¶1J.— Information against Hayworth for maliciously killing a horse and colt, of the value of 160 dollars, the property of, &c. It is charged that the horse was poisoned and the colt stabbed. The allegation is that both animals were injured and killed by Hayworth, at the *591same time and place. The allegation of the manner of killing was-surplusage. Ind. Dig., p. 371. A motion to quash was overruled.
¶2The only objection of any plausibility urged against the information is duplicity. We are not sure that duplicity would be a ground of quashal, under the code (see 2 R. S. p. 368); though it was at common law, certainly, in felonies. But in this case there was no duplicity. The injuries to the two animals were inflicted in one transaction. They constituted the one offense of malicious injury to property. See 1 Wat. Archb., p. 95—2. If by one act, a person commits an assault and battery upon two persons, it is but one offense. 1 Wat. Archb., Ill—2; and 2 Wat. Graham on New Trials, p. 52, et seq. It is doubted if duplicity is ground for a motion in arrest at common law. Wat. Archb., supra, note to p. 96—1.
¶3In larceny, it is said in a note to 4 Blacks., p. 231, that “ where it is one continuing transaction, though there be several distinct asportations, in law by several persons, yet all may be indicted as principals who concur in the felony before the final carrying away of the goods,” &c.
¶4There was no motion for a new trial on written reasons ■ filed.
¶5The evidence is not of record.
¶6It sufficiently appears that a lawful jury was sworn to try the issue. French v. The State, 12 Ind. R. 670.
¶7The jury found the defendant guilty as to the colt, and said nothing as to the horse. This was tantamount to a verdict of acquittal as to the latter. See Weinzorpflin v. The State, 7 Blackf. 186. See The State v. Slocum, 8 id. 315; Ind. Dig., 688.
¶8The judgment is affirmed with costs.