
    4722.
    Warren v. The State.
    Decided April 16, 1913.
    Rehearing denied May 20, 1913.
    Certiorari; from Baldwin superior court—Judge J. B. Park. January 23, 1913.
    
      Sibley & Sibley, for plaintiff in error.
    
      J. E. Pottle, solicitor-general, contra.
   Hill, C. J.

1. On the trial of an accusation of the offense of larceny from the house the jury may find the1 accused not guilty of the offense charged in the accusation,- but, if the evidence warrants it, guilty of an attempt to commit that offense, though the accusation contain no special count charging such an attempt. Penal Code (1910), § 1061.

2. On the trial of an accusation of larceny from the house, the jury found the following verdict: “We, the jury, find the defendant not “guilty as charged in the bill of indictment, but guilty of an attempt to commit larceny.” Held: Verdicts must not be avoided unless from necessity; and, giving to this verdict a reasonable construction, the jury intended to find the accused guilty of an attempt to commit the crime charged in the accusation, to wit, larceny from the house, and not an attempt to commit simple larceny. Civil Code (1910), § 5927.

3. Where the accusation describes the property as being fifty cigars of the value of two dollars, and the proof shows that the stolen property consisted of a box of cigars of the value of one dollar and ninety cents, the variance is immaterial, whether the box contained fifty cigars or a less number.

-4. The evidence is exceedingly weak and unsatisfactory as to the existence of any criminal intent, but this court can not say that there were no circumstances from which the jury could have inferred the existence of such intent; and, as no error of law was .committed, the verdict must stand. Judgment affirmed.  