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other, it is an acquittal as to the other articles.' But in a verdict of guilty on an indictment for larceny, containing several counts, the jury must specify the count under which they find defendant guilty.' Under an indictment charging, in a single count, both burglary and larceny, a verdict for larceny alone may be sustained.' But where one is charged with larceny of property of the value of $10 in the commission of burglary, and is acquitted of the burglary, he cannot be found guilty of grand larceny, although the statute makes larceny in the commission of burglary grand larceny irrespective of the amount stolen. In New York, where on the trial of an indictment for larceny, it appears that it was committed in connection with a burglary, the prisoner may be convicted of the larceny as a separate and distinct offense. There is no merger in such a case which is available to the accused by way of defense, until there has been a trial and conviction." In Pennsylvania, one may be separately convicted of larceny, and of entering a dwelling with intent to steal.'

§ 289. Conviction of lesser, or other offense.- Under an indictment for larceny of goods alleged to be of the value of $60, the prisoner may be convicted of larceny of goods worth only $20, the value only serving to fix the punishment.' And one indicted as accessory before the fact to larceny, may be convicted of petit larceny. But in Missouri, prior to the Revision of 1879, § 1655, a defendant indicted for "larceny committed in a dwelling-house," could not be convicted of petit larceny. And in Illinois, on an indictment for larceny, the prisoner cannot be convicted of being an accessory after

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1 Swinney v. State, 8 Smed. & M. 576; People v. Wiley, 3 Hill, 194. But see O'Connell v. Com. 7 Metc. 460.

2 State v. Harmon, (Mo. Sup.) 18 S. W. Rep. 128.

& State v. Morgan, 39 La. An. 214; State v. Davis, 73 Mo. 129.

4 State v. Brown, 73 Mo. 631.

'People v. Smith, 57 Barb. 46.

* Com. v. Peiffer, 9 Phila. 593.

State v. Hessian, 58 Iowa 68; People v. McTameney, 30 Hun 505; 13

Abb. N. Cas. 55; 66 How. Pr. 70.

& Groves v. State, 76 Ga. 808. State v. Davidson, 73 Mo. 428.

the fact. The rule that one indicted may be convicted of a less offense than that charged applies only where the less offense is included in the higher.' As larceny from the person includes simple larceny, a conviction for the latter offense may be sustained under an indictment charging the former." In Tennessee, where the prisoner is indicted for larceny in stealing the pocket-book and money of A., if he be not guilty of the larceny, a conviction of an attempt to commit the same may be had upon such an indictment, though the latter offense is a distinct one in itself, without conflicting with the rule which forbids the charging of two substantive felonies in one count; nor is it, by being a separate crime, hostile to the principle of conviction for a lesser degree of the greater offense charged in the indictment.' In Louisiana and Missouri, on an indictment for larceny, the jury may return a verdict of guilty of embezzlement, but not of the statutory offense of converting lost property with felonious intent. In Texas and Illinois, on an indictment for theft defendant cannot be convicted for embezzlement. In Tennessee, under an indictment for stealing wood, a conviction may be had for the misdemeanor of taking and carrying away the same wood, although the felony is not proved.' In Texas, under a general indictment for theft of an animal, one may be convicted of that offense, or of driving live-stock from a range with intent to defraud, under Pasch. Dig. art. 24106, or of driving off stock without the consent of the owner, under art. 2410c. But under an indictment for theft of a steer, there cannot be a conviction for unlawfully killing the steer without the owner's consent. Theft does not include this offense."

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§ 290. Conviction of receiving on indictment for lar

1 Reynolds v. People, 83 Ill. 479; 25 Am. Rep. 410.

2 State v. Taylor, 3 Oreg. 10; Fanning v. State, 12 Lea 651.

3 DeLacy v. State, 8 Baxt. 401.

4 State v. Williams, 40 La. An. 732; State v. Broderick, 70 Mo. 622.

State v. Gabriel, 88 Mo. 631.

Lott v. State, 24 Tex. App. 723; Kibs v. People, 81 Ill. 599.

1 Hall v. State, 7 Lea 685.

8 Powell v. State, 7 Tex. App. 467; Turner v. State, Id. 596; Counts v. State, 37 Tex. 593.

Beavers v. State, 14 Tex. App. 541.

ceny. In most jurisdictions one cannot be convicted of stealing and also of receiving the same property, knowing, etc.1 Where an indictment contains two counts, one for larceny of a chattel, and the other for receiving the chattel, knowing it to have been stolen, a verdict finding the accused guilty on both counts, is inconsistent in law, and no judgment can be rendered upon it. Nor will the subsequent entry of a nolle prosequi as to the second count cure the defect.' Under an indictment for the larceny of cotton, and the receiving it, knowing it to be stolen, a verdict of "guilty of receiving stolen cotton," is not responsive to the indictment. Some of the carlier Texas cases hold that under an indictment for theft, a conviction may, with sufficient proof, and under proper instructions, be had for fraudulently receiving stolen property, knowing it to be stolen; but later cases in that state hold that larceny, and receiving stolen property knowing it to have been stolen, are separate and distinct offenses, and that under an indictment for larceny a conviction cannot be had for receiving stolen property, and vice versa." Where an indictment charged cattle-stealing, and also the reception of said cattle from others, and there was no evidence of the latter offense, and the court limited the jury in their finding to the former, this was tantamount to an election, and a verdict of guilty thereon was sufficiently certain to sustain judgment.*

§ 291. Assessment of punishment by jury.—A verdict which assesses the punishment at "five years' confinement in the penitentiary" sufficiently designates the duration and place of imprisonment. The law supplements the finding by prescribing that the imprisonment shall he at "hard labor." But where theft of property worth less than $20 is punish

1 State v. Larkin, 49 N. H. 39.

' Com. v. Haskins, 128 Mass. 60.

State v. Whitaker, 89 N. C 472.

4 Parchman v. State, 2 Tex. App. 228; Vincent v. State, 10 Tex. App. 330; Dreyer v. State, 11 Tex. App. 631.

5 Gaither v. State, 21 Tex. App. 527; Brown v. State, 15 Tex. App. 581; Chandler v. State, Id. 587,

• Parks v. State, (Tex.) 16 S. W. Rep. 532.

Williams v. State, 5 Tex. App. 226.

able by fine and imprisonment in the county jail, or by such imprisonment without fine, but not by fine alone, a verdict assessing a fine alone will not support a conviction.'

$292. Findings on trial by court without jury. Where defendant was convicted of larceny by a municipal court without a jury, and some time afterwards the court filed "findings of facts," which did not set forth facts sufficient to constitute an offense, it was held that the conviction was not thereby affected, such "findings" being unauthorized.'

CHAPTER XXXII.

SENTENCE AND PUNISHMENT.

§ 293. The sentence, generally.

294. Sentence for part of offense found.

295. Imprisonment; labor; fine.

296. Cumulative sentences.

297. Mitigating; reducing, generally.

298. Reducing because of return of stolen property. 299. Construction of statutes relating to punishment. 300. Commitment; place of punishment.

301. Punishment of attempts.

302. Punishment for horse or cattle stealing.

303. Punishment for larceny from house or building.

304. Second offenses.

305. Disposal of property on discharge of prisoner.

§ 293. The sentence, generally. On the trial of a minor felony, such as larceny, it is not reversible error to render judgment without asking defendant if he has anything to say.' A sentence, upon a conviction for larceny, "that the defendant be imprisoned in the state prison for one year, and that in the meantime, and until he is carried there, he be imprisoned

1 Fowler v. State, 9 Tex. App. 149. State v. Green, 32 Minn. 433. Bressler v. People, 117 Ill. 422.

in the county jail," is sufficiently definite, as to the term of imprisonment in the state prison, to be valid under a statute which declares that the term "shall begin to run upon and include the day of conviction." Where one has been convicted on an information for grand larceny, a judgment that for the crime of which he was charged and convicted he be punished by imprisonment in the state prison for the term of nine years is sufficient.' Where, on rendering judgment of imprisonment for grand larceny, the court failed to fix the amount of the bail as required by Iowa Code, § 4511, the defendant was entitled to have the omission corrected, but not to a discharge on habeas corpus. Where, under an indictment for stealing several articles, there is a general verdict of guilty, the court cannot impose the punishment for stealing only one of the articles, although the larceny of only one was proved; but the judgment must conform to the verdict.* Under Tenn. Acts 1875, ch. 31, making the bringing of stolen. property into Tennessee a crime, judgment of infamy cannot be inflicted."

294. Sentence for part of offense found.- Where an indictment for burglary alleges a breaking and entering in the night time with intent to steal, and an actual stealing, the prosecution, after a general verdict of guilty and before sentence, may enter a nolle prosequi as to so much of the indictment as charges a breaking and entering, and the defendant may be sentenced for the larceny. So a sentence for larceny may be given where the indictment contains counts for burglary and larceny, and the verdict is on both, though the count for

1 State v. Gaskins, 65 N. C. 320. People v. Perez, 87 Cal. 122.

2 Murphy v. McMillan, 59 Iowa 515. 4 State v. Kersh, 1 Strobh. 352.

Foster v. State, 9 Baxter 353. An indictment contained two counts: (1) Larceny; (2) receiving stolen property, knowing it to have been stolen. The defendant pleaded "not guilty" as to the first, the jury found him guilty as to the second, and the court, in its judgment, sentenced him under the first. Held, that there was a fatal variance between verdict and judgment. Code Crim. Proc. Tex. art. 791, subd. 9.-Gaither v. State, 21 Tex. App. 527.

Jennings v. Com. 105 Mass. 586.

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