enumerated circumstances, or such of them as may be proved, with other facts, if any, must so concur.' § 278. Further instructions. Where the jury, after retiring, return into court and ask for further instructions, and the judge tells them that he cannot give them further instructions without sending for the defendant and his counsel, but allows a portion of the charge to be re-read to them, no error is committed.' And it is proper for the court to state in answer to inquiries made by a juror in such a case, that if defendant took the ring alleged to have been stolen with the intention of appropriating it he was guilty of larceny.' 6 § 279. Review of instructions; exceptions.-Where both the prisoner and his counsel being present when instructions are given make no objection, and ask no additional instructions, they thereby acquiesce in the instructions given. Objection should be made and exception taken at the close of the charge and before the jury retire. The rule is that a general exception to the whole charge is bad if any portion of the charge is correct, except where it is apparent that the charge as a whole was inapplicable, and tended to mislead the jury.” So an omission to instruct the jury on a vital point is ground' of exception. But where an exception is relied upon for refusing to charge as requested, the request must be proper as an entirety. If it embraces an idea or view which ought not to be presented, it destroys the value of the exception, although a part of the legal proposition embraced, if detached and presented separately, might be proper. In Louisiana, trial courts are required to give to the appellate court their reasons for refusing instructions asked." Under Mont. Comp. St. 1 Sutton v. Commonwealth, 85 Va. 128. Gravett v. State, 74 Ga. 192. 'State v. Wilkinson, 76 Me. 317; State v. Clark, 37 Vt. 471. John v. State, 16 Fla. 554; State v. Pike, 65 Me. 111. 'Dodge v. People, 4 Neb. 220. Com. v. Merrill, 14 Gray, 415; 77 Am. Dec. 336. 'People v. Holmes, 6 Parker 25. 10 State v. Boasso, 38 La. An. 202. 66 § 396, authorizing an appeal by the territory in a criminal case on a question of law reserved by the territory," an appeal does not lie from an instruction to the jury to acquit defendant of larceny on the ground that the evidence showed that defendant had a partnership interest in the property taken. Nor can such instruction be made the subject of a bill of exceptions under section 340 of the criminal practice act, authorizing exceptions by the territory to any decision in deciding any question of law not a matter of discretion, and in giving or refusing instructions when the cause is finally submitted to a jury.1 CHAPTER XXXI. THE VERDICT. § 280. Retirement of jury; taking out exhibits, etc. 281. Mode of arriving at verdict. 282. Reception of verdict; presence of accused. 283. Sufficiency; bad spelling, etc. 284. General verdict. 285. Special verdict. 286. Finding value. 287. Verdict where two or more are jointly charged. 288. Verdict on one or more of several counts or charges. 289. Conviction of lesser, or other offense. 290. Conviction of receiving on indictment for larceny. 291. Assessment of punishment by jury. 292 Findings on trial by court without jury. § 280. Retirement of jury; taking out exhibits, etc.— A box found in possession of a prisoner accused of theft, and claimed to have a certain relation to the theft, which, on examining it before the jury, is found to contain a secret place in the lid in which are certain bank bills supposed to be counterfeit, may be delivered to the jury as it is, and be by 1 Territory v. Laun, 8 Mont. 322. them taken to the jury-room.' And on one's trial for stealing a hog, a part of which was produced before the jury for identification, it was not error to comply with a request of the jury, after retirement, that the portion be sent to the juryroom for further scrutiny." § 281. Mode of arriving at verdict. A verdict arrived at by lot or by any other unfair means should be set aside;' such as by experiments—as sending the constable out of the room, closing the door, and then talking with a view to learn whether their voices can be heard outside, or running to ascertain whether their tracks will be longer or shorter when running than walking, and the like. So where the jury, in order to agree on the period of imprisonment, arranged that each juror should write his figures, the whole to be added, the amount divided by twelve, and the quotient be their finding, it was held ground for a new trial;' but the result is otherwise if there is no previous agreement between the jurors that they will be bound by such result, and a compromise verdict, if entered into without fraud or collusion, will not necessarily be set aside.' Where the jury agree to set down their individual verdicts, divide the total by twelve, and be bound by the result, but do not carry out this agreement, and modify the result thus ascertained, there is no ground for setting aside the verdict." 6 § 282. Reception of verdict, presence of accused.— A verdict in a case of grand larceny, rendered in the absence of the prisoner, while he is in jail by order of the court, is erroneous. But where, after the jury had retired in a larceny case, the prisoner fled, a verdict of guilty was properly rendered in 1 State v. Stebbins, 29 Conn. 463; 79 Am. Dec. 223. ' Powell v. State, 61 Miss. 319. 3 Parker v. State, 22 Tex. App. 105. Jim v. State, 4 Humph. 289. Crabtree v. State, 3 Sneed 302. Leverett v. State, 3 Tex. App. 213. See also Thompson v. Com., 8 Gratt. 637. State v. Furbeck, 29 Kan. 532; State v. Rhea, 25 Kan. 576. • Pruitt v. State. (Tex.) 16 S. W. Rep. 773. • Finch v. State, 53 Miss. 363; State v. Epps, 76 N. C. 55. his absence.' And where a bailed prisoner on trial for larceny voluntarily left the court-room during the deliberation of the jury, and on the coming in of the jury, was called and did not appear, a verdict of guilty was properly received and sentence pronounced in his absence." 4 § 283. Sufficiency; bad spelling, etc.-Under an information charging grand larceny, it is not error to find the defendant guilty of larceny.' So under an indictment for stealing from the person, a verdict, guilty, as charged, of grand larceny, in stealing from the person, is no variance. A verdict of "guilty of larceny," finding the value of property "taken from the person of P. C.,"— will sustain a judgment for simple larceny, under Wis. Rev. Stat. ch. 165, § 16, but not for stealing from the person under § 15. Under an indictment of "Bud Plumley" for theft, amended on plea in abatement by inserting "Perry B. Plumley," a verdict finding "the defendant, Bud Plumley," guilty, is not fatally defective; and judgment may properly be entered thereon against "Perry B. Plumley."• So the misspelling of "larceny as "larcely," in a verdict of "guilty of larcely only," under an indictment for robbery and larceny, where it is published and recorded as "guilty of larceny only," does not vitiate the verdict.' But it seems that a verdict which reads, we the jury find the defendant guity of concealing stolen property, and assess his punishment in the state prison for two years," is insufficient, in that it does not find the defendant guilty of any offense." So where on a trial for theft from a house, the jury brought in a verdict, "We, the jury, find the defendants guilty, and assess their fine at twenty dollars," which the court refused to receive, and after further deliberation, the jury found a verdict of "guilty as charged," it was 1 State v. Kelly, 97 N. C. 404. Lynch v. Com., 88 Pa. St. 189; 32 Am. Rep. 445. 3 People v. Jacks, 76 Mich. 218. 4 Fallon v. People, 2 Abb. App. Dec. 83. 5 McEntee v. State, 24 Wis. 43. Plumley v. State, 8 Tex. App. 529. State v. Smart, 4 Rich. 356; 55 Am. Dec. 683. 8 Wilson v. State, 12 Tex. App. 481. held that, as the rejected verdict was not responsive to the issue, it was properly rejected, and that it did not have the effect of acquittal as to the charge of theft from a house.' And where the indictment charged the theft of "a horse (a stallion);" but the verdict found the accused guilty of theft of "a horse (a gelding), as charged in the indictment," it was held that the verdict was not responsive to the charge, and did not support the indictment. And a verdict finding the defendant "guilty of the theft of property of the value of twelve dollars," is not responsive to an indictment charging the theft of two hogs.' § 284. General verdict. In a prosecution for grand larceny, a verdict finding the defendant "guilty as charged," is sufficient. A general verdict of guilty on an indictment containing several counts is equivalent to a verdict of guilty, as the defendant stands charged in the indictment, on each and every count thereof. Where an indictment charges defendant with stealing certain articles, of specified values, a general verdict of guilty is a finding that he stole all of the articles, and that they were of the values specified. Although, as a general rule, where a person is charged with having stolen several articles, and he is proved to have stolen only some of them, and not all, a general verdict is good, because the pun 1 Alston v. State, 41 Tex. 39. Persons v. State, 3 Tex. App. 240. Collins v. State, 6 Tex. App. 647. A person was indicted for the larceny of three beehives, three swarms of bees and forty pounds of honey, of the goods and chattels of another. The jury found him guilty, as charged, and assessed the term of his imprisonment in the county jail at three months, and the court sentenced him for that period. Held, 1. That although the jury had no authority to fix the imprisonment, their doing so was mere surplusage, and the imprisonment was the act of the court. 2. That it would be intended after verdict, that the bees were reclaimed, and the honey private property. 3. That if any one of the three subjects mentioned in the indictment might be the subject of larceny it is sufficient, and the verdict will not be arrested. — Harvey v. Commonwealth, 23 Gratt. 941. 4 People v. Manners, 70 Cal. 428; People v. Whitely, 64 Cal. 211; People v. Perez, 87 Cal. 122. 'Lovell v. State, 45 Ind. 550. 6 State v. Colwell, 48 Minn. 378. |