where the evidence fails to show a fraudulent intent,1 and a special verdict must show the intent as a fact in all cases in which intent is an ingredient of the offence.2 The same rule applies to a failure to prove any value whatever of the stolen property, and to an entire absence of proof of venue.4 A conviction for theft on proof of knowingly receiving stolen property will be reversed,5 and an indictment for theft will not 1. Weaver v. State, 77 Ala. 26; State v. Bray, 89 N. Car. 480; White v. State, 23 Tex. App. 643; Owens v. State, 21 Tex. App. 579; Cain v. State, 21 Tex. App. 662; Roberts v. State, 21 Tex. App. 460; Lott v. State, 20 Tex. App. 230; Wilson v. State, 20 Tex. App. 662; Martindale v. State, 19 Tex. App. 333; Winn v. State, 17 Tex. App. 234; Fletcher v. State, 16 Tex. App. 635; Taylor v. State, 12 Tex. App. 489; Pitts v. State, 3 Tex. App. 210; DeMint v. State (Tex.), 9 S. W. 738; Hall v. Com., 78 Va. 678. A felonious intent must be shown in addition to a taking and carrying. Where regular customers of a saloon keeper applied about midnight to be served, and he refused to get up and serve them, and they carried away refreshments, but next day offered to pay for what they had taken, held that the circumstances disproved a felonious intent, and a conviction for larceny could not be sustained. Mason v. State, 32 Ark. 238. And where the evidence showed an affray, and that, probably, the watch alleged to have been stolen was detached from the prosecutor's clothing when he was struck. Roberts v. State, 21 Tex. App. 460. Where it clearly appears, from all the circumstances surrounding the case, that a defendant charged with petit larceny took the money in fun, with no intent to secrete it, or deprive the owner thereof, and immediately returned it, criminal intent is wanting, and conviction on such facts will be reversed. Devine v. People, 20 Hun (N. Y.) 98. On the trial for larceny, the evidence showed that the accused took his neighbor's horse publicly, in the street of the town, leaving word that he had done so, and manifesting an intention to return him after riding him a few miles, held, that the facts repelled a felonious intent, and under such proof a conviction could not be sustained. McDaniel v. State, 33 Tex. 419. Testimony that the defendants broke into the tool house of a railroad company, took out a hand car and propelled themselves twelve miles on the track, held insufficient to warrant a conviction for larceny, for want of evidence showing an intent to deprive the company of its property. State v. Ryan, 12 Nev. 401. A boy being directed by his mother to find and recover her horse, found and took up a horse which much resembled his mother's. Without enquiry, he took the horse home to his mother, who was unable to say whether it was her horse or not; but the boy, still claimed him as such and hitched him publicly in the streets of a large town, loaned him to a friend to ride to an adjoining county, and in no respect concealed his possession. Held, irrespective of the youth of the accused, that the evidence was not sufficient to show a felonious intent, or to sustain a conviction for theft. Gardiner v. State, 33 Tex. 692. When one man had carried away the slave of another, the question whether or not he is guilty of a felony depends upon the intent with which this act was done. Whenever there is not clear and satisfactory proof of the felonious intent denounced by the statute, concurring with the act of carrying away, there is no ground for a conviction. Spivey v. State, 26 Ala. 90. 2. State v. Bray, 89 N. Car. 480. 3. Hall v. State, 15 Tex. App. 40. Theft of property worth less than twenty dollars is punishable by fine and imprisonment in the county jail, or by such imprisonment without a fine, but not by fine alone; and a verdict assessing a fine alone will not support a conviction. Fowler v. State, 9 Tex. App. 149. 4. Dreyer v. State, 11 Tex. App. 503. 5. McCampbell v. State, 9 Tex. App. 124. Where, on indictment for theft, the conviction depends on evidence proving receipt and concealment of stolen property, knowing it to have been stolen, the verdict should show that the conviction was for receiving and concealment. Dreyer v. State, II Tex. App. 631. support a conviction for embezzlement. A verdict of guilty will be set aside where the property was taken under a claim of ownership, and the evidence shows reason to believe that the claim was well founded, especially in a case in which a verdict Where there are two counts in an indictment, one for theft and the other for receiving stolen property, a variance in the verdict, finding the defendant guilty of the latter offence, and the judgment and sentence for the former, is fatal. Gaither v. State, 21 Tex. App. 527. Under an indictment for larceny of cotton, and the receiving it, knowing it to be stolen, a verdict of "guilty of receiving stolen cotton," held bad, as not responsive to the indictment. State v. Whitaker, 89 N. Car. 472. Malicious Mischief.-Under an indictment for theft of a steer, there cannot be a conviction for unlawfully killing the steer without the owner's consent. Theft does not include this offence. Beaver v. State, 14 Tex. App. 541. 1. Kibs v. People, 81 Ill. 599; Com. v. King, 9 Cush. (Mass.) 284; Lott v. State. 24 Tex. App. 723. Under an indictment for felonious stealing, conviction cannot be sustained upon evidence of obtaining goods by false representations. People v. Dumar, 106 N. Y. 502; 13 N. E. 325. A bailee cannot be convicted of larceny on an indictment at common law, without proof either that he received the property with intent to steal it, or by fraud, or that the bailment has been determined by some tortious act, and he has since converted the property to his own use. Johnson v. People, 113 Ill. 99. The prisoner, who was a clerk to the prosecutor, was indicted in three different counts for embezzling certain moneys belonging to his master. The evidence showed that the prisoner had received at different times, several sums of money from the prosecutor, a dealer in skins, for the purpose of purchasing skins. The prisoner obtained the skins on credit, and applied the money to his own use, but debited prosecutor in his day cash book with several sums of money as having paid for the skins. The jury found the prisoner not guilty of embezzlement, but guilty of larceny. Held that the conviction was wrong. Reg. v. Goodenough, 25 Eng. Law & Eq. 572. 2. Smith v. State, 42 Tex. 444; Kay v. State, 40 Tex. 29; Wilkerson v. State, 21 Tex. App. 501; Holley v. State, 21 Tex. App. 156; Harris v. State, 17 Tex. App. 177; Seymore v. State, 12 Tex. App. 391. On a trial of an indictment for stealing a bale of cotton, if the proof shows that one of two bales placed together belonged to defendants, and they intended to take their own. they ought to be acquitted. Randle v. State, 49 Ala. 14. Appellant was convicted of the theft of a hog, which was alleged and proved to belong to one F. It was in proof that he claimed the hog by purchase from one D, and this claim was not contested by the State, nor was there any proof, otherwise than by inference or supposition, that he ever took or had possession of the hog. Held, that the evidence is insufficient to sustain a conviction, because at the utmost, it proves no more than recent possession under an unrefuted claim of right. Small v. State, 18 Tex. App. 336. Where it was proved by a witness for the prosecution that, being out with the defendant's son, hunting cattle on the prairie, he first saw the yearling heifer in question; that the son claimed it as the property of his father and drove it up and penned it in the defendant's cow pen; that it was publicly claimed by the defendant as his property, and publicly branded by him; that when the witness told him he was acting imprudently in branding it, as it had on it the brand of the prosecutor, he replied that it was his own, and he would do it; it was held that the evidence did not warrant a conviction for larceny. Herber v. State, 7 Tex. 69. Newly Discovered Evidence.-The hog alleged to have been stolen by the defendant was found in his possession, and the main controversy at the trial was whether his possession was criminal or innocent under an honest belief of ownership. The prosecution introduced testimony showing that the defendant had changed the ear marks of the hog for the purpose of destroying its identity. Defendant showed that he had, prior to the trial, and with witnesses, called upon the prosecuting witness, who had possession of the hog. for the defendant would not be disturbed if it were a civil action between the parties.1 Any irregularity in the course of the trial, as a verdict in the absence of the prisoner,2 or one rendered by less than the required number of jurors,3 or a verdict so uncertain as to be unintelligible; or a direct violation of a statutory duty by the prosecuting officer,5 is a ground for reversal; and a stipulation that a defective verdict may be amended will, in the absence of a provision to the contrary, be presumed to refer to matter of form and not of substance.6 A verdict will not, however, be set aside when the evidence upon which it is founded is conflicting, it being the province of the jury to decide as to the credibility of witnesses, nor when it warrants a reasonable presumption of guilt;9 and that the evi for the purpose of examining it, but was refused; and at the trial asked to have the hog produced at his expense, but was refused. After his conviction, defendant moved for a new trial upon the ground of newly discovered evidence, and supported his motion by the affidavits of several persons who had inspected the ear marks, and found that they had not been changed. Held, that a new trial should have been granted. People v. Stanford, 64 Cal. 27. 1. Ryan v. State, 22 Tex. App. 699; S. C., 3 S. W. 547; Wilkerson v. State, 21 Tex. App. 501; s. c., 2 S. W. 857; Phillips v. State, 22 Tex. App. 139; Misseldine v. State, 21 Tex. App. 335. Where the taking of a horse, alleged to have been stolen, was open under claim of property, and there was a difference of opinion as to whether the brand was that of the alleged owner or the defendant, the witnesses being equal in number and having the same means of knowledge, a verdict of guilty will be set aside. Thompson v. State (Tex.), 9 S. W. 760. At the trial for the theft of a steer, the evidence failed to show with sufficient certainty that the animal was the property of a person other than the defendants, and there was very positive testimony that it was regarded as an estray, and was estrayed by defendant. Held, that a conviction should be set aside. Benton v. State, 21 Tex. App. 554; 2 S. W. 885. 2. Sneed v. State, 5 Ark. 431; S. C., 41 Am. Dec. 102. 3. Brown v. State, 8 Blackf. (Ind.) 561. 4. State v. Coon, 18 Minn. 519; and see Fallen v. People, 2 Abb. (N. Y.) App. Dec. 83. 5. Courts should hold district attorneys to a strict observance of the statute which forbids them to refer to the fact that a defendant has not testified on his own behalf; and for a violation of the statute a judgment of conviction will be reversed. State v. Graham, 62 Iowa 108. 6. Williams v. People, 44 Ill. 478. On motion of the defendant, made on retrial, to set aside an indictment for theft, because its presentment in open court did not appear on the minutes of the court as required by law, the State introduced testimony of the clerk and the foreman, and moved to amend, which motion was granted, but no amendment of the minutes was in fact made. Held, that notwithstanding the defendant's plea of not guilty, and the other proceedings, the conviction at the second trial must not stand. Cox v. State, 7 Tex. App. 495. 7. Wagner v. State, 107 Ind. 71; s. c., 57 Am. Rep. 79; State v. Hallett, 63 Iowa 259; State v. Wellman, 34 Minn. 221; s. c., 25 N. W. 395; People v. Sands, 5 N. Y. Crim. R. 261; State v. Goings (N. Car.), 7 S. E. 900; Shultz v. State, 5 Tex. App. 390; Blankenship v. State, 5 Tex. App. 218; Reg. v. Hobson, 33 Eng. Law & Eq. 525; Reg. v. Samways, 26 Eng. Law & Eq. 576. 8. Calhoun v. State, 7 Tex. App. 340. 9. See Smiley v. State, 66 Ga. 754; Heard v. State, 59 Miss. 545; State v. Freeman, 72 N. Car. 521. Proof that a horse was taken from its pasture, and that D, a day or two afterwards, sold it several miles distant, and made false statements as to its ownership and possession, held sufficient for his conviction of larceny. Duckett. v. State, 65 Ga. 369. dence would sustain a conviction for a higher grade of the crime,1 or for a different crime,2 is no ground for setting the verdict aside or reversing the conviction. 4. Verdict Under Special Statutes.-A verdict upon a prosecution for an act which was not an offence at common law, but which has been made a crime by special statute, can be sustained only upon proof of all the constituent facts and circumstances necessary to bring the accused within the statutory provisions,3 though where the statute confers jurisdiction, upon a court, of an indictment charging the theft of goods of a certain value, its jurisdiction is not lost by reason of a verdict finding the goods to be of Where there is direct evidence of the 2. Robbery-It is no objection to a defendant's possession of the stolen conviction for larceny that the circumhorse in an adjoining county, and the stances attending the theft, as proved circumstantial evidence of his taking on the trial, were such that the accused the same in the county of the trial, a might have been indicted for robbery. verdict of guilty is warranted. State v. Bonsall v. State, 35 Ind. 460. Espinozei (Nev.), 19 P. 677. On the complaint for the larceny of a $20 bill alleged to be the property of B, proof that B, in passing a house, was invited in by the defendant, and, on her request for money to buy a quart of brandy, at $3, handed her a $20 bill, expecting only to receive back the change; that she went out with another girl, and he saw no more of them and his money, held to warrant a conviction. Com. v. Barry, 124 Mass. 325. In a trial for larceny, the evidence of the prosecuting witness was positive and direct as to the loss of a sum of money from his pocket book at an assignation of the defendant, a prostitute, and there was no attempt made to impeach him, and his testimony was corroborated by police officers. The larceny was from the person, the defendant alone present, and the empty pocket book was found where she alone could conceal it. Held, that the evidence sustained a verdict of guilty. Jamison v. State (Neb.), 41 N. W. 138. The prisoner was found coming out of a warehouse where a large quantity of pepper was kept, with pepper of a similar quality in his possession. He had no right to be in the warehouse, and on being discovered said: "I hope you will not be hard with me," and took some pepper out of his pocket and threw it on the ground. There was no evidence of any pepper having been missed from the bulk. Held, that there was sufficient evidence to go to the jury of the corpus delicti. Reg. v. Burton, 24 Eng. Law & Eq. 551. 1. State v. Keeland (Mo.), 7 West 112. Illegally Marking and Branding. — A conviction under an indictment for theft of cattle will not be set aside merely because the evidence would sustain an indictment for illegal marking and branding. Smith v. State, 8 Tex. App. 141. In Louisiana, on an indictment for larceny, the jury may, under Rev. Stat. La., § 1056, return a verdict of "not guilty of larceny, but guilty of embezzlement." State v. Williams (La.), 5 S. 16. But the accused cannot be convicted of receiving stolen goods. State v. Primeaux, 39 La. An. 673; s. c., 2 So. 423. 3. State v. Gabriel (Mo.), 5 West 340. An indictment for the statutory offence of stealing an outstanding crop does not warrant a conviction of petit larceny, since a growing crop was not the subject of larceny at common law, and the only offence created by the statute is grand larceny. A verdict of guilty for petit larceny under such an indictment is an acquittal of the statutory felony and a bar to another prosecution for the same offence. Gregg v. State, 55 Ala. 116. N. Car. Code, § 1069, makes it larceny to steal any vegetable or other product "cultivated for food or market." Held, that an indictment charging the larceny of watermelons not alleged to be thus cultivated would not support a conviction. State v. Thompson, 93 N. Car. 537. One indicted for larceny before the revision of the statutes of 1879 could not be convicted of petit larceny. State v. Davidson, 73 Mo. 428. less value. The punishment provided for such crime can only be imposed when the information or indictment is expressly based on the statute.2 XVII. ARREST OF JUDGMENT.-A motion in arrest of judgment. cannot be grounded upon a variance between the allegation and proof; it lies only for defects in the indictment.3 That the indictment charges distinct crimes in the same court is a good ground for arrest; 4 but an allegation of the theft of various ar ticles at the same time and place charges but one offence,3 and an indictment containing one count for larceny from a dwelling house, and another for a larceny from a shop or other building, is no ground for arrest of judgment or of error, when the sentenceimposes no greater punishment than for one offence.6 An insufficient description of some of the articles stolen is not ΙΟΙ. Under an indictment for larceny, State v. Williams, 10 Humph. (Tenn.) which charges that the offence was committed between the 20th of July and the 21st of September, 1865, a conviction may be had under § 3180 of the code, but cannot be had under the act approved 7th October, 1864. Jeffries v. State, 39 Ala. 655. 1. State v. Arlin, 27 N. H. (7 Foster) 116. 2. People v. Seller, 58 Mich. 327. A sentence, as for the crime of horse stealing, to six years' confinement in the State prison, on conviction under an information for "grand larceny," which included other property besides the horse, is not authorized by Michigan statutes. Boody v. People, 43 Mich. 34. 3. State v. Craige, 89 N. Car. 475; s. c., 45 Am. Rep. 698. Where goods alleged to be stolen were laid in the indictment as the property of persons unknown, and it appeared that a witness before the grand jury swore that he was part owner of the goods, it was held to be no ground for an arrest of judgment, but that the objection could have been taken by a special plea. U. S. v. Stetson, 3 Woodb. & M. (U. S.) 164. Where the indictment charges "that J C, of M, in the county of C, on the 17th day of October, 1851, did feloniously steal, take and carry away a quantity of bank bills, the money, goods and chattels of one J C, then and there being found, did feloniously steal, take and carry away," the respondent pleaded guilty, and a motion in arrest of judgment was overruled. State v. Cotton, 24 N. H. 143. 4. See Cawley v. State, 37 Ala. 152; The first count in an indictment charged the defendant with a felonious and burglarious breaking into a shop in the night time and stealing therefrom certain articles belonging_to, etc., specifying the value of each. The second count charged that the defendant, "the goods and chattels, moneys and property aforesaid, by some illegally disposed person then lately before feloniously and burglariously taken and carried away unlawfully, unjustly and for the sake of wicked gain did receive and have," knowing them to be stolen. Held, that the words "goods. and chattels, etc., aforesaid," did not import into the second count the allegations of the first in regard to the value and ownership of the property, and that, by reason of the absence of any such allegations, a motion in arrest of judgment, after a verdict of guilty under that count, should not be granted. State v. Lyon, 17 Wis. 237. 5. State υ. Williams, 10 Humph. (Tenn ) 101. 6. Cawley v. State, 37 Ala. 152. Imposing Inadequate Punishment.Upon the trial of an information for grand larceny, the jury found a verdict of guilty, and imposed, as punishment, a small fine and imprisonment in the State prison for a year. After the verdict was rendered, the defendant moved for a discharge on the ground that the statute required the punishment for grand larceny to be at least two years in the State prison. Held, that the motion was properly denied, the defendant not having been prejudiced in his substantial rights by the finding of |