#### The State v. John Arrington.

} From Buncombe, J

When a Jury returns an informal or insensible verdict, or one that is not' responsive to the issues submitted, they may be directed by the Court to reconsider it; but in no other case.

Therefore, where upon the trial of an indictment for felony and horse-stealing, the Jury returned for their verdict “ that the prisoner was " not guilty of the felony and horse-stealing, but guilty of a trespass,” and the Court desired them to reconsider their verdict, and say “ guilty “ or not guilty, and no more,” and the Jury thereupon retired, and returned a verdict of “guilty,” generally, this Court ordered the first finding of the Jury to be recorded as then- verdict, and the prisoner to be discharged.

Wherever a prisoner, either in terms or effect, is acquitted by the Jury, the verdict as returned should be recorded.

The indictment charged, ‘£ that John Arrington, late of *t(*the county of Buncombe, on the first day of October, in “ the year of our Lord one thousand eight hundred and •£ eighteen, with force and arms, in the county: of Bun- *“*combe aforesaid, one sorrel mare of the value of five *“*pounds, of the goods and chattels of James Peck, then “ and there found, did feloniously steal, take and lead *“*away, contrary to the statutes in that case made and “ provided, and against the peace and dignity of the “ State.” The Defendant pleaded “ *not*guilty,” and the Jury, having heard the evidence, retired for a short time, when they returned into Court, and being asked whether they were agreed in their verdict, they answered *“*yes and being asked “ whether they found the prisoner at the *ei*bar guilty of the felony and horse-stealing charged in *“*the bill of indictment,' or not guilty,” they answered, that “ they found him not guilty of the felony and horse- *“*stealing, but guilty of a trespass.” Whereupon the Court directed them to retire and reconsider the case, and return a verdict of guilty or not guilty, in manner and form as charged in the indictment, and no more. The *572Jury retired, and, after a few minutes, returned their ver-diet, finding the Defendant guilty of the felony and horse-stealing charged in the indictment.

^|¡ £¡icse fac(-s were spread upon the record, and the Defendant’s counsel insisted that the first finding of the Jury was to be taken as their verdict, and, by that, the Defendant was acquitted. The Court was of a different opinion, and directed the Defendant to be whipped, as the act of Assembly directs. The Defendant appealed to this Court, and the judgment of the Court below was reversed, and the Defendant discharged.

Henderson, Judge.

— When a Jury returns with an informal or insensible verdict, or one that is not responsive to the issues submitted, they may be directed by the Court to reconsider it: but not where the verdict is not' of such description. The verdict offered in this case was a plain and explicit response upon the issue submitted, and the addition, of ,the Defendant’s having been guilty of a trespass, did not vitiate it. it was a matter of subsequent consideration witli the Court what should be the judgment. The verdict first offered will he recorded, *nunc pro tunc,*and judgment entered for the Defendant. For although any larceny imports a taking without the consent of the owner, and of course a trespass, yet that taking does not necessarily import a taking with violence, so as to render it indictable. The offence' found is not within the charge 5 the record must therefore be amended, and judgment of acquittal be entered.

Taylor, Chief-Justice.'

— The verdict first brought in by the Jury was, *6 Not guilty of the felony and horsc-steal- “ ing, but guilty of a trespass.” Had this verdict been so recorded, the judgment would have been arrested ; the rule being, that a Defendant cannot be found guilty of a misdemeanor, on an indictment for felony. • The verdict actually found would then have had the effect of an acquit*573tal. It is laid down in ancient books of authority, that if the Jury, through mistake or evident partiality, deliver an improper verdict, the Court may, before it is recorded, desire them to reconsider it j and a case is quoted with approbation, in Piowden ail, b. where, in a writ of conspiracy against two, the Jury found one guilty, and the other not guilty *;*and the Judge toid the Jury that their verdict was contradictory, and that if one was not guilty, the other was not, in a charge of conspiracy *;*and that they bad better reconsider their verdict. The Jury accordingly retired, and afterwards returned and found both guilty. Some of the harsh rules of the Common Law, in relation to criminal trials, have been gradually softened by the improved spirit of the times,* and this, among others, is relaxed in modern practice, where the Jury bring in a verdict of acquittal. It is considered as bearing too hard on the prisoner, and is seldom practised. Hawk. ch. 47, sec. 11, 12. Í think this course of proceeding is lit to be imitated here, whenever a prisoner, either in terms or effect, is acquitted by the Jury, and that in all such. cases the verdict should he recorded : although I am persuaded that they were desired to reconsider their verdict in this case, with the purest intention, and solely with a view that they might correct the mistake they had committed. The verdict first returned ought to have been recorded ; and it ought to be done now, *valeat quantum valere potest*The effect will be the same as if a verdict of acquittal were recorded j but I think it most regular to put upon the record what, the Jury have found. 1 Leach 12. 2 Strange IIS