A paradox is a proposition seemingly absurd, yet true in fact. An instance is, that under the *692constitution and laws of Alabama, and under an indictment charging the defendant with two distinct felonies, two verdicts rendered at different terms of the primary court, the first expressly finding him guilty of one of the felonies, the second expressly finding him guilty of the other, may, when accompanied by an unauthorized discharge of the second jury, amount to an acquittal, and operate as such.
Section 9 of Article 1 of our State constitution, provides: “That no person shall be accused, arrested, or detained, except in cases ascertained by law and according to the forms which the same has prescribed; and that no person shall be punished but by virtue of a law established and promulgated prior to the offense, and legally applied. ”
Section 2 of Article 6 of that constitution, is in the following words: “Except in cases otherwise directed in the constitution, the supreme court shall have appellate jurisdiction only, which shall be co-extensive with the State,' under such restrictions and regulations, not repugnant to this constitution, as may from time to time be prescribed by law. ”
The restrictions and regulations as to the appellate jurisdiction of the supreme court in criminal cases have been prescribed by law and are contained in Chapter xii, Title 3, Part iv, embracing §§ 4302 to 4316, inclusive, of the Revised Code of Alabama. Section 4302 declares that any question in law arising in any of the proceedings in a criminal cáse tried in the circuit or city court may be reserved by the defendant, hut not hy the State, for the consideration of the supreme court, and if the question does not distinctly appear on the record, it must be reserved by bill of exceptions duly taken and signed by the presiding judge as in civil cases. By the sections of the Code above recited, the defendant in any criminal case, but not the State, may take the case to the supreme court by appeal or writ of error; and in any case taken to the supreme court under the provisions of said chapter, no assignment of errors, or joinder in error, is necessary; but “the court *693must render such judgment as the law demands;” and if it reverses the judgment of the primary court, may order a new trial, or the discharge of the defendant, “ or make such other order as the case may require.” — Rev. Code, § 4314, 4316.
In the language of Chief Justice Gibson, “our jurisprudence abounds with unreasonable advantages enjoyed by the accused. The least slip in the indictment is fatal; a new trial cannot be awarded after an acquittal• produced by the most glaring misdirection; and the prisoner is to be acquitted whenever there is a reasonable doubt of his guilt. These, and many other unreasonable advantages, the law allows on principle of humanity or policy.” ***** “But feeling as I do, a horror of judicial legislation, I would suffer any extremity of inconvenience, rather than step beyond the legitimate province of the court, to touch even a hair of any privilege of a prisoner,” &c., &e. — The Commonwealth v. Lester, 17 Serg. and Rawle, 164.
The indictment here to be considered was found at the February term, 1873, of the cityN court of Montgomery, and consists of four counts. The first count was nol grossed. The second charges that the defendants “broke into and entered a building,” described in that count, “ with the intent to steal.” The third count charges that the defendants “broke into and entered a building” described as in the second count, “ and feloniously took and carried away” certain specified articles of personal property of a specified third person “of the value of more than one hundred dollars.” This third count contains no averment as to the intent with which the defendants broke into and entered the building. The fourth count charges that the defendants “broke into and entered a building,” described as in the second and third counts, “with the intent to steal, and feloniously took and carried away” personal property, as described in the third count, “of the value of more than one hundred dollars.”
Under § 3695 of pur Eevised Code, which defines burglary differently from the common law, the second count is a *694count for burglary only, and does not include, nor authorize a conviction for the offense of grand larceny.— Fisher vs. The State, 46 Ala. 720.
Under the definition of burglary, contained in that section of the Code, the third count is not a' count for burglary, because it contains no averment that the defendants broke into and entered the building “-with intent to steal or to commit a felony.” An averment of the existence of the intent to steal or to commit a felony, at the time they broke into and entered the building, was essential to make that count a good one for burglary. — Oliver v. The State, 17 Ala. 587; Ogletree v. The State, 28 Ala. 693; Moore v. The Commonwealth, 6 Metc. R. 243. As that count did not contain such averment, it is a count for grand larceny only. The fourth count is a count for burglary and grand larceny; and under it, the defendants might on the first trial have been convicted of either, or of both of these offenses. But if they had been convicted of both, under that count, there could have been but one penalty, because, in that event, the merciful and just construction in favor of the defendants would have been, that as both offenses were charged in the same count, they should be deemed as “ one continued act,” for which but one penalty could be adjudged.—Josslyn v. The Commonwealth, 6 Metc. R. 236.
Under our Code, burglary and grand larceny are distinct felonies of the same grade, subject to the same nature of punishment, and may be joined in the same indictment, but are not subject to the doctrine of merger.— Johnson v. The State, 29 Ala. 62; Hamilton v. The State, 36 Ind. 286; Wilson v. The State, 37 Ala. 134; Whar. Amer. Crim. Law, vol. 1, § 564.
When the defendants were put on trial under this indictment, at the February term, 1873, of the city court of Montgomery, and evidence as to their guilt was submitted to the jury, they were in jeopardy, both as to burglary and larceny; and might have been -convicted and punished for both under the distinct counts oF the indictment.—Josslyn v. Commonwealth, 6 Metc. R. 236.
*695If on that trial the verdict of the jury had been, “we, the jury, find the defendants guilty'ás charged in the indictment,” or, “we, the jury, find the defendants guilty of burglary and grand larceny as charged in the distinct counts of the indictment,” they certainly could have been tried again for both burglary and grand larceny, after they had brought the case to this court and procured a reversal of the judgment of the city court.
But on that trial, the verdict was, “we, the jury, find the defendants, Richard Bell and George Murray, guilty of burglary.” That verdict was received by the city court, and judgment and sentence thereon entered by that court, against the defendants, to the effect that each of them be confined in the penitentiary for specified periods.
The defendants thereupon took the case to the supreme court under the provisions of the Code above cited. And at the June term, 1873, this court reversed the said judgment and sentence of the city court and remanded the case to that court “for further proceedings.”
As the indictment was for burglary and grand larceny, and the verdict was only for burglary, the necessary intendment of the finding was, that the defendants were not guilty of the alleged larceny. “As to all which is not found, the conclusion must be, that the jury intended to acquit.”—Nancy v. The State, 6 Ala. 483; Nabors v. The State, 6 Ala. 200; Burns v. The State, 8 Ala. 313; Martin and Flinn v. The State, 28 Ala. 72, and authorities cited in appellant’s brief.
The legal effect of that verdict of acquittal of larceny, whether any judgment was ^rendered on it or not, was to put the alleged larceny as completely out of the indictment and case, as if it had never been in the indictment or case. Mount v. The State, 14 Ohio, 295; Shepherd v. People, 24 New York, 406; The State v. Martin, 30 Wisconsin, 223; People v. Gilmore, 4 Cal. 376; Hurt v. The State, 25 Miss. 378; Campbell v. State, 9 Yerger, 333; 1 Bish. Crim. Law, (Ed. 1856,) § 676; State v. Ross, 29 Missouri, 32; Jones v. State, 13 Texas, 168; Morris v. State, 8 Smedes and Marshall, 762, and authorities in appellant’s brief.
*696The case, when brought by the defendants to this court at its June term, 1873, had by the aforesaid proceedings in the city court, become a case for burglary only. This court was bound to treat it as such; and in reversing the judgment and sentence of the city court at the instance of the defendants, the supreme court had no jurisdiction to deprive them of the advantages which the law gave them as the result of the final verdict. The jurisdiction of this court in the case as brought, was appellate only. As the case when brought here, had become one for burglary only, it remained a case for burglary only when remanded to the city court. — Authorities, supra.
After the case was thus remanded, the city court, in effect, required the defendants, not only to be tried for the alleged burglary, but again to be put in jeopardy for the alleged larceny, of which they had been acquitted as aforesaid. They were put on trial for both burglary and grand larceny, precisely as if there had been no former trial or former verdict. On this trial at the February term, 1874, of the city court, the same evidence which had been adduced on the former trial was introduced, but the verdict was, “ we, the jury, find the defendants guilty of grand larceny as charged in the indictment,” “and recommend them to the mercy of the court.” The city court received this verdict, remanded the defendants to jail to await sentence and discharged the jury. No consent of the defendants to this discharge of the jury appears, and such consent cannot be presumed.
If this last verdict were of any validity, its undoubted effect and meaning in law would be, that the jury found the defendants not guilty of burglary. But that verdict is a mere nullity, because the charge of grand larceny had been put out of the case by the verdict and proceedings on the former trial. — Fisher v. The State, 46 Ala. 721.
A verdict which is a mere nullity, is no legal reason for the discharge of the jury. And when, as here, that is the only reason for the discharge of the jury, and there is no evidence that the defendants consented to such discharge, *697the legal effect of such discharge’is the acquittal and discharge of the defendants from any further prosecution for the offense or offenses set forth in the indictment..—Ex-parte Vincent, 43 Ala. 402 ; McCauley v. State, 26 Ala. 135.
It is 'not the verdict finding defendants guilty of grand larceny on the last "trial, which acquits them of burglary. At the time of that trial, there remained in law no such charge as grand larceny in the' indictment. That which acquits defendants on the last trial,- is hot the void verdict, but the discharge of the jury, charged with the trial of defendants for burglary, without necessity and without their consent. The void verdict had no effect. The jury should have been instructed to have returned to their deliberations. As the jury was not so instructed, but was discharged without a verdict on the only charge by law it was authorized to consider, and without consent of defendants, that dispersion of the jury operated an acquittal. So, on the first trial, when defendants were in jeopardy for both burglary and larceny, the discharge'of the jury without rendering a verdict as to larceny, and without consent of defendants, (although it did render a verdict as to burglary), operated an acquittal of the larceny. This is one of the strongest and most logical reasons for the rule, that where defendants are put on trial on several counts, and the jury find only as to one, the defendants-are thereby acquitted as to the others.
It is a settled rule in this State, that the unauthorized discharge of a jury, charged with '’the trial of a defendant in a criminal case, is tantamount to his acquittal of all the alleged offenses upon which the jury did not expressly pass or were prevented from passing.by the unwarranted discharge. From this rule it follows, that where two charges are contained in an indictment, and on the first trial there was a discharge of the jury without necessity and without consent of defendants before the jury had passed, and whereby they were prevented from passing on the first offenses, that discharge is tantamount to an acquittal of the offense not passed on. If, on the second. trial, the jury, which *698then, in law, are charged to inquire into the second offense only, are discharged without necessity, and without defendants’ consent, that discharge operates an acquittal of the second and only remaining offense, whereby defendants are freed from the whole charge.
Strictly speaking, then, if is not the two' verdicts against the defendants in the present case, which operates an acquittal, but the unwarranted discharge of the jury on the last trial, as shown by the record.
We have been aided in our investigations of this case, and the important and delicate questions it involves, by the elaborate and exhaustive briefs of the counsel for the appellants, creditable to their industry and discrimination. To these we refer as containing the citation of many authorities not cited in this opinion, sustaining the conclusion we have reached.
The judgment of the city court is reversed, and a judgment must be here rendered discharging the appellants.
SAFFOLD, J., not sitting, being related by marriage to the prosecutor.[Note by the Bepobteb. — The opinion, in this case was delivered at the June term, 1874, by Justice B. G. Briekell, who was appointed in 1873 by His Excellency, Gov. Lewis, to fill the vacancy occasioned by the resignation of Chief Justice Peck. The case is here reported in advance of other decisions at the same term by direction of the Chief Justice, owing to its importance in the administration of the criminal law.]