
    The Commonwealth v. Percavil.
    July, 1834.
    indictment under Statute — Wilful Trespass — Special Verdict — Sufficiency.—Upon. an indictment on the statute of 1822-3, ch. 34, § 1, tie jury find, in a special verdict, that defendant shot and killed hoe's the property of another, the hog's being-on defendant’s own land at the time of his shooting and killing them: Hüed, the verdict is defective and insufficient, in not finding the essential ingredients required by the statute to constitute the misdemeanor, viz. that defendant killed the hogs “knowingly and wilfully without lawful authority.”
    Same — Same—Construction of Statute. — The provisions of that statute are not confined to property ejusdem generis with that specially there enumerated; and the circumstance of the property destroyed being at the time on defendant’s own land does not take the case out of the statute.
    Case adjourned from the circuit superiour court of Lancaster. Percavil was indicted in that court, at March term 1834, upon the statute of 1822-3, ch. 34, § 1, for knowingly and willfully, without lawful authority, but not feloniously, wounding and killing thirty hogs, the property of E- Brent. Plea, not guilty. The jury found the following verdict: “We of the jury find the defendant guilty, and assess his fine at twenty-one dollars, in case the court shall be of opinion, that the defendant is liable under the presentment made in this case to the penalties of the act to provide for the more effectual punishment of certain offences,” [namely the statute above referred to] “for having shot and killed seven hogs the property of E. Brent, which *hogs were on the land of the defendant at the time of the shooting and killing thereof.” Whereupon, the circuit court adjourned to this court, the following questions: 1. Whether the wounding and killing of hogs, not being upon the land of the owner thereof when they were wounded and killed, nor being at the time in his immediate personal possession, but being on the land of the defendant, is a destruction of personal property, within the meaning of the statute on which the prosecution is founded? 2. What judgment ought to be given upon the proceedings in this cause? And all questions arising upon the record.
    
      
      Indictment under Statute — Wilful Trespass — Indictment — Sufficiency.—The principal case is cited with approval in Com. v. Howard, 11 Leigh 632.
      . Criminal Law — Verdict for Term of Imprisonment Shorter Than Law Allows — Variance between Verdict and Judgment — Appellate Practice.--In Nemo’s Case. 2 Gratt. 558, the verdict of the jury found the accused guilt: of voluntary manslaughter, and fixed his term of imprisonment at three years; and upon this verdict the circuit court sentenced him to imprisonment for five years, that being the shortest term prescribed by law for the offence. The judgment, thus varying from the verdict, the general court reversed it for this reason, and the verdict being illegal in ascertaining a term of imprisonment shorter than that prescribed by law, the court set aside the verdict and awarded a venire ele novo. In Jones v. Com., 20 Gratt. 855, it is said that this decision is sustained by Gibson v. Com., 2 Va. Cas. 111; Com. v. Smith, 2 Va. Cas. 327; Com. v. Percavil, 4 Leigh 686; Mills v. Com., 7 Leigh 751; Com. v. Hatton, 3 Gratt. 623; Marshall v. Com., 5 Gratt. 663; S. C., 5 Gratt. 693: Com. v. Scott, 5 Gratt. 697.
    
    
      
       Supp. to Rev. Code, ch. 226, p. 280. See the words of the statute in a note on Israel’s case, ante.
    
   PER CURIAM.

As to the first question, the court is of opinion, that the legislature did not intend to limit the operation of the statute referred to, to cases of trespass upon property of the same kind as that specially enumerated in the statute; but that bj' the words “property real or personal” therein contained, it intended to embrace living domestic animals; the usual and ordinary effect of these general words, not being confined by the special enumeration in the preceding part of the statute. And the court is of opinion, that the fact of the property being at the time of the trespass, on the land of the defendant, will not prevent the operation of the statute, if the other constituents required thereby, namely, that the injury or trespass be done knowingly and wilfully, without lawful authority, be found by the jury to exist in the case. Upon the first question, therefore, the court answers in the affirmative.

Upon the second question — -Though the jury in the first part of their verdict (in the usual form of general verdicts) find the defendant guilty and assess his fine, they evidently intended by the other part of their verdict, to ask the opinion of the court as to the law upon a particular state ofifacts. The verdict, therefore, is to be regarded as a special one. Considering it in that light, the state of facts which it contains, and to which the jury asked the court to apply the law, must be taken as presenting all the facts which the *jury found to exist in the case; and as the verdict does not contain the essential attributes required by the statute to constitute the misdemeanour, viz. that the defendant shot and killed the hogs ‘''knowingly and wilfully, without lawful authority,” it is defective and insufficient. Upon the second question, therefore, the court is of opinion, that no judgment should be rendered, but the verdict should be set aside, anda venire de novo awarded.  