delivered the opinion of the court.
In the circuit court of Wayne county, the appellant was indicted for unlawfully, feloniously, and fraudulently making, uttering, issuing, and delivering a worthless check for the sum of fifty-five dollars. This indictment was based upon chapter 173 of the Laws of 1922, which provides that any one violating the provisions of the act “shall be guilty of a misdemeanor, if the amount of the check, draft or order be under twenty-five dollars, . . . and if the amount of the check, draft or order shall be twenty-five dollars ($25) or more, he shall be guilty of a felony and on conviction shall be imprisoned in the penitentiary not less than six months nor more than two years,” etc. At the January, 1924, term of the court the case was called for trial, and the defendant failing to appear a forfeiture was taken upon his appearance bond, and the following order was entered on the minutes of the court:
“Upon motion of the district attorney, and by consent of the court, this case was nolle prossed as to felony and tried as misdemeanor. ’ ’
Thereupon the trial proceeded in the absence of the defendant, and the jury returned a verdict of ‘ ‘ guilty as charged,” upon which the court imposed a penalty of five hundred dollars and a jail sentence of thirty days, and from this conviction and sentence this appeal was prosecuted.
The authorities establish the general rule that a nolle prosequi may be allowed as to one or more of the several counts of an indictment, or to part of a count or indictment which is divisible, or which charges an offense which in itself embraces another (16 C. J. 436); but this *751rule does not support the action of the court in the present case. The legislature has definitely fixed the grade of the offense by expressly providing that if the amo ant of the worthless check passed is twenty-five dollars or more the offense shall be a felony, punishable only by imprisonment in the state penitentiary. There is not the slightest uncertainty as to the amount of the check here involved. The indictment charged that the amount of the check was fifty-five dollars while the proof upon which the conviction rests establishes that fact. The offense charged was not divisible, and the g’rade thereof is fixed absolutely by the statute creating the offense. The only offense charged, or chargeable upon the facts, was a felony, and when the court upon the motion of the district attorney entered a nolle prosequi of this felony, there was no indictment left upon which the prosecution could proceed. The judgment of the court below will, therefore, be reversed, and the appellant discharged.
Reversed and appellant discharged.