(dissenting)—The indictment against the appellants contained two counts, one for embezzlement and one for grand larceny. On being arraigned, the defendant demanded that the state should be required to elect upon which count the trial should proceed. This request was overruled and proper exception taken. The record shows the following, after the appearance of the parties: '“And (the defendant) being arraigned upon the above indictment, for plea thereto says that he is guilty as charged therein. It is therefore considered that the defendant for the offence by him above committed do make his fine unto the State of Indiana in the sum of one dollar, and that he be confined- in the state prison for a term of two years, and that he pay the costs of this prosecution.”
Before the minutes were signed by the judge, the defendant moved the court for leave to withdraw his plea of guilty, which motion was overruled; and the defendant excepted to this ruling. There was no finding that the defendant was *411guilty as charged, or that he was guilty of embezzlement and grand larceny, or either of them, but only a judgment that he be fined and imprisoned in, etc.
First. Should the court have allowed the defendant to withdraw his plea of guilty ? The right of trial by jury is secured by the constitution of the State, and this right is inviolate and inviolable until the defendant has waived it of record, so as that the record shall become of binding force, and so as to operate as an estoppel; and this cannot be so until the minutes are read in open court and signed by the judge. Until these are done, the minutes may be said to be in solution, not solid, unsettled, and not of binding force as a record, and a party’s rights are not precluded or settled thereby; hence the defendant had a right to withdraw his plea of guilty and plead not guilty and demand a jury trial.
In this case it was imperative on th.e court to allow the withdrawal, because the plea did not specify the count to which it was intended to apply. The indictment charged two distinct offences or felonies in separate couxts, and to give to - the plea such certainty as would authorize a judgment, it should have stated the offence of which defendant confessed his guilt; and the court should have found him guilty of that offence, and rendered judgment on the finding. The accused confessed himself guilty of embezzlement or larceny, and the judgment fails to ascertain the crime for which the party is convicted. This court, in an able and thoroughly considered opinion, and again on petition for rehearing, has held that larceny and embezzlement are distinct offences, and that the act creating and providing for the punishment of the latter was intended to punish as a crime, that which was not by our law before punishable. Smith v. The State, 28 Ind. 321.
The punishments of the two offences are widely different. The conviction on a chai-ge of larceny could not authorize a judgment for embezzlement, nor a conviction on a charge of embezzlement warrant a judgment for larceny. Upon the indictment and plea there was no basis upon which the court could legally fix the measure of punishment. It was *412as if no plea of any kind had been put in, and the court should have ordered, on its own motion, a plea of not guilty entered, as provided by statute. 2 G. & H. 413, sec. 98. This plea could have no greater force than a verdict of a jury in the same form, and surely it cannot be contended that the court could have rendered judgment on a verdict in this case which might have been returned in this form: “ We, the jury, find the defendant guilty as charged in the indictment.”
Our code must govern our criminal practice, instead of precedents in other states or in England.
I have already noticed the double character of the indictment; but I will proceed to examine it in relation to the joinder of distinct felonies in the same indictment, and whether the motion to require the prosecution to elect upon which count he would go to trial should have been sustained.
Our code, 2 G. & H. 405, sec. 72, provides, that upon an indictment for an offence consisting of different degrees, the jury may find the defendant not guilty, as to the degree charged, and guilty of any degree inferior thereto, or of an attempt to commit the offence.
Section 73, 406, provides that in all other cases the defendant may be found guilty of any offence, the commission of which is necessarily included in that with which he is charged.
Section 74, 406, provides that counts for murder in the first and second degree and for manslaughter may be joined in the same indictment, and on the trial the defendant may be convicted of either offence.
These are the only provisions that relate to the joinder of counts in an indictment, and they are only express enactments of what was held and practiced before the code, and they were intended to cover our whole law on the subject, but they do not authorize the joinder of counts charging distinct felonies.
In England and in some of the states, it is held under their *413statutes that counts for these two offences may be joined, but in every instance where these rulings have been made, the statutes defining embezzlement either declare it should be deemed larceny and punished accordingly, or that it should be punished as larceny. Not so with our act in relation to embezzlement. It fixes a different penalty from that prescribed for larceny, and expressly enacts that there was not at the time of its passage, December 21st, 1865, any law punishing the offence of embezzlement. 3 Ind. Stat. 256.
J. Hughes, S. A. Huff, S. E. Perkins, F. J. Mattler and A E. Perkins, Jr., for appellant. v B, W. Hanna, Attorney General, J. A Duncan, H. C. Guff fin, and J. R. Carnahan, for the State.If these counts may be joined and the defendant compelled to go to trial on both, why not join counts for perjury and larceny, and indeed, counts for all the crimes and offences known to our law, and compel the defendant to go to trial on them ? It seems too plain to require or admit of further discussion. Reference to all the statutes on this subject, both English and American, may be found in 2 Archbold’s Criminal Practice and Pleading, 560.
I think that the court erred in not requiring the prosecutor to elect on which count he would put the defendant on trial, and in not allowing the defendant to withdraw his plea of guilty, and in rendering the judgment on the plea without a finding of guilty.