Hairston v. State. exist; and, as shown by the declaration of the party, would not arise except upon the happening of a certain event, to wit, the commission of a trespass by the other party. So far from the jury being allowed to infer an intent to murder, we think that the existence of that intent was, by the evidence, clearly negatived. In a somewhat extensive examination of the books, we have found no case of a conviction of assault with intent to kill or murder, upon proof only of the levelling of a gun or pistol. It follows, from these views, that while Wilson Hairston might properly have been convicted of an assault, the higher grade of crime was not made out against him. Whether James Hairston and Prowell were guilty participants in Wilson Hairston's unlawful act, we think doubtful under the testimony; especially so as to Prowell. If present only for the purpose of assisting in the removal of Johnston, they were guilty of no offense. If in doing this they were riotous, disorderly and threatening violence, they were guilty of a riot; but they can be held guilty of the assault committed by Wilson Hairston only upon testimony tending to show previous conspiracy or present participation in that act, or upon testimony from which the jury could rightly infer that they were present to aid and assist him in any unlawful act he might do. Judgment reversed and new trial awarded.. The theft of several articles at one time, and by one act, constitutes but one crime, and a judgment of conviction or acquittal of the theft of one of the articles is a bar to prosecution for the theft of the others.* NDICTMENTS, one for theft of a gelding, the other for theft INDI of a saddle and bridle. Conviction on former. On trial upon the latter, the prisoner pleaded autrefois convict, setting forth the former conviction, and charging that the saddle and bridle were taken at the same time with the gelding. The plea was struck out on demurrer. Conviction, and defendant appealed. C. K. Brenneman, for appellant. H. H. Boone, Attorney-General, for the State. ECTOR, P. J. [After stating the facts.] The general demurrer to defendant's plea of former conviction ought not to have been sustained. When there is a demurrer to a pleading, all the facts * See State v. Egglesht (41 Iowa, 574), 20 Am. Rep. 612 Quitzow v. The State. stated in the pleading which are well pleaded are to be taken as true, for the purpose of determining the sufficiency of the pleading. Although the plea is inartistically drawn, we believe, as a whole, it states facts sufficient to show that the defendant had been indicted in a court of competent jurisdiction, and tried and convicted for the same offense with which he is charged in the indictment. If so, then it is a right guaranteed to him by the Constitution and laws of the State that he shall not be again tried for the same offense. From a careful examination of the authorities, we believe if a man steal a horse, bridle, and saddle at the same time, and by one and the same act, the crime would be one and indivisible; and when the State has chosen to indict him for stealing the horse, and he has been tried and either acquitted or convicted (in a court of competent jurisdiction), he cannot be afterward indicted and tried for stealing the saddle and bridle. The prosecutor had a right to carve as large an offense out of this transaction as he could, yet must cut only once. Our Supreme Court, in the case of Richard Wilson v. The State, tried at the late Galveston term, decided that the stealing different articles of property, belonging to different persons, at the same time and place, so that the transaction is the same, is but one offense against the State; and the accused cannot be convicted on separate indictments, charging different parts of one transaction as if they were distinct offenses, as a conviction on one of the indictments bars a prosecution on the others. Where, by the discharge of a gun, or a stroke of the same instrument, an injury is inflicted upon two or more persons, and their death is produced, it has been decided there is but one crime committed. In The State v. Damon, 2 Tyler, 387, the defendant was indicted for an assault and battery on one Doty, and pleaded a former conviction on a complaint for an assault and battery committed upon one Miller, alleging that the wounding of each was by the same stroke and at the same time. The court said, in delivering the opinion: "It appears that the defendant wounded two persons in the same affray, at the same instant of time, and with the same stroke. On a regular complaint made, he has been convicted, before a court of competent jurisdiction, for assaulting, beating, and wounding Frederick Miller, one of those persons. He stands here indicted for assaulting, beating and wounding Elias Doty, the other of those Quitzow v. The State. persons; and the defendant pleads in bar the former conviction, which he alleges to have been for the same offense. The only question is whether the defendant has been already legally convicted of the offense charged in the indictment. Of this there can be no doubt, for it is apparent on the record that the assault and battery charged in the indictment, and that of which he was convicted by Mr. Justice RANDALL were at the same place, and in the same affray, and the wounds made by the same instrument and by the same stroke. This is not a question between either of the parties injured by the assault and battery and their assailant; redress has been, or may be, obtained by them by private action; but it is a question between the government and its subject, and the court are clearly of the opinion that the indictment cannot be sustained.” In The State v. Williams, 10 Humph. 101, the defendant was indicted for stealing a horse, saddle, bridle, blanket, and martingale, and it was decided to be but one offense. See, also, Laupher v. The State, 14 Ind. 327. In The State v. Nelson, 29 Me. 329, it was held that where the goods of several persons were stolen at the same time, so that the transaction is the same, one count in the indictment may embrace the whole. Lord HALE, 1 P. C. 531, says: "For it seems to me that if, at the same time, the party steal goods of A of the value of 6d., goods of B, of the value of 6d. and goods of C, of the value of 6d., being perchance in one bundle, or upon a table, or in one shop, this is grand larceny, because it is one entire felony, done at the same time, though the persons had several properties; and, therefore, if in one indictment, they make grand larceny." In the case of Ben v. The State, 22 Ala. 9, where the defendant was indicted for administering poison at the same time to three persons, it was objected by counsel for the accused that the indictment was bad because it charged the commission of several offenses in one count. But the court said: "We have examined these objections to the indictment with great care, and are constrained to hold that they are not well taken." See, also, Rex v. Benfield, 2 Burr. 980. Wharton, in his work on American Criminal Law, 391, says: "Where a variety of articles were stolen at the same time, and from the same place, and from the same or different persons, it has been held to be only one offense, and must be so charged." Judge DOWNEY, of the Supreme Court of Indiana, in a very able opinion Williams v. State. in the case of Clem v. The State, 42 Ind. 420, fully sustains the same position, and the right of the accused to be allowed to offer proof on plea of former acquittal for the same offense, where two men had been killed by the same shot, and at the same time. This plea is one very simple in its nature. The plea of former conviction is said to be a plea of a mixed nature, and to consist partly of record and partly of matter of fact. The defendant had a right to a trial and verdict on his special plea, and because this was denied him, the court below committed error. We deem it unnecessary to notice the other assignments of error. The judgment is reversed and the cause remanded. In an indictment for rape, the allegation, of "did forcibly ravish " is sufficient without adding, "against her will." * YONVICTION of rape. The opinion states the facts. CONVICTION No brief for appellant. A. J. Peeler, Assistant Attorney-General, for the State. WHITE, J. This case presents to us the appeal of a party who was indicted for rape, tried and found guilty, and his punishment assessed at confinement in the penitentiary for a period of ten years. The two main questions suggested by the record are 1st, one which arises from a clerical error, no doubt committed by the pleader in drawing the indictment; and 2d, the applicability of the charge of the court to the offense as charged in the indictment. In order to understand more fully the precise nature of these questions, we set out the charging portion of the indictment fully *See contra, State v. Jim, 1 Devereux, 142. "Ravish" implies force. Com. v. Fogerty 8 Gray, 489; State v. Johnson, 67 N. C. 55. |