
    The State, vs. Henry Wilson & James Davis.
    tVlien tivo persons are indicted together, for stealing the same goods, one cannot he convicted of petit larceny and tile other of grand larceny.
    So it seems of burglary, if one be convicted of larceny only, the other cannot be convicted of burglary.
    When new trial granted, for want of evidence, in an indictment for larceny.
    Tried before Mr. Justice Bay in October term, 1824, who made the following report of the evidence;
    “John Anderson, the prosecutor, proved that, in the month of June last, as he was going on board of his schooner, then laying at Crafts’ north wharf, in Charleston, he discovered Davis on the wharf, near the vessel. He got up from behind some easks and then walked up the wharf When he went on board of his schooner, he discovered that the companion door had been broken open. He went down into the cabin, and there being no light in it, he felt about in or-der to discover whether there was any body in it or not, and soon found the prisoner, Wilson. Upon enquiring of him who he was and how he came there, he said one of his sailors had given him permission to come on board, and that he belonged to the sloop Mary. Witness said he had no sailors on board his schooner, he had discharged them the day before. Witness then laid hold of him and dragged him to the forward part of the cabin, and then brought him upon deck Witness called out to one of the guard men he had passed in coming down to his vessel; but not getting an answer he jumped on the wharf. At the same time, Wilson jumped off the quarter deck of the schooner and attempted to run. The witness ran up to stop him, when he drew a dagger on witness and made seven or eight passes at him; but gave him only pne wound on the fingers; upon which he closed with the prisoner and threw him and took away the dagger from him. On which he immediately discovered it was his own dagger, which prisoner had taken out of the cabin. Witness still called out for assistance, when one of the guard came «p? and Capt. Town soon after. Witness then requested Gapt. Town to remain on board his schooner white' he assisted the guard men in taking Wilson to the guard house-The prisoner gave witness a blow after he was in tho guard house. When witness returned to his vessel, Capt. Town had procured a light from his mate and steward, who were also there. Witness was preparing'to go to bed, when Davis came down (this was some time after he had relured from the guard house) and hailed him and asked what had become of the man he had found in his vessel. He gave him an evasive answer, in hopes of some person coming to his assistance. Davis said the man was an old ship mate of his and fellow boarder. The guard soon after came down., and they ecured Davis and took him to the guard house. When witness returned again to his vessel, after securing Davis, he discovered that his trunk had been broken open or unlocked, and emptied of all its contents, and put into a clothes bag, on which' Wilson lay when he first found him, behind a desk, on his first entering the cabin. Witness also discovered that the mate’s trunk had been taken out of the cabin to the lore part of the schooner, but not opened. The contents of his trunk were, six shirts, five pair of pantaloons, eleven pair of socks and stockings, three or four vests and outside jackets. His sword had also been taken out of thb cabin and carried on deck. On being cross-examined, witness said that Davis was concealed behind a cask when he first perceived him. Here the testimony closed. The court observed to the jury that there could belittle orno doubt as to the guilt of Wilson, as the testimony was very clear against him; but that it did not appear, that there w'as sufficient evidence against Davis, to convict him as a principal in the offence; but the jury thought otherwise, and brought in the following verdict, viz: “ We find Henry Wilson guilty of grand: larceny, and James Davis guilty oí petit larceny."
    
   Nott, J.

The question involved in this case may be considered as settled in the case of the State vs. Larumbo, (Harper's Rep, 188.) The only difference between the two cases is, that in that case, Cassada who was indicted with Earnmbo and found guilty of petit larceny had acquiesced in the conviction, and received the punishment; Larumbo who appealed on the same ground which is now taken, obtained a new trial. The reasons on which the new trial was granted although not detailed in the opinion, I think, are obvious and well supported by authority. Grand larceny consists in the stealing of money or goods to the value of twelve pence or more, petit larceny in stealing any thing within that sum. Two persons equally concerned in stealing the same article cannot be guilty of different offences. For although a j.'ry have an almost unlimited power of valuing stolen property ai what they please, so as to bring the case within petit larceny, they cannot value it at one price in the hands of one man and at another price in the hands of another, who are equally concerned in the transaction, for the purpose of subjecting one to a greater punishment than another; and, although, they may value property which is laid in the indictment to be worth twenty shillings, at sixpence only, and thereby convict the party accused of petit larceny; yet if the property stolen is laid in the indictment to be worth only sixpence, they cannot by any subterfuge or legal fiction find him guilty of grand larceny. So when they have themselves estimated the goods stolen to be of less value than a shilling, by convicting one of the party of petit larceny, they cannot convict the other of grand larceny, who had only participated in the same theft; for the goods having been found of less value than twelve pence, they are not the subject of grand larceny. The prisoners have either been guilty of two distinct offences, and, therefore, ought not to have been indicted together, or they have been guilty of the same crime and should have been convicted of the same. The verdict, therefore, in either view is inconsistent and must be set aside. The same principle prevails in burglary and for the same reasons. If one be convicted of larceny only, it repels the idea of the goods having been stolen in the night, and therefore the other cannot have committed burglary- Irj. petit-treason and murder, the law is otherwise. There can be no treason where there is no allegiance. The same act constitutes a different offence, according to the relation in which the accused stands to the deceased; one may, therefore, be convicted of treason, and the other of murder. On an indictment for murder also, one may be convicted of murder, and the other of manslaughter. The character of the offence depends so much upon the circumstances of the transaction and the motives and inducement of the parties engaged in it that the jurors are authorized to discriminate between their respective degrees of guilt. But there can be no difference in the degrees of guilt, when the nature of the ©ffence-depends upon the value of the property or the time when it Was taken. It may be said that Davis who has been convicted of petit larceny only, has no right to complain; for if he has been guilty of any crime, it cannot be less than that of which he has been convicted; and I think, I should have been of that opinion, if the testimony had been such as to have authorized his conviction even of that offence. But as to him 1 think the verdict is clearly without evidence.

The motion for a new trial must, therefore, be granted.  