(1) The solicitor, in his preliminary statement to the jury, said: “That he expected the evidence on the part of the state to show the defendant had made a statement voluntarily and freely at the police station.”
Appellant insists that this statement was unwarranted by the evidence and prejudicial to his rights. Even if it be conceded that this statement implies that the defendant had made a confession, we do not concur that the statement was unwar*17ranted. The evidence shows that the defendant, after his arrest, informed the officer making the arrest where the goods alleged to have been stolen were concealed, and, acting on this information, the officer found the goods at the place indicated in the defendant’s statement and concealed in the manner stated by him. The evidence further tended to show that previous to the defendant’s arrest he had some of the goods in his possession at the house of McGinnis; and the witness Crenshaw testified, after proper predicate was laid: “That defendant stated first that he bought the box of hardware from a negro for $3, and afterwards he stated he took the box of hardware, but that he ¡did not break open the box car; that he got it off of the platform.”
(2) The jury returned a verdict of guilty as charged in the second count of the indictment. This operated as an acquittal of the offense charged in the first count; therefore the defendant was not prejudiced by the refusal of the affirmative charge as to that count.
The evidence justified a submission of the case to the jury, and the court properly refused the affirmative charge as to the second count and also a like charge as to the whole case.—Fulton v. State, 8 Ala. App., 258, 62 South. 959.
This disposes of all questions insisted on by counsel for appellant, and, after an examination of the record, we find no reversible error.
Affirmed.