Shines v. State

Jeffords, J.:

The plaintiff in error, Shines, was indicted before the circuit court of Madison county, in this state, for the crime of grand larceny, was tried at the September term, 1867, of that court, and a verdict rendered against him of “ guilty as charged in the’ indictment.”

There are three assignments of error, but as the third assignment must be decisive of this case, we pass over the others, and proceed to examine this alone, which is, that “ the court erred in the sentence passed on appellant, the same not being in accordance with the indictment and verdict of the jury.”

The indictment alleged the value of the property stolen to be thirty dollars.

The proof, as embodied in the bill of exceptions, discloses the fact that Shines stole a yearling calf of the value of from five to seven dollars, which, under our statute, is petit larceny.

On the 7th day of October, 1867, the jury returned a verdict of “ guilty as charged in the indictment,” without finding the value of the property alleged to have been stolen, and without specifying the grade of the offense. On the following day the defendant moved the court to set aside the verdict of the jury; which motion having been heard and considered, was overruled by the court. The same day the court “ ordered that a verdict of guilty of petit larceny be entered upon the minutes,” and thereupon sentenced the defendant to pay a fine of twenty-five dollars and the costs of prosecution, and to remain in the custody of the sheriff until the fine and costs should be paid.

There is, of course, no question whatever but that the indictment charging grand larceny embraced also the charge of petit larceny; and there is no doubt that if the testimony would not justify a conviction of the greater, the jury might have returned a verdict of guilty of the lesser offense.

■ It was the duty of the jury to find whether an offense had been committed, and if so, to fix tbe value of tbe property-stolen, and whether it was grand or petit larceny. Joseph Thomas and Pendleton Thomas v. State, 5 How., p. 32; Dick v. The State, 3 Ohio State.

If the verdict was uncertain, ambiguous, or informal, the court had the most unquestionable right to direct the jury to correct the form of their verdict before discharging them. But we have been unable to find any precedent which authorizes the court to usurp the power and place of the jury, and do that which the jury alone are empowered by the law to do; that is, to ascertain and determine from the facts the guilt or innocence of the accused, and establish the degree of his offense. The court cannot legally intermeddle with the facts in a jury case. The question of guilt or innocence is one of fact, and so as to the value of the property.

If it is error to instruct the jury as to the grade or weight of testimony, how much more strongly must this be the case when the court assumes to pass upon the whole facts of a case. Hoggsett v. The State, 40 Miss., 522.

If the court can reform the verdict in one respect, why not in another %

The law has erected impassable barriers between the courts and juries, and one cannot encroach upon the province of the other without producing fatal results. Having failed to correct the verdict in this case before the jury were discharged, the court could not alter or amend it afterwards.

Judgment and sentence reversed, cause remanded, and venire de novo awarded.