizes this difficulty, and, to overcome it, suggests in his brief that the charge of the court can be sustained upon the theory that the jury were authorized to disregard the testimony of the doctors with respect to the cause of death, and that they were authorized to find that the effects of the beating and bruising alone caused death, notwithstanding the testimony of the doctors to the contrary. If there had been no autopsy from which it was made to appear that there were no internal injuries or evidences attributable to the beating and bruising, and that death was not caused by the beating, the jury might, perhaps, have been justified in finding that the beating resulted in internal injuries from which deceased died. While it is true that ordinarily a jury, after considering and weighing purely opinion evidence if contrary to their own knowledge and experience, may disregard such evidence entirely, but they may not do so where witnesses, although testifying as experts, testify to symptoms and conditions actually seen and observed by them. Where

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