
    7744
    STATE v. STONE.
    Verdict — Sentence.—Where five persons are indicted for a crime and the jury finds three guilty, naming them, the other two are acquitted; and where there is no ambiguity in the verdict the Court should not sentence those not included in the verdict and release two of those named in it, because he thinks that is the justice of the case.
    Before Memminger, J., Williamsburg, June, 1910.
    Reversed.
    Indictment against Harrison Stone, Thomas Washington, Ellis Stone, Morris Stone and Ohesley Washington. From sentence of the Court, Ellis Stone, Morris Stone and Chesley Washington appeal.
    
      Mr. Robert K. Kirk, for appellants,
    cites: Circuit Judge has no right to hold a party for crime because he thinks jury made a mistake in acquitting him: 12 Cyc. 274-5, 259; 20 S. C. 392; 8 Cyc. 1089; 42 Fed. 587; 2 McC. 129; 3 Brev. 142; Bish. Crim. Proc., sec. 1013; 61 Am. St. R. 780.
    
      Solicitor P. H. Stoll, contra.
    December 16, 1910.
   The opinion of the Court was delivered by

Mr. Justice Gary.

This is an appeal from an order of the Circuit Court, refusing to. discharge the appellants, after tiheir alleged acquittal by the jury, and in requiring them to undergo the sentence imposed' upon those who were found guilty by the jury.

Harrison Stone, Thomas Washington, Ellis Stone, Morris Stone and Ohesley Washington were indicted for the larceny of a hog.

The following statement appears in the record:

“During the trial there was some confusion, as to the correct name of one of the defendants; it appears in the indictment as Harrison Stone, and defendants’ counsel claims it was Harrison Washington. The State introduced testimony to show that Harrison Stone, was also known as Harrison Washington. The defense denied this, and also introduced testimony to show, that he was known only as Harrison Washington. The defendants were arraigned.
“The trial proceeded regularly, until the jury was • charged and retired to consider their verdict.
“After deliberating some time, the jury was brought back in the courtroom for instructions, #at their request.
“Court: I understand you want some information in this matter ?
“Foreman of Jury: The jury want to know, whether the two last named on the indictment, are the ones, that went for the hogs.
“The Court: What are the names of those two boys ?
“Foreman: Harry Stone and Morris Washington are the—
“Solicitor: Harrison Stone and Thomas Stone are the two boys.
“Foreman: Harrison Stone?
“Solicitor: Harrison Stone and Thomas Washington are the two boys.
“Court: Harrison Stone and Thomas Washington are the two boys.”
(Mr. Kirk comes in at this stage.)
“Court: Mr. Kirk, the jury wants to know who are the two boys; what are the names of the boys, under the undisputed evidence?
“Mr. Kirk: Harrison Washington and Thomas Washington.
“Court: Do they appear that way in the indictment? Here is Harrison' Stone in the indictment.
“Mr. Kirk: That is Harrison Washington.
“The Court ('to the jury) : Make a note of Harrison Washington and Thomas Washington.
“Mr. Kirk: It ought to be Harrison and Thomas Washington.
“Court: The last two names on the indictment.
“Jury retired to their room again, and, after several hours’ deliberation, the foreman was brought into Court, and instructed to return a sealed verdict, and be in Court next morning at half past nine o’clock.
“June 21, 1910,
“Jury returned verdict as follows: ‘Guilty as to Harrison Stone, Thomas Washington and Ellis Stone; recommended to mercy.’ ”

In refusing the motion made by appellants’ attorney, for their discharge, his Honor the presiding Judge said: “Taking 'the whole case, there can’t be the slightest doubt, in the mind of a reasonable man, as to what the jury intended to do — to turn the two little fellows loose, and convict the others. I will undertake to do that, because I know no injustice has been done. These two boys ought’ to be acquitted, and I am going to turn them loose. The way I am considering it, I know justice is being done and the verdidt ■ carried' out in the right way. You can take an order of- discharge for the two boys; the other three will have to be sentenced under the verdict.”

The verdict of the jury, was unquestionably an acquittal of Morris Stone and Chesley Washington. The presiding Judge imposed sentence upon Harrison Stone, Thomas Washington and Ellis Stone, but discharged Harrison Stone and Thomas Washington. He, however, refused to discharge Morris Stone and Chesley Washington, but ruled that they should serve the sentence imposed upon those who were discharged.

The verdict of the jury was plain, and free from ambiguity, and Morris Stone and Chesley Washington, who were acquitted by the jury, should have been discharged, and they should not have been required to undergo punishment.

Reversed.  