(after stating the facts). It is conceded that the testimony is sufficient to support the verdicts of the jury, but insisted that the court erred in summoning a special grand jury, in consolidating the cases for trial over appellant’s objection, and denying his plea of former jeopardy.
The law provides, section 2219, Kirby’s Digest, that the court, after the discharge of the regular grand jury, may in its discretion by an order entered of record, direct the summoning of a special grand jury.
(1) The record shows that an order was made by the court directing the summoning of the special grand jury, and it was a matter within the discretion of the court, and this court will presume in the absence of a showing to the contrary that the condition existed required by the statute authorizing such order, which it was not necessary to specify therein. See Dunn v. State, 2 Ark. 229; Freel v. State, 21 Ark. 212; Edmonds v. State, 34 Ark. 720; Dixon v. State, 29 Ark. 165; Howard v. State, 72 Ark. 586.
(2) It is next urged that the court erred in consolidating the cases for trial over appellant’s objection, and this contention must be sustained. This court, in McClellan v. State, 32 Ark. 609, and Halley v. State, 108 Ark. 224, condemned the practice of consolidating separate cases under different indictments for the purpose of trial, and held that the court was without authority against the objection of the defendant to order the cases to be tried together, and it has also been held that if the record is silent as to whether there was objection by the defendant to the consolidation of the cases, that he is held to have waived the irregularity and can not complain of the error. Silvie v. State, 117 Ark. 108.
The statute provides that an indictment must charge but one offense, except in designated cases where certain offenses not including violations of the liquor laws may be included in one indictment. Kirby’s Digest, § § 2230, 2231. But for this limitation upon the exercise of the trial court’s inherent power as it existed at common law, authorizing the consolidation of misdemeanor cases for trial upon the theory that the different offenses could be charged in one indictment, it could be done, notwithstanding the objection of the defendant. It is true there is much good reason for requiring the consolidation for trial of misdemeanor oases, and especially where the offenses charged are of a like kind or class, and against the same defendant, but it must continue to address itself to the Legislature for effecting improvement in our criminal procedure rather than to the courts, which are bound by existing laws.
(3) It was not the purpose of Act 339 of the Acts of 1905, authorizing the consolidation of “causes of a like nature or relating to the same question,” to give the trial court authority to consolidate different criminal cases over the defendant’s objection for the purpose of a trial, and the court erred in ordering the oases consolidated over appellant’s objection.
(4) We find no error in the denial of the plea of former jeopardy, the court having sustained it as to the charges for violations of the law by sales made at Nos. 122 and 124 South Main Street, and denied it as to all the charges of offenses committed at No. 120; it appearing from the testimony on the trial of the first indictments that .all the sales were made in the room of the building designated as 120 South Main Street, and there being a fatal variance between the offenses charged to have been committed in said indictments, and the proof made, there could have been no former jeopardy since the appellant could not have been convicted of any of the offenses charged under the last indictments upon said first trial. State v. Ward, 48 Ark. 36.
The court having erroneously consolidated the cases over the defendant’s objection, the judgments must be reversed and the cases remanded for a new trial unless the Attorney General elects within fifteen days to take a judgment of conviction in one case only. Since all the offenses were alleged to have been committed at the same place; the place being a necessary allegation in charging such offenses and the testimony introduced in support of all the charges could have been used to secure a, conviction of one which would operate as a bar to any further prosecution for any of such sales, it may be considered a trial for one offense only, if the Attorney General elects to treat it so, otherwise, the judgments are reversed, and the causes remanded for a new trial.