Mitchell v. State , 2 Ala. App. 147 ( 1911 )

PELHAM, J.

This appeal is before us on the record proper, without a bill of exceptions. The only question presented by the record is on the demurrers to the affidavit or complaint, to the effect that two offenses are charged in the alternative in the same count. The affidavit or complaint contains but one count, in which the defendant is charged in the alternative with embezzlement and larceny.

Under the common law, the joinder of different offenses in the same count was deemed vicious, as double pleading, and not allowed. It is permissible, however, for kindred offenses of the same character or equal degree, subject to the same punishment, to be joined in the same count, under the statute in this state. — Code 1907, § 7151. The purpose of the statute is to dispense with a multiplicity of counts, allowing one to servé the purpose of several, and it has been held to be violative of no constitutional right.—Burdine v. State, 25 Ala. 60. Under this section, it has been held permissible to charge either of different prohibited acts of a prohibition law in the same count of an indictment in the alternative.—Sims v. State, 135 Ala. 61, 33 South. 162; McClellan v. State, 118 Ala. 122, 23 South. 732. The alternative averments in one count of the different means by which the offense was committed are held to be but substitutes for so many different counts.—Hornsby v. State, 94 Ala. 55, 10 South. 522. )

Embezzlement and larceny belong to the same family of crimes-, and are of the same general nature and character, and subject to the same punishment.—Code 1907, § 6828; Mayo v. State, 30 Ala. 32.. And in a case Avhere embezzlement and larceny were charged in different counts of an indictment, it was held that the state could not be compelled to elect upon which count it would proceed.—Butler v. State, 91 Ala. 87, 9 South. 191.

While it has been declared in this state that the statute creating and defining embezzlement Avas not intended to, and -did not, convert larceny at common laAV into stat-utoi’y embezzlement (Washington v. State, 106 Ala. 58, 17 South. 546), the only distinguishable difference between embezzlement and larceny is the manner in AAdiich the property comes into the possession of the offender. If the offender has the intent to appropriate to his own use before' or at the time of coming into possession of the personal property, he is guilty of larceny; but he may nevertheless be guilty of embezzlement, notwithstanding he has such secret intent, if he unlawfully converts it after it is committed to his custody as an officer or agent of another by virtue of his office or employment.

The similarity in character and almost interchangeability of the ingredients characterizing the difference in the two offenses is shown by the case of Holbrook v. State, 107 Ala. 154, 18 South. 109, 54 Am. St. Rep. 65. In that case, it was held that where a defendant was charged with the larceny of a quilt, and the evidence showed it had been turned over to him as a servant by the owner, to be delivered by the defendant at the owner’s house, the defendant was guilty of larceny, as the defendant had only the bare charge or custody, and was guilty of trespass in taking and larceny in converting to his own use, because the owner had the constructive possession.

The alternative' averments each charged a complete offense, and the two offenses, being of the same character, of equal degree, and subject to the same punishment, were properly joined in the same count, under the statutory authority conferred by section 7151 of the Code of 1907.

Affirmed.