Foster, J.
The respondent’s exception to this indictment is that it embraces two distinct offences, of a different character; the one being a felony, and the other a misdemeanor; and that, by reason of this joinder, he is compelled, in making his defence to one count, to admit the allegations of tbe other.
We think it is quite apparent that the purpose of the prosecuting officer iu this case was to charge the respondent with but one criminal transaction ; but the offence was described in different ways, for the purpose of meeting the evidence as it might transpire on the trial, and to avoid the escape of a guilty party, through the loop-hole of a mere technicality. There is no objection to this form of criminal pleading, under proper rules and restrictions.
It is analagous to the forms of declarations in civil actions; and is admissible for the same purposes, in criminal as well as civil causes.
It is never admitted, however, where it becomes apparent that injustice may result from it, or the prisoner be put to such inconvenience or embarrassment as may prevent a full and fair exhibition of his defence.
Nevertheless, even if the prisoner cannot be embarrassed in his defence by the joinder of these counts in the same indictment, he is entitled to any benefit that may accrue to him by reason of any departure from the requisite forms of criminal pleading.
And he claims that under established rules, the two offences described in these several counts cannot be joined in the same indictment.
As already suggested, where the purpose of the prosecuting officer is to charge a single transaction, but he is in doubt whether the evidence may support an indictment for one offence or another, it is usual to insert two or more counts. “ And no doubt can be entertained,” says Mr. Chitty, “that this course is as legal as it is advanta[469]*469geous; for it is even no objection, either upon demurrer, or arrest of judgment, that separate offences of the same nature, are joined against the same defendant,” 1 Chitty Crim. Law, 248. Therefore a count for embezzlement may be joined with a count for larceny, because both these offences are felonies at common law and by various statutes in England, 1 Chitty Cr. Law 254. But every separate count should charge the defendant, as if he had committed a distinct offence, because it is upon the principle of the joinder of offences, that the joinder of counts is admitted. 1 Chitty Cr. Law 249 ; 1 Bishop on Cr. Procedure § § 183, 184, 197.
Yet, if in felonies, and sometimes in misdemeanors, the judge finds it to be fact, and not fiction, (upon which principle alone one distinct charge is represented as several offences) that there are more offences than one, intended to be embraced in the same indictment, he will arrest the proceedings, 1 Bishop Cr. Proc. § 183.
But it is said that a count for felony cannot be joined in the same indictment with a count for a misdemeanor; and that this indictment presents both a felony and a misdemeanor in its several counts.
What is a felony and what a misdemeanor by our law, and in the criminal jurisprudence of many other states of the union is not always easy to determine. In some states the distinction is made and defined by statute. But it is not so in New Hampshire and it may seriously be doubted whether felony, in any proper or practical use of the term, is or can be recognized in ourr criminal jurisprudence. And, since here, as in the United States generally, there can be no forfeiture of estate or goods, as a punishment for crime, the word_ felony has lost its characteristic and original meaning. Offences as to their designation in this respect, if the distinction becomes important, must be defined by the interpretation of the common law, and in that light, the term felony here is perhaps generally used to denote any high crime, punishable by death or imprisonment in the the States Prison ; offences of that character being such only as by the English law formerly had the penalty of forfeiture attached as an additional punishment. Such a criterion would not, however, be strictly cor.rect, because larceny, for example, is undoubtedly regarded as a felony, though the value of the money or goods stolen may be so small as to render the offence not punishable by imprisonment in the State Prison. 2 Bishop on Cr. Law § 875.
Aud the two offences here joined are each so much of the nature of larceny that by analogy, both might be considered as felonies. Moreover, by our law, either offence may be punished by imprisonment in the State Prison; and the fact that one of these offences may, but does not, by necessary force of the statute, receive a lighter punishment, would not reduce the character of the offence from felony to misdemeanor, if that character is determinable by the degree of punishment which may be prescribed, since that degree is not dependant at all upon the value of the money or goods fraudulently appropriated. Gen. Stats. ch. 257, § § 1, 8. If, then, the offence charged in each count may be regarded as a felony, (and though ex[470]*470pressed as distinct offences, the purpose is apparent to present but one transaction,) there is no objection, as we have seen, to the joinder of the two couuts in the same indictment.
But in the uncertainty which involves the character of the two offences here charged, we will adopt the arbitrary definition of some of the text writers, who, without explanation, make a distinction between the character of these offences, and designate the obtaining of money by false pretences as a misdemeanor, and embezzlement as a felony.
We shall then find that the only, reason which forbids the joinder of a count for felony with a count for misdemeanor, in the same indictment, coutrary to the rule which permits the joinder of separate felonies, rests in the practice of the Euglish and some of the American courts, which forbids a conviction for a misdemeanor only, on an indictment for a felony. 1 Bishop’s Crim. Law §§ 814-823; 1 Bishop’s Crim. Proc. § 198, and authorities cited in note 3.
But in states where there can be a conviction for misdemeanor on an indictment for felony, counts for felony and misdemeanor may, under some circumstances, be properly joined. “It is true,” said Dewey, J., in Commonwealth v. McLaughlin, 12 Cush. 612, “that, generally speaking, offences differing in their natures, one being a felony and the other a misdemeanor, ought not to be joined. But the practice in this commonwealth has fully sustained a joinder of such counts where they have been a kindred line of offences. It is allowed always where several counts are introduced for the purpose of meeting the evidence as it may transpire on the trial, all the counts being substantially for the same offence.” And in Maryland, to a count in an iudictment charging a rape which is a felony, may be added a count charging an assault with intent to commit a rape, which, in that state, is only a misdemeanor. State v. Sutton, 4 Gill. 494; Burke v. The State, 2 Har. & J. 426.
And, in accordance with the well settled practice in this state, there may be a conviction of a misdemeanor upon an indictment for felony; as, for example, upon an indictment for an assault with intent to kill, a conviction may be had of asimple assault and battery. State v. Webster, 39 N. H. 96; State v. Hilton, 32 N. H. 285; State v. Nelson, 8 N. H. 163.
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Foster, J.
The respondent’s exception to this indictment is that it embraces two distinct offences, of a different character; the one being a felony, and the other a misdemeanor; and that, by reason of this joinder, he is compelled, in making his defence to one count, to admit the allegations of tbe other.
We think it is quite apparent that the purpose of the prosecuting officer iu this case was to charge the respondent with but one criminal transaction ; but the offence was described in different ways, for the purpose of meeting the evidence as it might transpire on the trial, and to avoid the escape of a guilty party, through the loop-hole of a mere technicality. There is no objection to this form of criminal pleading, under proper rules and restrictions.
It is analagous to the forms of declarations in civil actions; and is admissible for the same purposes, in criminal as well as civil causes.
It is never admitted, however, where it becomes apparent that injustice may result from it, or the prisoner be put to such inconvenience or embarrassment as may prevent a full and fair exhibition of his defence.
Nevertheless, even if the prisoner cannot be embarrassed in his defence by the joinder of these counts in the same indictment, he is entitled to any benefit that may accrue to him by reason of any departure from the requisite forms of criminal pleading.
And he claims that under established rules, the two offences described in these several counts cannot be joined in the same indictment.
As already suggested, where the purpose of the prosecuting officer is to charge a single transaction, but he is in doubt whether the evidence may support an indictment for one offence or another, it is usual to insert two or more counts. “ And no doubt can be entertained,” says Mr. Chitty, “that this course is as legal as it is advanta[469]*469geous; for it is even no objection, either upon demurrer, or arrest of judgment, that separate offences of the same nature, are joined against the same defendant,” 1 Chitty Crim. Law, 248. Therefore a count for embezzlement may be joined with a count for larceny, because both these offences are felonies at common law and by various statutes in England, 1 Chitty Cr. Law 254. But every separate count should charge the defendant, as if he had committed a distinct offence, because it is upon the principle of the joinder of offences, that the joinder of counts is admitted. 1 Chitty Cr. Law 249 ; 1 Bishop on Cr. Procedure § § 183, 184, 197.
Yet, if in felonies, and sometimes in misdemeanors, the judge finds it to be fact, and not fiction, (upon which principle alone one distinct charge is represented as several offences) that there are more offences than one, intended to be embraced in the same indictment, he will arrest the proceedings, 1 Bishop Cr. Proc. § 183.
But it is said that a count for felony cannot be joined in the same indictment with a count for a misdemeanor; and that this indictment presents both a felony and a misdemeanor in its several counts.
What is a felony and what a misdemeanor by our law, and in the criminal jurisprudence of many other states of the union is not always easy to determine. In some states the distinction is made and defined by statute. But it is not so in New Hampshire and it may seriously be doubted whether felony, in any proper or practical use of the term, is or can be recognized in ourr criminal jurisprudence. And, since here, as in the United States generally, there can be no forfeiture of estate or goods, as a punishment for crime, the word_ felony has lost its characteristic and original meaning. Offences as to their designation in this respect, if the distinction becomes important, must be defined by the interpretation of the common law, and in that light, the term felony here is perhaps generally used to denote any high crime, punishable by death or imprisonment in the the States Prison ; offences of that character being such only as by the English law formerly had the penalty of forfeiture attached as an additional punishment. Such a criterion would not, however, be strictly cor.rect, because larceny, for example, is undoubtedly regarded as a felony, though the value of the money or goods stolen may be so small as to render the offence not punishable by imprisonment in the State Prison. 2 Bishop on Cr. Law § 875.
Aud the two offences here joined are each so much of the nature of larceny that by analogy, both might be considered as felonies. Moreover, by our law, either offence may be punished by imprisonment in the State Prison; and the fact that one of these offences may, but does not, by necessary force of the statute, receive a lighter punishment, would not reduce the character of the offence from felony to misdemeanor, if that character is determinable by the degree of punishment which may be prescribed, since that degree is not dependant at all upon the value of the money or goods fraudulently appropriated. Gen. Stats. ch. 257, § § 1, 8. If, then, the offence charged in each count may be regarded as a felony, (and though ex[470]*470pressed as distinct offences, the purpose is apparent to present but one transaction,) there is no objection, as we have seen, to the joinder of the two couuts in the same indictment.
But in the uncertainty which involves the character of the two offences here charged, we will adopt the arbitrary definition of some of the text writers, who, without explanation, make a distinction between the character of these offences, and designate the obtaining of money by false pretences as a misdemeanor, and embezzlement as a felony.
We shall then find that the only, reason which forbids the joinder of a count for felony with a count for misdemeanor, in the same indictment, coutrary to the rule which permits the joinder of separate felonies, rests in the practice of the Euglish and some of the American courts, which forbids a conviction for a misdemeanor only, on an indictment for a felony. 1 Bishop’s Crim. Law §§ 814-823; 1 Bishop’s Crim. Proc. § 198, and authorities cited in note 3.
But in states where there can be a conviction for misdemeanor on an indictment for felony, counts for felony and misdemeanor may, under some circumstances, be properly joined. “It is true,” said Dewey, J., in Commonwealth v. McLaughlin, 12 Cush. 612, “that, generally speaking, offences differing in their natures, one being a felony and the other a misdemeanor, ought not to be joined. But the practice in this commonwealth has fully sustained a joinder of such counts where they have been a kindred line of offences. It is allowed always where several counts are introduced for the purpose of meeting the evidence as it may transpire on the trial, all the counts being substantially for the same offence.” And in Maryland, to a count in an iudictment charging a rape which is a felony, may be added a count charging an assault with intent to commit a rape, which, in that state, is only a misdemeanor. State v. Sutton, 4 Gill. 494; Burke v. The State, 2 Har. & J. 426.
And, in accordance with the well settled practice in this state, there may be a conviction of a misdemeanor upon an indictment for felony; as, for example, upon an indictment for an assault with intent to kill, a conviction may be had of asimple assault and battery. State v. Webster, 39 N. H. 96; State v. Hilton, 32 N. H. 285; State v. Nelson, 8 N. H. 163.
We apprehend there need be no practical difficulty in the enforcement of the rule as we have now declared it.
It is true that where different offences may properly be joined in one indictment, the prosecutor will not ordinarily, at the outset of the trial, be put to his election upon which count he will proceed. To require such an election would take away all the advantages to be derived from the opportunity of adapting the evidence as it may be disclosed, to the various statements of the same transaction; but the court wall always take care, not only that the prisoner is no’t convicted of two offences upon the same indictment, but also that he is not embarrassed in the fair and full presentation of his defence. And to this- end, the judge, in the progress of the trial, and before the [471]*471accused is put to liis defence, may, in his discretion, make such orders, as shall secure to him the full enjoyment and benefit of his rights.
Thus, if in the progress of the trial, it shall appear that the different offences charged do not relate to one transaction, but to two different offences, the judge may, at any stage of the proceedings, quash the indictment or put the prosecutor to his election. If, on the other hand, it shall appear, after all the evidence for the prosecution has been heard, that but one transaction is covered by the evidence, although it is so charged in the indictment that upon a general verdict it may be doubtful as to which of several offences the respondent may be guilty of, the court may, at that stage of the proceedings, compel an election of counts by the prosecutor: or, the court, after a general verdict, may inquire of the jury, of which offence they have found the prisoner guilty, and so adapt their judgment to the finding of the jury.
Such, according to the authorities, we believe to be the practice of the courts in various jurisdictions, and it would seem that only by the exercise of a liberal but wise and truly legal discretion, can substantial justice in a great variety of instances lie attained. See 1 Bishop on Crim. Proc. §§ 205-213 ; The State v. Porter, 26 Mo. 201; Hampton v. The State, 8 Humph. 69 ; McGregg v. The State, 4 Blackf. 101; Baker v. The State, 4 Pike 56 ; Kane v. The People, 8 Wend. 203 ; United States v. Pirates, 5 Wheaton 201 ; The State v. Canterbury, 28 N. H. 226 ; The State v. Fly, 26 Me. 312 ; The State v. Marvin, 35 N. H. 26; Wharton’s Crim. Law 204, 207 ; 1 Archb. Cr. Pl. 95.
In the px'esent case, we think it is quite probable that the respondeixt would encounter sex’ioxxs enxbarrassnxent in the full and fair exhibition of his defence, if the government were allowed to x’ely upon both counts ixx the indictment.
In oxxe count he is charged with embezzling the money of Bux-gess & Faxon, which came lawfully ixxto his possession as their agent. Ixx the other coxxixt, it is charged that he was not their agent at all, but by means of a false px*etence of agency, he obtained the money. In order to prove the charge of embezzlemexxt, the government must establish the fact of the ageixcy, and in ox-der to defend against the chax’ge of obtaining money by false pretences, the respondeixt may be required to admit and to prove that he was the agent of Burgess & Faxon.
Whether the respondent may be put to disadvantage and exxxbax’rassmeixt by this predicament is a questioxx of fact, addressed to the discretion of the presiding judge ; and it is not improbable that, upon the trial, the presiding judge may feel compelled to require the pi’osecuting officer to elect upoxx which coxxnt he will proceed.
But upon the facts properly addressed to our consideration, such a result is not to be assumed ; and in the present stage of the proceedings, the respoxxdexxt is not placed in such jeopardy as to call for any extraordinary ixxtex’position of the court. The motion to quash the indictmexxt is denied.