Commonwealth v. Cook , 94 Mass. 542 ( 1866 )

Hoar, J.

That, under an indictment against two for an of-fence which might be committed by either alone, it is competent for the jury to find one guilty and acquit the other, is a proposition too elementary to require discussion or citation of authorities. But it was not an exact use of language to say that “ each defendant might be convicted,” under the same indictment, “ for any sale made by him without reference to any joint participation or privity of the two defendants.” The statement should have been that “ either ” might be so convicted. But we 'o not see that the defendant was injured by the inaccuracy He was convicted, upon evidence competent for the purpose, of the offence with which he was charged. The other defendant, who was not proved to have participated in the criminal act, was justly acquitted. This was as it should be.

If the jury had convicted the two of separate and distinct offences, which they had severally committed, a different question would have arisen. Exceptions overruled.