
    Ephraim E. Wilborn v. The State of Mississippi.
    If a prisoner, tried on an indictment of two counts, each charging the offence of grand larceny, which under the statutes of this state is the theft of an article of greater value than twenty dollars, be found guilty generally, without the assessment by the jury of the value of any of the articles alleged to be stolen ; the verdict will be sufficient to warrant a sentence and judgment for the crime of grand larceny; notwithstanding the jury might, under the indictment, have found a verdict of petit larceny.
    In error from the circuit court of Monroe county; Hon. Francis M. Rogers, presiding judge.
    Ephraim E. Wilborn was indicted in the court below for grand larceny; there were two counts to the indictment; the first count charged the defendant with stealing, taking and carrying away, on the 10th day of April, 1846, in the county of Monroe, one gray mare, of the value of seventy dollars, also one gentleman’s saddle, of the value of ten dollars, one plain bridle of the value of one dollar, and one saddle blanket of the value of one dollar, also ten dollars in specie, of the coin of the United States of America, and also one ten dollar note, commonly called a bank bill, drawn by the bank of South Carolina, all the property of Drury Alsup.
    The second count charged the defendant with stealing, taking and carrying away, on the 18th day of said month, in the county aforesaid, a promissory note, drawn by Acce Jarman, made payable to said Drury Alsup, for the sum of twenty-two hundred dollars, dated the first day of March, 1844, and due and payable on or before the first day of August, 1844, of the value of twenty-two hundred dollars, the property of Drury Alsup.
    The verdict of the jury was in these words : “ We the jury find the defendant guilty.”
    A motion in arrest of judgment was made by the defendant, but it was overruled by the court below, which sentenced the prisoner to five years imprisonment at hard labor in the penitentiary ; the opinion of the court pronouncing judgment against the defendant, was excepted to, and this writ of error prosecuted.
    
      Coopioood and Herbert, for plaintiff in error.
    1. The punishment annexed to the crime of grand larceny is imprisonment in the penitentiary for a term not exceeding five years. See H. & H. Dig. 709, sec. 63. And the punishment annexed to the crime of petit larpeny is imprisonment in the penitentiary for a term not less than two years, or in a county jail, for any term not exceeding twelve months, and fine in any sum not exceeding one thousand dollars. H. & H. Dig. 7SÍ2, sect. 21, Penitentiary Code.
    Before the passage of the penitentiary code, the punishment annexed to the crime of grand larceny, was whipping, and the pillory; and that annexed to the crime of petit larceny, was whipping alone. H. & H. Dig. 666, sect. 13.
    Thus we perceive that a clear and well defined distinction is not only drawn, by the common law, (4 (Black. Com. 237,) but our legislature, by positive enactment, has recognized, and kept up this distinction. And as this distinction exists, and inasmuch as the court, the judge, who is to pronounce the judgment of the law, should first be advised by the finding of the jury what particular grade of offence the defendant is guilty of before he'can legally know what judgment to pronounce, it follows as a matter of course, that the finding of the jury should have been, either that they find him guilty of petit larceny or grand larceny, or that they find him not guilty; or words to the same effect.
    2. But the bill of indictment contains two counts, and the court below, from the finding of the jury, was not informed, and this court is not now informed from that finding, which of the said two counts the verdict was intended to be applied to. The fact that both of the counts contain allegations sufficient, if proved to sustain a verdict for grand larceny, can make no difference, because the law not dealing in vague generalities in such cases requires at least reasonable certainty ; and to comply with its requisitions, the verdict must show which of the counts the jury founded it upon. This should be so in order that the yalue of the property stolen should be found. The value would certainly be less if he were found guilty on the first count only, than it would be if he were found guilty on the second or on both. These are important matters to the defendant, as he is made liable for their value in case he does not return the things.
    3. The verdict of the jury should have found the value of' the separate articles charged in the bill of indictment to have been stolen, so that the court could have rendered judgment that the defendant return the articles stolen, or pay the value thereof to the owner. H. & H. Dig. 666, sect 13.
    Freeman, attorney-general, for state.
    There is no bill of exceptions, and no statement of the evidence. The finding of the jury is not questioned on the evidence, and as the finding is general, the presumption of law is that the defendant stole all the articles mentioned in both counts.
    The position assumed by counsel that the indictment contains two grades of offence is untenable. It is true there are several articles of different values charged to be stolen, but the taking constitutes but one larceny, as it occurred at one and the same time from the same person.
    It is also true the jury might have found the value of the articles to be less than twenty-five dollars, if the testimony had been to that effect; but as there is no testimony before this court, the finding of the jury made the offence grand larceny, and hence the judgment of the court was correct.
   Mr. Justice ThacheR

delivered the opinion of the court.

This was an indictment for larceny preferred in the circuit court of Monroe county. The indictment contained two counts ; the first for the larceny of a grey mare of the value of seventy dollars, a saddle of the value of ten dollars, a bridle of the value of one dollar, a saddle-blanket of the value of one dollar, ten dollars in specie, and a bank-note for ten dollars; the second count was for'the larceny of a promissory note for the sum of twenty-two hundred dollars. The jury foitnd a verdict of guilty without assessing any value to the property or any portion of it charged to have been the subject of the larceny. The ground of error taken is that the verdict is too vague and uncertain upon which to predicate a judgment.

The statutes of this state make a distinction between grand and petit larceny accordingly as the value of the property alleged to be stolen be over twenty-five or under twenty dollars, and in regard to the kind and amount of punishment. H. & H. 666, sect. 13; Ibid. 709, sect 63; Ibid, 722, sect. 21.

The jury in this case found a general verdict of guilty upon an indictment containing two counts both charging grand larceny. This was sufficient to warrant a sentence and judgment for the crime of grand larceny, although it be true the liberty remained with the jury, under the indictment, to have found a verdict of petit larceny or guilty of feloniously taking and stealing and carrying away property under the value of twenty dollars. 1 Chit. Or. L. 640; Poindexter v. The Commonwealth, 4 Rand. R. 668.

Judgment affirmed.  