
    Scrutchings v. The State.
    
      Assault and Battery.
    
    (Decided May 16, 1907.
    43 South. 962.)
    
      Indictment and Information; Election as to Gounts. — Where there are two counts in the indictment, one charging assault and battery and the other charging assault and battery with weapon, evidence as to each offense may be offered and a conviction may be had upon each count; the doctrine of election has no application to such a condition.
    Appeal from Montgomery City Court.
    Heard before Hon. W. H. Thomas.
    Ed Scrutchings Avas convicted of assault and assault and battery, under an indictment charging assault and assault and battery in one count and an assault and battery Avith a weapon in the other count, and he appeals.
    Affirmed.
    No counsel marked for appellant.
    Alexander M. Garber, Attorney General, for State. —No brief came to the Reporter.
   TYSON, C. J.

The indictment contains íavo counts. The first charges a simple assault and battery, and the second an assault and battery with a brick. It was permissible for the prosecution to offer evidence in support of the two distinct offenses charged, and to obtain a conviction upon each of the counts. And, when such evidence is introduced, there is no room for the application of the doctrine of election, which was attempted to be invoked in this case. — Untreiner v. State, 146 Ala. 133, 41 South. 170. It follows, therefore, that the motion to exclude the testimony, offered by the prosecution, of the assault and battery with a brick, was properly overruled, and that the affirmative charge requested by defendant was correctly refused.

The judgment of conviction must be affirmed.

Affirmed.

Haralson, Simpson, and Denson, JJ., concur.  