State v. Kersh , 32 S.C.L. 352 ( 1847 )

Frost J.

delivered the opinion of the Court.

The Act of 1789 imposes a penalty of £10 sterling for each and every bull, cow, ox, steer or calf, which any person may be convicted of stealing; and provides, in case of his inability to pay such fine, that, instead thereof, he shall be whipt, not exceeding thirty-nine lashes. The stealing of each is a separate offence, so far as it is punished by fine. A general verdict of guilty, comprehends all which are charged in the indictment to have been stolen; and if the evidence does not support the finding, a new trial must be granted. It is argued, that a general verdict establishes that the defendant is guilty of the offence of stealing; and that the Judge may impose the fine for as many of the cattle as the evidence applies to. The effect of that would be to permit the Judge to amend the verdict, and punish, without conviction, at his discretion. The judgment must conform to the verdict: and a fine for stealing one head of cattle would be inconsistent with the verdict, which finds that the defendant stole three. The question made by the appeal has been twice decided; in the case of The State, v. Herring, 1 Brev., 159, and State, v. Windham, Cheves, 75.

The motion is granted.

Richardson J., Evans J., Waedlaw J., and Withers J., concurred.