State v. Sheppard , 33 La. Ann. 1216 ( 1881 )

The opinion of the Court was delivered by

Fenner, J.

The defendant assigns the following as errors :

1st. The verdict is signed by G. E. MeKinzie without the usual addition of “ Foreman” appended to his signature.

This does not vitiate the verdict, which might even have been rendered orally. 15 An. 648; 32 An. 854.

The record shows that G. F. MeKinzie was a member of the jury.

The foreman is chosen by the jury itself to act as its organ of communication with the Court. When MeKinzie, in presence of the jury, presented the verdict, in their behalf, he acted as foreman with their' knowledge and consent, and his signature must be presumed to have-been made in that capacity.

2d. That the indictment charges the accused with two separate and distinct crimes, which cannot be cumulated.

The indictment contains two counts, one charging defendant with severing from the soil of another, at a named time and place, one bushel of potatoes valued at fifty cents; the other charging him with stealing, taking and carrying away, at the same time and place, the same bushel of potatoes.

We think the offenses are of such kindred nature, subject to such, similar penalties, and so connected with each other in the same transaction, as to render the objection untenable. 4 An. 434, 435; 15 An. 498; 20 An. 145; 30 An. 61.

3d. That the indictment does not fix the value of the property charged to have been severed and stolen. Such is not the fact. The value is distinctly fixed.

The 4th, 5th and 6th assignments of error are levelled exclusively at the first count of the indictment, and one of them we consider fatal to the count.

The statute (Sec. 2, Act No. 8, Ex. Sess. of 1870) uses the words; “ Whoever shall fraudulently or maliciously sever from the soil of another any produce,” &c.

The language of the indictment is, that the defendant “ did, wilfully and feloniously, sever from the soil one bushel of potatoes, part of a crop produced by M. L. Gilbert,” &c. Neither expressly, nor by exclusive implication, is it alleged that the soil, from which the severance was made, was that of another, which is the vital element of the crime. Because the crop was produced by M. L. Gilbert, it does not follow conclusively that the soil was his, as owner, or even as tenant. Non constat that Gilbert may not have produced the crop on defendant’s own land and merely as his employee.

“An indictment, under a statute ought, with certainty and precision, to charge defendant with hawing committed or omitted the acts, under the circumstances and with the intent mentioned in the statute. * *- If the facts alleged do not make out the case, the indictment is defective.” State vs. Stiles, 5 An. 324.

This defect is one of substance, and was properly urged by motion in arrest.

It would not, however, have vitiated the general verdict and sentence in this case, upon the count for larceny, had the penalty imposed by the sentence been appropriate to the latter crime. Bishop on Crim. Proc., \ 1015.

But, in addition to the imprisonmént, the accused is sentenced to pay a fine, which is no part of the penalty attached by law to the crime of larceny, though it is attached to the crime of severing from the soil.

This shows that the sentence was based upon the verdict on the bad count, and it cannot be maintained.

It is, therefore, ordered, adjudged and decreed that the verdict and sentence herein be annulled and set aside, and that the-case be re¡manded to the lower court for further proceedings according to law.