
    *Allen v. The Commonwealth.
    June, 1830.
    Statute Defining Larceny — Effect on Former Statute-Case at Bar. — By statute of 1819, grand larceny is defined stealing goods to value of $4, and upwards, and punished by imprisonment &c. not less than. one nor more than three years: by statute of 1824, larceny committed after 1st May, 1824, to value of $10, and upwards, is defined grand larceny, and punished as grand larceny therefore was; and larceny of goods of-less value than $10, is defined petit larceny, and punished as petit larceny theretofore was; and the latter statute neither makes provision as to larcenies committed before 1st May 1824, nor contains any express repeal of the former statute. Held, the latter statute does not repeal the former, as to larcenies committed before 1st May 1824.
    Criminal Law — Erroneous Charge to Jury as to Minimum Punishment — Effect.—At the trial of an indictment for a crime, the punishment whereof, prescribed by law, is imprisonment &c. not less than one nor more than three years, the clerk charges the jury, that the term of imprisonment is to be not less than two nor more than three years; verdict finds prisoner guilty, and ascertains his imprisonment to be two years; the attorney for commonwealth remits one year of the term; whereupon, the court sentences prisoner to one year’s imprisonment: I-Ield, 1. the attorney had no power to make sach remission, which was therefore merely void; 2. the judgment was erroneous, not being according to verdict; 3, the verdict ought to be set aside, on account, of the erroneous charge as to the minimum term of imprisonment.
    Error to a judgment of the circuit court of Logan.
    Allen was indicted of the larceny of a steer of the value of ten dollars: one count of the indictment charged, that the theft was committed on the 10th September 1823; another, that it was committed on the 1st January 1830. The prisoner pleaded not guiltj. The «jury being sworn, and the indictment read to them, the clerk charged them (inter alia) “That if they found the prisoner guilty, they were then to inquire of the value of the chattel stolen; if they found it to be of the value of ten dollars and upwards, they were then to ascertain the term of his imprisonment in the penitentiary, so as such term should be not less than two nor mqre than three years; if they found it to be of less value than ten dollars, they were then to ascertain the time it was stolen, and the value thereof.” The court corrected this charge by directing the jury, that if they found the defendant guilty of the larceny, they were to find, specifically, the *time when the crime was committed, and the value of the steer stolen, and to ascertain the imprisonment: but the court did not apprise or charge the jury, that if they found the prisoner guilty of grand larceny committed in 1823, the term of imprisonment might be less than two years, the minimum stated in the charge given by the clerk. The jury found this verdict: uWe of the jury find, that the prisoner John Allen did steal &c. the steer in the indictment mentioned on the 15th August 1823 in manner and form as therein charged; and that the said steer was of the value of nine dollars and seventy five cents: we further find, that the said steer is not forthcoming to be restored to the owner. If the facts found amount in law to grand larceny, we ascertain the term of his imprisonment in the penitentiarj to be two years.” Upon this verdict being returned, the prisoner moved the court to discharge him, upon the ground that, the statute prescribing the punishment for the offence, which was in force at the time it was committed, 1 Rev. Code, ch. 171, § 6, p. 617, had been repealed by the statute of the 9th March 1824, Sess. Acts of 1823-4, ch. 10, 'i 11, p. 17, and there was now no law in force prescribing a *punishment for the offence. The court overruled the motion. He then moved the court, to set aside the verdict, and order a new trial, on the ground, that the jury had been erroneously charged with the prisoner’s case, as to the minimum of the term of imprisonment, not having been informed, that the term might be less than two years, and of the probable effect, injurious to the prisoner, which this erroneous charge might have produced upon the jury in ascertaining the term of imprisonment. Upon which the attorney for the commonwealth offered to wave and remit one year’s imprisonment, and to take judgment for the residue of the term, namely, one year. The prisoner objected to any such waver and remission, and insisted that he ought to have a new trial. But the court, being of opinion, that as the evidence was full and satisfactory, and well warranted the finding of the jury, the only effect of the omission to charge them, that if they found him guilty of a larceny of goods over the value of four dollars committed in 1823, the term of imprisonment, according to the law then in force, was limited to a term of not less than one nor more than three years; was, to mislead the jury as to the minimum of the time; and that the commonwealth, by waving and remitting all of the term of imprisonment fixed by the jury, above the shortest time which could have been legally fixed by the jury consistently with the prisoner’s guilt, gave him all the advantage that could *have resulted to him from the most specific and correct charge on this head; therefore, overruled the motion for a new trial. To these opinions of the court, the prisoner filed a bill of exceptions; from which the above state of the case has been collected.
    The court then proceeded to give judgment upon the verdict, That the statute of March 1824, respecting the crime of grand larceny, did not affect offences committed before the passing thereof, or render dis-punishable larcenies committed during the operation of the former law' on the subject; and that the law upon the verdict, was for the commonwealth: and the attorney prosecuting for the commonwealth, with leave of the court, waving and remitting one year of the term of imprisonment in the penitentiary, ascertained by the jury, and praying judgment that the prisoner should be so there imprisoned for one year only ; thereupon, the court passed sentence upon the prisoner that he should be imprisoned in the penitentiary for the term of one year.
    The prisoner prayed a wrri t of error to the judgment; which was allowed.
    C. R. Baldwin and Johnson, for the plaintiff in error; the attorney general, for the commonwealth.
    
      
      Criminal Law — Erroneous Charge to Jury as to Minimum Punishment — Effect.—In Mitchell v. Com., 75 Va. 856, the offense for which the prisoner was indicted was punishable by confinement in the penitentiary for not less than one nor more than five years though the clerk charged the jury that the minimum term of imprisonment was three .years, and the maximum five years. The jury found a verdict of guilty and fixed the term of imprisonment in the penitentiary at five years. It was insisted that this charge by the clerk must be treated as an erroneous instruction of a court, and therefore the verdict must be set aside and a new trial awarded the prisoner; and the principal case was cited to sustain the contention. But it was held by the court of appeals, approving the principal case, but distinguishing it from the case at bar (p. 863,864,865), that, since the jury had fixed the maximum period of imprisonment, they could not have been misled by the erroneous charge of tbe clerk; that the prisoner was not in any way prejudiced by the mistake, nor could he have been benefited if the minimum period had been correctly stated in the charge; and therefore the error was not sufficient to set aside, or arrest the judgment. '
      See also, monographic note on “Instructions” (V., e.) appended to Womack v. Circle, 29 Gratt. 192.
      Same — Charge by the Clerk — Effect.—The acts of the clerk done in the presence of the court and under its supervision, must be taken tobe done by directions of court; and are the acts of the court. Mesmer v. Com., 26 Gratt. 982, citing the principal case. So where a charge is given to the jury by the clerk in the presence and hearing of the court without any correction by the court, it is regarded as receiving the sanction of the court and thus becomes the act of the court; find if there is any error m it to the prejudice of the prisoner, it is an error for which the judgment ought to be reversed. To this effect, the principal case was cited with approval in Thornton v. Com., 24 Gratt. 662; Dull v. Com., 25 Gratt. 981; State v. Cobbs, 40 W. Va. 718, 22 S. E. Rep. 310: Mitchell v. Com., 75 Va. 864.
      The principal case is distinguished in Mitchell v. Com., 89 Va. 830, 17 S. E. Rep. 480.
      Same — Waiver of Second Jeopardy. — To the point by that certain acts, such as consenting to the discharge of the jury, or moving in arrest of judgment, the prisoner will be presumed to waive any objection to being put a second time in jeopardy, the principal case is cited in Briggs v. Com., 82 Va. 562.
    
    
      
      The statute of 1796 and the revised statute of 1819, 1 Rev. Code, ch. 171, §6. 7, enacted, that every person convicted of simple larceny to the value of four dollars and upwards — should undergo confinement in the penitentiary for a period not less than one nor more than three years:” and that “if any person shall feloniously steal &c. any goods or chattels under the value of four dollars, he, she, or they, being thereof legally convicted, shall be deemed guilty of petit larceny, and shall — -be sentenced to be punished by stripes on his or her bare back, not less than ten nor more than forty for any one offence, or by confinement in the penitentiary for a term not less than six nor more than eighteen months, at the discretion of the jury by which such person shall be tried. ”
      The statute of March 1824; Sess. Acts of 1823-4, enacted, that “if any free white person, after the 1st day of May next, shall be guilty of simple larceny of goods and chattels to the value of ten dollars or upwards, and shall be thereof duly convicted, he shall, in all respects, be subj ect to the same sentence and punishment as is now prescribed by law, for while persons guilty of larceny of goods of the value of four dollars and upwards; and if after the said 1st day of May, any person shall feloniously steal &c. any goods and chattels under the value of ten dollars, he, or she shall be deemed guiltv of petit larceny, and •shall be, in all respects, subject to the same proceeding, trial, conviction, sentence and punishment, as are now prescribed by law for free white persons guilty of petit larceny.” This statute contained no proviso as to the prosecution and punishment of larcenies committed before the 1st May 1824, and no general repealing clause.
      A statute passed March 9, 1826, Sess. Acts of 1825-6, ch. 11, p. 10, enacted, “that if any person shall hereafter commit any offence, for which he or she may now be punished by confinement in the penitentiary for any term less than two years, every such person shall for every such offence, being thereof convicted, be confined in the penitentiary for a term not less than two years, and not more than the number of years now prescribed by law as the longest period for the commission of such offence: provided, that ever} person who shall have committed any such offence, heretofore, shall be tried and punished in the same manner as if this act had never passed.”— Note in Original Edition.
    
   RIEjUD, J.,

delivered the opinion of the court. This court concurs in opinion with the circuit court, that, as to the offence committed by the prisoner, the revised statute of 1819, 1 Rev. Code, ch. 171, ‘i 6, defining grand larceny, and prescribing the punishment of the offence, was not repealed by the statute of March 1824, Sess. Acts of 1823-4, ch. 10, & 11. The latter statute enacts, that “if any free white person, after the 1st May 1824, shall be guilty of simple larceny of goods &c, to the value of ten dollars and upwards, and shall be thereof duly convicted, he shall, in all respects, be subject to the same sentence and punishment, as is now prescribed by law for white persons guilty *of larceny of goods of four dollars and upwards.” There is no repealing clause in this statute : so that, if it has the effect of repealing the former law, it is by implication. As to offences committed after the new statute went into operation, the old law was undoubtedly repealed: every affirmative statute is a repeal, by implication, of a precedent affirmative statute, so far as it is contrary thereto: leges posteriores priores contrarias abro-gant. But subsequent statutes, which add accumulative penalties, and institute new methods of proceeding, do not repeal former penalties and methods of proceeding, ordained by preceding statutes, without negative words: neither hath a latter statute ever been construed to repeal a-prior statute, unless there be a contrariety or repugnance in them, or at least some notice taken in the latter statute of the preceding one, so as to indicate an intention in the law makers to repeal it. 6 Bac. Abr. Statute D. p. 372, 3. The act of March 1824 applies exclusively to offences committed after the 1st day of May following: as to offences committed prior to that time, it leaves the revised statute of 1819 in full force. Allowing the two statutes to have this effect, is there any contrariety or repugnance between them? This court thinks not. The question is not new here. A similar one arose in Wyatt’s case, 6 Rand. 694, and in Pegram’s case, 1 Leigh, 569, which were prosecutions under the statutes to prevent unlawful gaming. In both cases, the court held, that the former laws had not been repealed by the latter, as to offences committed prior to the time when the latter went into operation. The question now before us does not differ materially from that decided in those cases. It is true, we are directed to construe the statutes against unlawful gaming remedially: but, if the question to be decided be not one of construction, but whether the law be in force or repealed, the rule is alike in all cases, whatever may be the degree or nature of the crime or offence punishable by such law, if in force.

But, we think, the circuit court ought to have set aside the verdict against the prisoner, and ordered a new trial. *The charge given by the clerk to the jury was erroneous, and was well calculated to mislead them, as to the legal term of imprisonment. It was equivalent to an instruction from the court: it was given by an officer of the court, in the usual course of his duty, in the presence and hearing of the court; and, not having been corrected by the court, must be regarded as having been sanctioned by it. What effect it had, does not appear from any thing in the record. But it may have induced the jury to agree upon the term of two years for the prisoner’s confinement in the penitentiary, believing that to be the minimum, when, if they had been correctly informed of the law, they might have ascertained his imprisonment to be one year only. This error was not corrected by what was done by the attorney for the commonwealth. The power of pardon was not in his hands. His waving and remitting one year of the term, was a void act, and ineffectual to any purpose. It left the verdict intire; and being intire, the judgment rendered by the court was not according to the verdict.

The judgment is, for this reason, reversed ; and the cause remanded to the circuit court for a new trial to be had of the case.  