Tbe defendant's counsel, before pleading, moved to quash tbe bill of indictment on tbe ground that there were three counts in the bill, each for a separate and distinct offence. Rut each offence charged was a- misdemeanor, and the judgment upon conviction was the same in each case; and when that is so, several counts for different offences may be joined in the same bill. Whether for such a joinder of counts the courts will quash an indictment, is a matter entirely within their discretion. They may do so, when it is likely to embarrass the prisoner in his defence, but it is never a ground for arrest of judgment. The most usual course of the courts in such casesy is, to require the solicitor to make an election upon which count lie-will proceed to try. He should be put to-this election before tbe defendant commences the examination of his witnesses, as was done in this case. Roscoe Cr. Ev., 19'0‘; Arch. Cr. L., 61.
There were several exceptions taken by tbe defendant in the course of the- trial
The first was to the admission of parol evidence in regard to the “marks " of tbe prosecutor and the defendant, the-defendant’s counsel insisting that section one, chapter 16 of Battle’s Revisal, made it.the duty of every one to brand his-cattle, &c., and have it recorded, and as there was a record of tbe mark, it was the only evidence that could be admitted to prove it. It is true that act, passed in 1741, and now generally fallen info d-isu-se, does provide that if any dispute shall arise about any ear-mark or brand, the same shall be-decided by the record thereof. Rut in this case there was-no dispute about the marks; no conflict of testimony in regard to them ; and it was perfectly immaterial what was the mark of the prosecutor, for this hog was not marked, *741until mismarked by the defendant. If the position taken by defendant’s counsel should be adopted by the courts, the law against mismarking, &e., would be a “ dead letter” on the statute book; for there are very few persons who have their “marks” recorded. And then, as to the evidence of •the defendant’s mark, it was clearly admissible as Ms declaration or admission, which when pertinent to the issue may in all cases, civil or criminal, be given in evidence against & party to the suit. State v. Bryson, Winst., 86.
As to the exception to-the admission of the evidence with regard to the direction in which the defendant and the prosecutor had gone from the hog-bed, when in search for the sow, we think it was admissible as a circumstance tending to show the guilt of the defendant, and was proper to be -submitted to the jury that they might consider whether it was done in good faith or was a deviee adopted by him to ■elude the discovery.
The last exception, as to the examination of Tindell after the defendant’s testimony was closed, with regard to the conversation between the prosecutor and defendant about ■“ calling up the hog,” was upon the ground that it was not in reply -or responsive to any evidence offered by the de-fence. There is nothing in the exception. The court, to attain the ends of justice, may in its discretion allow the examination of witnesses at any stage of the trial.
There is no error. Let this be certified to the superior court of Stanly county that further proceedings maybe had agreeably to this opinion and the law.
Pee Cjjkiam. No error.