The first count of this indictment charges the defendant with the commission of a felony under section 7342, Code 1907.
The second count of the indictment charges him with a misdemeanor under section 7423, Code 1907.
There was a general verdict of guilty, to wit: "We the jury find the defendant guilty as charged in the indictment."
The court thereupon adjudged the defendant guilty of the misdemeanor charged in the second count, but sentence defendant to an indeterminate sentence of not less than two nor more than three years' imprisonment in the penitentiary, a punishment prescribed for the felony, charged in the first count.
It needs no discussion of the question that where the indictment charges a felony in one count, and a misdemeanor in another, the court was without authority to pronounce judgment upon a general verdict of conviction, for the obvious reason that the court could not know what judgment to impose. Each of the offenses being sufficiently charged, there would be no reason or authority for referring the conviction to one charge rather *Page 160 than the other; and the punishments prescribed by law for the several offenses being entirely different, it could not possibly be known what sentence to pronounce.
"A general verdict cannot be sustained where the indictment alleges in one count a misdemeanor and in another count a felony." 1 Mayfield's Dig. 866.
The general rule is that counts for felony and misdemeanor may not be joined in the same indictment; nor can there be a joinder, where the legal judgment on each count would be materially different. And in order 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, 65 Am. Dec. 383; Oliver v. State, 37 Ala. 134; Adams v. State, 55 Ala. 143.
From what has been said it is apparent that the judgment rendered by the court in this case is void and the conviction of the defendant thereunder cannot be sustained.
It appears from the record that the defendant was denied a continuance of the cause, and it is here insisted that there was an abuse of discretion on the part of the court in this connection. This question, however, is not presented for review, as no exception was reserved to the ruling of the court on this matter.
We have examined the evidence in this case and are of the opinion that it fails to meet the burden placed upon the state, and that the defendant was entitled to be discharged. The evidence as shown by the record failed to make out a case of felony as charged in the first count of the indictment, and was wholly insufficient to sustain the charge of misdemeanor contained in the second count.
The questions insisted upon by appellant's counsel in brief are not presented for review, but under section 6264 of the Code of 1907 it is the duty of this court to consider all questions apparent on the record or reserved by bill of exceptions, and to render such judgment as the law demands.
We are of the opinion that the defendant is entitled to his discharge. The judgment of conviction is reversed and one here entered discharging the defendant.
Reversed and rendered.