State v. . Trice

Ruffin, J. So far as can be seen from the statement of the case sent to this court, there was absolutely no evidence going to show that the defendant, Cuff Trice, connived at, or even knew of, the purpose of the other defendant to assault either of the two females whose names are specifically mentioned in the first and second counts of the indictment. He, then, was certainly entitled to the charge as asked at the hands of the court; and so was his co-defendant, since the offence charged was of such a character that the question of the guilt or innocency of one of the parties necessarily affected that of the other. The refusal of the court to give the instruction asked, taken in connection with that actually given, was in effect to tell the jury they might convict the defendants, upon the two first counts, though unsupported by any evidence, provided they thought them guilty under the third count. Indeed, the charge admits of no other construction, and is, therefore, palpably erroneous. It is not like the case of a general verdict of guilty upon an indictment, which contains some good counts and some defective ones. There, the rule is that the court may proceed to judgment upon the good counts, on the ground that the evidence was sufficient to justify a conviction upon each and every one of the counts; and the sentence of the court is presumed to have been given with reference to the good counts alone. But here, if any of the counts are good, all are good: they describe distinct offences, and not mere modifications of the same offence, varied so as to meet the probable results of the evidence, and the court is presumed to have proceeded to judgment under each and all of them, and, in fact has done so. In no case will the law permit a ver- *631 diet and judgment to stand against a party for an offence, of which the evidence taken in the cause does not convict him, even though other counts in the same indictment should be supported by proof. But, more than this-: what evidence in the case goes to support, in the least, the third count in the indictment, as pointing to any certain female person to the jurors unknown, as the subject of the conspiracy there charged? In cases where the person upon whom an offence is shown to have been committed, really exists, and yet his name should be unknown to the jurors, the law, from necessity, allows it to be so charged in an indictment; but still, the proofs must as completely identify the party injured as though his real name appeared upon the face of the bill. This must be so, or otherwise the record in such a case would afford no protection to the accused in the event of a second prosecution. It may be, and such seems to be the idea under which this indictment is drawn, that dealing in such articles as are mentioned in the indictment, under a belief, however absurd, that they would be productive of the effects described, is an offence against society and punishable as such, because tending to deprave public morals and to breaches of the peace. But, if so, they must be so chaz’ged, and not as offences against “certain persons to the jurors unknown.” There is not one particle of evidence in the cause to connect the defendant, Cuff Trice, with any offence upon any particular person, known or unknown, and none whatever tending to show any dealings, even, between the defendant, Charles, and Mack Cross, the other party named in the indictment. As a charge for a conspiracy, therefore, the prosecution must fail. Error. Venire de novo.