If the defendant entertained the intent to steal the money at the time the fetter containing it was delivered to him or when he assumed dominion over it and thereafter extracted it from the envelope and converted it to his own use, and there was evidence tending to sustain this conclusion, he was guilty of larceny as charged in the first count of the indictment. Beckham v. State, 100 Ala. 15, 14 So. 859; Eggleston v. State,129 Ala. 80, 30 So. 582, 87 Am.St.Rep. 17.
On the other hand if he formed the felonious purpose and intent to appropriate the money to his own use after the letter was delivered to him and he had entered upon the performance of his agency and in pursuance of that intent appropriated the money to his own use, and there was evidence tending to support this view, he was guilty of embezzlement as charged in the second count of the indictment. Eggleston v. State, supra.
Where as here the indictment contains two counts charging offenses calling for the same punishment, and relates to a single criminal transaction, only one penalty can be imposed and a general verdict of guilty followed by judgment thereon precludes any further prosecution based on that transaction. Cawley v. State, 37 Ala. 152; Sampson v. State, 107 Ala. 76,18 So. 207; Burt v. State, 159 Ala. 134, 48 So. 851; Kilgore v. State, 74 Ala. 1.
Writ denied.
GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.
On Rehearing.