55 Ala. 143 | Ala. | 1876
Tbe theory oí tbe joinder of different counts in an indictment is, that each count alleges a distinct and substantive offense. In practice, generally, tbe joinder is intended to meet tbe different phases in which the evidence may present the same offense. The general rule is, that counts for felony and misdemeanor may not be joined; nor can there be a joinder, where the legal judgment on each count would be materially different. 1 Whart. Cr. Law, § 418. Mere difference in the severity of the punishment, if the offenses are of the same nature, belong to the same family of crimes, and are subject to the same mode of trial and punishment of the same character, is not an objection to the joinder of them in different counts. But, to authorize the joinder, there must be a concurrence in the nature of the offense, the mode of trial, and the character of punishment. Johnson v. State, 29 Ala. 62; Oliver v. State, 37 Ala. 134; State v. Coleman, 5 Port. 32. Tested by this rule, the present indictment, joining a count for burglary, a felony, with a count for petit larceny, a misdemeanor, was subject to the demurrer interposed; and the court erred in overruling it. An indictment for burglary, with intent to steal, may, in the same count, aver the intent, and the actual larceny, without being obnoxious to a demurrer for duplicity. The averment of the larceny is not regarded as the averment of a distinct offense, but merely as the averment that the particular burglarious intent was consummated. Wolf v. State, 49 Ala. 359; Snow v. State, MSS.
It is not necessary to consider any other questions presented by the record. They cannot arise again under the facts now presented.
Let the judgment be reversed, and the cause remanded. The defendants must remain in custody, until discharged by due course of law.