Swinney v. State

Thacher, J.

The three errors first assigned, to wit: that the record does not show from what county the grand jury were taken, nor of what number of jurors it consisted, nor that the grand jury were sworn by the court, do not seem, from an inspection of the record, to be well taken in point of fact. Those facts are found in the statement of the proceedings prior to the finding of the indictment, the whole of which statement comprises the caption.

The remaining error assigned is, that the verdict of the petit jury finds only part of the issue submitted to them, and is so defective that no judgment can legally be rendered upon it, and that the sentence of ten years’ imprisonment in the penitentiary is not warranted by law.

It was an indictment for larceny consisting of but one count, and charging the accused with stealing one saddle horse, of the value of fifty dollars; one saddle, of the value of five dollars ; one saddle blanket, of the value of one dollar; and one bridle, of the value of three dollars; all the property of the same individual.

The verdict of the jury was as follows: “We, the jury, find the said defendant, Joel Swinney, guilty, and that he did felo-niously steal, take and carry away the saddle in the indictment mentioned, in manner and form as charged in said bill of indictment, and we do assess the value of said saddle to the sum of twelve dollars.”

The defendant was sentenced to imprisonment in the penitentiary for the term of ten years.

It is not necessary that all the averments in an indictment should be proved as laid, in order to warrant a conviction.¹ The general rule is, that every material averment must be proved, yet it does not follow that it is necessary to prove the offense charged to the whole extent laid. It is enough if so much of a charge be proved as constitutes an offense punishable by law. In the case of Rex v. Hunt, 2 Campb., 585, Lord Ellenborough says, that it is invariably enough to prove so much of the indict,ment as shows that the defendant has committed a substantive crime therein specified.

The substance of the crime, in this case, is larceny, and this is a substantive offense, although the accused was guilty of stealing but one of the articles laid in the indictment. The finding would have been free from doubt .or criticism, had the jury added to their verdict, not guilty of the larceny of the residue of the articles charged in the indictment. 1 Chit. C. L., 638; Durham v. The State, 1 Blackf., 33.

It is well settled also, that where an accusation includes an offense of inferior degree, the jury may discharge the defendant of the higher crime, and convict him of the less atrocious. 2 Hale P. C. 302; Hawk. b. 2, c. 47, § 6. The form in which a verdict which thus partially convicts and acquits should be given, has been somewhat contradicted; but it is now put at rest, that it is sufficient if the jury find a verdict of guilty of the inferior offense, and take no notice of the aggravation. 1 Chitt. C. L. 640.

In still later times, a practice hag obtained of not requiring a formal finding upon all the issues presented, provided enough be found upon which to warrant judgment against the accused, and of considering a finding of a part of the issues to be the negativing of the rest. In the ease of Stoltz v. The People, 4 Scammon’s R. 168, the accused was indicted in two counts. The first count charged the accused with keeping a gaming house; and the second with keeping open a tippling house on Sunday. The verdict was guilty on the first count, but no finding on the second. The court said, “ It is insisted, that the verdict of the jury was void, and that the court erred in rendering judgment upon it. The general rule is, that the verdict must be as broad as the issues submitted; and it was formerly held, with much strictness, that a failure to find on all the issues vitiated the verdict. The tendency of modern decisions, however, has been to relax the severity of the rule and sustain the verdict, where the intention of the jury can be ascertained. What is the reasonable view to be drawn from this verdict, and the circumstances under which it was rendered! The people prefer two charges of criminal offenses against the defendant; lie is ar-rainged on them and the question of his guilt submitted to the jury for determination. They hear the testimony adduced to substantiate both charges, and find, affirmatively, that he is guilty of one. Is not the inference irresistible, that the prosecution failed to establish his guilt on the other charge, and therefore the jury fed negatively on it * "We are of opinion that the verdict should be regarded as an acquittal of the defendant on the second count. If such be the effect of the vérdict, he certainly has no right to complain. He can never again be put on trial for the same offense. He has Once been pu t in jeopardy, and the charge against him adjudicated. This reasoning applies still more forcibly to cases where the several issues are embraced in but one court as in the case before us. The doctrine seems equally applicable to every grade of offensej and appears to be a rational deduction or corollary of the established principle, that the finding of the inferior is a discharge of the superior offense, which holds even in indictments for murder.

We have had occasion already at this term, in the case of Wilborne v. The State, ante, 345, to remark upon the distinction existing in this state between grand; and petit larceny. By a reference to that case, or to the statutes How. & Hutch., 666, § 13; ib., 700, § 63; ib., 722, 21, it will be observed, that upon a conviction of larceny of property of the value of under twenty dollars, there is an unlimited discretion as to the length of the imprisonment, provided it be not less than two years in the penitentiary. We have nothing to do with the policy of legislation. “ Quod scriptum, scriptuin.”

There being no error in the proceedings, the judgment of the circuit court must be affirmed.

1 John v. State, 24 Miss, 569; 1 Bishop Cr. Law, 850; State v. Coleman, 3 Ala., 14; Naboro v. State, 6 Ala, 200; Weinzorpflin v. State, 7 Blackf., 186; 1 Bishop Cr. Procedure, 837.