dissenting. J. H. Braxley was indicted upon the charge of felony. The ease was tried upon the hypothesis that the indictment contained two counts, the first charging the defendant as perpetrator of the crime of burglary, and *662the second as accessory before the fact, by counseling others to commit the offense. The jury returned a verdict as follows: “We, the jury, find the defendant not guilty as charged in the 1st count in the indictment. J. E. Stembridge, foreman. We, the jury, find the defendant guilty as charged in the second count in the indictment, and recommend that he be punished as for a misdemeanor. J. E. Stembridge, foreman.” A motion for a new trial was made, and the defendant excepted to the judgment overruling the motion. As necessary to a proper decision of the case, the Court of Appeals certified to this court two questions, the first of which refers to section 954 of the Penal Code of this State and the construction placed thereon in former decisions of this court; and it is asked, in view of the section of the code and in the light of the decisions, “is a count in an indictment, in which it is not stated, either literally or in substance, that the charge which is preferred is made ‘in the name and behalf of the citizens of Georgia/ subject to demurrer because of this omission?” The words quoted were omitted from the alleged second count. In 1 Chitty’s Criminal Law, § 249, it is said: “It is frequently advisable, when the crime is of a complicated nature, or it is uncertain whether the evidence will support the higher and more criminal part of the charge, or the charge precisely as laid, to insert two or more counts in the indictment. . . Every separate count should charge the defendant as if he had committed a distinct offense, because it is upon the principle of the joinder of offense that the joinder of counts is admitted.” See also State v. Longly, 10 Ind. 482, 484; Keech v. State, 15 Fla. 591; State v. Lyon, 17 Wis. 237; State v. Phelps, 65 N C. 450. Under the common law, though there might be several counts in an indictment, if the evidence authorized a conviction under any one count ánd not under the others, the defendant could be convicted under the count that was supported by the evidence, notwithstanding his acquittal under all the other counts. See 1 Bishop’s New Criminal Procedure, § 421 et seq., and cases cited. There was ample reason why each count should be as complete as if there were but one count in the indictment. While, by making special reference in one count to some material thing expressed in a preceding count, the necessity .of repeating the exact matter so referred to might be avoided, yet, if there were no such express reference, the matter so alleged in the preceding count *663could not by mere construction be imported into tbe second count. This rule is still adhered to in this State, even as applied to civil cases, where pleadings are not so strictly construed as in criminal cases. Watters v. Hertz, 135 Ga. 814 (70 S. E. 343); Train v. Emerson, 137 Ga. 730 (74 S. E. 241). Section 954 of the Penal Code declares: “Every indictment or accusation o'f the grand jury shall be deemed sufficiently technical and correct which states tile offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury. The form of every indictment or accusation shall be as follows: ‘Georgia-- County. ‘The grand jurors selected, chosen, and sworn for the county of-, to wit: -, in the name and behalf of the citizens of Georgia, charge and accuse A. B., of the county and State aforesaid, with the offense of-; for that the said A. B. (here state the offense, and the time and place of committing the same, with sufficient certainty), contrary to the laws of said State, the good order, peace, and dignity thereof.’ If there should be more than one count, each • additional count shall commence with the following form: ‘And the jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse the said A. B. with having committed the offense of-:— (here state the offense as before directed); for that,’ etc.” This is the identical language of section 14 of the act approved December 23, 1833 (Acts 1833, p. 203), and has been included in each of the several penal codes. The language of the code section under consideration is therefore that of the statute; and if it varies in substance from the common law, the latter must be considered as changed to the extent of the variance. According to the language óf this statute, the form of indictments is declared. According to the form, in the event of there being a single count, it is essential that the offense should be stated, “in the name and behalf of the citizens of Georgia.” These are words of substance, as much so as would be the name of a plaintiff in a civil case. If the words quoted are words of substance in an indictment in which there is but a single count, they are also words of substance in successive counts; and if each count is to be regarded as separate and distinct from the other, it is improper to omit them from the several counts. Being words of'substance, their omission could not be supplied by construction, or imported by. implication from some *664other count, for the reason, as indicated above, that the substance of one count can not be embodied into a separate count by mere construction. We should not follow the ruling made in Loyd v. State, 45 Ga. 57. That was a case in which the second count omitted the words, prescribed in the form, “and the jurors aforesaid, in the name and behalf of the citizens of Georgia.” There was a demurrer to the indictment, on the ground that the second count “did not begin and conclude in the form required by law.” In the opinion,.on this ground of demurrer, McCay, J., said: “Our code, even as to the substantial averments in an indictment, only requires that they should be stated so as to be easily understood by the jury. Code section 4535. And it seems directly contrary to the spirit of this enactment to require that the merely formal parts of the indictment shall conform to the letter to a provision the sole object of which was to make unnecessary the cumbrous formality of the common-law proceedings.” This decision was by two Judges, and not controlling. It was referred to and disapproved by Lewis, J., in the case of Hardin v. State, 106 Ga. 386 (32 S. E. 365, 71 Am. St. R. 269). The former case of Horne v. State, 37 Ga. 80 (92 Am. D. 49), by an entire bench of three Judges, seems to have been overlooked by Judge McCay. That was a case where a motion was made in arrest of judgment. It was held that under section 4536 of the Revised Code of 1863, which declared, among other things, that exceptions which go merely to the form of the indictment shall be made before trial and will not be good in arrest of judgment, the omission from the indictment of the words, “in the name and behalf of the citizens of Georgia,” was not cause for arresting the judgment; but it was further said: “If these words be omitted, on objection taken at the proper time the indictment will be quashed.” In the case of Tarver v. State, 123 Ga. 494 (51 S. E. 501), the indictment omitted to allege the place of residence of the defendant, in compliance with the form prescribed in section 954 of the Penal Code. A demurrer was filed to the indictment, on the ground' that it omitted to state the residence of the defendant. The demurrer was overruled, and, on exception, this court affirmed the judgment of the trial court. The ruling was: “The constitution of Georgia requires that all criminal cases shall be tried in the county where the crime was committed. The residence of the defendant is wholly immaterial to the fixing of the venue. *665Although the form of the indictment prescribed in the Penal Code, § 929, contains an averment of residence of the defendant, the omission of such averment in the indictment will not be ground for quashing the indictment, where it conforms in all other particulars with the prescribed form, and the offense is plainly described in the language of the statute.” The matter omitted in that ease from the indictment was very different from the omission of matter of substance required by the form, such as stating the identity of the partieá, so to speak; in behalf of whom the charge against the defendant was made. -In the opinion, Evans, J., while discussing the case of Hardin v. State, supra, and other earlier cases, among which were mentioned the case of Loyd v. State, supra, used language to the effect that if the ruling in Hardin v. State, supra, was in conflict with the earlier decisions, it must yield to the older décisions. This expression could not have applied to the Loyd case, which, although older, was rendered by only two Judges. In the case of Hardin v. State, supra, it was held that an indictment which omitted words prescribed in the form, “contrary to the laws of the State, the good order, peace, and dignity thereof,” was defective and subject to be quashed on demurrer. See also Bulloch v. State, 10 Ga. 47, 61 (54 Am. D. 369).
It follows that the first question propounded by the Court of Appeals should be answered in the affirmative.