#### THE STATE vs. WILLIAM MOORE.

A special verdict is in itself a verdict of guilty, as the facts found m it do *or*■do not constitute in law the offence charged. There is nothing to do on it but •to enter a judgment thereon for or against the accused, unless the Court should deem the verdict, as found, not te be sustained by the evidence, when they may set it aside and order a *venire de novo.*

*A*judgment on a special verdict leaves the matter of law distinctly open to review in a higher Court.

But when the Court sets aside a special verdict, as they may do, they cannot of themselves enter a general verdict of guilty or not guilty. That must he dene by a new jury.

If done by the Court, it is a mistrial.

The case of *Miller, 1*Dev. and Bat. 500, cited and approved.

Appeal from the Superior Court of Law of Beaufort County, at the Spring Term, 1847, his Honor Judge Pearson, presiding.

The prisoner was indicted for stealing two barrels oí turpentine, the property of Frederick Grist. The record *229states bis plea of not guilty, and his trial by a Jury who1 found him not guilty, and judgment given thereon for him; and then sets forth an appeal therefrom by the Solicitor, for the State. In an exception annexed to the record, however, it is stated, that the jury found a special verdict to the effect, that Grist owned a tract of land on which certain pine trees were boxed, and worked for turpentine by him in the year 1846, until the month of May, and that he then discontinued the working for that season : and that in August of that year, the prisoner secretly, during two days, dipped out of the boxes which had been made by Grist, as much in quantity as two barrels of turpentine,, which had run after Grist had discontinued the cultivation in May, and the prisoner put the' same into two barrels, which he had provided and kept concealed in the woods, and then he carried it away secretly and sold; it. And upon the facts thus found, the jury prayed the advice of the Court, whether the said turpentine was the subject of larceny, and, if so, whether-the allegation, that the prisoner stole “ two barrels of turpentine,”’ was thereby sustained; and if the Court-should be of opinion in the affirmative upon both of those-questions, then the jury found the prisoner guilty in manner and form, as charged in the indictment; but if the Court should be of a contrary opinion, upon either of the* said questions, then the jury found' the prisoner not guilty. The exception further states, that the Court was--afterwards of opinion with the prisoner upon the matters thus referred to it, and thereupon entered the verdict, “not guilty,” and gave judgment for the prisoner, thereon ; and then the-Solicitor appealed.

*Attorney General,*for the State.

No counsel for the defendant.

Ruffin, C. J.

It may have been the purpose- of the appeal to get the opinion of the Court, , upon the questions *230raised in the special verdict, which the exception states to have been giyen. But they are not open in the State, in which the case is brought up. A special verdict is in itself a verdict of guilty or not guilty, as the facts found in it do or do not constitute in lavv the offence charged. There is nothing to do on it, but to write a judgment thereon for, or against the accused : that is, upon the supposition, that the Court deems the verdict, as found, to be sustained by the evidence. A judgment on it leaves the matter of law distinctly open to review in a higher Court. It is for this reason, principally, that special ■verdicts are given in criminal cases; so that the State, as well as the prisoner, can have the matter of law solemnly decided. But in this case, instead of proceedingto judgment on the verdict given by the jury, the Superior Court set that aside, and entered a general verdict of not guilty. That presents the case, in a condition entirely different from what it before was, and precludes this Court from dealing with the questions of law presented in the special verdict. For the Superior Court had the discretion, at the instance of the prisoner, to set aside that verdict, and there is no power here to re-instate it. But when it was set aside, the power of the Superior Court ended', and the entering further of a general verdict of not guilty, was without authority of law. A judgment for the prisoner on such a general verdict is essentially different from one in his favor on the special verdict. The latter involves matter of law only, and is: therefore the subject óf a writ of error or appeal! But a general verdict'of acqúittaly as it includes both- fa«t and law', is conclusive against the State, however erroneously the' jury may have been instructed or may have' found in point of law. The security of the citizen demands this immunity from being questioned after a full acquittal by a jury, whether right or wrong. But that can only be true óf a verdict really given. The verdict in this case, however, which now appears in-the record, was not given *231by the jury and is therefore null. It is essentially different from that which was given, and was therefore improperly entered. It is true, that it is to be presumed, that the verdict was given as entered; and that presumption would be conclusive against any evidence but the record of the special matter, made by the Judge, before whom the verdict was given. But here we have the authority of the Judge himself in the exception, that the jury gave one verdict, which he set aside, and that he then entered a different one. It is the same, as if the verdict had been, when there was no jury, or as if a general verdict of guilty had been turned into one of not guilty. As this all appears in the exception, this Court is bound to act on it, and to order a *venire de novo,*because there never has been legally a trial, "but only a mis-trial. 2 *Hale, P. C.*306. *Miller’s case,*1 *Dev.*& *Bat.*500.

Per Curiam. *Venire de novo*awarded*