¶1delivered the opinion of the Court.
¶2The defendant, and his mother, Lucy Mitchell, were indicted in the Circuit Court of Franklin County, at an Adjourned Term, October, 1867: the indictment containing three counts — the first charging defendants with setting fire to the cook room, and dwelling house, of one J. A. Silvertooth, with the intent to injure him; the second count, charges them, with setting fire to the house of said Silvertooth, whereby, the same was *54burnt down, and consumed, with intent to injure, etc.; and tbe third count, charging that the defendants, before the said felony was committed, did feloniously etc., incite, etc., one William Moore, colored, to commit said felony.
¶3The defendants were arraigned, and put in a plea of not guilty; and subsequently moved to quash the indictment, which motion was overruled, but no exceptions taken thereto.
¶4At the November Term, 1867, the defendants were tried and convicted, and sentenced to the penitentiary: the defendant, D. W. Mitchell, for fifteen, and Lucy Mitchell, for ten years.
¶5A motion was made for a new trial, and was sustained as to the defendant Lucy, but overruled as to the defendant, D. W. Mitchell. The defendant D. W. Mitchel, appealed in error to this Court, and tendered his bill of exceptions, in which is set forth at great length, the testimony in the cause, the charge of the' Court, and the affidavit of defendants, in support of their motion for a new trial.
¶6It is not contended in argument, by the counsel for the plaintiff in error, that the testimony does not warrant a verdict of guilty. But it is insisted that the judgment of the Circuit Court, should .be reversed, and a new trial granted, because the Circuit Judge erred in refusing the motion to quash the indictment; because as insisted, there are three counts in the indictment, each charging a separate and distinct offense. And it is insisted also, that there is error in the charge of the Court. The case of Foster Whitesides vs. *55The State, relied upon, by plaintiff in error, is not applicable to this case. In that case, there was clearly two separate and distinct offenses charged in the same count, in the indictment. In this case, such is not the fact.
¶7And this being so, and no error being found in the charge of the Court, or the proceedings, to justify a reversal in this case, the judgment will be affirmed.