Rose

The information in this case consisted of two counts, respectively charging that the defendant committed the crime of grand larceny, in that he unlawfully stole, took, and carried away the sum of $475, lawful money of the United States, belonging to a Mrs. Clara Reich; and that at the same time he embezzled said sum of money.

Motion was made that the district attorney be required to elect upon which count the prosecution would be based, on the ground that each negatived the other, and that inasmuch as the defendant could not have committed both offenses by the same act, the jury should not be compelled or permitted to convict upon both counts, or to make the election. There was some controversy as to when the defendant formed the intent to convert the money to his own use, and if he did so intend, and the trial court denied the motion upon the ground that the jury should decide whether he intended to obtain the money without giving consideration therefor, or legitimately obtained the same and thereafter converted it to his own use, should the evidence warrant a conviction upon either count.

' Section 954 of the Penal Code provides that an indictment or information may charge two…