
    Joel Swinney vs. The State of Mississippi.
    It is not necessary that all the averments in an indictment should be proved as laid, in order to warrant a conviction; it is enough that so much of the charge be proved as constitutes an offence punishable by law.
    It is well settled that where an accusation includes an offence of an inferior degree, the jury may discharge -.he defendant of the higher crime, and convict him of the less atrocious; and in such case it is sufficient if they find a verdict of guilty of the inferior offence, and take no notice of the higher.
    A party charged in one count in an indictment with stealing several specific articles, may be found guilty of the larceny of one, and discharged as to the rest; and if in such case the jury find a verdict of guilty of stealing one of the articles, and take no notice of the others, it is a virtual discharge as to the other articles, and therefore a sufficient and valid verdict.
    Under the statutes of this state, upon a conviction of larceny of property of any value under twenty dollars, there is an unlimited discretion in the circuit court, as to the length of the imprisonment, provided it be not less than two years in the penitentiary.
    ERROR from the circuit court of Copiah county; Hon. Thomas A. Willis, judge.
    This was an indictment for larceny, found by the grand jury of Copiah county, at the November term, 1846, of the circuit court, against Joel Swinney. The record in this case begins with a recital that at a circuit court of law, begun and holden at the court house of Copiah county, in the town of Gallatin, county of Copiah, and state of Mississippi, on the third Monday, being the 16th day of November, in the year of our Lord 1846, &c. Then follows the venire facias, issued by the clerk of the circuit court of Copiah county, on the 21st day of July, 1846, directed to the sheriff of the same county, commanding him to summon thirty-six persons, named in the writ, lo serve as jurors for the first week of the Copiah circuit court, to be holden on the third Monday of November next after the issuance of the writ. Which writ of venire facias was returned by the sheriff of said county, “ Executed on all the jurors whose names are written in the within writ.” Then follows an order of the court, in these words : “ Ordered, that fifteen of the regular venire, summoned for the first week of the present term of this court, be drawn as a grand jury of inquest for the present term thereof; whereupon the following persons, being householders, were drawn in open coürt as such grand jury, to witr Moses D. Norman,” and fourteen others named in the order, “ all good and lawful jurors, freeholders or householders of the county aforesaid.” The record then shows that Moses D. Norman was appointed foreman of the grand jury, took the oath required of him by law as such, and the whole grand jury were sworn according to law, received their charge from the court, and retired to their room to consult of presentments, &c. Then follows the indictment against the defendant, containing but one count, and charging him with stealing one saddle horse, of the value of fifty dollars; one saddle, of the value of five dollars; one saddle blanket, of the value of one dollar; and one bridle, of the value of three dollars, all the property of one Willis Ellis. The defendant pleaded not guilty. On the 20th day of November, 1846, he was tried, and the jury returned the following verdict, to wit: “We, the jury, find the said defendant, Joel Swinney, guilty, and that he did feloniously steal, take and carry away the saddle in the indictment mentioned, in manner and form as charged in said bill of indictment; and we do assess the value of said saddle to the sum of twelve dollars.”
    The counsel for the defendant then entered a motion-in arrest of judgment:
    “ 1st. Because the jury failed to find whether the prisoner, the said Joel Swinney, was guilty or not guilty of stealing the horse, bridle, and blanket, charged in the indictment, to have been feloniously stolen, taken and carried away by the said Swinney.”
    “2d. Because the jury failed to find the whole issue submitted to them.”
    
      The court overruled the motion, to which the defendant excepted. The defendant was then sentenced to ten years’ imprisonment in the penitentiary. Whereupon he removed the case to this court by a writ of error, and now assigns the following errors, to wit:
    
      “1st. Neither the record, nor caption of the indictment, shows from what county the grand jury were taken.”
    
      “ 2d. The record does not show of what number the grand jury consisted.”
    “ 3d. The record does not show that the grand jury were sworn by the court.”
    “4th. The verdict of the petit jury finds only part of the issue submitted to them, and is so defective that no judgment can legally be rendered upon it.”
    “ 5th. The sentence to ten years’ imprisonment in the penitentiary, is not warranted by law.”
    
      E. G. Peyton, for plaintiff in error.
    1. Every caption of an indictment ought to show that the in-dictors were of the county for which the court was holden. 5 Bac. Abr. 93, (Amer. Ed. 1844.) Rex v. Kilderby, 1 Saund. Rep. 308. If the caption does not state that the grand jury are of the county for which the court had jurisdiction to inquire, the whole will be vicious. 1 Chit. Cr. Law, 327, 333-
    2. It must be shown on the face of the record that the bill was found by at least twelve jurors, or it will be insufficient. 1 Chit. 333; Cro. Eliz. 654; 2 Hale 167; Hawkins, 126; Faulkner's case in 1 Saund. Rep. 248, n. 1; Andr. 230; 5 Bac. 93; The State v. Carpenter, 4 How. 163. In the case of the Thomases v. The State, 5. How. 32, the court say that it is the business of the caption of an indictment to state the jurors by whom it was found.
    3. The indictment must in all cases be shown to have been taken upon oath, and if this allegation be omitted, the caption cannot be supported. 1 Chit. 333. It should appear upon the record that the grand jury were sworn by the court. Cody v. The State, 3 How. 28.
    
      4. The verdict of the jury must respond to the whole issue or matters in the issue submitted to them. 2 Murphy, 571. The jury may acquit the defendant of part, and find him guilty of the residue.' l Chit. 638; Barbour’s Criminal T/eatise, 325. The whole issue must be answered by the verdict. As where from the evidence it appears that the defendant has not been guilty to the extent of the charge specified, he may be found guilty as far as the evidence warrants, and be acquitted as to the residue, or of one part of a count capable of division, and not guilty of the other part. 1 Chit. 638 ; Durham v. The State, 1 Blackf. R. 33. It is stated by East, in his Pleas of the Crown, that upon an indictment for burglary and stealing, where the jury agree as to the stealing, but not upon the breaking and entering in the night time, their verdict should be “not guilty of breaking and entering the house in the night time, but guilty of the rest of the indictment.” 2 East’s P. C. 516 — 518; 2 Hale, 302.
    Where the accusation includes an offence of inferior degree, the jury may discharge the defendant of the higher crime, and convict him of the less atrocious. Thus upon an indictment for murder, he may be convicted of manslaughter. In Barley’s Case, referred to by Chitty to sustain this proposition, and which is to be found in Cro. Eliz. 296, upon a charge of murder, the jury found the defendant “not guilty of murder, but that he was guilty of manslaughter.” Chitty further says, that on an indictment for grand, the offence may be reduced to petit larceny. 1 Chit. 638. This may probably be done where the larceny consists in stealing a single article charged in the indictment to be of value sufficient to make it grand larceny, yet the jury may, upon the evidence, consider the article stolen of less value and find the defendant guilty of petit larceny only. This however disposes of the whole issue. The jury find the defendant guilty of stealing all that he is charged with stealing, but that the property stolen is of less value than charged in the indictment. But in the case at bar, the indictment charged the defendant below with stealing four distinct specific articles in one count,- and laid the value of each, and the jury respond by their verdict to one of the articles only, and assess the value of it, and say nothing as to the others. Would this verdict sustain the plea of former acquittal in case the plaintiff in error were indicted again for stealing the horse, blanket and bridle, the other three articles charged in the indictment? It is respectfully submitted that it would not; and if it would not, the verdict is certainly so defective, that no judgment (could properly be founded upon it.
    With respect to the form of a verdict, which partially convicts and acquits, Chitty says there are so many instances in which a verdict, taking no notice of aggravation, has been regarded as sufficient, that it does not seem to be necessary at the present day. 1 Chit. 641. But this court will perceive by reference to the cases cited by Chitty in support of this position, that they are either indictments for felony, which includes a felony of inferior degree, as upon an indictment for murder, the defendant may be convicted of manslaughter, or upon an indictment for grand larceny in stealing a single article, charged to be of sufficient value to constitute that offence, the defendant may be couvicted of petit larceny only, or that they are cases in which special verdicts were found, which the court assumed to frame so as to suit the evidence. The cases in 9 Coke, 67, and 4 Coke, 46, are special verdicts ; and Hale says at the page referred to by Chitty, that where an indictment for felony includes a felony of inferior degree, the jury may acquit the defendant of the higher crime, and convict him of the less. 2 Hale’s P. C. 302. Stephen’s Criminal Law, 313; 27 Law Lib. 183. -In the case of Rex v. Hayes, in 2 Strange’s R. 843, 485, the defendant was indicted for three distinct facts. 1. For forging a bond ; 2. For publishing such bond so by him forged; 3. For publishing a bond knowing it to be forged ; and upon the plea of not guilty, the jury find that he forged a bond in the words and figures following, and that he published the same, but they say nothing as to the third offence. The court thought themselves not tied up by the special conclusion of the jury, but that the whole evidence being laid before them, they were to do what the jury ought to have done, that is, to pronounce the defendant guilty of the forgery and first publication, and not guilty of the rest. This case clearly shows that a general verdict finding the defendant guilty of forging and publishing a bond, without finding not guilty as to the rest, would have been insufficient. But the verdict being special, the court undertook to give the verdict proper form according to the evidence. Had the verdict been a general one, the opinion of the court shows that no judgment could have been given upon it. It is believed, however, that the court possess no power at the present day, even upon a special finding, to shape a verdict according to the evidence in the case; it being the province of the jury to find the facts in a special verdict and not the evidence, and of the court to pronounce the law arising upon those facts.
    The jury must answer to the whole issue with which they have been charged. Kerr v. Hawthorne, 4 Yeates, 295. If a verdict find only part of what is in issue, it is bad ; because the jury have failed in their duty, which was to find all that was in issue. 10 Bac. R. 327, (Amer. Ed. 1846.) In an action of trespass, the plaintiff declared for the breaking of his close, for beating of his servant, and for the carrying away of his goods. The defendant pleaded not guilty, and issue was joined upon the plea. The jury found the defendant guilty of breaking the close, but were silent as to the beating of the servant, and carrying away the goods. The verdict was holden upon motion in arrest of judgment to be bad, because it does not find all that is in the issue. 10 Bac. 328. If this be so in a civil suit, a multo fortiori does it apply in a criminal case. Rex v. Simons, Sayer’s Rep. 36 ; 10 Bac. 328.
    A verdict, which does not clearly find the whole matter i-n issue, cannot be helped by intendment. Jewett v. Davis, 6 N. Hamp. R. 518 ; 3 Salk. 372; 1 Ld. Raym. 324; Graham’s Prac. 276 ; Hanly v. Levin, 5 Ohio R. 238 ; Patterson v. United States, 2 Wheat. R. 221; 4 Pet. Con. R. 100. This court have also decided that a verdict is bad, if it find only a part of that which is in issue; and no judgment can be rendered upon it. McCoy v. Rives. 1 S. & M. 592.
    Where the indictment charged a riot and assault, and the jury found “ guilty of a riot,” this was held a partial finding of the entire count, and therefore void. . State v. Creighton, 1 Nott & McCord, 256; 1 Chit. C. L. 638, in note. In the case at bar there was but one count in the indictment, and the verdict is void, as it shows but a partial finding of the jury upon the issues submitted to them in that court. The doctrine that the jury must pass upon the whole of the issues submitted, applies as well to criminal as civil cases. State v. Arrington, 2 Murphy, 571. Nothing can be taken by intendment or implication in a criminal case. Highland v. The People, 1 Scam. 394.
    5. It is respectfully submitted, that the court erred in sentencing the plaintiff in error to ten years imprisonment in the penitentiary for petit larceny. The legislature never could have intended to punish petit larceny to a greater extent than grand larceny.
    
      John D. Freeman, attorney-general for the state.
    The 1st error assigned, is that the caption does not show from what county the grand jury were taken. This is a mistake in fact. It is ordered that fifteen grand jury men be drawn from the regular venire. Their names are then given, and they are described as good and lawful jurors, &c. of the county aforesaid.
    The 2d error assigned, is that the record does not show the number of the grand jury; this is also a mistake in fact.
    The 3d error assigned, is that the grand jury were not sworn ; this too is a mistake in fact.
    The 4th is, that the verdict finds only a part of the issue. There was but one count in the indictment charging several articles to be stolen. The defendant was found guilty of stealing one of the articles only. A jury have a right to find part of a count. 1 Chit. Crim. Law, 250 — 252, and notes; and note/, p. 251, upon an indictment for stealing above the value of a shilling, the jury may find for a less amount.
    The verdict of the jury was a response to the whole issue. There was but one count, and the charge was grand larceny ; the jury found petit larceny, which they had a right to do.
    
      It is true that nothing can be taken by intendment against the defendant, .but all intendments shall be in his favor. The presumption therefore is, that the jury intend to discharge the prisoner of all that part of the count not found ; and their finding is in law an acquittal to that extent. Had there been two counts, one of which the jury had not disposed of, the question would have assumed a different attitude.
    The sentence is in accordance with the Penitentiary Code.
   Mr. Justice ThacheR

delivered the opinion of the court.

The three errors first assigned, to wit, that the record does not show from what county the grand jury were taken, nor of what number of jurors it consisted, nor that the grand jury were sworn by the court, do not seem, from an inspection ofthe-record, to be well taken in point of fact. Those facts are found in the statement of the proceedings prior to the finding of the indictment, the whole of which statement comprises the caption.

The remaining error assigned is, that the verdict of the petit jury finds only part of the issue submitted to them, and is so defective that no judgment can legally be rendered upon it, and that the sentence of ten years’ imprisonment in the penitentiary is not warranted by law.

It was an indictment for larceny, consisting of but one count, and charging the accused with stealing one saddle horse, of the value of fifty dollars, one saddle, of the value of five dollars, one saddle blanket of the value of one dollar, and one bridle, of the value of three dollars, all the property of the same individual.

The verdict of the jury was as follows: “We the jury, find the said defendant, Joel Swinney, guilty, and that he did feloniously steal, take and carry away, the saddle in the indictment mentioned, in manner and form, as charged in said bill of indictment, and we do assess the value of said saddle, to the sum of twelve dollars.”

The defendant was sentenced to imprisonment in the penitentiary for the term of ten years.

It is not necessary that all the averments in an indictment should be proved as laid, in order to warrant a conviction. The general rule is, that every material averment must be proved, yet it does not follow that it is necessary to prove the offence charged to the whole extent laid. It is enough if so much of a charge be proved as constitutes an offence punishable by law. In the case of Rex v. Hunt, 2 Campb. 585, Lord Ellenborongh says, that “it is invariably enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified.”

The substance of the crime, in this case, is larceny, and this is a substantive offence, although the accused was guilty of stealing-but one of the articles laid in the indictment. The finding would have been free from doubt or criticism, had the jury added to their verdict not guilty of the larceny of the residue of the, articles charged in the indictment. 1 Chit. C. L. 638; Durham v. The State. 1 Blackf. 33.

It is well settled, also, that where an accusation includes an offence of inferior degree, the jury may discharge the defendant of the higher crime, and convict him of the less atrocious. 2 Hale P. C. 302; Hawk. b. 2, c. 47, s. 6. The form in which a verdict which thus partially convicts and acquits, should be given, has been somewhat contradicted; but it is now put at rest, that it is sufficient if the jury find a verdict of guilty of the inferior offence, and take no notice of the aggravation. 1 Chitt. C. L. 640.

In still later times, a practice has obtained of not requiring a formal finding upon, all the issues presented, provided enough be found upon which to warrant judgment against the accused, and of considering a finding of a part of the issues to be the negativing of the rest. In the case of Stoltz v. The People, 4 Scammon’s R. 168, the accused was indicted in two counts. The first count charged the accused with keeping a gaming house; and the second, with keeping opeu a tippling house on Sunday. The verdict was guilty on the first count, but no finding on the second. The court said : “ It is insisted that the verdict of the jury was void, and that the court erred in rendering judgment upon it. The general rule is, that the verdict must be as broad as the issues submitted: and it was formerly held, with much strictness, that a failure to find on all the issues, vitiated the verdict. The tendency of modern decisions, however, has been to relax the severity of the rule, and sustain the verdict, where the intention of the jury can be ascertained. . What is the reasonable view to be drawn from this verdict, and the circumstances under which it was rendered ? The people prefer two charges of criminal offences against the defendant; he is arraigned on them, and the question of his guilt submitted to the jury for determination. They hear the testimony adduced to substantiate both charges, and find affirmatively that he is guilty of one. Is not the inference irresistible, that the prosecution failed to establish his guilt on the other charge, and therefore the jury find negatively on it? We are of opinion that the verdict should be regarded as an acquittal of the defendant on the second count. If such be the effect of the verdict, he certainly has no right to complain. He can never again be put on trial for the same offence. He has once been put in jeopardy, and the charge against him adjudicated.” This reasoning applies still more forcibly to cases where the several issues are embraced in but one count, as in the case before us. The doctrine seems equally applicable to every grade of offence, and appears to be a rational deduction or corollary of the established principle, that the finding of the inferior is a discharge of the superior offence, which holds even in indictments for murder.

We have had occasion, already, at this term, in the case of Wilborn v. The State, ante, 345, to remark upon the distinction existing in this state between grand and petit larceny. By a reference to that case, or to the statutes How. & Hutch. 666, s. 13; Ib. 700, s. 63 ; Ib. 722, 21, it will be observed that upon a conviction of larceny of property of the value of under twenty dollars, there is an unlimited discretion as to the length of the imprisonment, provided it be not less than two years in the penitentiary. We have nothing to do with the policy of legislation. “ Quod scriptum, scriptum

There being no error in the proceedings, the judgment of the circuit court must be affirmed.  