The opinion of the court was delivered by
Yeazey, J.In State v. Smalley, 50 Vt. 736, this court decided that it was no cause of demurrer that an indictment contains counts for separate and distinct arsons. But where *380several offenses are charged in- the same indictment, the general practice is, to compel the State, on the respondent’s application, to elect on what counts to go to trial; and such election is a practical abandonment of the rest of the indictment.
There was, therefore, no error in overruling the motion to quash, so far as it stood on the ground that distinct larcenies were charged in the different counts.
The nolle prosequi as to the third and fourth counts destroyed all basis for quashing the indictment as to those counts for any defects therein.
The transposition of the letters e and a in the word “ steal,” thereby making the word “ stael,” did not render the second count defective.
In State v. Hopkins, 50 Vt. 316, it was held that the statute providing for the separate examination of witnesses was not intended to apply so as to exclude from the court room the necessary officers of the court; that its literal enforcement must be to some extent discretionary with the court. Under the construction thus given to the statute, which we think was sound, there was no error in not excluding from the room during the trial, Lovell, the deputy sheriff who was in attendance upon the court as an officer. Neither can it be held that it was legal error to put him in charge of the jury. No injury is shown in consequence.
It was not ei’ror to allow the witness More to state “ who he understood was referred to” by “old Johnnie,” and that he “supposed it was Johnson.” Nor to allow Knights to explain why he told a different story at the court of inquiry from what he swore to on this trial.
We think all these propositions too well settled to warrant discussion. The respondent takes nothing by his exceptions.