
    The State v. Benjamin Windman.
    An indictment for stealing twenty-five head of cattle, (against the A. A. 1789, P. L. 486 ; 5 Stat. So. Ca. 139,) having been sustained only by evidence of a less number, and the jury having found a general verdict of guilty, a new trial was ordered.
    If the objection had been made in time, the judge on the circuit would have sent the jury back to amend their verdiot. — (Butler, J.)
    
    Before' Butler, J., at Williamsburg Spring Term, 1839.
    The defendant was indicted for cattle stealing. The indictment charged, in one count, the stealing of five bulls of the value of fifty dollars, five cows of the value of fifty dollars, five oxen of the value of fifty dollars, five steers of the value of fifty dollars, and five calves of the value of twenty-five dollars, of the goods and chattels of Theodore L. Gourdin and William Lefrage, against the Act of the General Assembly, &c.; and in the second count, the stealing of the same kind and number of animals of the goods and chattels of a certain person, to the jurors unknown, against the said Act, &c.
    The evidence, which it is not necessary to detail, did not embrace, at .the utmost, more than five or six, and was not definite, except as to three head of cattle, the property of Gourdin and Lefrage.
    The presiding Judge instructed the jury, if they found the defendant-guilty, that they should state in their verdict the exact number of cattle stolen, so that the definite judgment might be pronounced according to law! “ The jury returned a general verdict of guilty; and, not having it brought to my attention particularly at the time, I did not send them back to correct, or rather to make it more explict, which I would have done if I had been called to the subject before the verdict had been recorded.”
    The defendant appealed, on the ground,—
    ' That the general verdict, of guilty of the whole charge, was clearly against evidence. ■ ■
   Curia, Btjtlek, J.

This verdict, ¿¿forced according to its strict import, would subject the defendant to penalties beyond his actual guilt, and is toó indefinite • to authorize the judgment of the Court. In the case of The State v. Herring, (1 Brev. R. 159,) it is determined “that on an indictment for larceny of several articles of the same kind, for each of which there is a- specific penalty, if a less number be proved than that laid in the indictment, and the jury find a general verdict, a new trial will be granted.” So a new trial must be ordered in tbis case.

See 2 N. & McC. 442. An.

Moses for the motion.

The whole Court concurred.'  