¶1 (dissenting). The excerpt from the oral charge of the court, quoted ante in the opinion per curiam, was free from error. The substance of this excerpt was referable to the offense charged in count 1 of the indictment, and that count conformed to Code, §6838. Section 6838 reads:
“Any probate judge, clerk of a court of record, register in chancery, sheriff, coroner, tax collector, county treasurer, trustee of public schools, notary public, justice of the peace, constable, or other public officer, who knowingly converts to Ms own use, or permits another to use any of the revenue of the state, or of any county" thereof, or any money paid into his office, or received by him in his official capacity, is liable to indictment, and, on conviction, must be punished as if he had stolen it.”
¶2 The difference between this section (6838) and section 6831 is apparent, due, doubtless, to the fact that in the former (6838) the lawmakers were-providing a penal law for public officials, while in the latter (6831) 'the purpose was to define an offense committed by agents, etc., who are not public officials.
¶3 Since a defendant against whom offenses are efficiently charged in two or more counts of an indictment may be convicted for the offense charged in any one of the two or more counts of the indictment so found by the jury to be proven beyond a reasonable doubt, it would not be error for a trial court to instruct the jury, either ex mero motu or upon request, that, if the facts (hypothesized by the court) essential to constitute an offense charged in one of the two or more counts in an indictment are found by the jury to be proven beyond a reasonable doubt, he would be guilty; should be convicted. If the indictment in this case had only contained count 1, it is manifest that the excerpt under consideration would not be held for error. The fact thpt there were other counts in the indictment charging offenses in which there was an element or elements not necessary to describe an offense under section 6838 would not serve to render erroneous an instruction that correctly defined a predicate for guilt in complete harmony with one of the counts, which in turn, efficiently charged an offense under a penal statute.
¶4 The further fact that the jury, subsequent to the giving of the instruction complained of, returned a verdict of guilty under another count (count 4, in this instance), could not characterize as erroneous the instruction that, when given to the jury, was free from error. In no event could the matter of the excerpt in question have been more than possibly misleading (Rose’s Case, 117 Ala. 77, 79, 80, 23 South. 638, treating the fourth *527 refused charge); and if the defendant conceived he might be prejudiced thereby he should have requested explanatory instructions.
¶5 The writ prayed should, in my opinion, be denied.