Lindsay, J. —Where there are two counts or charges in an indictment, embracing two different offenses of the same class and the same degree, and there is a verdict of “guilty” found by the jury, they can only assess one penalty against the accused. If two offenses be charged in the indictment, of the same class, but of different degrees, the party accused may make his election upon which he will be tried. Failing to do so, the jury may assess the penalty for either offense, if the evidence in the cause warrant the conviction upon either.
This may be regarded as one of the improvements of the code of criminal procedure upon the common-law methods of trial for penal offenses. There is no error in the judgment which needs correction, and it is therefore Affirmed.