#### STATE v. ALEXANDER MORRISON.

Larceny and Receiving — Election.

On trial-of an indictment for larceny and receiving, &c., the two counts relating to the same transaction and varied to meet the probable proofs, the court will not order the solicitor to elect upon which count he will proceed.

{State v. Eason, 70 N. C., 88; State v. Baker, 70 N. 0., 530; Statey. Speight, 69 N. 0., 72; State v. Jones, 82 N. 0., 685, cited and approved.)

*562IndiCTMBNT for larceny tried at Fall Term, 1881, of Ca-barrus Superior Court, before Avery, J.

The indictment contains two counts — one for the larceny of some wheat, and the other for receiving the same wheat, knowing it to be stolen. After the evidence was in, the defendant’s counsel moved the court to require the solicitor to elect upon which count he would proceed, but his Honor refused the motion, and the defendant excepted, and this was the only exception taken for defendant. After verdict •and judgment against defendant he appealed to this court.

Attorney General, for the State.

No counsel for defendant.

Ruffin, J.

The-common la.w rule is, that if an indictment contains charges distinct in themselves and growing out of separate transactions, the prosecutor may be made to elect, or the court may quash. But when it appears that the several counts relate to one transaction, varied simply to meet the probable proofs, the court will neither quash nor enforce an election. State v. Eason, 70 N. C., 88.

In this case, it is the same wheat which is alleged to have been stolen, and to have been received, so .that there can be no doubt that the two counts relate to the same transaction, and that the charge is diversified only out of an abundance of caution, and in order to be prepared for the result of the proofs.

At common law, a joinder of a count for a misdemeanor (which receiving is) with one for a felony, was not permitted, because the defendant’s rights, in regard to challenging jurors, differed as to the two offences — though there are some old cases, both in England and this state, in which it was done previous to any statute.

But to remove all doubt about it, statutes were passed as well there as here, allowing such a joinder to be made, not*563withstanding the discrepancy as to the grade of the two of-fences. Their statute (24 an-d 25 Viet., c. 96,) is fuller than ours, and in terms provides that in case of such a joinder of the two counts, “ the prosecutor shall not be put to an election.” Ours contains no such provision, but ever since the day of its adoption lias been construed to mean the same thing.

In the case of the State v. Baker, 70 N. C., 530, it is said that under an indictment containing two counts, one for larceny and the other for receiving stolen goods, the jury may bring in a general verdict of guilty, and in discussing the question, PsarsoN, O. J., admits that it could not be done at common law, and bases his decision wholly on the 'statute, and cites Míe case of State v. Speight, 69 N. C., 72, as authority for the position.

In the case of the State v. Jones, 82 N. C., 685, the point was made, that a joinder of the two counts would no longer be allowed, now that the constitution imposes upon all persons convicted of infamous offences, a disqualification for office and the right of suffrage, thereby, as it was said, creating a difference in the mode of punishment between the two offences. But this court held that the disqualification was the effect, but no part of the sentence denounced by the law, and the sentence being now, as it was before the adoption of that article in the constitution, there was no detraction from the right of the state to have both counts in the same indictment, and to try under both before the same jury.

Conceding that at common law a joinder of the two counts would not be allowed, it is too late now after the repeated decisions upon the point, and all pointing in the same direction, to revive the question as to the effect of the statute, •

There is no error. Let this be certified to the superior *564court of Cabarrus county, to the end that the matter may be proceeded with according to law.

No error. Affirmed.