In the indictment, of one count, appellant is charged with having sold intoxicating liquors on the 4th day of July, to be drunk as a beverage, in violation' of the statute. R. S. 1881, section 2098.
The prosecuting witness having testified that he purchased 'intoxicating liquors of appellant on the morning of the 4th day of July, giving the particulars, the State, over *27appellant’s objection, was allowed to introduce the further testimony of that witness to prove that he also purchased of appellant intoxicating liquors on the afternoon of the same day. Both after the proof of the sale in the morning, and after the State had rested its case, appellant moved that the State should be compelled to elect upon which sale it would rely for a conviction.
The court overruled the motions and declined to order an election on the part of the State.
These rulings can not be sustained without departing from established precedents and settled rules of practice.
As we have stated, appellant is charged with a single violation of the statute — with a single offence. The purpose of written pleadings is to inform the opposite party, in a definite and certain manner, of what he is to meet. And it is a universal principle of practice that the opposite party is called upon to meet only what is charged against him. He can not be charged in a pleading with one wrong or offence, and be convicted upon the evidence of a different wrong or offence. Nor can he be charged with a single wrong or offence, and be convicted upon the evidence of additional wrongs and offences, although of the same sort and grade.
Under the indictment here, the State had the right to convict appellant for selling intoxicating liquors on the 4th day of July, if the evidence warranted such a conviction, but it could not have the right to charge him with a single offence^ and convict him of the offence so charged, and of an additional offence, although of the same sort and grade.
The sales of intoxicating liquors in the morning and afternoon, although upon the same day, were just as separate and distinct offences as if the sales had been upon different days. Upon principle, it can make no difference whether the sales were in the morning and afternoon of the same day, or at 11:30 p. M. of one day, and 12:30 A. M. of the succeeding day. In either event, each sale is a violation of the statute, if prohibited, and a separate and distinct offence. Nor can *28it make any difference whether the crime charged is a violation of the liquor law, or an assault and battery, or like offence.
Here the State introduced testimony to establish two violations of the liquor law — two separate and distinct offences— and the question is, whether or not, after that was done, appellant, by an election on the part of the State, had a right to be informed as to which sale it would rely upon for a conviction.
The general rule applicable in such cases was laid down in the case of Long v. State, 56 Ind. 182 (26 Am. R. 19), as follows: “We understand the rule to be, that, when, in a case like this, a single sale only is charged in the indictment, and the evidence shows that there have been several sales of the same kind, made within the period of time covered by the indictment, the prosecuting attorney should be required,, when requested so to do, to elect which sale the State will insist upon for a conviction, before the defendant is called upon for his defence.”
In the case of Richardson v. State, 63 Ind. 192, the defendant was charged with a single assault and battery. The evidence showed that there were two assaults and batteries near the same time, yet so far separated as to constitute separate offences. In the decision of the case on appeal this court, per Worden, J., said : “ There was but a single charge of assault and battery; and the question arises whether, upon such charge, the State may give evidence of several offences, and then select one upon which to rely for a conviction, and abandon the others. We are of the opinion that this can not be legally done. When the State gave evidence of the first assault and battery, she elected to try him for that offence, and she could not afterward abandon the election thus made, and put in evidence of another offence.”
Evidence of the two sales having been adduced under the rulings of the trial court, appellant’s conviction would be a bar to any further conviction for either sale. Brinkman v. State, *2957 Ind. 76. But that consideration does not alone determine the right of the accused to have an election on the part of the State.
It is not of much consequence to appellant that he can not be again convicted for the sale charged, and those which the State claims to have established by the evidence. His claim is that he ought not to be convicted at all. If, as he claims, he is innocent of the charge made against him, and has been convicted by improper methods, it is not enough to say to him that if the present conviction is allowed to stand he can not be again convicted for the same thing.
Aside from the consideration that the judgment of conviction may be a bar to another prosecution, there are other reasons for requiring an election by the State in proper cases, which are more important to the accused. One is, that, when he is charged with, a single offence, he should not be called upon to meet a number of charges made by the evidence, not knowing upon which the State will rely for a conviction. He might be able to meet and overthrow each charge if separately presented, and yet be unable to meet, to the satisfaction of the jury, a number of charges brought forward together, and of which he has had no forewarning, and hence no opportunity of preparing a defence.
When he is charged with a single offence, he has a right to demand that the single question, as to whether or not he is guilty of that offence, shall be presented to the jury so that, if convicted, he may know that the whole jury agreed to his conviction of the offence charged. Where one offence is charged, and the State is allowed to rely upon two offences, in support of which it adduced evidence, there is no knowing upon which he was really convicted, or whether the whole jury agreed upon his guilt as to either one. In a case like this, six of the jury may have thought that the accused was guilty of having sold intoxicating liquors in the morning, and not guilty of having sold in the afternoon. The other six may have thought that he was guilty of hav*30ing sold in the afternoon, and not in the morning. The result would be that they would all agree that he was guilty, without agreeing that ho was guilty of any one particular offence. Or suppose that, instead of bringing forward evidence to establish the fact of two sales to the prosecuting witness, the State had brought forward evidence to show that appellant had made twelve sales to him upon the same day, and yet so separated in time as to constitute distinct and separate violations of the statute. In that case, it is possible that one juror might be convinced that he was guilty of some one particular sale and of none other. And thus each juror might be convinced that he-was guilty of some particular sale, and all agree to a conviction, and yet no two jurors be agreed upon any one sale.
Filed Dec. 8, 1887.Without extending this opinion, we are satisfied that the State should have been put to an election as to the sale upon which it would rely for a conviction, and that the judgment must be reversed because of the court’s ruling in declining to order such an election. As fully sustaining our conclusion, we cite the following authorities: Wharton Crim. Ev., section 104; Commonwealth v. Dean, 109 Mass. 349; Hughes v. State, 35 Ala. 351; Goodhue v. People, 94 Ill. 37; Commonwealth v. Elwell, 1 Gray, 463; State v. Crimmins, 31 Kan. 376; People v. Sweeney, 22 N. W. R. 50; Simms v. State, 10 Texas App. 131; People v. Jenness, 5 Mich. 305; Kannon v. State, 10 Lea (Tenn.) 386; State v. Brown, 58 Iowa, 298.
Other questions are discussed by counsel, but as they may not arise upon a re-trial of the cause they need not be hero noticed.
Judgment reversed.