
    The State vs. James Nichols and John Nichols.
    
      Indictment — Marhing Hogs.
    
    Indictment against A. and B. for unlawfully marking six hogs. The proof was, that A. marked one hog, which he claimed, and that B., at another time, marked two, which he claimed. There was no joint act proved, nor any concurrence in the separate acts. Held, That a general verdict of guilty could not be sustained.
    In such a case, the verdict should ascertain the number of hogs marked, or sentence cannot be passed.
    Under the Act of 1789, 5 Stat. 133, an indictment for marhing hogs may be sustained.
    BEFORE .WHITNER, J., AT PICKENS, SPRING TERM, 1860.
    Indictment for unlawfully marking six hogs belonging to J. H. Beck. The proof was, that one of the defendants marked one hog, which he claimed, and that two. other hogs were claimed and marked by the other defendant at another time. The verdict was guilty.
    The defendants appealed, and now moved this Court for a new trial, on the grounds:
    1. Because the verdict does not find the number of hogs marked, and as the punishment is fixed by statute for each hog so marked, no sentence can be pronounced by the Court on the conviction.
    2. Because the indictment charged the marking of six hogs, the property of the prosecutor, and no proof whatever was offered as to the marking of more than three hogs.
    3. Because the indictment charged the defendants jointly with unlawfully marking the prosecutor’s hogs, and the proof was that one of the hogs had been marked by James Nichols, and the other two by John Nichols, and this marking was the individual act of the defendants respectively — neither having any knowledge or agency in the act of, the other.
    
      Orr, for appellants.
    
      Reed, solicitor, contra.
   The opinion of the Court was delivered by

O’Neall, C. J.

The verdict of guilty cannot stand. For it seems that one of the defendants claimed one of the hogs, and marked it; tbe other two were claimed by another of the defendants and marked by him; but there was no joint act proved, nor any concurrence in the separate acts. Of course a joint conviction cannot be supported.

To justify a sentence in such a case, the verdict must ascertain the number of hogs marked. For until that is done the fine for each hog marked cannot be imposed. The case cited in the brief, 2 Rice’s Dig. 51, McKay & Wilson ads. The State, MSS. Decisions, Dec. 1813, was a motion in arrest of judgment on a libel: it has no application to this case.

So far I have assumed, that the offence of unlawfully marking a hog is indictable under the Act of 1789, 5 Stat. 139, sect. 5, which is in the following words: “ If any person or persons, shall be lawfully convicted of wilfully and knowingly marking, branding, or disfiguring any sheep, goat, or hog, of or belonging to any other person, the said offender or offenders shall for each and every sheep, goat, or hog, of which he, she, or they shall or may be convicted of branding or disfiguring as aforesaid, shall be subject to the penalty of five pounds.” Upon this Judge Nott expressed the doubt, in the State vs. Roberts, 1 Con. Rep., by Tread., 116, whether a person can be punished in any way for marking a hog. The offence for marking is declared in the beginning of the section, but marking is dropped when the punishment is declared. The offender, in the opinion of the Judge, ought to be indicted for disfiguring or branding. But I think the uniform practice of the courts has recognized the unlawful marking of a hog as an offence. The indictment charges that the unlawful marking of six hogs, is an offence. The appeal does not question the indictment in this respect. But it was necessary to find how many hogs were unlawfully marked ; unless that be done, the sentence of five pounds for each hog marked cannot be passed. The State vs. Owen Bunton, was a case of cow stealing. Two cows were charged; there was proof of one — a general verdict, guilty, was held to be wrong. The verdict ought to conform to the proof.

The motion for a new trial is granted.

Johnstone and Wardlaw, JJ., concurred.

Motion granted.  