ferent counts of the same indictment. Each renders the indictment bad. But the same offense may be stated, however, in two or more ways. In an indictment for murder, the killing may be charged in several ways. But if more acts than one are charged, or acts with respect to more than one person, the count is not double if such acts were all part of the transaction constituting the offense. Thus, a battery and murder of two or more persons may be alleged in one count.2 And in burglary, a breaking and entering with intent to commit a felony, and the commission of the felony after entering, may be charged in one count.3 The rule is that a crime within a crime may be charged in the same count, that is where the charge of a crime in its largest form includes one or more crimes of lesser degree, there is no duplicity. An indictment for rape may include an assault with intent to rape,* or an indictment under a statute for assault with a deadly weapon with intent to kill, may include the elements of three crimes. Two or more averments having substantially the same meaning, made with the same purpose may be used, as 1 People v. Casey, 72 N. Y. 393; People v. Schlessel, 22 N. Y. Cr. 543, 112 N. Y. S. 45; Thomas v. State (Tex.), 26 S. W. 724. See also, People v. Crawford, 278 Ill. 134, 115 N. E. 901. 2 People v. Ellsworth, 90 Mich. 442, 51 N. W. 531; Wilkinson v. State, 77 Miss. 705, 27 So. 639; Rucker v. State, 7 Tex. App. 549; People v. Goodman, 283 Ill. 414, 119 N. E. 429; State v. Thornton, 142 La. 797, 77 So. 634; People v. Warriner (Cal. App.), 173 Pac. 489; McNeil v. United States, 246 Fed. 827, 159 C. C. A. 129; People v. Stine, 199 Ill. App. 422. 3 Reed v. State, 147 Ind. 41, 46 N. E. 135; 1 Bish. New Crim. L. (8th ed.), § 1062. 4 Farrell v. State, 54 N. J. L. 416, 24 Atl. 723; State v. Fleeman, 102 Kans. 670, 171 Pac. 618 (prosecution under White Slave Law); State v. Kerr, 117 Maine 254, 103 Atl. 585; Ruthenberg v. United States, 245 U. S. 480, 38 Sup. Ct. 168, 62 L. ed. 414; United States v. Casey, 247 Fed. 362 (conspiracy to set up or keep house of ill fame, brothel, or bawdy house within prohibited zone of military post in violation of the Selective Service Act, May 18, 1917); Rodgers v. State (Ark.), 201 S. W. 845 (charge that accused received for storage, distribution, or on consignment for another, alcoholic liquors, not bad for duplicity). 5 People v. Beam, 66 Cal. 394, 5 Pac. 677; State v. Bednar, 18 N. the accused may be charged with keeping a disorderly house to which lewd persons did resort. It is held where one count charges larceny and another receiving stolen goods, or where one count charges burglary and another receiving stolen goods, there is no misjoinder. This holding, however, is anomalous. It has been held that where one count charges burglary, another larceny, and a third receiving stolen goods, that the indictment is demurrable for misjoinder. Upon principle this view is correct, as the indictment in such case charges more than one crime. A count is not double which charges in addition to the specific offense, merely aggravating circumstances, such as a previous conviction, which affect only the penalty. If two offenses are charged and one insufficiently alleged, it may be rejected as surplusage, and whenever allegations may be rejected as surplusage, the count is not double. An indictment which charges conspiracy to commit a certain crime and also the commission of the crime is not bad for duplicity. For this there are two reasons assigned: First, that the averment of the commission of the crime is a mere averment of an overt act, which is evidence of the conspiracy; second, that where the completed act is a felony, the conspiracy merges in it, hence the averments as to conspiracy may be treated as surplusage. But where conspiracy is by statute made a felony, or where the act done in pursuance of the conspiracy is only a misdemeanor, the second reason fails. The same rule applies to the indictment for Dak. 484, 121 N. W. 614, 20 Ann. 6 State v. Toombs, 79 Iowa 741, 45 N. W. 300; People v. Carey, 4 Park. Cr. (N. Y.) 238, Sheld. 573; State v. Gipson, 92 Wash. 646, 159 Pac. 792 (desertion and nonsupport). 6a State v. Thornton, 142 La. 797, 77 So. 634; People v. Goodman, 283 Ill. 414, 119 N. E. 429. 6b People v. May, 166 N. Y. S. 351, 179 App. Div. 290. 7 State v. Moore, 121 Mo. 514, 26 S. W. 345, 42 Ann. St. 542. 8 State v. Palmer, 35 Maine 9; State v. Henn, 39 Minn. 464, 40 N. W. 564. 9 Hoyt v. People, 140 Ill. 588, 30 N. E. 315, 16 L. R. A. 239. burglary, which avers a breaking with intent to commit a felony, and also the commission of the felony.10 A single criminal act may constitute two separate crimes. It does not follow that both crimes may be averred in the same indictment. A single criminal act may injure two or more persons, thus the property of several different owners can be stolen at the same time by one act, and in this case the value of all the property may be considered to make the offense grand larceny, and in the same indictment the ownership of the property may be laid in the several owners, the criminal act constituting but a single offense.12 Some authorities, however, hold the contrary." 13 Duplicity in the indictment may be waived by the defendant.14 It may be taken advantage of by motion to quash,15 demurrer,16 or compelling the prosecutor to elect as to the charge.17 It may be cured by pleading over, since it is merely a formal defect. In some states where two distinct offenses are charged, which require distinct punishments, it is held that advantage may be taken of such fact by motion in arrest of judgment, or perhaps appeal;18 but the general rule is that a failure to object before verdict is a waiver. A conviction as to one of the offenses and an acquittal as to the other effects a cure,19 10 Bailey v. State, 116 Ala. 437, 22 So. 918; Reed v. State, 147 Ind. 41, 46 N. E. 135. 11 See Commonwealth v. Igo, 158 Mass. 199, 33 N. E. 339; State v. Dorsett, 21 Tex. 656. 12 Bushman v. Commonwealth, 138 Mass. 507; Hudson v. State, 9 Tex. App. 151, 35 Am. Rep. 732. 13 Martin v. State, 1 Lea (Tenn.) 498. 14 State v. Jarvis, 18 Ore. 360, 23 Pac. 251; State v. McCormick, 56 Wash. 469, 105 Pac. 1037. 15 Kotter v. People, 150 Ill. 441, 37 N. E. 932; State v. Sherman, 137 Mo. App. 70, 119 S. W. 479. 16 People v. Weaver, 47 Cal. 106; State v. Rees, 76 Miss. 435, 22 So. 829. 17 People v. Shotwell, 27 Cal. 394; State v. Miller, 24 Conn. 522. 18 State v. Sherman, 137 Mo. App. 70, 119 S. W. 479; People v. Wright, 9 Wend. (N. Y.) 193. 19 State v. Miller, 24 Conn. 522; State v. Merrill, 44 N. H. 624. § 921. Variance.-In order to convict one under an indictment so much of the charge must be proved as to show the commission of an offense, and the proof must correspond with the charge, for a person can not be tried and convicted without an accusation. Therefore variance between the proof and the charge as to any of the essential elements of the offense is fatal to a conviction, and entitles the defendant to be acquitted of the charge.20 If an allegation of the indictment can be rejected as surplusage, a failure to prove it will not be a fatal variance.21 As we have seen, if a necessary allegation is made unnecessarily particular in description, the proof must correspond with the description, even to the particulars which were in the first instance not necessary.22 In preceding sections the essential principles of conformity of the proof to the allegations are treated. § 922. Joinder of counts and offenses.—An indictment may contain any number of counts charging the same crime in different ways. The word count is a synonym of declaration, and means a complete statement of a cause of action.23 For instance, in an indictment for murder, the accused may be charged in one count with killing the deceased by shooting, in another by poison, in another by striking with a club, etc.24 In an indictment for burglary, in one count the owner 20 Walker v. State, 96 Ala. 53, 11 So. 401; State v. Kye, 46 La. Ann. 424, 14 So. 883; Commonwealth v. Richardson, 126 Mass. 34, 30 Am. Rep. 647; Commonwealth v. Dejardin, 126 Mass. 46, 30 Am. Rep. 652; Reynolds v. State (Tex. Cr.), 198 S. W. 958; Kelly v. State (Tex. Cr.), 195 S. W. 853. 21 Commonwealth v. Adams, 127 Mass. 15; Commonwealth v. Randall, 4 Gray (Mass.) 36. See also, State v. Wisdom, 99 Kans. 802, 162 Pac. 1174. 22 Commonwealth v. Luscomb, 130 Mass. 42; Commonwealth v. Gavin, 121 Mass. 54, 23 Am. Rep. 255; Kahanek v. State (Tex. Cr.), 201 S. W. 994. See also, Semon v. State, 158 Ind. 55, 62 N. E. 625; Commonwealth v. King, 9 Cush. (Mass.) 284. 23 Watson v. People, 134 Ill. 374, 25 N. E. 567; 3 Bl. Comm. 293; Gould Pl. (5th ed.), ch. 4, §§ 2, 3. 24 Merrick v. State, 63 Ind. 327; Smith v. Commonwealth, 21 Grat. (Va.) 809. ship of the premises may be alleged in one person, and in another count in another person. 25 One count may allege that the breaking and entry were with intent to steal, another that the intent was to murder, another to commit rape, etc.26 In cases such as this the prosecuting attorney can not be compelled to elect upon which count the trial will be had, but the accused may be convicted upon those counts which are proved against him.27 The rule against duplicity merely forbids the joining of two or more offenses in one count, and it is not duplicity to charge different offenses growing out of the same transaction in separate counts, provided they are of the same nature, and the mode of prosecution is the same.28 So, in one count burglary may be charged, and in another larceny; in one forgery, and in another uttering of a forged paper; one may charge embezzlement, one larceny, and another false pretenses; one may charge the accused as accessory before the fact and another as accessory after the fact, etc.29 Nor is the prosecuting attorney compelled to elect in such cases. Also, where several offenses are substantially parts of the same transaction, a motion made at the beginning of the trial, either to quash the indictment or compel an election, will ordinarily be denied, as where the accused was charged with burning several houses, and it appeared that one of them had been set on fire and the first had communicated to the 25 Commonwealth v. Dobbins, 2 Pars. Eq. Cas. (Pa.) 380; Newman v. State, 14 Wis. 393. 26 2 East. P. C. 515. 27 Thompson v. State, 32 Tex. Cr. 265, 22 S. W. 979; Vaden v. State, (Tex.) 25 S. W. 777. 28 Kane v. People, 8 Wend. (N. Y.) 203; Dowdy v. Commonwealth, 9 Grat. (Va.) 727, 60 Am. Dec. 314. 29 Welch v. State, 156 Ala. 112, 46 So. 856; Tompkins v. State, 17 Ga. 356; McCullough v. State, 132 Ind. 427, 31 N. E. 1116; Griffith v. State, 36 Ind. 406; State v. Porter, 26 Mo. 201; State v. Lincoln, 49 |