r misdemeanour is supposed to apply to a different offence:
they often do so, and always may; a prosecutor having the option of
preparing a separate indictment for each, or of joining all as one. If
he adopt the former course, he must, to support the sentence, show each
indictment to be right. If he adopt the latter course--viz. going upon
one indictment containing several counts, and one sentence is pronounced
upon all the counts, according to the proposition now contended for;
suppose the sentences to be bad on all the counts _but one_, that one
applying to the most insignificant offence of the whole; a court of
error, it is said, has no right to interfere! That is to say, it cannot
correct error except such error be _universal_;--no matter how important
that error, no matter how insignificant the portion which is right, nor
what may have been the effect of such error! The proposition will no
longer be 'in _nullo_ est erratum,' but that the error is
not--_universal_. If neither of these arguments prove that there is
manifest error upon the record, and it is not for a court of error to
enter into any consideration of the effect which such error may have
produced, it has no power to alter the verdict, and can form no opinion
of its propriety and justice from mere inspection of the record, which
is all the judicial knowledge a court of error has of the case. _Upon
what ground_ is it to be assumed, in any case, that the court below, if
aware of the legal insufficiency of any of the counts, or of the
findings upon them, would have awarded the same punishment? It _could_,
probably, do so in many cases--but in many it as certainly would not. If
the several counts were only different modes of stating the same
offence, the insufficiency of some of those counts could not affect the
sentence; but if the different counts stated--as they well
might--actually different misdemeanours, and, after a verdict of guilty
_upon all_, it were found that some of _such_ counts--that is, that some
of the misdemeanours--charged, must be withdrawn from the consideration
of the court, by reason of defects in either the counts themselves or
the findings upon them, it cannot, in many cases, be supposed that the
sentence could be the same as if the court had the duty thrown upon it
of punishing _all the offences charged_. This may be well illustrated by
supposing an indictment for two libels in different counts--the first of
a slight, the other of an