[Wooster v. The State.] two counts charged different offenses, which could not properly be joined in the same indictment.-The State v. Covy, 4 Porter, 186; Coleman v. The State, 5 Porter, 32; Norvell v. The State, 50 Ala. 174; Amer. Crim. Law, vol. 1, § 395. The defendant was entitled to the benefit of her demurrer, and the consequences of the misjoinder could not be avoided by striking out one of the counts.-Rose v. The State, Minor, 28. 2. The court erred in admitting evidence of the general reputation of the house and its inmates.-Amer. Crim. Law, vol. 3, § 2367; Commonwealth v. Hopkins, 2 Dana, 418; Overstreet v. The State, 3 How. Miss. 328; United States v. Jourdine, 4 Cranch, 338; People v. Mauch, 24 How. N. Y. Pr. 276; Commonwealth v. Stewart, 1 Serg. & R. 342. JNO. W. A. SANFORD, Attorney-General, for the State.There was no misjoinder of offenses in the indictment. The two offenses charged belong to the same class, and are subject to the same kind of punishment, differing only in the degree of severity.-Cawley v. The State, 37 Ala. 152, and authorities there cited; Oliver v. The State, 37 Ala. 134; Scott v. The State, 37 Ala. 122; Johnson v. The State, 29 Ala. 62. Even if there was a misjoinder, the solicitor had a right, with the consent of the court, to enter a nolle-prosequi as to one count, notwithstanding the demurrer.-Rev. Code, § 4150; United States v. Stowell, 2 Curtis, C. C. 153. As there was no judgment on the demurrer, there is nothing for this court to revise in reference to it.-Lewis v. Paul, 42 Ala. 140. BRICKELL, C. J.-The first count in the indictment charges the statutory offense of being "a common prostitute, or the keeper of a house of prostitution," having no honest employment, whereby the defendant could maintain herself. The second count charges the common-law offense of keeping a bawdy-house. The two offenses are of the same nature, belong to the same class of crimes, and each is a misdemeanor. The statutory offense is punishable, on the first conviction, by fine of not less than ten, nor more than fifty dollars; and a second conviction, within six months after the first, is punishable by fine of not less than fifty dollars, nor more than one hundred dollars, to which hard labor for the county, or imprisonment in the county jail, for a term not exceeding six months, may be added.-R. C. § 3630. The common-law offense is punishable by fine, not exceeding five hundred dollars, to which imprisonment in the county jail, or hard labor for the county, not exceeding six months, may be added.-R. C. § 3754. A demurrer was interposed to the whole indictment, because of a misjoinder of offenses; [Wooster v. The State.] and to the second count, because it was an insufficient statement of the offense. Without passing on the demurrer, against the objection of the defendant, the court, before the jury were impannelled, and before the trial had commenced, permitted the solicitor to enter a nol. pros. as to the first count, proceeding for a conviction on the second count alone. It was the right of the solicitor, certainly at any time before the trial was commenced, whether a demurrer had been interposed or not, with the consent of the court, to enter a nol. pros. as to either count in the indictment, thereby electing to proceed alone on the remaining count.-1 Bish. Cr. Pr. $$ 443, 446; State v. Merrill, 44 N. H. 264. 2. There was, however, no misjoinder of counts. The rule to which the counsel of appellant refers, extracted from former decisions of this court-that two offenses, committed by the same person, may be included in the same indictment, in different counts, only when they are of the same general nature, and belong to the same family of crimes, and where the mode of trial and nature of punishment are also the same-obtains only in cases of felony. In such cases, no objection to the indictment, for a misjoinder, can be made by demurrer. A motion to the court, to compel an election of the counts on which a conviction will be sought, is the only right of the accused.-1 Arch. Cr. Pl. & Pr. 94-5. The motion will always be granted, or the court, of its own motion, will interfere, by quashing the indictment, when an attempt is made, as manifested either by the indictment or the evidence, to convict the accused of two or more offenses, growing out of distinct and separate transactions. The court ought not and will not interpose, when the joinder is intended and calculated to meet the different aspects in which the evidence may present a single transaction, or a single offense.-Mayo v. State, 30 Ala. 32. This practice of compelling an election, or of quashing the indictment, if there was failure or refusal to elect on which count or counts a conviction would be claimed, never prevailed in reference to misdemeanors.-1 Arch. Cr. Pl. & Pr. 94-5; 1 Bish. Cr. Pr. $$ 448, 449, 452; 1 Wharton's Am. Cr. Law, § 414; Kane v. People, 8 Wend. 203; Commonwealth v. Birdsall, 69 Penn. St. 482. It is, of consequence, a general rule of the common law, prevailing here in the absence of a statute changing it, that "two or more misdemeanors, growing out of separate and different transactions, may, in different counts, be joined in the same indictment."-1 Bish. Cr. Pr. § 452; 1 Whart. Am. Cr. Law, § 414; 1 Arch. Cr. Pl. & Pr. 94-5; People v. Costello, 1 Denio, 90; Kane v. People, supra; Commonwealth v. Gillespie, 7 Serg. & Rawle, 469. The court, in cases of such [Wooster v. The State.] joinder, should doubtless exercise great care, to protect the accused from embarrassment in his defense. But there is no legal objection to it. Here, the offenses were of the same nature, and the joinder may have been necessary to meet the varying phases of the evidence. It would be difficult to affirm that the rule applicable in indictments for felonies would have required the court to interpose, either by compelling an election, or by quashing the indictment. The two offenses are of the same nature, and are so near akin that a joinder may be necessary to the due administration of the criminal law. The case of Norvell v. State, 50 Ala. 174, is in conflict with our views, and must be overruled. The second count, on which the trial was had, is sufficient, and was not affected by the nol. pros. as to the first. 3. The authorities are not harmonious, as to the admissibility of evidence of the reputation of the house, on an indictment for keeping a bawdy, or a disorderly house. In State v. McDowell, Dudley, S. C. 346, such evidence was held admissible. Other authorities have repudiated it.-People v. Mauch, 24 How. Pr. 276; United States v. Jourdine, 4 Cranch, Cir. Ct. 338; Commonwealth v. Stewart, 1 Serg. & Rawle, 344; Smith v. Commonwealth, 6 B. Monroe, 21. We prefer to follow the rule as stated in these latter authorities. The accusation is of a specific offense, in its nature susceptible of proof by witnesses who speak from their knowledge. The rule is, that hearsay evidence-and such is the evidence of reputation-is inadmissible to establish any specific fact, capable of direct proof by witnesses speaking from their own knowledge; and when the rule is relaxed, it is from necessity alone.-Overstreet v. State, 3 How. (Miss.) 328. The accusation is, not that the defendant kept and maintained a house which bore an evil name, but that she kept and maintained a bawdy-house, indictable, not because of its ill-fame, but because of the immoral and corrupting practices there indulged, and the evil persons there permitted to congregate for these practices. It is these practices, and the character of the persons there frequenting, and these only, which could render it a bawdy-house in the meaning of the law. If it has obtained that reputation justly, it is from these specific facts and it seems to us in accordance with principle, and with the humanity of the criminal law, to require the evidence of these facts, and not of the reputation which, if it really and truthfully exists, is based on them. We hold, that the Circuit Court erred in admitting the evidence of the general reputation of the house. But the evidence of the general character of the inmates of the house for chastity was properly admitted. It was a fact, tending to show the [Provo v. The State.] house was of the character imputed to it-a bawdy-house. Its sufficiency was matter for the jury, and would depend on its connection with other facts, tending to show that the house was kept and maintained for prostitution.—2 Bish. Cr. Pr. § 116. For the error pointed out, the judgment is reversed, and the cause remanded. The appellant must remain in custody, until discharged by due course of law. Provo v. The State. Indictment for Larceny. 1. Charge to jury, as to defense of alibi.-A charge to the jury in a criminal case, instructing them that they should consider the evidence of an alibi with great caution-that the law so considered it, because it was so easily manufactured, but that an alibi, when once established to the satisfaction of the jury, was as good as any other evidence" [defense], is not erroneous. 2. Charge to jury, stating evidence.-A charge to the jury, when asking further instructions, in reply to an inquiry by one of the jurors, whether there was any evidence of a particular fact, "that that was matter exclusively for the jury, but they would remember what one witness said on that point," is not an invasion of the province of the jury, nor calculated to mislead them, nor otherwise objectionable. FROM the City Court of Montgomery. Tried before the Hon. J. A. MINNIS. The indictment in this case charged, that the defendant, Meredith Provo, "feloniously took and carried away a sheep, the personal property of James L. Sampey," On his trial, he reserved a bill of exceptions to the charges given by the court to the jury, as stated in the opinion of the court. BENJ. GARDNER, for the defendant, cited the case of Spencer v. The State, 50 Ala. 124. JOHN W. A. SANFORD, Attorney-General, for the State, cited Burrill on Circumstantial Evidence, 517-8; Best on Evidence, vol. 2, § 655; Carter v. The State, 33 Ala. 429; Alsobrooks v. The State, 52 Ala. 24. MANNING, J.-Exception was taken in the City Court to the instructions of the judge, "that the jury should consider the evidence of an a'ibi with great caution; that the law so considered it, for the reason that it was so easily [Provo v. The State.] manufactured; but that an alibi, when once established to the satisfaction of the jury, was as good as any other evidence." We suppose this should be any other defense. This was one among other charges given, and is not equivalent to the instruction held to be erroneous in Spencer v. State (50 Ala. 124)-that "the defense of an alibi . the law al ways looks upon with suspicion," and it must be shown, "to the satisfaction of the jury, that it was a physical impossibility for the prisoner to have committed the crime, before they can acquit him on the ground of this defense alone." On the contrary, the charge now under consideration, while it instructs the jury that they "should consider the evidence of an alibi with great caution, for the reason, that it was so easily manufactured," at the same time informed them that where an alibi was established to the satisfaction of the jury, it was as good a defense as any other. The evidence against the accused ought also to be considered "with great caution; and if the jury were not intelligent enough to know this, it is to be presumed they were so instructed, in some of the other charges that were given. In fact, this is almost always done. The Supreme Court of Tennessee held, that "the defense of an alibi, though necessarily conclusive, if clearly, certainly, and fully established, is one so liable to abuse, from the ease with which it is concocted when a design exists to practice a fraud on the State, and even when that design does not exist, by ignorant mistakes as to the particular hour and lapse of time, that it requires great strictness and attention on the part of the court and jury, to avoid being frequently misled by it." This is another, but more forcible, mode of expressing the same ideas that are embodied in the charge objected to. There is no error in calling to them in a proper case, such as this was, and in the manner employed by the City Court, the attention of a jury whose duty it is to render a "true verdict, according to the evidence." They were not so insisted on as unduly to influence the jury. 2. Exception was taken to the action of the court in another matter. The jury, after having retired to consider of their verdict, returned into court for further instructions, when one of them asked, "if there was any evidence that any person had seen the money paid by defendant for the mutton," supposed to be meat of the sheep alleged to have been stolen. "The court replied, that that was matter exclusively for the jury, but the jury would remember that one witness testified as to what defendant said he was to payone dollar and a quarter, or one dollar and a half-for the mutton; the jury will remember for themselves what this wit |