burglary and the verdict thereon is quashed for defect.' On plea of guilty to an information in two counts, one for larceny of a horse under the general statute for larceny, and one under How. St. Mich. § 9180, enacted to punish horse-stealing, the court may impose a sentence authorized for the second offense, though greater than that authorized for ordinary larceny of property of the same value.' 295. Imprisonment; labor; fine.-In Texas, theft of property worth less than $20 is punishable by fine and imprisonment in the county jail, or by such imprisonment without fine; but not by fine alone." In Louisiana, defendant was convicted of larceny and sentenced to work upon the streets of Monroe for sixty days and to pay costs, and in default of their payment was condemned to work twenty days longer. It was held, that that part of the sentence which imposed additional labor in lieu of costs was illegal. In New York, in pronouncing sentence on conviction of larceny, the presiding judge stated, as a reason for imposing a fine, in addition to imprisonment, that defendants had put the county to the expense of three trials by jury. It was held that, as the sentence was within the limits of the jurisdiction of the court, the appellate court would not interfere with it." 4 § 296. Cumulative sentences.-On an indictment for breaking and entering with intent to steal, with a second count for stealing, and general verdict of guilty, distinct sentences may be imposed. In Ex parte Irwin, petitioner was sentenced to the state prison for a term of nine years for grand larceny, and also for a term of five years for burglary, the latter term to begin at the expiration of the former. He escaped from prison during the first term, and on recapture was sentenced to serve a term of nine years for such escape, under Pen. Code Cal. § 105. That section provides that the 1 State v. Brown, 35 La. An. 1058. People v. Morris, 80 Mich. 634. Sager v. State, 11 Tex. App. 110. * State v. Brannon, 34 La An. 942. People v. Williams, 58 Hun, 278. Com. v. Birdsall, 69 Pa. St. 482. term of imprisonment for the escape shall "commence from the time the prisoner would have otherwise been discharged from the prison." It was held that it did not commence until petitioner had served out both the former terms, less whatever credits he may have earned.' 297. Mitigating; reducing, generally.-In Iowa, where twelve indictments were found against defendant, six for larcenies and the residue for bulgariously breaking and entering buildings, and it was proved that he stole property of the value of $566, it was held that, there being nothing in the record as to his antecedents or previous character, a sentence of 17 years in the penitentiary would not be mitigated.' In Michigan, the general statutes provide a punishment for larceny. The act of 1877 imposes a very severe penalty for horse-stealing, and a sentence under that act can be imposed only when the indictment is laid under it.' § 298. Reducing sentence because of return of stolen property.-In Texas, under a peculiar statutory rule, the voluntary return of stolen property, before prosecution, reduces the crime from a felony to a misdemeanor, and correspondingly mitigates the punishment. Such return of the stolen property to entitle the thief to the mitigation, must be actual and indicative of penitence, and not clandestine or merely factitious. It must appear that it was not prompted by consciousness of unconcealed evidences of guilt and apprehensions of its discovery; but it may be "voluntary" within the meaning of the statute, notwithstanding it was superinduced by the fear of detection and punishment as well as the spirit of repentance and restitution. One who has stolen a watch, and denied knowledge of it when questioned, but who, nevertheless, has given it up of his own accord before prosecu 1 88 Cal. 169. State v. Turney, 77 Iowa 269. 3 People v. Jones. 49 Mich. 591. 4 Moore v. State, 8 Tex. App. 496. 5 Stephenson v. State, 4 Tex. App 591. • Allen v. State, 12 Tex. App. 190. tion commenced, is within the protection of the statute.' The return must be actual, not constructive, and all of the property, unchanged in form, must be returned.' The statute does not apply where the character of the property has been changed, as from live hogs to pork.' And payment for the stolen property constitutes no atonement or defense.* § 299. Construction of statutes relating to punishment. -In Alabama, under the provisions of Rev. Code, §§ 3708, 3783, the power to impose imprisonment for petit larceny is vested in the judge and not in the jury. In Iowa, section 4247 of the Revision,-which provides that if any person at the same term of court is convicted of three distinct larcenies, he shall be deemed a common and notorious thief, and shall be punished, etc.,-does not provide for the indictment of common and notorious thieves, as such, but for their punishment under an ordinary indictment for larceny. In Michigan, Acts 1879, 239, does not affect Comp. L. § 5566, nor restore the penalty of a year's imprisonment for a grade of larceny cognizable by a justice.' In New York, a defendant indicted for 1 Bennett v. State, 17 Tex. App. 143. Bird v. State, 16 Tex. App. 528. 3 Horseman v. State, 43 Tex. 353; Grant v. State, 2 Tex. App. 163. + Trafton v. State, 5 Tex. App. 480. Defendant was indicted for stealing a ten-dollar bill. It appeared that he snatched a pocket-book which he returned, but it did not appear that he returned the bill. Held, that he was not entitled to demand that the jury be charged concerning the law of the voluntary return of stolen property.-Wheeler v. State, 15 Tex. App. 607. 5 Moss. v. State, 42 Ala. 546. State v. Riley, 28 Iowa 547. ↑ Gordon v. People, 44 Mich. 485. The petitioner was indicted upon four counts. The first charged him with stealing a horse, and referred expressly to Act Mich. 102, of 1877, entitled "An act to provide for the prevention and punishment of horse-stealing." The second charged the same offense, but not under such statute. The third and fourth charged him with receiving a stolen horse, knowing it to have been stolen The jury returned a general verdict of guilty, and petitioner was sentenced to the state prison for ten years, under the statute of 1877. How. St. Mich. § 9546, provides that counts for larceny and for receiving stolen goods may be joined in the same indictment, and the jury may convict of either offense. Held, that the judgment, if valid at all, could only be made so by confining it to the least offense charged, for which, under the general laws, the extreme pen grand larceny in Oyer and Terminer, or the Court of Sessions, may, upon the trial of said indictment, be convicted of petit larceny, notwithstanding the provisions of section 56 of the Code of Criminal Procedure.' In Vermont, R. L. § 4141, makes it a state's prison offense to steal blankets or robes used or placed for use in a vehicle, "although the value of the property does not exceed seven dollars." Section 4137 prescribes the same penalty for larceny generally, if the property stolen exceeds seven dollars in value; and section 4138 makes stealing of property, not exceeding seven dollars in value, petit larceny. It was held that section 4141 embraced all larceny of the kind therein mentioned, whatever the value of the property stolen.' § 300. Commitment; place of punishment.-In Alabama, under a conviction for larceny, or receiving stolen goods, if the value of the goods is assessed by the jury at $100, the punishment must be by imprisonment in the county jail, or hard labor for the county, and cannot exceed 12 months (Rev. Code, §§ 3708, 3710); if it exceeds $100, the offense is a felony, and punishable by imprisonment in the penitentiary.' In California, the act of 1877, in relation to the house of correction of the city and county of San Francisco, was retained by the constitution of 1879, and made applicable to the Superior Court of the city and county of San Francisco, and that court has, by virtue of the act, jurisdiction to sentence a defendant to the house of correction instead of the state prison, when convicted of grand larceny in a proceeding commenced in the Superior Court. In Connecticut, the statute which existed at the time a theft was committed provided for the punishment by imprisonment in a common jail, in all cases of larceny where the value of the property did not exceed the sum of $50, and imprisonment in the State prison not exceed alty is five years, and petitioner having served out that term must be released. In re Franklin, 77 Mich. 615. 1 People v. McTameny, 1 N. Y. Cr. 437; 30 Hun 505; 66 How. Pr. 70. State v. Broderick, 61 Vt. 421. Cohen v. State, 50 Ala. 108. 4 Exp. Flood, 64 Cal. 251. ing five years, where the value of the property stolen exceeded the sum of $50. Afterwards a statute was enacted repealing so much of the former statute as was inconsistent with it, and providing that if the value of the property stolen should exceed the sum of $2,000, the punishment should be imprisonment in the State prison for a term not exceeding twenty years. It was held that so much of the prior statute as related to the stealing of less than $2,000, was not repealed by the subsequent statute.' In Georgia, where a party convicted of larceny was sentenced to six months in the chain gang, or to pay a fine of $20, it was held that Code, § 4488, was not violated by sentencing his accessory after the fact to the same time in the chain gang, or to pay a fine of $200. In New York a warrant of commitment for petit larceny directing the officer to convey and deliver the prisoner to the keeper of the prison, and directing the keeper to safely keep the prisoner until the expiration of six months, and until he should pay the fine, is in proper form. A commitment which recites the crimes charged as grand larceny in the first degree, and burglary in the third degree, sufficiently states the nature of the crimes." Where one under sixteen pleads guilty, he cannot, after he becomes sixteen, be sentenced on his plea, where the sentence cannot be to a reformatory institution, as it might have been had he been sentenced at first, but must be to State prison, with disfranchisement as a consequence. In Tennessee, on trial of a defendant under sixteen years of age for theft, the court charged the jury that, if they found defendant guilty of the theft of property of the value of $20, they should assess his punishment at confinement in the penitentiary. The jury found him guilty, and assessed his punishment at four years in the penitentiary. The court gave judgment that he be confined in the house of correction and reformatory for said term. It was held that the charge was reversible error, since Act April 2, 1889, provides that "the jury convicting shall say in 3 1 State v. Grady, 34 Conn. 118. 3 People v. Rawson, 61 Barb. 619. 4 People v. Johnson, 46 Hun 667. People v. Harrington, 15 Abb. N. Cas. 161. |