54 Ala. 138 | Ala. | 1875
The demurrer to the indictment rests on the ground that two offenses, burglary and petty larceny, are charged in the same count, and therefore the couut is bad for duplicity. The general rule that two offenses cannot be charged in the same count has many exceptions under our statute. At common law, in England, it is a common practice in an indictment for burglary, to aver in the same count, the breaking and, entry with intent to steal, and also the larceny actually committed in the place entered. 1 Bish. Cr. Pro. § 439. The whole is a single transaction, dependent on the same facts, and the accused is not perplexed or embarrassed in making defense, as he would be if two separate and distinct offenses were charged against him. The demurrer was properly overruled.—Wolf v. State, 49 Ala. 359.
The declarations of a third person, made in the absence of the accused, tending to the conclusion he was the guilty agent in the commission of the offense, was mere hearsay, and was properly excluded. There is no error in the record, and the judgment must be affirmed.
