State v. . Deaton

Asi-ib, J. (after stating the facts). There was error in the refusal of the judge in the court below to arrest the judgment. The offences charged in the warrant are of such a character that they cannot be jointly committed. Drinking is a personal vice *790 which attaches to the individual. It is a physical as well as moral infirmity, brought on by one’s voluntary act, and no two persons can participate in the same identical physical condition. The same in regard to,using improper language. The words spoken by two persons though they may be literally similar, yet they are the words of each, distinct from the words of the other. Thus it has been held that two persons cannot be jointly iudicted for perjury, or for seditious, obscene and blasphemous words, because such offences are in their nature distinct — ■ Wharton’s Orim-inal Law, 430 — and it is laid down in 2 Hawlc., oh. 25-89, that “even when several commit a joint act, which act, however, is not of itself illegal, but becomes so merely by reason of some circumstance applicable to each individual severally and not jointly, they must be indicted separately.” Some of the authorities, we are aware, maintain that offenders may be included in the same indictment, when they are charged with offences distinct in their character, but must be charged “ separa,liter.” That, however, even if law, was not done in this case, and we are of opinion the warrant was fatally defective for joining offences that were distinct and could not be jointly committed. . The judgment of the Superior Court must,, therefore, be overruled. Let this be certified. Error. Reversed.