bill, and the court charged, at the request of the defendant, that the jury must be satisfied beyond a reasonable doubt that the pigs belonged to S, and in that connection the court said, among other things, "the solicitor has proved by the testimony of S and J that the pigs were the property of S": Held, that the latter part of the charge, if construed in connection with the whole case, meant only that it was "in proof for the state by the testimony" of such witnessess, etc., and it was not likely to be misunderstood by the jury as a declaration that the state had proved the ownership to be in S. Jackson, 112-851.

The ownership is properly laid in the bailee if it appears that defendant, when he took possession of the property as agent for the owners, used such agency as a means to get possession to carry out his felonious intent. MacRae, 111-665.

18. DESCRIPTION.

A description of the property stolen as "one pound of meat" is too vague and uncertain, since the term "meat" applies not only to the flesh of all animals, but in a general sense to all kinds of provisions. Patrick, 79-655. A description of the stolen property as "a parcel of oats," is sufficient. Brown, 12 (1 Dev.), 137.

An indictment for stealing a hat need not describe it as a white or black, or a felt or beaver. Martin, 82-672.

A description of the property stolen as a "bull tongue," the evidence being that defendant stole a particular kind of plow-share usually known in the community by that name, is sufficient. Clark, 30 (8 Ired.), 226.

The goods alleged to be stolen may be described by the names by which they are known in trade, and the same principle extends to articles known by particular names in all the arts, pursuits and employments of life. Clark, 30 (8 Ired.), 226.

Where the thing stolen is at the time of stealing in a raw or unmanufactured state, it may be described by its name and as so much thereof in quantity, weight or measure; but if at that time it had been worked up into a specific article and so remains, it must be described by the name by which such article is generally known. Horan, 61 (Phil.), 571.

19. CHARGE.

On indictment for larceny and receiving, an omission of the judge to charge that there is no evidence to support the court for receiving, is not assignable for error, where there is no prayer for instructions, and no exception to the charge until after verdict convicting defendant of receiving alone. Nicholson, 85-548.

Defendant, who was charged with stealing a hog, contended that certain pork found in his house was part of a hog of his own, and two of his children testified that he had killed a hog of his own the day before the pork was found: Held, error to charge that "there was no evidence that the hog was the property of any one except the prosecutor." Meacham, 78-477.

The prosecutor found his hog in the pen of defendant with the earmarks just changed to that of defendant. Defendant explained his possession by saying he got it of a certain neighbor, and the neighbor testified that the hog came to his house, and while there he inquired of defendant as to whom it belonged, who after looking at the hog claimed it and carried it off. There was no attempt at concealment, and defendant did

not explain the altering of the mark: Held, that the court properly instructed the jury that if defendant took the hog under a false claim of right, and for the purpose of depriving the real owner of his property, and converting it to his own use, he was guilty, notwithstanding he took it openly. Fisher, 70-78.

20. ARREST OF JUDGMENT.

The court can not proceed to judgment on a general verdict of guilty upon an indictment charging in the first count the larceny of a horse, and in the second count receiving the same horse knowing him to have been stolen, when both counts conclude against the statute, since the punishment is different for each offence, and the court can not determine upon which count to give judgment. (Code, sections 1074, 1066.) Goings, 98-766.

Where the indictment contains two counts, one for larceny and the other for receiving the stolen goods, and there is a verdict of guilty on the second count only, and the count for receiving does not mention the name of the defendant in the commencement of the statement of the offence charging the receiving, the judgment must be arrested, though his name is subsequently introduced in the clause charging that he well knew the goods had been stolen. Phelps, 65-450.

An indictment containing two counts, one charging defendant with stealing an ox and the other with stealing one pound of beef, may be quashed on motion made in apt time, or the solicitor required to elect, but after verdict a motion in arrest of judgment can not be sustained. Reel, 80442.

Judgment can not be arrested where there is a general verdict of guilty on an indictment containing two counts, one for larceny and the other for receiving, on the ground that the indictment contains two counts charging different offences with different punishments, because, under Const. N. C., art. 6, sec. 1, persons convicted of larceny are deprived of the right of suffrage, and under section five of the same article are disqualified for holding office, and because receiving is only a misdemeanor, since the disqualification for office and the loss of the right of suffrage constitute no part of the judgment of the court. Jones, 82-685.

NO ACCESSORIES IN LARCENY.-There can be no accessories before the fact in larceny; all who aid, abet, advise or procure the crime to be committed are principals. Stroud, 95-626.

21. FORMER ACQUITTAL.

After acquittal on an indictment for stealing "a certain bank-note issued by the Bank of New Bern," because the note offered in evidence was issued by "The President and Directors of the Bank of New Bern," a plea of former acquittal to a second indictment for stealing "a certain bank-note issued by the President and Directors of the Bank of New Bern," is not supported by the production of the record of the first indictment. Williamson, 7 (3 Murph.), 216.

Where defendant has been acquitted on an indictment charging him with stealing a sheep the property of P P, on the ground that the owner of the property was unknown, but is again indicted for the same offence, the sheep being charged to be the property of some one to the jurors unknown, the plea of former acquittal will not avail him, since the facts charged in the second indictment would not, if proven, have supported the first. Revels, 44 (Busb.), 200.

22. VERDICT.

The jury rendered a verdict of "not guilty of the felony and horse-stealing, but guilty of trespass," but the court directed them to reconsider their verdict and say "guilty or not guilty," and no more; thereupon they retired and again returned with a verdict of "guilty": Held, that, since the first verdict was in effect an acquittal, it was proper to still have it recorded and discharge the defendant. Arrington, 7 (3 Murph.), 571.

In an indictment containing two counts, one for larceny and the other for receiving stolen goods, the jury may bring in a general verdict of guilty, the grade of punishment being the same for each offence. Baker, 70-530.

Where the indictment contains several counts, and the jury is directed to confine its investigation to one count only, a general verdict of guilty will be construed as an acquittal on all the counts withdrawn. Thompson, 95-596.

Where the verdict charges the larceny of cotton and receiving the same knowing it to have been stolen, and the verdict returned is "guilty of receiving stolen cotton," no judgment can be pronounced. To constitute the offence of receiving, the goods must be shown to be the property of the person alleged to be the owner, and it must also be shown that defendant received them with a knowledge of the fact that they had been stolen. Whitaker, 89-472.

The bill charged the larceny of a trunk, and there was proof that the trunk contained a fifty-dollar bill, and the jury returned a verdict of "guilty of the larceny of a fifty-dollar note." The court informed them that defendant was not charged with the larceny of the note but of the trunk, and the jury again retired, and soon returned with a verdict of guilty of the larceny of the trunk: Held, that as the first verdict was not received or recorded, nor the jury discharged, it was competent for them to correct the inadvertence, and make the verdict responsive to the indictment. Bishop, 73-44.

23. VARIANCE.

Where the indictment alleges the stealing of a "calf" skin, and there is a conflict of testimony as to whether it was a "calf" skin or a "kip" skin, a tanner testifying that a calf skin is from a veal from six to ten weeks old, and a kip skin from one from ten weeks to twelve months old, the disputed question is properly left to the jury; besides if the proof should be that it was a kip skin there would be no variance, since the distinction is not a practical one, and there is no rule of law by which the court can say when the "calf" ceases and the "kip" begins. Campbell, 76-261.

Where the indictment charges the stealing of a steer and the evidence shows that it was a bull, defendant is entitled to an acquittal. Royster, 65-539.

An allegation that defendant stole three bushels of corn is supported by proof that he stole three bushels of corn in the ear. Nipper, 95-653. An indictment for stealing "fifty pounds of flour of the value of sixpence" is good, and is sustained by proof that defendant stole a sack of flour, though there is no proof of its weight or value further than the defendant had said he gave five dollars and a half for it. Harris, 64-127. Where the indictment charges the larceny of "two barrels of turpentine," and there is a special verdict finding that defendant secretly dipped out of the boxes in the trees as much turpentine in quantity as two barrels, and put the same into two barrels which he had provided and kept concealed

in the woods, and that he afterwards secretly carried away and sold the two barrels of turpentine for his own gain, the variance is fatal, since under Code N. C., sec. 3028, a barrel of turpentine means not only a certain quantity which is prescribed, but also that it is in a certain state, that it must be in good and sufficient "casks" made of staves of prescribed dimensions; whereas in this case the turpentine was not in barrels when taken. Moore, 33 (11 Ired.), 70.

Where the indictment charges that A committed the theft, and B was present aiding and abetting, and the proof is that B committed the theat and A was present aiding and abetting, there is no variance, since there are no accessories before the fact in larceny, but all who aid and abet are principals. Fox, 94-928.

Where the indictment gives the christian name of the owner of the property as Elizabeth, and the evidence shows that she is called Betsy, the defendant, in order to take advantage of the seeming variance, must ask the court to instruct the jury that if the owner was not known by the name of Elizabeth, or if that was not her name, they should acquit, but to ask the judge to direct a verdict of acquittal is to ask him to decide the fact himself which is properly for the jury. Godet, 29 (7 Ired.), 210. Where the indictment charges the larceny of a hog, and the evidence is that defendant stole a shoat, the variance is immaterial. Godet, 29 (7 Ired.), 210.

Where the indictment charges the larceny of "thirty dollars in money," and the proof is that defendant stole "three ten-dollar bills," there is no variance. Freeman, 89-469.

Where there are two counts, one charging the larceny of cattle, the property of A, and the other charging the larceny of cattle, the property of some person to the jurors unknown, evidence that A about the time lost a number of cattle will not justify a verdict that defendant stole certain cattle the property of some persons to the jurors unknown. Rawlston, 73 -180.

24. MISCELLANEOUS.

AIDING AND ABETTING THE THIEF.-All persons who counsel, aid, abet or advise a larceny are equally guilty with the one who actually commits the offence, whether they were present or not. Gaston, 73-93.

CIRCUMSTANTIAL EVIDENCE.-Where the evidence is circumstantial, the accused is not entitled to a charge that it must be as conclusive as if an eye-witness had testified to the fact. Allen, 103-433.

JURISDICTION.-Rev. St. U. S., sec. 3296, making it indictable to remove distilled spirits from a government warehouse before the taxes are paid, does not deprive the state courts of jurisdiction of the crime of larceny of such spirits taken from the warehouse, since the Federal statutory offence is quite distinct from the crime of larceny. Harmon, 104-792.

PUNISHMENT.-Where the indictment contains two counts, the first charging the larceny of a horse and concluding at common law, and the second charging the receiving the horse, knowing him to have been stolen, and concluding against the statute, and there is a general verdict of guilty, the punishment can not exceed ten years' imprisonment. Lawrence, 81522.

LARCENY A BAR TO PROSECUTION FOR ROBBERY OF THE SAME GOODS.-Where two bills are found against the defendant, one for burglary and larceny and the other for a robbery, both charging the same felonious taking of the same goods, a conviction for larceny on the first indictment is a bar to a prosecution under the second, since robbery is only an aggravated kind of larceny. Lewis, 9 (2 Hawks), 98.

ELECTION. Where the indictment charges larceny and receiving, the court will not require the solicitor to elect on which count he will proceed. Morrison, 85-561.

SOLICITOR'S FEES ON CONVICTION FOR RECEIVING.-On conviction of defendants on a charge of larceny and receiving, the solicitor is not entitled to a fee of ten dollars. The words "misdemeanors of accessories after the fact to felonies" (The Code, sec. 3737) do not embrace receivers of stolen goods, since there are now no accessories to the crime of larceny, but all are principals. Tyler, 85-569.

CONCLUSION OF INDICTMENT WHEN GRADE OF OFFENCE RAISED.-Where the grade of a common law offence has been made higher by statute, the indictment must conclude against the statute, but when the punishment has been mitigated it may conclude at common law. Lawrence, 81-522. DESCRIPTION OF PENSION CHECK.-A description of the property alleged to have been stolen as "one United States pension check on the assistant treasurer of the United States for twenty dollars," is sufficient. Bishop, 98773.

OBJECTION FOR DUPLICITY MUST BE TAKEN BEFORE VERDICT.-An indictment for larceny containing but one count charging the ownership of the property stolen as one hundred pounds cotton, the property of C, one hundred pounds cotton, the property of G, is bad for duplicity and obscurity, but if objection is not taken by motion to quash, the defect is cured by the verdict under Code of N. C., sec. 1183. Simons, 70-336.

INDICTMENT FOR AN ATTEMPT TO STEAL.-An indictment for an attempt to steal, which alleges that defendant entered the prosecutor's house and ransacked his drawers, chests and closets, is sufficient without specifying the particular articles intended to be stolen. Utley, 82-556.

REMARK OF BY-STANDER.-During the argument of a motion for a continuance in the presence, but prior to the impaneling of the jury, a by-stander remarked in open court that the prisoner's wife said she would not come to trial because she would only help get her husband in jail. Held, that this was not ground for exception, as it did not occur on the trial, and if it had the remark was not admitted as evidence, and being an unsworn statement it could not have been deemed to bias the jury against the sworn testimony placed before them. Jackson, 112-851.

VERDICT OF GUILTY CONSTRUED.-A verdict of guilty in larceny is construed as if the words "in manner and form as charged in the bill of indictment" were added to it. Barber, 113-711.

INDICTMENT--ARREST OF JUDGMENT.-Where an indictment charges the larceny of a horse to have been committed at a certain time, since the passage of the only statute prescribing the punishment for horse-stealing, judgment can not be arrested on the ground that prior to that time there had been several statutes prescribing different modes of punishment for such offence. Distinguishing State v. Wise, 66-120. Evans, 69-40.

INDICTMENT-STEALING FISI.-An indictment for the larceny of fish which fails to allege that the fish were reclaimed, confined or dead and valuable for food, can not be sustained. Krider, 78-481.

ELECTION. Where the indictment contained two counts, one for larceny and the other for receiving, and the evidence tended to show that some of the defendants (who were convicted under the count for larceny) had been stealing tobacco from the same owner at various times, and had been disposing of it, at a price much below its market value, to B, who knew it to have been stolen, it was within the discretion of the trial judge to determine whether he would compel the solicitor to elect on which count he would proceed against B. Barber, 113-711.