overcome by a preponderance of evidence is erroneous, as the defendant is bound only to introduce such evidence as will raise a reasonable doubt as to whether or not his possession was honest.2 XVI. THE VERDICT.-A general verdict is in accordance with the course of the common law, in conformity to which all trials for criminal offences are to be conducted, except where a different mode is pointed out,3 and the general rule now seems to be that a general verdict of guilty affirms the truth of all matters charged in the indictment, and that no special finding is necessary. The same rule applies where the indictment charges several distinct crimes of the same grade, the punishment for which is the same but where the crimes charged are of a different grade, having different punishments, the rule is different. A verdict of "guilty of such value, and that the same was afterwards found in the defendant's possession, they ought to find the prisoner guilty, unless his possession of the note is explained, is error. Hunt v. Com., 13 Gratt. (Va.) 757; s. c., 70 Am. Dec. 443. An instruction that the possession by the prisoner of the property "lost" by the prosecutor is, etc., is not erroneous as using the word "lost" instead of stolen, it not being disputed but what the prosecutor lost them by theft. Belote v. State, 7 George (Miss.) 96. 1. Hoge v. People, 117 Ill. 35; s. c., 6 N. E. 796; 4 West 197; Hall v. State, 8 Ind. 439; State v. Kelly, 57 Iowa 644; State v. Richart, 57 Iowa 245; State v. Emerson, 48 Iowa 172. After instructing the jury that if a reasonable account of his possession of a stolen horse, consistent with his innocence, was given by defendant when first charged with the theft, the burden was upon the State to show the falsity of the explanation, it is error to add that, if defendant did not reasonably account for his possession of the horse when so accused, the jury should find him guilty. Arispe v. State (Tex.), 10 S. W. III. It is error to instruct a jury on a trial for larceny that possession of stolen property soon after it was stolen is of itself prima facie evidence that it was stolen by the defendant, and that the burden of proving his possession to have been honest is then thrown upon the defendant. Conkwright . People, 35 Ill. 204. At a trial for the larceny of colts, defendant testified that he saw the colts for the first time in a certain pasture after the larceny. The court instructed 12 C. of L.-56 .5 the jury that if defendant's possession of the animals had not been explained in a manner consistent with his innocence, they should convict. Held, that the instruction was erroneous, as under it the jury were bound to convict, even though they believed the defendant as to when and where he saw the colts for the first time. State v. Jordan, 69 Iowa 506; 29 N. W. 430. 881 2. State 7. Richart, 57 Iowa 245; State v. Kelly, 57 Iowa 644; Hall v. State, 8 Ind. 439; Crilley v. State, 20 Wis. 231. 3. Kollenberger . People, 9 Colo. 233. 4. Dubois . State, 50 Ala. 139; Mason v. People, 2 Colo. 373. v. 5. State v. Stroud, 95 N. Car. 626; State v. Baker, 70 N. Car. 530; State v. Speight, 69 N. Car. 72. Under a general indictment for theft a conviction for receiving or concealing stolen property may be had. Vincent v. State, 10 Tex. App. 330. In an indictment containing one count for larceny and one for receiving stolen goods relating to the same transaction, no election is necessary as to which count conviction will be asked on. Andrews v. People (Ill.), 4 West 139. On an indictment containing two counts. each charging the offence of grand larceny, if the prisoner is found guilty generally, without any assessment by the jury of the value of any of the articles stolen, the verdict will warrant a sentence and judgment for the crime of grand larceny, notwithstanding the jury might, under the indictment, have found a verdict of petit larceny. Wilborn v. State, 16 Miss. (8 Smed. & M.) 345. 6. State v. Major, 14 Rich. (S. Car.) L. 76. as charged in the indictment," is sufficient,1 and if supported by the evidence, is conclusive as to the truth of all the matters charged in the indictment.2 Where the verdict is guilty as to one count of the indictment and silent as to the others,3 or guilty of stealing a part of the articles charged in the indictment and silent as to the rest, it is in effect an acquittal as to the latter, and a sufficient and valid verdict as to the former; and proof that a larceny was committed by some one of several defendants jointly indicted in pursuance of a common purpose warrants a verdict of guilty against each, although the evidence does not show which one actually did the taking. On such indictment one may be convicted and another acquitted, though one cannot be convicted of one grade of the offence and another of a different grade.7 8 The verdict must be responsive to the charge, though it will not be disturbed on account of a slight immaterial or technical variance, or because it finds a crime necessarily included in the 9 1. People v. Manners, 70 Cal. 428; People v. Whitely, 64 Cal. 211; Tallon 7. People, 2 Abb. (N. Y.) App. Dec. 83. An indictment in one count charged the larceny of a bill of three different Tennessee banks; the bill stolen was issued by one. The prisoner, on his examination, confessed his "guilt as charged," and that he has passed a Tennessee bill soon after the loss. Held, that a conviction was warranted. Baldwin v. State, 1 Sneed (Tenn.) 411. An indictment charged in one count larceny, in another receiving stolen goods; the verdict was "guilty as charged in the second count, to wit, of receiving stolen goods, knowing," etc., and was held good as a general verdict in the second count. Oxford v. State, 33 Ala. 416. An objection that the verdict is illegal because it finds the defendant guilty of theft as charged in the indictment, and assesses a punishment not provided for the specific offence of horse theft, held not tenable. Foster v. State, 21 Tex. App. 80. 2. Dubois v. State, 50 Ala. 139; People v. Ma Gallones, 15 Cal. 426; Mason 7. People, 2 Colo. 373; State v. Gerrish, 78 Me. 20. 3. Lamphier v. State, 70 Ind. 317. 4. Swinney v. State, 16 Miss. (8 Smed. & M.) 576. Upon an indictment for stealing bank bills and a gold coin the jury returned this verdict: "Guilty; but not of taking the gold piece." Held, that the court might, against the objection of the de fendant, record this verdict as a verdict 5. Nevill v. State, 60 Ind. 308. 6. Under a joint indictment against two for inveigling, stealing and carrying away a negro, the evidence showing that one only hired, aided, or counselled the other, one may be convicted and the other acquitted. State v. Clayton, II Rich. (S. Car.) L. 581. 7. State v. Davis, 3 McCord (S. Car.) L. 187. But where two are jointly indicted for committing a larceny, and one of them pleads guilty of an attempt to commit a larceny, and is sentenced, the other defendant may be lawfully tried for the larceny, and, on conviction, be sentenced to suffer the penalty of the law therefor. Klein v. People, 31 N. Y. 229. 8. See Persons v. State, 3 Tex. App. 1 one charged; or because it convicts upon one count and acquits upon another.2 Thus on an indictment for grand larceny a verdict of petit larceny may be found; 3 but not so where the statute has made the crime punishable as grand larceny only.4 company. Price v. State, 41 Tex. 215. A judgment against the prisoner on an indictment for larceny will not be disturbed merely because among the things stolen there was an item for taking which a person would not be liable for stealing, when it appears by the record that the exclusion of that item could not reduce the nature of the offence, nor materially lessen the amount of the fine. Warren v. State, Iowa (Greene) 106. On the trial of an information charging the stealing of "national bank currency and United States treasury notes of the amount and value of $164," the jury may find the defendant guilty if they find that he stole national bank currency and United States treasury notes, or either. State v. Henry, 24 Kan. .457. There may be a conviction for stealing a cow, on evidence of the killing of the cow, although the cow never actually passed into the hands of the slayer, where the intent to steal clearly appears. (Overruling Martin v. State, 44 Tex. 172.) Coombes v. State, 17 Tex. App. 259. Imprisonment for Costs.-Where the record does not show that the bill of costs includes any costs, for the payIment of which the defendant cannot be legally imprisoned, a judgment of con viction, specifying the exact duration of the additional hard labor imposed for costs is sufficient. Croom v. State, 71 Ala. 14. Disqualification to Hold Office. - On conviction for grand larceny the verdict contained no disqualification of defendant for holding office. Judgment followed the verdict, and it was not shown that defendant suffered any injury thereby. Held, that the verdict was not void, and that no error had been made in rendering judgment thereon. (Distinguishing Wilson v. State, 28 Ind. 393.) Shafer v. State, 26 Ind. 191. 1. Clifford v. State, 10 Ga. 422; Marshall v. State, 4 Tex. App. 549. An indictment which charges, in a single count, that the defendant with the intent to steal, broke into and entered a building in which seed cotton at the time was kept and stole therefrom sixty pounds, of the value of three dol A lars, will support a conviction for petit larceny. Borum v. State, 66 Ala. 468. Under 2 N. Y. Rev. Stat. 649, § 63, and Laws 1862, ch, 374, § 2, an indictment for grand larceny in stealing money from the person, need not aver that it was stolen in the night time; and a conviction may be sustained if property of any value is taken. Fallon v. People, 2 Abb. (N. Y.) App. Dec. 83. 2. State v. Kennedy (Mo.), 4 West 363; State v. McGuire (Mo.), 4 West 417. 3. State v. Murphy, 8 Blatchf. (Ind.) 498; Hall v. State, 7 Lea (Tenn.) 685; State v. Wood (S. Car.), 1 Rep. Con. Ct. 29; People v. McTameny, 15 Abb. (N. Y.) N. C. 55; s. c., 30 Hun 505. One indicted for horse stealing was found "guilty of petit larceny;" the court would not pronounce judgment of petit larceny against him, but sent him back for trial. State v. Spurgin, 1 McCord (S. Car.) L. 252. On a trial for theft of jewelry, where several articles of jewelry, of the value of more than twenty dollars, are traced to defendant's possession, but two of them only are identified as the property of the person named in the indictment, and their value is shown to be sixteen dollars, and there is no evidence of the value of the other articles, there can be no conviction for felony; theft of property of the value of twenty dollars being felony by Pen. Code Tex., art. 54, 735. Clark v. State, 9 S. W. (Tex.) 767. Mistake.-A was indicted and convicted of the crime of horse stealing. Motion was made to set aside the verdict and for a new trial, one of the grounds being the mistake of certain of the jurors, as shown in their affidavit, which was in substance that they supposed the offence to amount to petit larceny only, if the value of the animal stolen was returned by them as being less than thirty-five dollars; that "they did not intend to convict the defendant of a felony, but of petit larceny only," and that they "were of the opinion that defendant was not guilty of a greater crime than petit larceny." Held, that this mistake of the jurors furnished no ground for setting the verdict aside. Wells v. State, II Neb. 409. 4. Pinckard v. State, 62 Ala. 167. U verdict of simple larceny may be found on an indictment for 6 1. Assessment of Value.-The valuation of the property made by the grand jury in the indictment, and not that fixed by the trial jury in their verdict, determines the jurisdiction of the court.8 As a general verdict is a finding upon all the material averments. in the indictment, as a general rule, the value of the property need not be fixed; 9 but where the statute makes the nature or duration of the punishment for the crime to depend upon the value of the goods, a verdict of guilty not specifying their value cannot be sustained.10 It is no objection to the verdict that the 1. Allen v. State, 58 Ala. 98;_ People v. Jones, 53 Cal. 58; Com. v. Prewitt, 82 Ky. 240; State v. Keeland (Mo.), 7 West 112; Stevens v. State, 19 Neb. 647. See State v. Barker, 64 Mo. 282. 2. State v. Eno, 8 Minn. 220; State v. Taylor, 3 Oreg. 10; Fanning v. State, 12 Lea (Tenn.) 651. See Fallon v. People, 2 Abb. (N. Y.) App. Dec. 83. 3. One convicted on an indictment for larceny in a building, which duly charges a larceny, but does not sufficiently charge a larceny in a building, may be sentenced for simple larceny. Com. v. Hathaway, 14 Gray (Mass.) 392. See also Vaughan v. Com., 17 Gratt. (Va.) 576. 4. State v. Eno, 8 Minn. 220. 5. State v. Posey, 7 Rich. (S. Car.) L. 484. 6. Wolf v. State, 41 Ala. 412; Parchman v. State, 2 Tex. App. 228; Vincent_v. State, 10 Tex. App. 330. But see Brown v. State, 15 Tex. App. 581; Chandler v. State, 15 Tex. App. 587. Driving Stock Away.-On the trial of an indictment for the theft of a cow under Tex. Act 1866, Nov. 12, § 1, the defendant may be convicted under § 3 of wilfully driving an animal not his own, and without the consent of the owner, out of its accustomed range. Counts v. State, 37 Tex. 593; Campbell v. State, 22 Tex. App. 262; Foster v. State, 21 Tex. App. 8o. See Guest v. State, 24 Tex. App. 530. 4 7. People v. Garnet, 29 Cal. 622. 8. State v. Stingley, 10 Iowa 488. 9. Hodge v. People, 117 Ill. 35; s. c., West 197; Cook v. State, 49 Miss. 8; Howell v. State, 1 Oreg. 241. See State v. White, 25 Wis. 359; Jones v. State, 13 Ala. 153. In larceny, the Utah Criminal Procedure act does not require or contemplate that the jury should find the value of the property stolen, that provision of the statute which speaks of degrees. does not apply to a larceny case. So, on indictment for buying and receiving stolen property, a verdict, "We, the jury, find the defendant guilty, as charged in the indictment," is correct in form. People v. Gaugh, 2 Utah 70. A jury may find a defendant guilty of petit larceny without proof of the value of the article stolen, if it is of any intrinsic worth. State v. Slack, 1 Bail. (S. Car.) 330. See People v. White, 1 N. Y. Crim. Rec. 466. 10. Gilbert v. Steadman, I Root (Conn.) 403; State v. Redman, 17 Iowa 329; Ray v. State, 1 Iowa (Greene) 316; Sawyer v. People, 3 Gilm (Ill.) 53; Locke v. State, 32 N. H. 106. See McEnter v. State, 24 Wis. 43. If, upon the trial of an indictment for grand larceny, the jury find the defendant guilty, they must also find the value of the property feloniously taken, otherwise, as the court has no power to fix the value of the property and the gradeof the offence, no judgment can be pronounced. Shines v. State, 42 Miss. 331 Unger v. State, 42 Miss. 642. On the trial of an indictment charging larceny of property worth twentyfour dollars, a verdict finding the defendant "guilty of felony," and assessing the penalty at two years, etc., held jury found the aggregate value of the articles stolen,1 and the State is not bound to prove the theft of the exact sums stated in the indictment.2 When the value of the articles stolen is set forth in the indictment, judgment will not be arrested if the jury find a verdict of guilty of stealing all the articles named.3 2. Defects in the Verdict.-A mere misspelled word in a published and recorded verdict does not vitiate it, and formal and immaterial defects in an indictment containing all the essential elements, even though such as would have been fatal if taken advantage of before verdict, are cured after verdict by the statute of jeofails.5 The admission and subsequent withdrawal of incompetent evidence, although to be disapproved of, is not of itself reversible to be fatally defective. The primary issue, whether the property was of the value of twenty dollars or more, must be determined before fixing the penalty. Miles v. State, 3 Tex. App. 58. Where, on an indictment in which counts for horse stealing and grand larceny of other property are joined, the jury find a general verdict of guilty, assessing the value of the property in gross, without finding the amount amount charged in each count, and the court enter judgment on such finding, such judgment is erroneous, and will be reversed on error. Barton v. State, 18 Ohio 221. Current Money. Under an indictment for grand larceny, the jury must assess the value of the property alleged to have been stolen, in the specie currency of the country. Parker v. State, 39 Ala. 365. 1. Case v. State, 26 Ala. 17; Warren v. State, I Iowa (Greene) 106. Where the indictment or information states the collective value of the coins stolen and the denomination of a portion thereof, and states that a more particular description cannot be given for want of sufficient knowledge, upon a verdict of guilty, stating the value of the property stolen, a judgment will be legally rendered. State v. Tilney, 38 Kan. 714; s. c., 17 P. 606. Judgment may be legally rendered on a verdict for larceny which finds the larceny to have been of part only of the articles mentioned and collectively valued in the indictment, but the verdict must find the value of the articles so found to have been stolen. State v. Buck, 46 Me. 531. Where, under an indictment for lar ceny, in which the defendant was charged, among other things, with taking certain promissory notes for the payment of money, commonly called bank notes, the jury returned a verdict as follows: "We, the jury, find the defendant guilty of larceny in taking the money in the indictment mentioned, and fix the amount and value of the same at $127.80," it was held that the verdict was sufficiently formal. State v. Bond, 8 Clarke (Iowa) 540. See Hildreth v. People, 32 Ill. 36. 2. McCorkle v. State, 14 Ind. 39. Under an indictment for larceny of goods alleged to be of the value of sixty dollars, held, that the prisoner might be convicted of larceny of goods worth only twenty dollars, the value only serving to fix the punishment. State . Hessian, 58 Iowa 68. A finding of the value of property stolen to be much less than the evidence showed it to be, but still enough to make the offence grand larceny, although erroneous, is without prejudice to the accused and not a ground for a new trial. Gettinger v. State, 13 Neb. 308. 3. State v. Hood, 51 Me. 363. 4. State . Smart, 4 Rich. (S. Car.) L. 356; s. c., 55 Am. Dec. 683. 5. See Bell v. State, 41 Ga. 589; Unger v. State, 42 Miss. 642; State v. McMillan, 68 N. Car. 440; Vaughan v'. Com., 17 Gratt. (Va.) 576. It is too late after verdict to object that counts in an indictment alleging larceny, and others alleging the receiving of (the same) stolen goods, are repugnant and selfcontradictory. Jane way v. State, 1 Head (Tenn.) 130. Ăn indictment for larceny of one |