
    *Harvey v. The Commonwealth.
    March Term, 1873,
    Richmond.
    Criminal Law — Larceny—Verdict Fixing; Punishment. —H was indicted for the larceny of three beehives of the value of $5; three swarms of bees of the value of $3; and forty pounds of honey of the value of $5, of the goods and chattels of C. The jury by their verdict, found him guilty as charged in the indictment, and ascertained the term of his imprisonment in the county j ail at three months, and the judgment of the court was for three months imprisonment; W then moved in arrest of judgment, because, 1st. The jury was not authorized to fix the term of his imprisonment; and, 2. Two of the three subjects of larceny charged in the indictment are not proper subjects of larceny.
    Held:
    1. Same — Same—Same — Surplusage. — Though the jury had no authority to fix the imprisonment, it was mere surplusage, and the verdict of guilty was good; and the imprisonment was the act of the court.
    2. Same — Same.—It may be in tended after verdict, that the bees were reclaimed, and the honey the property of C.
    3..Same — Same.—If any one of the three subjects mentioned in the indictment, might be the subject of larceny, it is sufficient, and the verdict will not be arrested.
    This is a writ of error to a judgment of the Circuit court of Pittsylvania county, affirming a judgment of the County court of said county, convicting the plaintiff in error of petit larceny, and sentencing him to imprisonment therefor in the county jail for the term of three months. The indictment was for stealing, taking and carrying away, “three beehives, of the value of *five dollars; and three swarms of bees, of the value of three dollars; and forty pounds of honey of the value of five dollars; of the goods and chattels of one Vincent Shelton. The case was tried upon the plea of not guilty,” and the verdict of the jury was in these words: We, the jury find the defendant guilty, as charged in this indictment, and ascertain the term of his imprisonment in the county jail to be three months.” Whereupon the defendant moved the court to set aside the verdict and grant him a new trial. But the court not being advised of its judgment to be given, took time to consider thereof. On the next day the defendant moved the court to arrest the judgment for the following reasons:
    I. Because the jury, after being sworn was charged, if they found the defendant guilty, to ascertain the term of impi'isonment in the county jail, so that said term be not more than one year.
    II. Because the verdict is contrary to the statute in such case made and provided, because the jury had no right to fix the term of imprisonment in the county jail. The statute gives that power to the court in such cases. Code of 1860, p. 814, § 24.
    III. Because the indictment, as to the bees and honey, therein named, does not set forth any offence, in this, that it is not stated whether the bees therein named’, were wild bees or reclaimed bees; nor whether they were honey bees; nor whether the honey was strained, (or liquid honey,) or honey comb; nor whether it was honey made by honey bees, or reclaimed bees or not, or by wild bees.
    The fourth reason need not be stated, as no question arises upon it.
    The court having fully considered the motion for a new trial, and the motion in arrest of judgment, overruled *the same; and ordered that the defendant be imprisoned in the county jail for three months, the period ascertained by the jury, and that he pay the costs of the prosecution. This judgment of the County court was affirmed by the Circuit court, and to the judgment of the Circuit court, a writ of error was awarded by this court.
    Marshall, for the appellant.
    The Attorney General, for the Commonwealth.
    
      
       Verdict Fixing Punishment — Surplusage.—In State v. Greer, 22 W. Va. 829, the court, citing the principal case as authority for the proposition, said: “The last error assigned is, that the j ury ascertained the term of imprisonment by their verdict. This was irregular, and the court should have informed them that it was no part of their duty to fix the term of imprisonment and should have sent them back to their room to correct it. But it was surplusage and did not vitiate the verdict. The court fixed the term, as the judgment shows; and because he fixed the same term found by the jury, is immaterial. Jurors may be influenced by courts; but we cannot presume that courts will be influenced in the discharge of their duties by jurors.”
      See monographic note on “Larceny” appended to Johnson v. Com., 24 Gratt. 555.
    
   MONCURE, P.,

delivered the opinion of the court. After stating the case, he proceeded :

This case presents the question, whether the judgment ought to have been arrested on either or both of these two grounds; viz: 1st. That two of the three subjects of the larceny charged in the indictment are not proper subjects of larceny; and 2dly, that the term of imprisonment for the offence was ascertained by the jury, and not by the court. We will proceed to consider these two grounds in their order; and—

1st: As to the ground that two of the subjects named in the indictment, are not proper subjects of larceny. Those two subjects are, “three swarms of bees of the value of three dollars,” and “forty pounds of honey of the value of five dollars.” When animals or other creatures are not domestic, but are ferae naturae, larceny may, notwithstanding, be committed of them, if they are fit for the food of man, and dead, reclaimed, (and known to be so,) or confined. 2 Russell on Crimes, 83. If prima facie, the thing taken is not the subject of larceny, as an animal ferae naturae, the indictment must show it to be dead, tame or confined, in which state it may be the subject of individual property. 2 Bishop on Crim. Pro. § 663. Bees are in: their nature, creatures ferae natura, "’‘'but they may be, and often are, reclaimed, and then become property. Though not fit for food themselves, their honey is. Id. ; The State v. Murphy, 8 Blackf. R. 498. Bees, in the possession of the owner, are the subject of larceny. Id. ; 2 Russell on Crimes, 83. In this case, the three swarms of bees are described to be of the goods and chattels of one Vincent Shelton; which is, in effect, an averment, that when stolen they were his property and in his possession. They were, therefore, in that view, clearly a subject of which larceny could be committed, according to the authority just cited. As to the “forty pounds of honey,” named in the indictment, that was clearly sftch a subject, whether it was made by wild bees, or bees that had been reclaimed. It is described as 1 ‘of the goods and chattels of one Vincent Shelton, ’ ’ which, as just stated, is, in effect, an averment, that when stolen, it was his 'property and in his possession. There can be little or no doubt but that the three swarms of bees and forty pounds of honey named in the indictment, were, when taken, in the three beehives therein named; in other words, that it was intended to charge the accused with stealing three beehives, with three swarms of bees and forty pounds of honey therein. If the charge had been in those words, there could have been no doubt that each of the subjects named would have been a proper subject of larceny. In support of the verdict the indictment should be so construed, if necessary ; the defect, if any, having been cured by the verdict. The accused did not make any objection on that ground, as he might have done, before verdict; did not then ask the court to exclude any evidence that might be offered as to the stealing of the three swarms of bees. It may, therefore, be presumed after the verdict, that it was proved to the satisfaction of the jury that the bees were the property of Vincent Shelton, and not wild bees, ^especially as such proof is consistent with the indictment.

But, certainly, two of the three subjects named in the indictment, are proper subjects of larceny, to wit: the beehives and the honey. It is not pretended that the beehives are not; and that is enough to sustain the verdict and the judgment, even though the other subjects named were not proper subjects of larceny. The grade of the offence is the same; whether all, or any intermediate number, or only one of the subjects named, were stolen, taken, and carried away. The offence is but petit larceny in either event. It may be said that the measure of punishment may have been affected by evidence in regard to the stealing of the bees, which would be wrong, supposing the bees not to be a proper subject of larceny. But how can it be known that any such evidence was before the jury? If it was offered, and was illegal, the presumption is that it was, as it ought to have been, excluded, by the court. If the accused had moved to exclude it, and the court had refused to do so, a bill of exceptions would have been taken to the ruling of the court. There being no such bill of exception in the record, this court would presume, if necessary to sustain the verdict and judgment, that no such evidence was offered, or if offered, that it was excluded by the court below.

But, whether one or more of the subjects named in the indictment were proper subjects of larceny or not, could not affect the question before the jury, if any subject named in the indictment was a subject of which larceny could be committed, and the larceny of that subject was proved to the satisfaction ' of the jury. The offence was petit larceny, "and no more nor less, whether all, or any number less than all, of the things named in the indictment, were stolen. It was the province of the *jury only to respond to the issue of guilty or not guilty. They did respond to that issue, and found the accused guilty- — that is, guilty of larceny of all the subjects named in the indictment of which larceny could be committed. They had nothing to do with the measure of punishment, which the court alone had the right to.'ascertain. It is true they did in their verdict “ascertain the term of imprisonment in the count3r jail to be three months.’’ But that part of the verdict was mere surplusage, and did not vitiate the general finding of guilty, which was within their province.

Then it was not a good ground in arrest of judgment that any one or more of the subjects named in the indictment were not proper subjects of larceny, some of them clearly being such proper subjects; and the court, therefore, properly overruled the motion in arrest upon that ground. It was a proper matter, of course, to be considered bjT the court, in ascertaining the term of imprisonment, that one or more of the subjects named in the indictment were subjects of which larceny could not be committed, supposing such to be 'the, fact. But how can we say that the court did not duly consider that matter, and did not adjudge three months to be the proper term of imprisonment, whether all. or any number, or only one of the subjects named in the indictment, were, in fact, stolen by the accused? And now, as to the other ground of the motion in arrest, viz:

2d. That the term of imprisonment for the offence was ascertained by the jury., and not by the court. Beyond all question, it was the province of the court, and not of the jury, to ascertain the term of imprisonment in this case. The Code, ch. 199, § 24, provides, that “the term of confinement in jail of a person found guilty of a misdemeanor, where that punishment is prescribed, shall be ascertained by the court.

Petit larceny is a misdemeanor, *and imprisonment in jail is a pun-ishm’ent prescribed therefor. But, as before stated, the finding of the jury in regard to the term of imprisonment in this case was mere surplusage, and did not vitiate the rest of the verdict. It was not a good ground for arresting the judgment. It was the province of the court, in proceeding to pronounce judgment upon the verdict, to ascertain the term of imprisonment of the accused in jail, for the offence of which he had been convicted by the jury. And the court, after property overruling the motion in arrest, did accordingly ascertain such term of imprisonment to be three months. . To be sure, the words “three months’’ in the judgment, are followed by the words: “the period ascertained by the jury,;’’ and it would appear, from the causes assigned in arrest of judgment, that the jury had been charged, “if they found the defendant guilty, to ascertain the term of imprisonment in the county jail, so that said term be not more than one year. ’ ’ But it did not any more vitiate the verdict that the jury were so charged, than that they so ascertained the period of imprisonment. It still remained for the court, in pronouncing the judgment, to ascertain the term of imprisonment; and the court accordingly did so. That the court adopted the term fixed by the jury, does not vitiate the judgment. The opinion of the jury may have been, and doubtless was, persuasive in ascertaining the term, but it did not control the court. It cannot be presumed that the court did not know what the law was; and certainly such presumption will not be made to invalidate the judgment, when the contrary presumption is equally consistent with the judgment. That the court knew what the law was, affirmatively appears from the fact, that in the causes assigned in arrest of judgment, the court was twice referred to the page and section of the Code, which declared the law.

*But this very question was decided by the late General court in House’s case, 8 Heigh 755; in which a writ of error was denied, without a dissenting voice. Indeed that case is stronger than this against the validity of such an objection as we are now considering. In that case the defendant was indicted for a misdemeanor, and the jury found him guilty on the first count, and ascertained the term of his imprisonment to be six months, and assessed his fine to $200. And the court pronounced judgment that the defendant be imprisoned in jail, “for the term ascertained by the jury,” and pay the fine, &c. There was a motion in arrest of judgment, but not upon the ground that the jury had ascertained the term of imprisonment. It does not appear, therefore, that the attention of the court was called in that case, as it was in this, to the law which made it the duty of the court and not of the jury to ascertain the term of imprisonment in such a case. It was assigned as error in that case, that the jury ascertained the term of imprisonment instead of the court; and yet a writ of error was denied. To be sure, that case occurred before the enactment of § 24 of ch. 199 of the Code; but that enactment was merely in affirmance of the com’mon law, which was precisely the same in this respect as in the statute.

We are, therefore, of opinion that there is no error in the judgment, and that it ought to be affirmed.

Judgment affirmed.  