
    No. 1356.
    The State of Louisiana vs. Jacob Prince.
    1. An information is not bad which contains two counts, charging* the accused in one with severing certain property from the soil of another person, and in the other count with stealing said property. The two offences may he charged in the same information, in two counts.
    2. Property cut down and detached, if removed either by the accused or by another f and it be left in this detached condition, it Ilion may become the subject of larceny.
    
      3. The name and the initials of the owner of the property are suilicient, and the fact that the surname, although that of a woman, is not written in full, will not vitiate the verdict.
    
      4. The allegation having been made in the information that the accused cut down trees on the lands of an owner whose name was given, there was no necessity to describe the land in order to enable the prosecuting officer to prove up the offence charged.
    
      5. To convict a party of having cut timber on the land of another, in violation of law, it must appear that the act was done knowingly and wilfully, and not through mistake or accident. Instruction to the jury to that effect, although requested, was not given. It should have been given. The case will therefore be remanded for a new trial.
    
      A The imprisonment, in default of the payment of the fine, can not exceed one year. The court having sentenced the accused to remain in jail until payment of the fine, and not having limited the time, the sentence is illegal and void. The case is remanded to be proceeded with in accordance with the views expressed in the decision.
    APPEAL from the Twenty-Sixth District Court, Parish of St. John the Baptist. Rost, J.
    
    
      Gervais Léche, District Attorney, Chas. A. Baquié and Geo. L. Bright for the State, Appellee:
    1. Two distinct offences may be charged in thesame information, provided they are charged in separate counts. Bishop Orim. Prac.,Sec. 189e£$e<z.; 81 An. 487; 33 An. 1216; 35 An. 53; 39 An. 960 j 38 An. 91.
    
      % Nor is iteven necessary that they'should be of the same class in order to justify their location in the same indictment (information), provided each is placed in a. separate cotmt. This is no longer an open question. 30 An. 61; 32 An. 812; 85 An. 53, State vs. Gilkie; 37 An. 853; 33 An. 1146; 39 An. 959; 38 An. 92. And more especially is it so when the two distinct offences grow out of thesame act, the same transaction. 38 An. 91; 37 An. 382; 89 An. 811, 959.
    
      3. An information charging a statutory offence is sufficient if in the terms of the statute. 39 An. 986; 40 An. 170.
    4. Oomplaint that two repugnant counts are contained in the same information, or that the information is defective for duplicity or uncertainty, must be urged in a motion to quash.
    i>. If the count shows a crime, though defectively, so as to be bad on demurrer, it is good after verdict. Knoblock Orim. Dig., 30.
    6. Formal defects in the pleadings, as the imperfectstatoment of a cause of action, the omission of certain formal allegations, are cured bya general verdict.
    7. A defect in the pleading, whether of substance or of form, which would have been fatal on demurrer, is cured by verdict, if the.issue joined be such as necessarily required on the trial, proofs of facts defectively stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict. Profiat.on Jury Trials, Sec. 419.
    
      3. The rule is that an inaccurate averment is cured by verdict. Heard Orim. rids., 313.
    
      •i). The charges of trespass by cutting timber (R. S. 817), and larceny of the same timber, growing out of thesame transaction, may be charged in thesame information when charged in separate counts.
    
      10. In most of the States it has been held that even felonies and misdemeanors may be properly joined when relating to the same subject matter. The right to compel the prosecutor to elect on which charge he will proceed, is confined to cases where the indictment contains charges which are actually distinct, and which grow out of different transactions. 8 An. 109,114; 4 An. 434; 37 An. 382; 39 An. 959, and authorities there cited.
    11. A new trial will-be refused unless it be shown that injustice has been done to the accused. 30 An. 1170.
    The Supreme Court will grant new trials in criminal cases, but only on pure questions of law. 30 An. 1323.
    12. .A large discretion is entrusted to the lower court in the matter of grantingnew trials, which will not be interfered with except for grave reasons. If the ground for a new trial be the insufficiency of the evidence to convict, the Supreme Court will not consider it, that being a question for the jury alone and exclusively. 35 An. 96.
    New trials in criminal cases are not grantable for newly discovered evidence if it be only cumulative. 36 An. 709.
    Nor when the accused consented to go to trial without the witnesses whose evidence he pretends to have newly discovered, when the same witnesses had been regularly summoned in his behalf, were called in court and failed to answer. The evidence was known to him. 36 An. 923, 980.
    13. Under Secs. 2224, 2225, of the Itevised Statutes of. the United States, any copy of a plot of survey or transcript from the records of the office of Surveyor General of Louisiana, duly certified by him, is admissible in evidence in all the courts of the United States and the Territories.
    
      Morris Marks, P. E. EdHngton and James V. Ghenet for Defendant and Appellant:
    On assignment of errors and motion in arrest of judgment.
    1. Sec. 817,E. S., 1870, reads as follows: “'Whoever shall cut, pull down, burn, destroy or carry away any tree, wood or timber growing or lying on the land of another, or cause the same to be done, without the consent of the owner or legal possessor, on conviction shall pay a fine of not less than $5 nor more than $500, one-third for the benefit of the owner or legal possessor of the land, one-third for the benefit of the parish, and one-third to the District Attorney. Nothing contained in this section shall take away or impair the right to damages or other legal remedy which the party injured may now have under the laws of the State.'
    The law of larceny is Sec. 812, li. S., La., 1870, and Act 1874, No. 124, p. 221, and is with us the common law larceny (excepting where changed by statute), and is defined by us as at common law. There are many other laws in this State providing for statutory stealings, carrying away or appropriating the property of another, such as horse stealing, stealing cotton (Act 21, 1888), stealing public records, etc. Sec. 873, K. S., Act 1870, p. 49.
    Whoever cuts down a tree, or causes the tree to be cut down, and then carries away the tree, growing or lying on the land of another, or causes the same to be done without the consent of the owner or legal possessor, violates but one criminal statute of Louisiana, and if convicted of both, the “cutting down of the tree” and “the carrying away of the tree,” can be fined not exceeding $500, and in default of payment imprisoned not more than one year. Sec. 980, R. S., 1870* Stealing, taking or carrying away such a tree, or wood, or timber, under See* 817, R. S., is no longer larceny in this State, but a separate'statutory offence, not a felony, but a simple misdemeanor, for the asportation of the property mentioned in Sec. 817, R. S. The law of larceny is so far repealed, both said laws in this particular being repugnant to and iii conflict with each other. Mr. Bishop’s Statutory Crimes, 2d Ed., 1803, par. 174, p. 163, says: “Because of the different natures under the common law rules of felony and misdemeanor, their different punishments and diverse mode of proceedings against the offender, the same act can not be both the one and the other. Therefore, if a statute elevates to a felony what before was a misdemeanor, or creates a misdemeanor of what was before a felony, the old law is gone by reason of the repugnance, and the offender can be indicted only under the new,” and authorities there cited. Provisions in irreconcilable repugnance can not stand together. Either all or part, as the particular instance may require, will be held void. Bishop’s Statutory Crimes, par. 41, p. 42.
    There can not bo two different punishments for the same offence. This results from the single rule of repugnance. Bishop’s Statutory (’rimes, par. 157-158.
    Tlic law of larceny to the extent of the conflict with Sec. 817, It. 8., is abrogated. Bishop’s Statutory Crimes, par. 165-166.
    Two different punishments for precisely the same offence, with no Variation# in its elements and no modifying discretion in the court, can not, in the nature of things, subsist together. The new punishment-repeals the old by force of the repugnance. Bishop’s Statutory Crimes, par. 168, p. 158.
    The rule (State vs. Cook, 7 So. Rep., p. 65, No-. 3) is that a felony and misdemeanor forming part of the same transactions are kindred offences, belonging to the same generic class, may be joined; also, where the misdemeanor is of the nature of a corollary to the felony (W., Crim. Pldgs., 9th IOd.,par. 291); but there is no rule that two repugnant counts of a felony and misdemeanor can stand together, and particularly where the averments in the felony count constitute an offence provided for in the statute creating and defining the misdemeanor. 2. Judgment will be arrested on a general verdict of guilty, where counts are' joined for offences which arc repugnant. “In such case there is nothing to indicate on what the verdict went.” Tobin vs. People, 104 Til. 565; Wharton’s Crim. Proc., 9th Ed., par. 787, note.
    When counts are repugnant, a general verdict can not bo sustained, nor can judgment bo entered on cither count. Wharton’s Crim. Proo. 740; Com. vs. Jloskins, 128 Mass. 60; United States vs. Malone, 29 Blatch. 137.
    It has been held that a nolle prosequi, after verdict on one of two repugnant counts on which the verdict is general, does not cure the .defect. Wharton’ Crim. Proc., par. 737; Com. vs. Jloskins, 128 Mass. 60.
    There must in any view be a reversal when evidence is admitted which is admissible only under a bad count. Wharton’s Crim. Proc., par. 740. and authorities cited.
    Where evidence calculated to influence the jury on the good count, but inadmissible under that count, was admitted under the bad count after a general verdict of guilty, there should be a new trial; or, after a judgment on such verdict, there should be a reversal; the reason for such action being that the result was reached by the introduction of a wrongful element. Wharton’s Crim. Bldg., page 537, par. 771.
    A bad count can be disposed of by nolle prosequi, but it can not be passed oyer by the sentencing court if the record does not show that evidence inadmissible under the good count was admitted under the bad. Logically, it is true, a single bad count vitiates the verdict, since it is impossible to exclude the hypothesis on the bare record that it was on that count that the verdict was based. Wharton’s Crim. Proc., par. 908.
    The imprisonment allowed in default of the payment of a fine can not exceed, one year. R. 8. La., See. 980; State vs. Butman, 15 An. 166; 14 An. 785; State vs. Markham, 15 An. 498; 36 An. 294.
    An indictment under a statute ought, with certainty and precision, charge defendant with having committed or omitted the acts under the circumstances, and with the intent mentioned in the statute. If the facts alleged do not make out the ease, the indictment is defective. State ys. Stiles, 5 An. 324 ; 33 An. 1217, 1218; 40 An. 744.
    Where the indictment under See. 817 fails to give the name of the owner of the land, or the name of the .legal possessor, hut charges with uncertainty, conjunctively and not disjunctively, neither with certainty as to one or the other, such indictment or counts therein are defective in substance. 21 An. 347; 4 An. 32; 15 An. 498; 11 An. 648; Wharton's Crim. Pldgs., pars. 162, 228,161,163.
    The description of the “trees, wood and timber,” in both counts of the information, is insufficient, and judgment should be arrested. State vs. Hoyor, 40 An. 744; AYharton’s Crim. Pldgs., 9th lid.,par. 206.
    It is not allowable to plead the offences conjunctively when repugnant. Wharton's Crim. Pdgs., par. 163, and authorities there cited.
    The valuation can only be a collective or lumping one where the articles or property is properly described. AVharton’s Crim. Pldgs., par. 217-206; 40 An. 744. A variance or an omission of the name of the person aggrieved is much more serious than a mistake in the name of the defendant. The former will be ground for arresting judgment when the error appears in the record. AVharton’s Crim. Proc., par. 116.
    As to description of land on which timber has been cut, or destroyed, or removed for sale, the law requires that the indictment or information must allege the township in which said land iu situated. Sec. 820, R. S. La., 1870; AVharton’s Crim. Pldgs., par. 145.
   The opinion of the court Avas delivered by

Breaux, J.

An information was filed against the defendant, charging him in one count with cutting, pulling down, and destroying, or causing to be cut, pulled down and destroyed, cypress trees, wood and timber, growing and lying on the land of one G. L. Leonhard, Avithout the consent of the oAvner or legal possessor.

In the second count it is charged that (after and at the time of the cutting, pulling down and destroying the said timber) he did steal, take and carry away cypress trees, Avood and timber, the property of the said G.'L. Leonard, of the value of $4000.

He was found guilty of both charges.

A motion for a new trial was filed and denied.

A motion in arrest of judgment Avas afterward filed.

The first count was declared legal and in form.

The motion in so far as relates to the second count was granted.

The accused, under the first count, was sentenced to pay a fine of |500 and the costs of the prosecution, and to stand committed until the fine and costs are paid.

He appeals from this sentence.

The State appeals from the judgment, declaring the second count illegal and null.

In support of his assignment of errors and of his motion in arrest of judgment, the defendant urges that the information charges the commission of two offences repugnant to each other and which can not be presented in two counts of an information: that they are dependent on each other and grow out of the same acts.

That the taking or carrying away such a tree, or wood, or timber, under Sec. 817, R. S., is no longer a larceny in Louisiana, but a separate statutory offence, not a felony, but a simple misdemeanor.

It is.also contended that the name of the owner of the land from which the trees were taken is not given.

Also, that the land upon which the trespass was committed is not described, nor the value of the trees given.

Lastly, it is urged on the part of the accused that the court was requested to instruct the jury that to subject a party to the penalty prescribed for cutting timber and committing the wrong charged, it must appear that the act was done knowingly, and not through mistake or accident.

A bill of exception was reserved to the court’s ruling in thus refusing to charge.

We will dispose of those grounds in the order presented.

With reference to the first ground, that is, that the taking or carrying away a tree, wood or timber, under Section 817, R. S., is no longer a larceny but a separate statutory offence.

We conclude that if the premises of defendants’ counsel be admitted as correct, his conclusions also will prove equally as correct.

But he chooses to consider acts as continuous and uninterrupted-when they are not necessarily continuous and uninterrupted.

It is undeniable that whatever is attached to the soil is not, when so attached, the subject of larceny. But when not so attached,'it may become the subject of larceny.

To have the character of personality it must be detached. It must be removed from its original seat, and must be left in the detached state.

If removed either by the accused or by another, and it be left in this detached condition, it then may become the subject of larceny. Wharton Grim. Law, p. 868.

The word “ after” is alleged in the second count of the information. The words “at the time,” also alleged, do not preclude the possibility of concluding that larceny was committed “after” as alleged.

Section 817, R. S., applies when the property is not left in a detached condition prior to the larceny.

The law in relation to larceny applies when the property stolen had been left in a detached state after the cutting down. The counts are not repugnant to each other, and may be joined in an information.

“ An information is not bad because it contains two counts- charging the accused with severing certain property from the soil of another person, and in the other with stealing said property. The two offences may be charged in the same information.” State vs. Sheppard, 33 An. 1216.

The defendant next contends that the name of the owner of the land is not given.

G. L. Leonard, the name of the alleged owner, is sufficiently given. Whether Mr., Mrs., or Miss, the accused is placed on his defence. “ The name of the owner designated by initials does not vitiate the information.” State vs. Vanderlip, 4 An. 444.

With reference to the want of description of the land from which the trees were taken of which the accused persistently complains.

The description need not be given with the particularity required in a civil suit.

The statute does not require that the township or section be given.

The accused is charged with having committed the offence in the parish of St. John the Baptist, “in and for said parish then and there being.”

The requirement of the statute, in this respect, is complied with. State vs. Robenker, 31 An. 652.

In the order of the grounds presented by the accused we note that it is contended the value of the trees is not alleged.

It is alleged in the second count of the information.

The defendant urges upon our attention the refusal to charge as requested with reference to error or inadvertence (should the act charged he owing to error or inadvertence).

The refusal is not explained nor is there any reason given.

The defendant has a right to a full statement, and the possibility that by the refusal to charge as requested, the jury fell into error is sufficient reason for reversal of the judgment and sentence of the court.

Lastly, it is contended that the sentence of the court is indefinite as to the time the accused should remain incarcerated if he does not pay tlie fine and the costs.

The sentence reads: “ He is hereby condemned to paya fine of five hundred dollars and the costs of this prosecution, and that he .stand committed until said fine and cost be paid.”

The sentence should have limited the time the prisoner was to remain imprisoned.

It is, therefore, ordered, adjudged and decreed that the verdict, judgment and' sentence be annulled and set aside, and that this case he remanded to the lower court for further proceedings in accordance with the views herein expressed.  