The indictment in the present record- is sufficient, under our statute. It charged the defendant with an assault with intent to commit murder. That feature, which charged the murderous intent, was noll-prossed, and defendant’s plea of former conviction of assault and battery without a weapon was found in his favor. In this condition of the record, it is possible that, on a plea of not guilty, in continuation of the former conviction, the defendant could not have been found guilty. The law does not permit a single, indivisible act, to be divided, so as to make out of it two distinct indictable offenses. “The decisive test is, that the same testimony will support both charges.” — State v. Johnson, 12 Ala. 840.
But, in this case, the defendant pleaded guilty of an assault and battery with a weapon. The question of guilty or not guilty was not before the court or jury. The only open question was the quantum of punishment. It would be a novelty in criminal jurisprudence, for the record to disclose a plea of guilty, and a judgment, with or without verdict, that the defendant was not guilty. But the present record makes a stronger case than this. The recital in the judgment-entry is, “ Thereupon, the said solicitor, by leave of the court, takes a nolle-prosequi as to so much of the charge in the said indictment which charges said defendant with intent to murder; thereupon said defendant, being put on trial, under said indictment, for an assault and battery with a weapon, by leave of the court withdraws his plea of not guilty, herein before interposed by him, and, by leave of the''court, pleads guilty to the charge of an assault and battery with a weapon.” We think this record justifies us in holding, that by leave of the court, the solicitor abandoned the felonious charge in the indictment, on an agreement and understanding that the defendant would plead guilty of the lesser offense, included therein, an assault and battery with a weapon, but without the felonious intent; and that the plea of guilty was but the consummation of the agreement thus made, with the knowledge and sanction of the court. There is' nothing in this assignment of error.
2. There is nothing in the argument that, after the plea of guilty, the jury alone could impose the punishment, in cases of misdemeanor. — Code of 1876, §§ 4453, 4484.
There is no error in the record, and the judgment of the court is affirmed.