
    Wm. McNeely v. Commonwealth.
    [Abstract Kentucky Law Reporter, Vol. 7—227.]
    Bill of Exceptions in Criminal Case.
    The object of a bill of exceptions, which the trial court inspects and settles by signing, is to show just what occurs upon a trial, and the recitations in it must control and be taken as true and correct.
    APPEAL FROM RUSSELL CIRCUIT COURT.
    September 10, 1885.
   Opinion by

Judge Holt:

The appellant was indicted for breaking into a dwelling-house and stealing therefrom. The punishment therefor, provided by sec. 4, art. 5, chap. 29, of the General Statutes being confinement in the penitentiary for not less than two nor more than ten years. An order recites that when he was arraigned the commonwealth elected to try him upon the charge of grand larceny, the statutory punishment therefor being not less than one nor more than five years in the penitentiary. The jury found him guilty and fixed his punishment at six years’ confinement in the penitentiary; and immediately following the entry upon the record of the verdict, it was stated, “wherefore it is adjudged by the court that the defendant is guilty of the charge of grand larceny and that he be remanded to the custody of the jailer to await the further order of this court,” and the appellant alleges that this exceeds the limit fixed by the statute for the offense for which he was tried. If nothing further were shown by the record it would be proper to so hold, but the indictment was for stealing from a dwelling-house. The sentence pronounced was for this offense; the instructions related to it alone, and the bill of exceptions recites that the attorney for the commonwealth elected to try on the count for breaking into a dwelling-house and actually stealing therefrom. It is clear that the court, the jury and the defendant understood that the latter was on trial for larceny from a dwelling-house, and it must be presumed that the language of the order, supra, as well as that added to the verdict was a clerical mistake. The object of a bill of exceptions, which the trial judge inspects, is to show what occurs upon a trial, and the recitation in it in view of the entire record must control in this instance.

Winfrey & Winfrey, for appellant.

P. W. Pfardin, for appellee.

Judgment affirmed.  