(concurring.) Pitt Anderson was tried for and convicted of burglary and grand larceny on an indictment in which these offenses were joined. The prosecuting attorney, who represented the State in that cause, claims fees for two convictions. The statute, using the word “ felony ” in the singular and not plural number, says that he shall be allowed a fee of $25 for each conviction for any felony not capital.” The only question in the case is, were there two'convictions ?
Ordinarily, but one offense can be charged in the. same indictment. The statutes prohibit it, except in certain cases. Section 1621 of Mansfield’s Digest says : “Por -larceny committed jointly with burglary the offender shall be held to restitution, as in other cases of larceny, and the offender may be indicted for such offenses either separately or jointly in - different counts of the same indictment.” Other offenses, which need not be named, can be joined. Mansfield’s Digest, sec. 2109. In every case there must be separate and distinct accusations in the indictment for each offense charged, and the jury in their verdict should find him guilty or not guilty of each of them.
“ If the defendant,” says the statute, “is convicted of two or more offenses, the punishment of each of which is confinement, the judgment shall be so rendered that the punishment in one case shall commence after the termination of it. in the others.” Mansf. Dig. sec. 2317. This statute evidently applies to cases where the same defendant is convicted of separate offenses on different indictments, or one indictment for separate offenses which can be joined (Toliver v. State, 35 Ark. 395), and obviously treats the finding the defendant guilty of each offense a conviction, without reg-ard to-the manner in which he is accused. If not, why should two judgments, or what is equivalent to two judgments, be rendered?
The statutes, in defining the penalties of different offenses, provide what punishment the offender shall suffer on conviction thereof. Nor instance, it says: “ Whoever shall be convicted of burglary shall be imprisoned in the penitentiary for a period of not less than three nor more than seven years ; ” and “whoever shall be guilty of larceny, when the value of the property stolen exceeds the sum of ten dollars, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one nor more than five years.” They virtually denominate the legal ascertainment of the guilt of the defendant of each separate offense a conviction.
The statute fixing the fees of prosecuting attorneys should be construed in connection with the statutes prohibiting the joinder of more than one offense in the same indictment, and the exceptions, and ' prescribing how judgments on convictions of the same defendant for several offenses punishable by confinement shall be rendered. In construing it in this way, it seems to me that the word “conviction,” as used in the statute fixing fees, means the legal ascertainment of the guilt of the defendant of an offense, and that the prosecuting attorney in this case is entitled to two fees, as there were two convictions.
In Fanning v. State, 47 Ark. 442, sixteen persons were indicted for one and the same offense. There was .but one offense, one accusation, one trial, and but one conviction (no separate convictions), and of course the prosecuting attorney was entitled to a fee for only one conviction. That case is unlike this, and I think the opinion of the court therein is correct.
I concur with the court in the conclusion it has reached in this case, but not in the premises on which it is based.