
    No. 8579.
    The State of Louisiana vs. Jacob G. Disch.
    A verdict must be responsive to the indictment. So where a person is charged with burglary, and the jury return a verdict of guilty of trespass, the Judge does not err in sending the jury back to the jury room in order that they may render a legal verdict. The verdict of trespass was not responsive to the charge of burglary. And the Judge may refuse such verdict, though he may have erroneously instructed the jury that such a verdict could be returned, and may correct his error.
    Where an indictment for burglary contains two counts, charging respectively a higher and lower grade of the offense, and tlie jury are instructed that if they find the accused guilty, they must return a verdict of “ guilty of first count,” or 1 guilty of second count ” as the case may bo, and in disregard of such instruction they return a general veidict .of guilty, the Judge is authorized to refuse to receive such verdict, and a final verdict of ‘ ‘ guilty of second count,” rendered after again retiring, will not constitute such an irregularity as to vitiate the sentence upon it. Judgment affirmed.
    APPEAL from the Seventh District Court, Parish of Catahoula. JSlam, J.
    
      J. G. JEgan, Attorney General, for the State, Appellee :
    1. The act of the Judge a, quo, in referring the case back to the jury for their consideration’ when they have brought in a verdict not responsive to the charge, (is legal and correct
    2. A verdict for trespass cannot be found against a party charged with breaking and entering.
    3. Objection to the competency of a juror should have been made when he was presented.. It is too late to raise such objection in a motion for a new trial. 26 An, 383.
    
      
      4. An indictment will not be set aside for duplicity when the crimes charged in the various counts are kindred, growing out of the same act. 30 An. 61.
    
      JD. B. Gorham, for Defendant and Appellant:
    On Motion to Record Verdict or Trespass.
    A verdict may be recorded nunc pro tunc at a subsequent term. 3 Wharton 3192.
    The crime of trespass is included in that of burglary. There cannot be a burglary without a trespass.
    A verdict of trespass is responsive to the charge of breaking and entering in the first count of the indictment ¿ the question of actual breaking being a fact for the jury to consider.
    The term breaking, being more comprehensive, includes the terms deface or injure, in Section 827, K. S.
    A verdict of trespass is an acquittal of the burglarious charges, and the accused is entitled to the same as a matter of right.
    The court cauuot set aside a verdict that acquits the accused. 2 Hawkins, c 47, Section 12.
    On Motion for Hew Trial.
    The court erred in refusing to receive the verdict of trespass, which is responsive to the charge of breaking in the first count.
    The refusal of the court to receive the verdict of trespass hadan improper influence on the minds of the jury.
    A verdict of trespass, being an acquittal of the felony, the court was without authority to send the jury back to reconsider their verdict. 2 Hawkins, c. 47, Sections 11 and 12.
    After the verdict of guilty was recorded, by direction of the court, it could not be altered or amended in auy substantial degree. 2 Hale, P. C. 300 ; 3 Yol. Graham & Waterman on Hew Trials, p. 1406.
    The vei diet of guilty being uncertain, the court should have ordered a new trial. 5 An. 330.
    On Arrest of Judgment.
    An indictment containing two counts, upon which similar judgments cannot be rendered, is fatal for duplicity. 20 An. 145.
    Two counts, which arc contradictory to and inconsistent with each other, cannot be joined in the same indictment. 15 An. 621.
    The verdict of guilty, having been recorded by direction of the court, cannot be set aside by the court, and being inconsistent, is null. Hilliard on Hew Trials, p. 117, §29 ; 3 Graham & Waterman on Hew Trials, p. 1406.
    Assignment of Error.
    The judgment of guilty as charged, is not responsive to the third verdict of “guilty of the second count.”
    The terms guilty of burglary convey no idea of the crime committed by the accused, nor of thepenalty he should suffer, and none can he inflicted under such a judgment.
    A judgment not responsive to the verdict is null 3 Graham & Waterman on Hew Trials, p. 1386.
   The opinion of the Court was delivered by

Todu, J.

The defendant was indicted for burglary, was tried, convicted, and sentenced to imprisonment at hard labor for three years, and to pay a fine of $250 and costs, and from this sentence has appealed.

There were two counts in the indictment. The first charged the defendant with the felonious entering and breaking into a storehouse in the night time ; and the second count charged the felonious entering in the night time, without breaking.

The jury first brought in a verdict of guilty of trespass, having been previously instructed by the Judge presiding, that this was one of the verdicts they could render in the case. The Judge refused to permit the verdict to be recorded, and stated to the jury that he had erred in charging them that they could return such a verdict, and then instructed them that they could only find the following verdict's : Guilty under the first count,” guilty under second count,” or “ not guilty,” and sent them back to the jury room for further deliberation.

The jury tliereuirou retired, and again returning, brought in a verdict of guilty as charged.” This verdict the Judge first directed to be recorded, but immediately countermanded the order, not, however, before the clerk had recorded it, it appearing from the bill of exceptions that the clerk had written down part of the verdict before receiving the order to 'record. The Judge refused to have this verdict announced, and again directed the jury to retire. They did so, and in a short time returned with a verdict of guilty of second count.” This verdict was recorded and the jury discharged.

The proceedings relating to these last two verdicts and the refusal of the Judge to receive the first one, are charged as being irregular and illegal, and bills of exceptions were taken to them, and they were made grounds of motions for new trial and in arrest of judgment.

1. That the proceedings were irregular is not to be denied, but after a close review of them, and examining the law bearing on the subject, we have arrived at the conclusion that the proceedings in question were not irregularities of so grave a nature as to vitiate the sentence or to deprive the accused of any substantial legal right.

A verdict must be responsive to the charge. This is essential. That the first returned was not so responsive, a reference to the statute relating to trespass, cited and relied on by defendant’s counsel, makes apparent.

The accused was indicted for burglary; one count charging the felonious breaking and entering the storehouse, and the other, as before stated, the entering without breaking.

The Section referred to, relative to trespass, is as follows:

“ Whoever shall wilfully, maliciously or wantonly injure or deface any dwelling house, storehouse, or other buildings, * * * shall be deemed guilty of a trespass,” etc.

Where this verdict is not responsive to the charge, it is null, and the jury was properly directed to retire and bring in a legal verdict, and the fact that the Judge, through error, had instructed them that they could return such a verdict does not affect the question. 1 Archibald, 601, notes; Graham & W. New Trials, Vol. 3, p. 1378 ; 3 Parker Crim. Rep. 552.

2. The second verdict returned was equally unauthorized and detective. Two grades of the same offense, burglary, subject to different penalties, were charged respectively in two counts. The general verdict of guilty,” left it wholly uncertain of what charge the accused was convicted, whether of the highest or lowest grade of burglary. Whether the Judge could legally sentence the accused on such a verdict, the authorities are divided; but this much is certain, that none of them authorized him on a general verdict to impose the penalty for the lighter grade of the offense; and had the sentence then been passed, the accused must necessarily have received a severer sentence than was subsequently imposed, and the sending back of the jury and the refusal of the Judge to receive this verdict, was in interest of the accused and resulted to his advantage. The recording of this verdict, under the circumstances stated, was without legal significance.

3. There is no force in the objection to the indictment for duplicity and misjoinder of offenses, which is one of the grounds of the motion in arrest. The indictment was for burglary, and contained two counts, each charging a distinct grade of the offense. This was entirely regular.

4. Lastly, it is assigned as error that the sentence was illegal in this, that this sentence or judgment was signed by the Judge a quo, and recited, among' the other reasons for judgment, that the jury, by their verdict, found the accused guilty as charged; ” that the sentence was inconsistent with such verdicts, which would have authorized only a sentence for the highest grade of the offense, and that the penalty imposed showed that the accused was sentenced for the lighter grade. It is not often that we are called on to listen to a complaint from an offender that his punishment was lighter than the law allowed, for this seems to be the drift and conclusion of the argument.

In point of fact, however, the record plainly discloses that the accused was convicted of the grade of burglary charged in the second count of the indictment. The verdict of record so declares, and the sentence itself, that is, the actual punishment inflicted, is in exact accordance with the verdict, and the grade of the offense of which the accused was found guilty; and no error in the recital of the proceedings, which usually precede the words defining or fixing the penalty imposed, and which recital is not essential, can vitiate or impair a sentence which the law and the record justified.

We find no error or irregularity in the proceedings entitling the party to relief.

The judgment is, therefore, affirmed.  