
    The State vs. Warren T. Major, Hiram Major, and Daniel Major.
    
      Criminal Law — Stealing Coll — Repeal—Petit Larceny — General Verdict — New Trial.
    
    The Act of 1865, making it a capital felony to steal a “horse or mule,” does not repeal so much of the Act of 1830 as punishes the stealing of a “ colt.” An indictment, therefore, for stealing a “ colt” contrary to the Act, &c., is unobjectionable.
    One indicted under the Act of 1830, for stealing a colt, cannot be convicted of petit larceny. If therefore the jury find him guilty of petit larceny, a new trial will be granted.
    Under an indictment charging the defendants, in two counts, with stealing a colt, and, in a third count,'with receiving the colt knowing it to be stolen, a general verdict of guilty cannot be sustained. The offences charged being distinct — the one a felony, and the other a misdemeanor— and the punishments being different, the Court, under such a verdict, cannot know of which offence defendants are guilty, and what sentence to pass. In such a case, therefore, a new trial must be granted.
    BEFORE MUNRO, J., AT ANDERSON, FALL TERM, 1866.
    This was an indictment for stealing a colt. There were three counts, charging the defendants as follows:
    1. That Warren T. Major, Hiram «Major, and Daniel Major, late of the district and State aforesaid, on the eighteenth day of September, in the year of our Lord one thousand eight hundred and sixty-six, with force and arms, at Anderson Court-House, in the district and State aforesaid, one colt of the value of one hundred dollars, of the goods and chattels of one Peter G. Acker, then and there being found, feloniously did steal, take and carry away, contrary to the Act of the General Assembly in such case made and provided, and against the peace and dignity of the same State aforesaid.
    
      2. That Warren T. Major and Hiram Major, late of the district and State aforesaid, on the eighteenth day of September, in the year of our Lord one thousand eight hundred and sixty-six, with force and arms, at Anderson Court-House, in the district and State aforesaid, one colt of the value of one hundred dollars, of the goods and chattels of one Peter Gr. Acker, then and there being found, feloniously did steal, take and carry away. And the jurors aforesaid, upon their oaths aforesaid, do further present: That Daniel Major, late of the District of Anderson and State of South Carolina aforesaid, before the said felony and larceny was committed in form aforesaid, to wit, on the eighteenth day of September, one thousand eight hundred and sixty-six, at Anderson CourtHouse, in the district and State aforesaid, did feloniously and maliciously incite, move, procure, aid, counsel, hire and command the said Warren T. Major and Hiram Major, the said felony and larceny, in manner and form aforesaid, to do and commit, contrary to the Act of the General Assembly in such case made and provided, and against the peace and dignity of the same State aforesaid.
    3. That Warren T. Major, Hiram Major, and Daniel Major, on the eighteenth day of September, in the year of our Lord one thousand eight hundred and sixty-six, with force and arms, at Anderson Court-House, in the district and State aforesaid, one colt of the value of one hundred dollars, of the proper goods and chattels of one Peter G. Acker, by a certain evil-disposed person, to the jurors aforesaid unknown, then, lately, before feloniously stolen, taken and carried away, of and from the said evil-disposed person unlawfully, unjustly, and for the sake of wicked gain, did buy and receive, the said Warren T. Major, Hiram Major, and Daniel Major-then and-there well knowing the colt aforesaid to have been feloniously stolen, taken and carried away, contrary to the Act of the General Assembly in such case made and provided, and against the peace and dignity of the same State aforesaid.
    
      TESTIMONY ON BEHALF OF THE STATE.
    1. Peter Gr. Acker. — On the 23d September last, he missed .out of pasture, in -which it had been running all the year, a sorrel colt, belonging to him, about two years old; had been in the habit of salting it once a week; the last time he saw it, previous to missing it, was on the 14th same month. The pasture is about one hundred acres in extent, and had been used in common by the defendant Daniel Major, one Mitchell, and witness. There was a gully through which stock might pass in and out without obstruction. Daniel Major lives about a mile from plaintiff, and about one-half mile from pasture. Daniel Major is the father of the other two prisoners — ■ Warren and Hiram Major: the former lived in Pickens, the brother with his father. The colt was large enough to ride. He missed it on Sunday, and rode over to Daniel Major’s, and inquired if he had seen the colt; he replied that he had not seen it since the previous Monday, and did not know where it was. When receiving information that the colt had passed up the road, he concluded to follow it, and procured the services of one Wardlaw to accompany him; and when arriving at Pendleton, procured from Col. Taylor a search warrant, and a deputation to Wardlaw to execute it; proceeded directly to the residence of Warren in Pickens, which they reached at 11 P. M.; looked into the stable to see if the colt was there, but it was not; then went to the house; Hiram opened the door, and while he was speaking to Wardlaw, he 'Stept into the- house; Hiram then remarked, “ Mr. Acker, your colt is in the stable.” When they entered the house, Warren was in bed; he raised up, and Wardlaw said to him, “I have got a warrant for you.” He replied, “ I’ll be d — d if I care; I would as soon lie in jail as not.” Hiram then said, “Acker, come out and I will show you your colt.” He conducted them to a small out-house on the premises, where the colt was shut up. Hiram said he did not take it; Warren took it on Monday evening, about dark, and bad shut it up in. bis father’s stable and fed it. Started for Pendleton that night, and while Warren and Wardlaw were on the road, he remarked to Hiram that this was a bad business. He replied that he was not the tíause of it. Plaintiff said, “ You were with him.” At Pendleton, Hiram was included in the warrant, and both lodged in jail. Recovered the colt Monday night, 26th September last.
    
      Gross-examined. The pasture was common to all three of them; there was a gap open on Major’s side of the pasture. The colt was two years and four months old. Heard of the colt on the way up to Pendleton, in the possession of Warren and Hiram. Hiram told that Warren took the colt out of the pasture ; and Daniel told that he had seen the colt in the pasture on Monday evening, and on the following Sunday told him he had heard nothing of it.
    2. Landfor’d Scott. — I live on the road one-half mile from prisoners’. On Monday, 18th, saw Warren riding a colt, and Hiram riding an animal belonging to his father; afterwards met the old man in the road; he introduced the subject of the colt, and said, “ I have done wrong in not telling Acker about his colt; I would have done so, but for my wife. I told Hiram to take the mare and go up to Warren’s and get the colt, and if he would not do it, I would go myself and get it.” This was while Acker was gone. Did not know that Acker had such a .colt until he described it. Old man said he had sent Hiram for the colt, and if he had refused to go, would have gone himself.
    3. H. Jordan. — At Harper’s, sale heard Daniel say the boys had taken up the colt as an estray, and he was going to try to get it back, and had sent Hiram for that purpose. The boys had put it up in the stable the night before; said he had done wrong in not telling Acker about it, but his object was to keep down a fuss at home.
    
      Gross-examined. Lives a mile from Acker; had only seen the- colt in the pasture once; did not know it afterwards.
    
      4. Turner Moore. — Lives in Pickens, one-half mile from Warren Major. Warren told him he had bought the colt. Iiiram was present, and remarked that Warren had now a good stock, alluding to the colt and another horse he had. This was the Friday previous to the arrest.
    5. Wiley Allen. — Lives in Pickens, one and a half miles from Warren; saw him with the colt at Walhalla, and inquired where he got it; he said he had hooked it. Hiram was a few steps distant at the time. This was on the 10th. On Saturday, the 22d, at a sale, Warren requested witness to write an advertisement for him, stating that he had taken up a stray colt, the one that I saw him on at Walhalla. Returning from the sale he again spoke to me about writing an advertisement; he said he had taken up the colt in an old field of his father’s.
    
      Gross-examined. He said his brother Hiram was going down, and would stick up. the advertisement.
    Here the testimony for the State closed.
    TESTIMONY FOR THE DEFENCE.
    1. Mrs. Woodson. — Is the mother-in-law of Warren. Some time in September, Warren and Hiram rode up in front of witness’s house on their way to Pickens; Hiram' remained in the road; Warren was on a sorrel colt; he asked witness and Miss Winningham to go out and look at it, and see if they knew it; it had a white spot in the forehead.
    2. Miss Winningham. — Was at Mrs. Woodson’s the day Warren rode up on the colt; he said he thought it was Lewis Davis’s colt; he then left with her a message to deliver to her father to let Davis know about the colt.
    8. W. Haclcet.- — -About a week before Harper’s sale, Warren and Hiram passed witness’s house. The former was riding a sorrel colt; witness, tried to purchase it, and offered him seventy-five dollars for it; he refused to sell it, assigning as’ a reason, that it was an estray, and that no money could purchase it; he said after the colt had been advertised, he might stand a chance to purchase it.
    4. Emory Moore. — Witness lives in Pickens; saw Warren and Hiram at sale on 22d of September; Warren applied to witness to write an advertisement for an estray colt; witness declined, but recommended him to go to a magistrate; and he said the colt was two and a half or three years old; witness did not see it.
    5. William Harper. — Lives twelve miles from prisoners; saw Warren and Hiram in September, riding along the road; Warren was riding a small colt.
    6. Samuel Moore. — Lives in Pickens; at sale, on the 22d of September, Warren requested him to write an advertisement for Mm, for a stray colt he had taken up at his father’s.
    7. Mrs. Mayfield. — At Harper’s sale, Warren and Hiram on their way up to Pickens; Warren was riding a sorrel colt, which he exhibited around among the people.
    Here the testimony for the defence closed.
    The verdict was, “Warren T. Major'and Hiram Major guilty; Daniel Major guilty of petit larceny.” -■
    The defendants appealed, and now,moved this Court in arrest of judgment, on the ground: \\ ,. ;•
    Because the indictment charged the defen,dants with stealing a eolt, under the Act of the General Assembly, when the word “colt” is not mentioned or used in said Act.
    Failing in this, then for a new trial, on the grounds, to wit:
    The defendants, Warren T. Major and Hiram Major:
    Because of the uncertainty of the verdict in this, that there are three several counts in the indictment; the first and second counts charging these defendants with stealing the colt; the third count charging them with receiving stolen goods, knowing them to be stolen, to wit, the colt; being different and distinct offences, for each of which the law provides a different and distinct punishment. And it does not appear, from a general verdict of guilty, of which offence these defendants are guilty, nor can judgment of the Court be pronounced.
    The defendant, Daniel Major:
    Because there was no charge in the indictment of petit larceny, the subject-matter of the larceny being the colt; nor any evidence to support such a verdict, which is inconsistent and irregular.
    Because the verdict is contrary to law and the evidence.
    
      Whitner, for appellants,
    cited on motion in arrest of judgment : Act of 1865, 13 Stat. 279; State vs. McLain, 2 Brev. 442; Bos. Orim. Ev. 103; Beaney's case, Russ. & B. 405; Ohallcley's case, Buss. & R. 258; Welland's case, Id. 494; 1 Chit. Or. L. 281; 3 McO. 443; 2 McO. 547; 2 Brev. 442 ; Buss. & B. 415 ; 6 Stat. 413; 1 Stark. Cr..L. 256; Chit. Or. L. 291; 1 Bishop Or. L. 95, 97; 3 McO. 533; 1 Pick. 168; 21 Pick. 123; 2 McC. 483. On the first ground for new trial: State vs. Montague, 2 McC. 257; State vs. Anderson, 1 Strob. 455; State vs. Posey, 7 Rich. 485 ; State vs. Pace, 9 Rich. 355 ; 5 Strob. 1. And on the second ground for new trial: State vs. Larumbo, Harp. 183; State vs. Wilson & Davis, 3 McC. 187; State vs. Spurgin, 1 McO. 252.
    
      Reed, solicitor, contra.
   The opinion" of the Court was delivered by

Inglis, J.

The Act of 1830, (6 Stat. 413,) "To alter and amend the law against horse-stealing,” provides, that "any person who shall be indicted and found guilty of stealing a horse, mare, gelding, colt, filly,, mule, or ass, shall, for the first offence, receive not less than fifty lashes, nor more than two hundred, to be inflicted at such times as the Judge, before whom the case shall be tried, shall think proper, and also be fined and imprisoned at the discretion of the Court; and for the second offence, shall be adjudged and deemed guilty of felony, and suffer death, without benefit of clergy.” The Act of 1865 (13 Stat. 271) makes it “ a felony without benefit of clergy for a person to steal a horse or mule.” .If the latter of these is the only statute in force which denounces the act of larceny imputed to these defendants, the present indictment, for stealing a “colt,” cannot, consistently with the authorities, be supported, for “ colt ” is not the term of description used in the Act. (State vs. McLain, 2 Brev. 442.) If in such case the indictment had charged the stealing of a “ horse,” evidence of the larceny of a “colt ” would have sustained it, for horse . would -then be considered to have been used by the Legislature, as nomen generalissimum. (R. vs. Welland, Russ. & Ry. 494; State vs. Dunnovant, 3 Brev. 9.) On the other hand, while the Act of 1830 was the whole law of this subject, an indictment for stealing a horse would not have been supported by proof of the larceny of a “ colt,” for the statute having used both “ horse ” and “ colt,” it must be inferred that the General Assembly did not consider them synonymous. (R. vs. Cooke, 2 East P. C. 617.) The Act of 1865, (13 Stat. 271,) To amend the criminal law,” although making very great changes, both in the legal character of offences and in the nature and degree of their punishment, nowhere in express terms repeals any previously existing statutes. The distinction, in the mind of the General Assembly, between horses ” and “ colts,” having been manifested by the course of previous legislation on this subject, whatever repeal is implied in a change of the incidents and consequences of conviction introduced by the new statute must be restricted to the subjects which the latter statute in terms selects from the old enumeration, and cannot be further extended. Except as to the larceny of “ horses ” and mules,” the Act of 1865 does not affect the continuing force of the Act of 1830 ;• and this latter constitutes the whole law of the present case, defining both the offence and its punishment. In this view of the law, the indictment is not liable to the objections raised by the motion in arrest of judgment, and this motion is dismissed.

The indictment contains three counts, of which the first charges all the defendants, as principals, with the larceny of the colt; the second charges Warren T. Major and Hiram Major as principals, and Daniel Major as accessory before the fact, with the same offence; and the third charges all with receiving the colt stolen by some other, knowing it to have been stolen. The verdict is — “Warren T. Major and Hiram Major guilty; Daniel Major guilty of petit larceny.” On an indictment for larceny, the jury may find the defendants guilty of petit larceny,” for this is necessarily included in the general charge. (State vs. Wood, 1 Mill C. R. 29.) But if two are indicted together for stealing the same goods, one cannot be convicted of grand and the other of petit larceny, for the subject of the theft cannot have different values according to the agency of one or the other party; if guilty at all, they must both be guilty of the same grade of offence. (State vs. Larumbo, Harp. 183; State vs. Wilson & Davis, 3 McC. 187.) Horse-stealing is taken out of the general class, and made a substantial, independent offence, including within itself no minor grade; it is single and simple, involving in its constitution but the one fact of stealing, the particular value of the thing stolen being made by the statute wholly immaterial to the fact or degree of guilt. To an indictment for this offence, though against a single defendant, a finding of “ petit* larceny ” is no response: such a finding is not a verdict. (State vs. Spurgin, 1 McC. 252.) Daniel Major must be remanded for trial.

Of what offence are Warren T. Major and Hiram Major guilty, and what punishment shall be awarded to them ? It has been seen that they are charged in one count with stealing the colt, and in the other with receiving it from the thief, knowing it to have been stolen. These are in their nature distinct offences — the one a felony, punished, if this be the first conviction, with fine and imprisonment, at discretion, and with whipping, within certain defined limits as to the number of the lashes, and, if this be the second* conviction, with death; and in either case rendering the convict infamous: the other a misdemeanor, punished with imprisonment and whipping at discretion. Are the defendants guilty of the felony, or of the misdemeanor ? Shall they suffer the consequences of the one or of the other conviction ? Or has the jury found them guilty of both offences ? This cannot be. If these were several distinct transactions, charged' as separate offences, in as many several counts, the general finding might be susceptible of this interpretation. But here it is manifest, from the pleadings and the evidence, that though the offences charged in the several counts are distinct, the same transaction is the subject of all; and the State’s doubt, implied in the multiplication of counts, was, whether the participation of the defendants in that one transaction, if any, was such as to constitute the one offence or the other — the felony or the misdemeanor. It could not constitute both offences: the defendants could not in the one transaction.be both thief and receiver. And this doubt is not solved by the verdict. The present is not the case of a general verdict upon an. indictment in which the charge of the same felony is repeated in different counts, varied only in respect to the subordinate circumstances, in order„,to meet, out of several forms which the proof may assume, that which will appear on the trial, and where the punishment is the same, to whichever of the counts the verdict is referred. Such was Granlc’s case, 2 Bail. 66. Nor is it the case of a general verdict on an indictment containing several counts charging offences of the same general nature, but different degrees, where each higher necessarily includes all the lower grades, distinguished from them by an aggravation of guilt and a corresponding increase in the measure, but not variation in the kind of penalty, and where the less offence being merged in the greater, the general verdict shall be taken to have found the highest grade, if the proof be applicable to it. This was the case of Tidwell and Lawhorn, 5 Strob. 1. It is rather the case of distinct counts in the indictment, each charging the prisoner with a distinct and independent offence, for each of which offences the law has provided a different and distinct punishment, where the general verdict not showing of which offence he is guilty, the Court cannot know what judgment to pronounce. This was Montagu's case, 2 McC. 258. Here there is the further circumstance already adverted to, that the offences are, in the particular instance, inconsistent with each other: the defendants cannot be guilty of both. This was Anderson's case, apart from the defect in one count. (1 Strob. 453.) In such a case, if the Court should look into the evidence, in order to discover to which of the alleged offences it points, and interpret the verdict according to its judgment as to whether the one or the other has been proved, it would be assuming the functions of the jury, and supjdlying, by its own conclusion as to the degree of guilt, that which the jury ought to have, but has not found. It seems to the Court that a new trial is necessary to ascertain specifically the sense of the jury, that the Court may be enabled to award the punishment which the law affixes to the particular offencé of which the defendants have been guilty.

The motipn for a new trial is granted.

Dunkin, C. J., and Wardlaw, A. J., concurred.

Motion granted.  