
    The State, v. George Kersh.
    Where the indictment charges the stealing- of one steer, one bull, one cow, &c., the J udge cannot impose the fii.e for stealing only one steer, although such be the evidence, il there is a general finding of guilty. The evidence must support the finding; and the judgment must conform to the veidict. See The State v. Herring, 1 Brev., 159; and The State v. Windham, Cheves, 75.
    New trial ordered.
    Tried before Mr. Justice Richardson, at Barnwell, Spring Term, 1847.
    Indictment for cow stealing.
    The defendant was indicted under the A. A., 1789, for cow stealing. The defendant introduced no evidence; that offered on the part of the State, was in sum and substance as follows: The prosecutor testified, that on the 26th July last, he met defendant, Kersh, with a drove of cattle—afterwards suspected and followed him, and found his steer in his drove, in Colleton District. Witness had no doubt that the steer was his; it was in his mark; he permitted it to run at large with his cattle, and possibly had not seen it for a week. Defendant had lodged with his drove on Saturday night, near witness’ plantation, in the neighborhood, some three or four miles distant. The other witnesses, examined on the part of the State, testified as to their knowledge of the steer. They stated, that Kersh had about thirty head in his drove; that not more than six or seven head were in Kersh’s mark; that when they overtook defendant, in Colleton District, and informed him of their purpose, he said, “I wish I may land in hell, if I knew it was here.” Defendant offered to buy the steer, and turned it loose. One of the witnesses testified that he had seen the steer at Moye’s, on Saturday, at 12 o’clock, in Barnwell District.
    The question was made, in argument, that there was no proof of a cepit el asportavit in the District of Barnwell, where the defendant was indicted and tried, but the presiding Judge instructed the jury that that was a question solely for them; that, if from the evidence, they believed that the defendant took and carried away the steer feloniously from Barnwell District, with the intention of converting it to his use, they had a right to regard the offence as committed in the District of Barnwell. The indictment was not read to the Court, and not knowing that it charged the defendant with stealing other than a steer, (for there was no evidence as to any other,) his Honor directed the jury, if they thought defendant guilty, to find a general verdict of guilty, and they did so.
    The defendant moved to set aside the verdict, and for a new trial.
    1st. Because there was no evidence of a taking and carrying away within the District of Barnwell, where the offence was charged to have been committed.
    2d. Because the indictment charges the defendant with having stolen one steer, one bull, one cow, the property of the prosecutor, and although there was no evidence whatever as to the bull and cow, yet the jury found a general verdict of guilty.
    
      3d. Because the verdict of the jury was contrary to law and evidence.
    
      The State of South-Carolina, Barmcell District.
    
    At a Court of Sessions, begun to be holden in and for the District of Barnwell, in the State of South Carolina, at Barn-well, on the twenty-sixth day of October, in the year of our Lord, one thousand eight hundred and forty-six.
    The jurors of and for the District of Barnwell, in the State of South Carolina, aforesaid, that is to say, upon their oaths, present: That George Kersh, late of in the District of Barnwell, on the day of July, in the year of our Lord one thousand eight hundred and forty-six, with force and arms, at Barnwell, in the District of Barnwell, aforesaid, one steer, one bull, one cow, of the value of ten dollars, of the proper goods and chattels of George W. Moye, then and there being, feloniously did steal, take, and drive away, against the form of the Act of General Assembly, in such case made and provided, and against the peace and dignity of the same State aforesaid. Edwards, Solicitor.
    
    Prosecutor.—George W. Moye. Witnesses.—Charles S. Kirkland, John M. Brabham, Hampton Brabham.
    
      South-Carolina, Barnwell District.
    
    I certify that the written is a true copy of the original indictment filed in my office.
    Orsamus D. Allen. Clerk of the General Sessions.
    
    Bellinger, for the motion.
    Edwards, Solicitor, contra.
    
   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.  