
    Boatner v. The State.
    
      Carrying Concealed Weapon, and PubUc Drunkenness.
    
    (Decided June 19, 1913.
    63 South. 33.)
    1. Indictment and Information; Joinder of Offenses. — Different misdemeanors charged in separate counts may be joined in one indictment, although they do not belong to the same family of crime.
    2. Criminal Law; Two Offenses; Evidence of Separate Acts. — -Where there was evidence of separate acts constituting the two offenses, a conviction of a defendant for carrying a concealed pistol, and for public drunkenness is not to be regarded as a conviction for two offenses for one act.
    Appeal from Tuscaloosa Circuit Court.
    Heard before Hon. Bernard Harwood.
    Lester Boatner was convicted of carrying a concealed pistol, and of public drunkenness, and he appeals.
    Affirmed,
    
      Brown & Ward, for appellant.
    All the exceptions raise the same question, and that is whether defendant can be indicted, tried and convicted of two séparate and distinct and non-kindred misdemeanors charged in separate counts of the same indictment.- — James v. State, 104 Ala. 20; Neville v. State, IBB Ala. 99. If the offenses are of the same class this may be justified if the punishment is similar. — Guarreno v. State, 157 Ala. 17; 20 Cyc. 401. The cases of Bass v. State, 63 Ala. 108; Woóster v. State, 55 Ala. 217, and Williams v. State, 77 Ala. 33, are conclusive of the contention that defendant was improperly tried and convicted in this case.
    R. C. Brickell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.
    Under the common law the offenses could he joined. — :22 Cyc. 401, and this rule is followed in this state. — Convey v. State, 4 Port. 186; Swanson v. State, 120 Ala. 376; Untremor v. State, 146- Ala. 133; Jackson’s Case, 136 Ala. 96; Scratching s’ Case, 151 Ala. 1; Gunter’s Case, 111 Ala. 23; Cheek’s Case, 38 Ala. 231; Gordon’s Case, 71 Ala. 315; Hall’s Case, 134 Ala. 90. The case of Burt v. State, 159 Ala. 134, and Allison v. State, 1 Ala. App. 206, are not applicable.
   WALKER, P. J.

— The indictment in this case contained three counts, which, respectively, charged the defendant with carrying a pistol concealed about his person, with carrying a pistol about his person on premises not his own or under his control, and with public drunkenness. By demurrer to the indictment, by motion to require the prosecution to elect, and by exceptions to the action of the court in giving and refusing instructions to the jury, the defendant raised the questions of the rigid of 1ho state to join in one indictment the separate offenses, alleged, and, on the trial under such indictment, to secure the conviction of the defendant of separate and distinct offenses. On a verdict finding the defendant guilty of carrying a pistol concealed about his person, as charged in the first count of the indictment, and assessing a' fine of $50 for that offense, and finding him guilty of public drunkenness, as charged in the third count of the indictment, and assessing a fine of $5 for that offense, the court adjudged the defendant guilty of the two offenses, and assessed against him a fine of $55.

It is settled in this state that in one indictment charges, in separate counts, of different misdemeanors, though not belonging to the same family of crimes, may be joined. — Burt v. State, 159 Ala. 134, 48 South. 851; Crittenden v. State, 134 Ala. 145, 32 South. 273; Swanson v. State, 120 Ala. 376, 25 South. 213; Wooster v. State, 55 Ala. 217. It follows that there was no error in overruling the demurrer to the indictment.

When this case was first considered by the court, the opinion was entertained that the judgment appealed from was to he regarded as a conviction of the defendant of more than one offense for the commission of a single act, and that, under the rule applied in the case of Burt v. State, 159 Ala. 134, 48 South. 851, it was not sustainable. Upon a reconsideration of the evidence set out in the hill of exceptions, the conclusion has been reached that the verdict, in so far as it found the defendant guilty of carrying a pistol concealed about his person, may he referred to the evidence, which had a tendency to prove that he did so just prior to his being guilty of the conduct which rendered him subject to the charge made in the third count of the indictment, upon which he was also found guilty. This being true, the record cannot be regarded as disclosing the fact that the convictions of the separate offenses charged m the first and .third counts of the indictment were based upon a single act,, which constituted a violation of more than one penal statute. There having been evidence of separate and distinct acts or conduct constituting the offenses of which the defendant was found guilty, the verdict rendered furnished a sufficient support for the judgment appealed from. — Guarreno v. State, 157 Ala. 17, 48 South. 65; Scrutchings v. State, 151 Ala. 1, 43 South, 962; Gunter v. State, 111 Ala. 23, 20 South. 632, 56 Am. St. Rep. 17.

No error is found in the record.

Affirmed.  