— The defendant (now appellant) was indicted and convicted under the statute (Code of 1876, § 4239) which reads: “ Any person who wantonly or maliciously injures any railroad in this State, which is in use for the transportation of passengers or merchandise, or places any obstruction or impediment thereon, or salts stock thereon, must, on ■conviction, be fined not less than one hundred, nor more than one thousand dollars, and, at the discretion-of the court trying the cause, may also be imprisoned' in the county jail, or sentenced to hard labor for the county for not more than six months, of may be imprisoned in the penitentiary for not more "than ten years.” The indictment contains three counts. The first charges the wanton or malicious injury of a railroad in this ■State, in use for the transportation of passengers, known as the “Alabama Great Southern Railroad;” the second charges the placing of particular obstructions or impediments, feloniously or maliciously, on the same road, while in us.e for-the transportation of passengers or merchandise; the third charges the unlawful and wanton placing of a designated obstruction upon the same road, while in like use. The jury returned a general verdict of “guilty as charged in the indictment,” and imposed a fine of one hundred dollars upon the defendant. The court, without .rendering judgment for the fine, sentenced the defendant to confinement in the penitentiary for the term of three years.
1. The sentence, it is insisted, is erroneous, because the statute creates or embraces two grades or degrees of offenses, a felony, and a misdemeanor; and the verdict of the jury is the ■equivalent of a finding, that a misdemeanor only had been committed, negativing the commission of a felony; while the punishment to which the defendant is sentenced, is that which can be visited only upon a felony, and constitutes the essential difference and distinction between the two grades of offenses, felony and misdemeanor. The verdict of a jury in criminal ■cases may be, and often is, either general or partial; in the one *477case, simply pronouncing in general terms the guilt or innocence of the defendant; in the other, that a part of the accusation is true, and a part untrue. If the verdict is partial, that is, if a part of the accusation only is pronounced true, and as to a part the verdict is silent, the conclusion of law is, that, as to all which is not expressly found, the jury intend an acquittal. — Nancy v. State, 6 Ala. 483; State v. Burns, 8 Ala. 313. So, if there are several counts in an indictment, a verdict of guilty upon one count, not responding as to the others, is-the equivalent of a verdict of not guilty upon the latter counts. Nabors v. State, 6 Ala. 200; State v. Coleman, 3 Ala. 14; Bell v. State, 48 Ala. 684. Or, if the accusation is of an offense of different degrees, a verdict of guilty of the inferior, is an acquittal of the higher degree. — Berry v. State, 65 Ala. 117. If' upon a verdict of either kind, the court should sentence the-defendant to suffer other punishment, greater or severer, than that which the law affixes to the offense of which he is found guilty, the sentence would be inconsistent with the finding, unauthorized, and errroneous. But this is' not a case -of that character, and there is no room for the application of. the settled rule to which we have referred. The statute does not create or declare an offense of different, distinct degrees. Three several offenses, all of the same nature, .of the same grade, and subjected to like punishment, are defined and declared. The first is the wanton or malicious injury of a railroad ; the second is placing obstructions or impediments upon a railroad; the third is the salting thereon of stock. Upon a conviction of either offense, the jury may impose a fine upon, the defendant. The imposition of the fine is not a necessary result of the verdict of guilty; the jury have a discretion, in all cases, to impose or omit a fine, when the court may in its discretion add imprisonment, or hard labor for the county. — Code of 1876, § 4453. The imposition, or the omission of the fine can not affect the character of the verdict, which must respond to the indictment; and that is an accusation of a felony, not of a misdemeanor; and it is a felony as distinguished from a misdemeanor, because it falls precisely within the definition of the statute, a public offense which may (not must) be punished by confinement in the penitentiary. — Code of 1876, § 4095. It is the capacity of an offense to be punished by confinement in the penitentiary, and not that such punishment of necessity follows conviction, that distinguishes crime — that separates felonies from misdemeanors. Ex parte McCrary, 22 Ala. 65. “If by the terms of the statute.” it is said by Mr. Bishop, “the court or jury is at liberty to inflict some milder punishment instead of imprisonment or death, this discretion, it is held, does not prevent the offense from being felony. That the heavier punishment may be irn*478posed is sufficient.” — 1 Bish. Cr. Law (6th Ed.), § 619. The absurdities, incongruities, or inconsistencies attributed to the statute are imaginary, not real. The court is not authorized, as seems to be supposed, when the jury convict only of a misdemeanor, to reverse the finding, pronounce guilt, and inflict punishment for a felony. The jury respond to the indictment —they find the facts, declare guilt or innocence. If the finding is of guilt, it is guilt of a felony, because of the punishment which may follow; and the character of the finding is not changed, because the jury, in the exercise of their discretion, impose a pecuniary fine, the ordinary penalty incurred by the commission of a misdemeanor. The verdict is rendered with the knowledge that the court, in its discretion, may add corporal punishment, imprisonment in the county jail, hard labor for the county, or confinement in the penitentiary. It can not be doubted that the legislature may subject an offense to greater or less punishment, leaving the infliction or affixing of them to the discretion of the court, or to the discretion of the jury, or to their conjoint discretion. It is not punishing twice for the same offense; both, when imp'osed, constitute the punishment to which the law subjects the offender. The statute may intend that confinement in the penitentiary, when imposed by the court, shall be the only punishment which shall follow conviction. That is not now a question before ns ; it is the sole punishment to which the defendant was sentenced, and the sentence is authorized by the statute.
2. Without regard to the statute (Pampli. Acts 1882-3, p. 146) .removing infamy (except as to a conviction of perjury or subornation of perjury), as an objection to the capacity or competency of witnesses, the witness Woodin was competent. His complicity with, and conviction of the offense with which the defendant was charged, affected his credibility, not his competency. The offense was not a common law felony, nor has it the elements of the crimen falsi. — Commonwealth v. Dame, 8 Cush. 384.
3. The first and fourth instructions requested by the appellant, and refused by the circuit court, are nearly allied, and may be considered in connection. The presence or absence of a motive for the commission of the offense charged is always a legitimate subject of inquiry. It is of more particular importance, deserving of more special consideration, -when the identification of the accused as the criniinal agent, or his connection with the offense depends entirely upon circumstantial evidence. But it is not, in any case, indispensable to a conviction; it is not an element of the burden of proof the law devolves upon the prosecution, whether the agency or connection of the accused is manifested by direct and positive evidence, or only by cir*479cumstantial evidence, that a motive, or inducement to commit the offense should be proved. The criminal act, and the connection of the accused with it, being proved beyond a reasonable doubt, the act itself furnishes the evidence, that to its perpetration there was some cause or influence moving the mind. There is no room for speculation as to its nature or character, and it avails nothing to the defense, that of it affirmative evidence is not adduced. “ As the law will allow the inference of intent from the quality of the act itself, where its commission is manifest; so, from an intent’onal act, satisfactorily proved, it will allow the inference of a motiveintent implying nothing more than a certain state of mind or will, as motive implies a certain state of feeling or disposition, anterior to the former, and operating as its cause.” — Burrill on Cir. Ev. 315. Construing the instructions we are considering, in the light of the evidence, it is apparent that they could not have been given without misleading the jury, unless additional instructions had been given, stating that if the criminal act and the connection of the appellant were clearly proved, the absence of evidence of motive was immaterial. Instructions requested, which require additional or explanatory instructions to prevent them from misleading or confusing the jury, are properly refused.
4. The second and fifth instructions are based upon the erroneous hypothesis, that the act of the defendant must have been accompanied with a specific intent to injure a railroad; or with the intent that the cars or trains running upon it should be thrown from the track by the obstructions or impediments. But it is apparent that the statute declares particular acts, violative of the rights of others, wrong and unlawful. If these acts, or cither of them, should be done intentionally, the criminal intent, the intent to do a wrongful, unlawful act, exists, and the offense is complete, interior consequences, wicked in themselves, maybe intended, and if they are intended, the criminality of the act is aggravated, and it is deserving of more grievous punishment. The intent that such consequences shall result is not essential to the completion of the offense. That is complete when the act is done, which in itself is legally wrong. — Stein v. State, 37 Ala. 133; Bain v. State, 61 Ala. 75; Commonwealth v. Temple, 14 Gray, 69.
5. The-ownership of the railroad it was not necessary to prove. The averments of the indictment were satisfied by evidence, that it was known as the “ Alabama Great Southern Railroad,’ and was in use for the transportation of passengers or merchandise.
Let the judgment be affirmed.