
    *The Commonwealth v. Philip Frye.
    Punishments—Fine and Imprisonment—Failure of Jury to Assess Fine—Effect.—where the penalty is fine and imprisonment, and the jury in a verdict of guilty, fail to assess the fine, the prisoner may nevertheless he imprisoned.
   The defendant was indicted for a misdemeanor under the act of assembly, for receiving stolen goods, knowing them to be stolen. The jury found the defendant guilty, but did not assess his fine. The defendant prayed that judgment might be arrested, for the following reasons : “1st, Because the indictment did not state, that the defendant feloniously took and received the goods : 2d, Because the jury ought to have assessed the fine, which they have not done : 3d, Because it is not stated in the indictment, that the principal felons, or either of them, who are stated to have stolen the goods, in the indictment mentioned, had been convicted thereof : 4th, Because the indictment is informal and insufficient.” The questions of law arising from these alleged errors, were adjourned. The General Court, June 19th, 1793, consisting of Judges Tucker, Tyler, Henry, Roane and Nelson, certified the following opinion: “That judgment of imprisonment may be rendered against the defendant, although the jury have not assessed his amercement, which it was their province to have done.”

Note. See 1st Vol. Rev. Code, p. 105, Sect. 26, by which the juries are directed to 20 assess the fine. The *first, and third reasons assigned in arrest of judgment, are not noticed by the General Court; they are sufficiently answered by the act of assembly itself, on which the prosecution was founded. See 1st Vol. Rev. Code, p. 206, ch. 109, sect. 4th.  