[Adams v. The State.] BRICKELL, C. J.-The theory of the joinder of different counts in an indictment is, that each count alleges a distinct and substantive offense. In practice, generally, the joinder is intended to meet the different phases in which the evidence may present the same offense. The general rule is, that counts for felony and misdemeanor may not be joined; nor can there be a joinder, where the legal judgment on each count would be materially different. 1 Whart. Cr. Law, § 418. Mere difference in the severity of the punishment, if the offenses are of the same nature, belong to the same family of crimes, and are subject to the same mode of trial and punishment of the same character, is not an objection to the joinder of them in different counts. But, to authorize the joinder, there must be a concurrence in the nature of the offense, the mode of trial, and the character of punishment. Johnson v. State, 29 Ala. 62; Oliver v. State, 37 Ala. 134; State v. Coleman, 5 Port. 32. Tested by this rule, the present indictment, joining a count for burglary, a felony, with a count for petit larceny, a misdemeanor, was subject to the demurrer interposed; and the court erred in overruling it. An indictment for burglary, with intent to steal, may, in the same count, aver the intent, and the actual larceny, without being obnoxious to a demurrer for duplicity. The averment of the larceny is not regarded as the averment of a distinct offense, but merely as the averment that the particular burglarious intent was consummated. Wolf v. State, 49 Ala. 359; Snow v. State, MSS. 2. In the charge given by the court, that there could be a conviction on both counts, there was manifest error. The evidence disclosed but a single transaction-the breaking and entry of the crib, stealing corn therefrom. We are not aware of any principle, or authority, which justifies the splitting it up into two distinct offenses, or which commits it to the discretion of the jury to sever it, and punish it accordingly. It is not necessary to consider any other questions presented by the record. They cannot arise again under the facts now presented. Let the judgment be reversed, and the cause remanded. The defendants must remain in custody, until discharged by due course of law. VOL. LV. [Hinds v. The State.] Hinds . The State. Indictment for Arson. 1. Averment and proof of ownership; variance; what is revisable.-On a trial under an indictment for arson, the house burned being averred to have belonged to "Leon R.," while the proof showed that it belonged to "Leonidas R.," who "was also known and called by the name of Leon R.;" no objection to the evidence being made in the court below, and no charge being asked and refused as to any supposed variance between the averment and proof of ownership, the question of such variance is not here presented for decision. 2. Leading questions to witness; what is revisable.-In the examination of witnesses, the form and manner of interrogating them must be left, in a great degree, to the discretion of the presiding judge; and the allowance by him of a leading question is not revisable on error. 3. Form of question and answer, as to state of feeling between witness and accused. ---On a trial for arson, the prosecutor may be asked, "what was the state of feeling between you and the accused at the time of the burning;" and he may answer, "that it was not good." There is nothing objectionable in the form of either the question or the answer. 4. Motive and threats on part of accused; relevancy of evidence showing.Evidence showing a motive on the part of the accused in committing the offense charged, and his threats against the prosecutor, though made several months before the commission of the offense, are relevant and admissible against him. FROM the Circuit Court of Wilcox. Tried before the Hon. JOHN K. HENRY. The indictment in this case charged that the defendants, Jacob Hinds and William Agee, "willfully set fire to and burned the gin-house of Leon Ratcliff, which, with the property therein contained, was then and there of the value of more than five hundred dollars." Said William Agee having died, the defendant Hinds was put on his trial alone, and pleaded not guilty; and during his trial he reserved the following bill of exceptions: "On the trial, there was evidence showing that the gin-house burned, and about one bale of the cotton in it at the time, was the property of Leonidas Ratcliff, who was also known and called by the name of Leon Ratcliff; that about seven bales of the cotton burned belonged to one Dick Robinson, about two-thirds of one bale belonged to one Riley, and the rest of the cotton burned amounting [amounted?] to about six bales; that the total value of the cotton in the gin-house at the time it was burned was about $700, and the value of the gin-house was about $1,000; and it was shown that the gin-house, with its contents, was burned on the night of the 19th December, 1875. Leon [Hinds v. The State.] idas Ratcliff, who was the owner of the gin-house, was sworn as a witness on the part of the State, and was asked by the solicitor this question: What was the state of feeling between you and the defendant at the time of the alleged burning of the gin-house?' The defendant objected to this question, but the court overruled his objection; to which the defendant excepted. The witness answered, 'that it was not good;' which answer the defendant moved to exclude from the jury, and excepted to the overruling of said motion. The solicitor then asked said witness this question: "State any facts showing the state of feeling between you and the defendant.' The defendant objected to this question, but the court overruled his objection; and to this ruling of the court, also, the defendant excepted. The witness answered, that the defendant was in his employment in the year 1874, and was indebted to him at the end of the year in the sum of about one hundred dollars, and was about to remove his corn and fodder away from witness' premises, to another place about two miles distant; that he (witness) sued out an attachment, and levied it on the defendant's corn and fodder; that the case came on before a justice of the peace, and was compromised between him and the defendant at the trial, he taking a part of the corn, and releasing to the defendant the rest of the corn and the fodder; that this compromise still left the defendant indebted to him about fifty dollars; and that this attachment was sued out, and the trial was had, in January, or February, 1875. The defendant moved to exclude this answer of the witness from the jury, but the court overruled his motion; to which decision and ruling of the court, also, the defendant excepted. The State also introduced one Jim Miles as a witness, and asked him this question: Whether he had any conversation with the defendant, before the burning of the gin-house, about a cow that Dick Robinson said the defendant had killed, and which Dick Robinson had told Mr. Echols about. The defendant objected to this question, but the court overruled his objection; to which decision and ruling, also, the defendant excepted. The witness answered, that the defendant said to him, Uncle Dick Robinson told Mr. Echols that he (defendant) killed Mr. Echols's yearling, and little Bill Robertson told Mr. Ratcliff that he was hauling off his corn in the night, and Mr. Ratcliff put an attachment on his corn, and now, damn them, I'll get even with them, if I have to burn up what they make in the gin-house, gin-house and all;' and that he (witness) said to him, 'I would not do that.' The defendant moved the court to exclude from the jury the said answer of the witness, but the court overruled the motion; [Hinds v. The State.] to which ruling and decision of the court, also, the defendant excepted." S. J. CUMMING, for the defendant, argued the several questions presented by the exceptions reserved as above stated, and also insisted that there was a fatal variance between the averment and proof as to the name of the owner of the building; citing to this point the following authorities: 2 Bishop on Criminal Procedure, $$ 36, 718; Glanfield's case, 2 East, P. C. 1034; Martha v. The State, 26 Ala. 72; Willis v. People, 1 Scam. (Ill.) 399; State v. Fish, 3 Dutch. N. J. 323; People v. Myers, 20 Cal. 76; Graham v. The State, 40 Ala. 659; Boles v. The State, 46 Ala. 204; Davis v. The State, 52 Ala. 357; 3 Greenl. Ev. § 22. JOHN W. A. SANFORD, Attorney-General, with whom was B. HOWARD, for the State, cited Roscoe's Crim. Ev. 95, 967; Burrill's Cir. Ev. 281-3, 290, 336; Johnson v. The State, 17 Ala. 625; Noles v. The State, 26 Ala. 31; Donnell v. Jones, 13 Ala. 490; Jones v. Tait, 8 Porter, 476; Townes & O'Brien v. Alford & Butler, 2 Ala. 378. MANNING, J.-No exception was taken to any charge given by the court to the jury in this cause, or to a refusal of the court to give any charge asked to be given on behalf of defendant. It is therefore to be presumed, that the instructions of the circuit judge fairly and fully presented the case in all proper aspects, and in the light of all the evidence, to the jury for their consideration. The same testimony by which it was proved that the gin-house that was burned, and some of the cotton therein, was the property of Leonidas Ratcliff, shows that he "was also known and called by the name of Leon Ratcliff," to whom the indictment charges that the gin-house burned belonged. No objection was made to the introduction of this evidence; the bill of exceptions does not say that there was no other upon this point; and no exception is made to any charge given, or to the refusal to give any charge respecting it, in the Circuit Court. We do not, therefore, perceive any ground upon which this court can undertake to review the action or rulings of that court in relation to this matter.-See Franklin v. The State, 52 Ala. 414. 2-3. The objection to the form of the question put to one of the witnesses for the State whose property was burnednamely, "What was the state of feeling between you and the accused at the time of the burning?"-was not well taken. The question was not too leading; and if it were so, the rul [Morningstar v. The State.] ing of the court allowing it, notwithstanding, would not be subject to review and reversal in this court. The form and manner of interrogating a witness must be left in a great degree, if the evidence is relevant, to the discretion of the circuit judge. Nor was it necessary, as here contended, that, in the first question put on that subject, the inquiry should have been, as to the state of feeling on the part of the accused toward the witness, instead of the state of feeling between them. That was a matter which might be explained upon a further questioning, either on the examination in chief, or the cross-examination. The testimony of the witness Ratcliff was relevant, because it showed the existence of the causes, upon which the accused himself, according to the testimony of another witness, founded his subsequent threats to burn the property destroyed, and his expressions of animosity. Neither the overruling by the court of the objection to the question by which the evidence of this matter was brought out, nor the refusal of the motion to exclude the evidence, was erroneous. The relevancy of the testimony is obvious; its conclusiveness or sufficiency was a matter for the consideration of the jury. The same observations are applicable to the subsequent testimony tending to show ill feeling and threats on the part of the accused against Dick Robinson, whose cotton was in the gin-house, and was destroyed with it. Let the judgment of the Circuit Court be affirmed. Morningstar v. The State. Indictment for Larceny. 1. Criminal intent necessary ingredient of offense.--A conviction cannot be had of the larceny of a stick of timber, "if the defendant had a claim to it, honestly entertained, although he knew of an adverse claim by another person.' 2. Abstract charge; what is not.--When there is any legal evidence tending to establish a material fact in the case, however weak or suspicious the presiding judge may deem it, it is the right of a party to have it passed on by the jury, under an appropriate charge; and such a charge cannot be refused as abstract. FROM the Circuit Court of Escambia. The defendant in this case, Henry Morningstar, was indicted for the larceny of "a large stick of square hewn pine timber, of the value of fifty dollars, the personal property of |