a sufficient ground for arrest of judgment,1 neither will judgment be arrested because the value of each article is not specified in the indictment, though if the value of a part only is stated, judgment will be arrested as to that part to which no value is asscribed; and if there is a variance as to the allegation of ownership, a nolle prosequi may be entered after appeal and reversal, and a new indictment found. Newly discovered evidence which is material is sufficient ground for a new trial.5

XVIII. EXCEPTIONS.-Errors of law occurring at the trial in a criminal prosecution must be excepted to at the time the decision is made, and exceptions so taken will constitute a part of the record; and, unless a bill of exceptions be reserved, the action of the court below in refusing a continuance will not be revised. A defendant, objecting to any order, ruling or decision of the trial court, is entitled to time in which to prepare his bill of exceptions, and the bill, and any statement of facts, unless authenticated by the trial judge, will not be considered by the court above

the jury. Hoskins v. State, 27 Ind. 470. 1. Com. v. Eastman, 68 Mass. (2 Gray) 76. See Com. v. Duffy, 11 Cush. (Mass.) 145:

A description of the property stolen, as some bottled beer of the value of two dollars and fifty cents, is insufficient, on motion in arrest of judgment. State v. Hoyer (La.), 4 S. 899.

A certain instrument in writing containing evidence of an existing contract for the conveyance of real estate, to wit, a lot in A, of the value, etc., was held sufficient on motion of arrest. Dignowitty v. State, 17 Tex. 521.

2. State v. Murphy, 8 Blackf. (Ind.) 498.

3. Com. v. Smith, 1 Mass. 245. 4. Hughes v. Com., 17 Gratt. (Va.) 565.

5. Where, after a conviction of theft, it is shown in the affidavit for a new trial that the owner of the articles alleged to have been stolen has become convinced of the innocence of the defendant, and newly discovered evidence is also disclosed, which tends to show that the defendant had no intention of stealing the property or of assisting in the commission of such offence, a new trial should be granted. Morse v. State (Ind.), 6 West 604.

Where, on the trial for the theft of a horse, the prosecution relied upon the defendant's attempt to mislead the owner, who testified that defendant first told him that he had heard of the horse in a certain place and afterwards said that he had bought and sold the

894

horse; and, upon motion for a new trial, the owner made affidavit that he was under the impression that defendant did not make the first statement, and that the second was made to affiant's wife; held, that a new trial should have been granted. Brown v. State, 13 Tex. App. 59.

But a new trial is properly refused if applied for because of the refusal of a continuance sought for the purpose of obtaining testimony not probably true. Harvey v. State, 21 Tex. App. 178. 6. Pence v. State, 110 Ind. 95.

was

A new trial will be granted by this court for a variance between the allegations and the proof, where no exception is taken in the court below. The presumption is that every fact necessary to sustain the verdict proved on the trial. State v. Craige, 89 N. Car. 457; s. c., 45 Am. Rep. 698; State v. Green, 81 N. Car. 560; State v. Walker, 87 N. Car. 541; State v. Jones, 69 N. Car. 16; State v. Potter, Phill. (N. Car.) 338; State v. Gowan, 7 Ired. (N. Car.) L. 239; Honeycut v. Angel, 4 Dev. & B. (N. Car.) 306.

It is incumbent upon a defendant in a misdemeanor case to except to erroneous charges given, and to refusal of the court to give the instructions asked, in order to subject such questions to review by this court. Winn v. State, 11 Tex. App. 304.

7. Taylor v. State, 12 Tex. App. 489; Makinson v. State, 16 Tex. App. 133. 8. Pence v. State, 110 Ind. 95; Brown v. State, 13 Tex. App. 59.

for any purpose whatever.1 In the absence of a proper statement of facts, the only duty of the higher court is to determine whether the indictment is sufficient to sustain the charge of the court and the judgment of conviction.2

XIX. PUNISHMENT.-By the common law, as modified in American practice, fines and imprisonment are the usual punishments imposed for larceny and other criminal offences not capital;3 and where the statute creating or defining an offence designates no penalty, fines or imprisonment are the ones presumed to have been intended.4 The amount of the fine or the duration and character of the imprisonment imposed is usually left to the discretion of the court, exercised within the statutory bounds,5

though in some instances the imposition of the punishment is left to the jury. Where, by statute, a particular penalty is at tached to a particular act, the punishment which may be imposed for its commission is not affected by the value of the property,2

but such punishment can only be imposed when the information or indictment is based on that particular statute.1

Where different offences are created and defined by the same enactment, and a separate and distinct punishment is provided for each offence, and a single act may constitute a violation of two or more of these provisions, it is for the courts to determine whether the act prohibited was intended to be punished by one indictment and conviction, and, if so, for which offence.2 Thus, on a count for breaking and entering with intent to steal, and another for stealing, on a general verdict of guilty, distinct sentences may be imposed.3 Larcenies committed before the amendment or alteration of the statute creating and defining the crime and prescribing its punishment, though conviction be had under the new law, are punishable only by the penalties of the old.4

The statutes of several States provide a penalty of increased severity for a second perpetration of the same offence. A former conviction in a foreign state or country is not, however, a sufficient basis for the imposition of the aggravated penalty. And the enactments of Texas, and perhaps of some other States, provide for the mitigation of the punishment for larceny in case of the voluntary return of the property stolen within a reasonable time; but this provision does not apply where the thief has been caught in possession or where he has changed the character of the thing stolen one hundred dollars in value, is not affected by the value of the property, notwithstanding the concurrent jurisdiction given by § 18 to justices of the peace, where the value is not alleged to exceed fifteen dollars. Com. v. McKenney, 9 Gray (Mass.) 114.

One indicted under the act of 1830 for stealing a colt cannot be convicted and punished for petit larceny. If, therefore, the jury found him guilty of petit larceny, a new trial will be granted. State v. Major, 14 Rich. (S. Car.) L. 76.

Infancy.—The disqualification of infancy, under Tenn. Code, §§ 5226-7, does not attach to horse stealing. Wilcox v. State, 3 Heisk. (Tenn.) 110.

1. People v. Seller, 58 Mich. 327. A sentence, as to the crime of horse stealing, to six years' confinement in the State prison (the information being for grand larceny), is not authorized by the Michigan statutes. Boody v. People, 43 Mich. 34.

2. People v. Krank, 46 Hun (N. Y.) 632; s. c., 12 N. Y. S. R. 845.

3. Com. v. Birdsall, 69 Pa. St. 482. See Stanley v. State, 58 Ga. 430; Com. v. Mahar, 8 Gray (Mass.) 469.

12 C. of L-57

The punishment for stealing and receiving stolen goods is the same under our statute. Maynard v. State, 14 Ind. 427.

Section 4247 of the Iowa revision, which provides that if any person at the same term of court is convicted of three distinct larcenies, he shall be deemed a common and notorious thief, and shall be punished, etc., does not provide for the punishment of common and notorious thieves as such, but for their punishment under an ordinary indictment for larceny. State v. Riley, 28 Iowa 547.

897

4. State v. Putney, Phill. (N. Car.) L. 543

5. Whart. Crim. Pl. & Pr. (8th ed.), § 334. See People v. Stanley. 47 Cal. 113; Com. v. Morrow, Phila. (Pa.) 583.

6. People v. Caesar, 1 Park (N. Y.) Cr. 645.

7. Owen 7. State, 44 Tex. 248; Grant v. State, 2 Tex. App. 163; Brill v. State, 1 Tex. App. 372; Ingle v. State, I Tex. App. 307.

One who has stolen a watch, and denied knowledge of it when questioned, but who, nevertheless, has given

before the offer to return; and it should appear that the return was not prompted by consciousness of unconcealed evidence of guilt and fear of discovery.2

5

That restitution of stolen property must be made is a principle of the common law,3 as well as of American jurisprudence.4 By the common law it could not, however, be followed into the hand of an innocent purchaser, though the rule is probably different in most of the United States. Summary restitution, however, is limited to the articles stolen, and does not extend to money or other things into which or for which they have been changed by the thief.

LARGE AT LARGE (See also AT).-"Running at large," in statutes imposing a penalty on one who suffers animals to run at large in public places, is used in the sense of strolling without restraint or confinement; as wandering, roving, or rambling at will, unrestrained. Perhaps no precise abstract rule under the statute can be laid down, applicable to every case, as to the nature, character and amount of restraint necessary to be exercised over a domestic animal when suffered to be on the highway incident to its use. But the restraint need not be entirely physical; it may depend much upon the training, habits and instincts of the animal in the particular case; and the sufficiency of the restraint is to be determined more from its effect upon, and controlling and restraining influence over, the animal than from its nature or kind.8

it up of his own accord before prosecution commenced, is within the protection of the Texas statute mitigating the penalty where there has been a voluntary return of the stolen property. Bennett v. State, 17 Tex. App. 143.

1. Horseman v. State, 43 Tex. 353; Grant v. State, 2 Tex. App. 163.

2. Stephenson v. State, 4 Tex. App. 591.

3. 2 Whart. Cr. L. (9th ed.), § 981. 4. See Lance v. Cowan, I Dana (Ky.) 195; Com. v. Boudrie, 4 Gray (Mass.) 418.

Upon the conviction of a thief or robber, the owner is entitled to restoration of the thing stolen, or its produce. Lance v. Cowan, 1 Dana (Ky.) 195.

5. Scattergood v. Sylvester, 15 Q B. (Eng.) 506; Rex. v. Wollez, 8 Cox C. C. (Eng.) 337. See 2 Whart. Cr. L. (9th ed.), § 981.

6. Lance v. Cowan, 1 Dana (Ky.) 195; Bassett v. Spofford, 45 N. Y. 387.

7. Com. Bouɑ ie, 4 Gray (Mass.)

418.

On a conviction of larceny of money, the court ought not to enter judgment against the prisoner for the amount,

nor award an execution in favor of the person from whom it was stolen. Com. v. Henley, 1 Va. Cas. 145.

8. Russell v. Cone, 46 Vt. 604-5"Suppose a span of horses be so accustomed to be kept and driven together that while the owner is riding one the other will voluntarily follow as closely almost as if led by a halter; the owner, while taking them along the highway in this manner, could not be said to suffer the horse so voluntarily following its mate, to run at large in violation of the statute. The same may be said of a young sucking colt upon the highway, with no restraint other than instinct to follow its dam, which is being driven in a carriage on the highway." It was accordingly held in this case that a horse accustomed to be ridden to a certain point by the owner and then to return home alone to a point where the owner's boy was waiting for him and took care of him was not "running at large," if the owner or his son kept so near that, owing to its training, it would not wander about the highway, but go directly home.

So, in trespass for shooting a dog, it appeared that the dog was a hound kept