It is insisted for the plaintiff in error, that for the burg, iry set forth in the indictment, he was not liable to a term of imprisonment exceeding, in the whole, five years. But there is a second count in the indictment, charging him with a simple larceny in stealing a cloak, and also a coat of Mr. Phinney. For this, if punishable as a separate offence the convict was liable to imprisonment not exceeding one year.
But it is contended that this second count cannot aid in sustaining this judgment, because, 1st. it is to be presumed that the breaking of the dwellinghouse and the stealing of the cloak and coat were all one offence, and could not be separately indicted and punished ; 2d. because, if they were distinct substantive of fences, they ought not to be included in the same indictment; and 3d, because, if they could be so included, there should have be§n separate sentences,
*5341. In the consideration of the question, whether a judgment is erroneous, we can only look at the record ; and by the record there are two distinct offences well charged, and found by the verdict, each- punishable by imprisonment in the state prison. We cannot presume that they were one and the same offence, nor, though alleged to be on the same day, that tney were done at the same time. We cannot say, judicially, that they are the same, though we might, if allowed to conjecture, incline to the belief that they were. But, if it is said that this is a technical ground and does not meet the justice of the case, it is answered, that the error assigned is of the small excess of one day to an imprisonment of five years warranted by law, and constitutes a very slight objection to the judgment, little affecting its merits.
2. We think it is common in practice, in this Commonwealth, and especially in the county of Suffolk, to include several distinct substantive offences in the same indictment, where they are of the same general nature, and where the mode of trial and the nature of the punishment are the same. And we see no objection to this course ; because it is always competent for the court to order — where there are several counts which might tend to perplex the defendant in his defence — that the prosecutor shall elect on which of thé counts he will bring the defendant to trial, so as to exempt him from the vexation of meeting multifarious charges at one and the same time,
3. And ws are of opinion, that it is not necessary, in such cases, to award separate sentences, where they are so far alike that the whole of the judgment is but the sum of the several sentences to which the convict is liable : As where the punishment is by fine, or by terms of imprisonment in the county jail, house of correction, or state prison.
On the whole, we are of opinion, that the one day, in addition to the term of five years’ confinement at hard labor, was well warranted by .aw, and that there is no ground to reverse the judgment.
Judgment affirmed.