Wilson and others v. The State.

or more of them, but in the latter case a conviction will bar a prosecution for all the others.

If indeed there be such an interval of time, between any two blows, that they can not be considered as parts of one and the same transaction, nor proved under a single count, then separate informations may be maintained.

It has been holden, by this court, that under our statute, making it a crime for a person to have in his possession a counterfeit bill, knowing it to be such, with intent to pass the same, a person having in his possession two such bills, purporting to have been issued by different banks, can not be convicted of two separate offences, and a conviction for having one such will be a bar to a punishment upon a subsequent information for having the other. State v. Benham, 7 Conn. R., 414.

In such case, the possession of both bills might have been charged in the same information, and therefore the crime is indivisible, and will not sustain two separate and distinct informations.

By our law, a person, charged with the commission of a crime, may be convicted of any lesser offence, which is embraced in the charge of the greater, and within the jurisdiction of the court, before which the trial is had. Thus, upon an indictment for a rape, the accused may be convicted of an assault with intent to ravish, and such conviction will be a bar to a subsequent prosecution for the rape. State v. Par

melee, 7 Conn. R., 259.

Whenever, in any criminal transaction, a felonious intent is essential to render it a crime, and without proof of which no conviction can be had, two informations, founded upon the same intent, can not be maintained.

Thus, in the case cited, the intent to ravish was an essential ingredient in the charge for the assault, in order to give the court jurisdiction, and without proof of that intent, neither the charge for the assault, nor the greater one for the rape,

Wilson and others v. The State.

could be established, and hence a conviction for one of those offences, is a bar to a conviction for the other.

In the case under consideration, the prisoners were convicted of the crime of theft, in having stolen the bills of the corporation, and in the subsequent information they were charged with having broken into the banking-house, with intent to commit that very theft. The breaking the building, and taking the bills, were both parts of one and the same transaction, and done with the same felonious intent, and without proof of that intent, they must have been acquitted in both cases.

Both parts of that transaction might have been embraced in the same count in the information, and proved under it, and such is the general practice. "It seems," says Russell, "to be the better course, first to lay the intent, and then state the particular felony, if a felony has been committed." 2 Russell on Crimes, 38.

Under such an information, the prisoners might have been convicted of the whole offence, or of the breaking, or the theft only, and acquitted of the residue of the charge.

ones.

It has been said, that the prosecuting attorney may elect to join both offences in the same information, or file separate But in my opinion, the law gives him no power to make two crimes, or one, out of the same transaction, at his pleasure. The law, and not the attorney, must determine that matter. He may indeed elect to prosecute for the whole, or any part, but he can sustain but one information.

Thus, in the case cited from our own reports, of the person having two counterfeit bills in his possession. It was competent to the attorney to file an information against him, for having both bills, or only for having one of them, and having adopted the latter course, he could do nothing in reference to the possession of the other bill.

For these reasons, I am of opinion that the county court, in holding the plea in bar of the defendants in this court

Brown v. Keach.

insufficient, manifestly erred, and their judgment ought to be reversed.

Judgment affirmed.

BROWN US. KEACH.

A new trial will not be granted in a cause, unless it appears that injustice either was, or might have been, done on the former trial.

If it appears, from the evidence introduced on the trial of a cause, that the plaintiff is entitled to a verdict, a new trial will not be granted, on the ground that the court refused to instruct the jury as to the legal construction and effect of such evidence.

In an action on a promissory note, to which the defendant had pleaded the statute of limitations, it was shown that the daughter of the plaintiff, as the agent of the latter, wrote to the defendant a letter, calling his attention to the fact that he was indebted to the plaintiff by note, to which the defendant soon afterward replied, "Yours, of the 24th, has been received, and in reply, I hardly know what to say; but as you request an answer soon, I will say in return, that I can't tell you what. I can do at present, but I have been thinking of coming to W. for some time, but will omit it until I hear from you again. I wish you by return of mail, to send me a true copy of all the claims that you hold against me in full dates; that is, I want it word for word, and endorsements, &c., and state where your mother and sister are now living, and I will either see them or write soon." Held, that such letter of the defendant, under the circumstances, was sufficient to remove the bar. Where, in such action, the defendant claimed, as matter of law, that such letter did not amount to an acknowledgment of the note as an existing indebtedness, and that it should not go to the jury as any evidence of a new promise, and the court refused to put any legal construction upon the written evidence, but left all the evidence in the case to the jury, as relevant to prove an acknowledgment of a debt by the defendant, and a verdict was rendered in favor of the plaintiff; it was held, that as the evidence showed that the plaintiff was entitled to a recovery, it was immaterial whether the verdict of the jury was founded upon their opinion of the evidence, or rendered in obedience to the instruction of the court as to the law of the case, and therefore a new trial ought not to be granted.

Brown v. Keach.

THIS was an action upon a promissory note, dated December 19, 1842, for the sum of one hundred and seventy-six dollars, payable to the plaintiff, or her order, on demand with interest. The writ was dated April 12, 1854. The defendant pleaded the statute of limitations. The cause was tried at Brooklyn, at the April term, 1855.

Upon the trial of the case to the jury, the plaintiff, to prove an acknowledgment of the debt by the defendant, called her daughter, Melissa Brown, who testified that, in the latter part of December, 1851, she, as the agent of her mother and sister, wrote the defendant a letter, (which having been lost could not be produced,) in which she called his attention to the fact, that he owed her mother, her sister, and herself, each, a note; that they all wished payment; that her mother was poor and needy, and very much required the money on her note. That soon afterward, and in the early part of January following, she received from him, in reply, the following letter.

Thompson, January 3, 1852. "Yours of the 24th has been received, and in reply, I hardly know what to say; but as you request an answer soon, I will say in return, that I can't tell you what I can do at present, but I have been thinking of coming to Woonsocket, for some time, but will omit it, until I hear from you again. I wish you, by return of mail, to send me a true copy of all the claims that you hold against me, in full dates; that is, I want it word for word, and endorsements, &c., and state where your mother and sister are now living, and I will either see them or write soon. Yours, with respect,

Joseph Keach."

The witness further testified, that the note in suit was the only one her mother ever held against the defendant.

Upon this testimony, the defendant claimed, as matter of law, that the court should construe the written testimony, and decide that the letter did not amount to an acknowledgment of the note, as an existing indebtedness, and that it should not go to the jury, as any evidence of a new promise.

Brown v. Keach.

The court declined to put any legal construction upon the written evidence, but left all the evidence in the case, to the jury, as relevant to prove an acknowledgment of the debt by the defendant.

The jury, having returned a verdict in favor of the plaintiff, the defendant moved for a new trial, and the case was reserved for the advice of this court.

Foster and Graves, for the defendant.

1. The construction of every instrument is matter of law, and not one of fact. Wilcox v. Roath, 12 Conn. R., 580.

2. The letter, written by the defendant, was not a new promise, nor evidence of one; nor that from which a new promise could be implied or inferred.

J. H. Carpenter, for the plaintiff.

I. The charge of the judge was correct. The questions in the case were questions of fact and properly submitted to the jury. 2 Greenl. Ev., 357, § 442. Lloyd v. Maund, 2 T. R., 760. De Forest & Son, v. Hunt, 8 Conn. R., 179. Clark v. Sigourney, 17 Conn. R., 511. 1 Sw. Dig., 301, 305. Frost v. Bengough, 8 E. C. L. R., 317. Linsell v. Bonsor, 29 E. C. L. R., 319. Colledge v. Horn, 3 Bing., 119. 11

E. C. L. R., 59.

II. If the jury have taken a correct view of the evidence, a new trial will not be granted, though the charge of the judge should be found erroneous. Wilcox v. Roath, 12 Conn. R., 580.

III. The jury have clearly taken the correct view of the testimony. 2 Stark. Ev., 37. 1 Greenl. Ev., § 197. 2 Greenl. Ev., § 441. East India Co. v. Prince, 21 E. C. L. R., 474. Whitney v. Bigelow, 4 Pick., 110. De Forest & Son v. Hunt, 8 Conn. R., 179. Frost v. Bengough, 8 E. C. L. R., 317.