¶1 Under all the evidence in this case the defendant was entitled to be discharged. The verdict of the jury finding defendant guilty under the second count of the indictment operated as an acquittal of the charge contained in the first count. It is conceded by the Attorney General representing the state in this court that the measure of proof required of the state was not met, and that the defendant was entitled to the affirmative charge as to count 2. Wilson v. State, 20 Ala. App. 62, 100 So. 914; Ex parte State, etc., 211 Ala. 574, 100 So. 917; Dawkins v. State, 19 Ala. App. 501, 98 So. 492; Hill v. State, 19 Ala. App. 483, 98 So. 317; Hanson v. State, 19 Ala. App. 249, 96 So. 655; Moultrie v. State (Ala. App.) 101 So. 335; 1 Hill v. State, 20 Ala. App. 158, 101 So. 159; Ammons v. State (Ala. App.) 101 So. 511. 2 The court committed reversible error in refusing the affirmative charge requested in writing by defendant.
¶2 Reversed and' remanded.