
    *The State vs. John H. Boise and Deiderich Stuke.
    
    A count for felony, and a count for a misdemeanor, may legally be joined in the same indictment.
    Motion to quash an indictment, made before Richardson, J., at Charleston, January Term, 1841.
    The indictment charged the defendants, in the first count with a larceny, and in the second count with receiving stolen goods of some one unknown. I held these counts inconsistent, perse; the one being a felony, and the other a misdemeanor; and whether both offences arose out of the same act or not, was immaterial. For instance, assault and battery could not be joined with a count for murder, although arising out of the same act. The rules of pleading did not admit of such a distinction ; and I accordingly quashed the indictment.
    The Attorney General appealed from the order of the Court quashing the indictment in this case, and moves that the same may be rescinded, and the case reinstated on the docket for trial, on the ground :
    That a count for a misdemeanor may be regularly joined with a count for a felony in the same indictment; and that such joinder is no ground for quashing the indictment, if both counts relate to the same fact, or the same transaction.
    
      Bailey, Attorney General, for the motion,
    cited Rice’s Rep. 431 ; The State vs. Gaffney; 1 Chitty’s Grim. Law, 253, 254; and under these authorities, contended that a count for a misdemeanor might be joined with a count for a felony in the same indictment. No injury could result to the defendant by coupling two counts. He would not bo confused in his defence.
    
      Kunhardt and Yeadon, contra,
    cited The State vs. Smith, 1 Rice’s Dig. 309 ; 3 T. Rep. 102. By joining two counts, the defendant’s right of traverse is taken away. The evidence would be confounded. A felony and a misdemeanor *cannot bo united in the same indictment. The privilege of challenge, they contended, would be taken away from the defendant. If he is compelled to go to trial, he must prepare for both offences, although distinct, at the same time. That repugnancy was fatal in an indictment; and two repugnant charges cannot be sustained in the same indictment. It was, they contended, a matter of discretion for the Judge below. In the course of their argument, they cited 1 Chitty’s Crim. Law, 2U8; 1 Rice’s Dig. 390.
    
      
       Same parties in next case. An. And in 2 McMort., 252.
    
   Curia, per

Earle, J.

The rale in England in regard to the joinder of offences is, that a felony cannot be joined with a misdemeanor, in the same indictment, The reason which is assigned for this, that the defendant would thereby lose the benefit of having a copy of the indictment, a special jury, and of making his full defence by counsel, has no application at all in this country ; on the contrary, the defendant wmulcl gain by being indicted for felony, as he would have the right of challenge, in addition to the other privileges, which are equally secured to all defendants, in criminal prosecutions. From analogy to the rule of pleading in civil actions, I suppose that whenever the same plea may be pleaded, and the same judgment given, the offences may be joined. No doubt two felonies may be joined, so far as regards the objection in point of law, as matter of form. And so of several misdemeanors. (3 T. II. 98.) And by the English practice, larceny and receiving stolen goods may be joined, 1 Cr. Ca. 234. But here the receiving is charged as a felony. A case is cited by Mr. Riee, in his Digest, tit. Indietment, 52, State vs. Smith, MSS. where it is said there is a repugnancy in charging a felony in one count and a misdemeanor in another, which would be fatal. But, if fatal at all, I suppose it would be so on demurrer, or in arrest of judgment; and yet the judgment there was not arrested, although the defendant was convicted only of the receiving. Since the Act of 1829, subjecting the receiver to the punishment of whipping, and that of 1834, imposing the same punishment for grand larceny, the Act of 1833 having abolished branding. I can perceive no greater incongruity or repug-nancy in joining larceny and receiving stolen goods, in the indictment, than there is in joining any other distinct offences, where *the same judgment must be accorded. It is true, the offences are technically of different natures. One is a felony, and the other a misdemeanor. A second conviction of the former would be capital ; but as the formality of praying the benefit of the clergy on the first conviction, is wholly dispensed with, and the punishment of whipping is peremptorily substituted for branding, whether clergy be prayed or not, the offences are so far assimilated, that the technical objection which prevails in England, to their being joined, does not exist here.

See State vs. Posey, 7 Rich. 485 ; Chivis, 105 ; 3 Hill, 1.

We differ, therefore, with the Circuit Court, in the reason given for quashing the indictment, that the counts cannot legally be joined. We think that they may be joined, but leave it to the direction of the presiding Judge, in all cases, so to regulate the trial that the party shall not be prejudiced by the joinders. As other indictments have been given out and found, we do not consider it material to make any order.

O’Neall, Evans, and Butler, JJ., concurred, Gantt, J., dissented.  