#### Booker *v.*The State.

*Larceny.*

(Decided May 15, 1907.

44 South. 56.,

1. *Former Jeopardy; Conviction on One Count.*— Where there are two counts in an indictment, one charging larceny and the other recieving stolen goods, a conviction under the second count is an acquittal of the first.

2. Name. — Where there was a verdict of guilty on the second count in an indictment, which was set aside, on motion, before judg*98meat, such verdict does not operate as an acquittal "as to the second count, although the verdict was.an -acquittal as to the- first count.

■3. *Receiving- Stolen Property; Blemems of Offense.*— The defendant must be shown to have had some control over the property, or to have concealed or aided' in conecaling" the -property stolen.

4. *Same; Proof ‘of Value.*— An order' to determine whether the punishment for receiving stolen property shall be that prescribed for petit larceny or for graud larceny, it is necessary that proof of the value' of property received be *shown.*— Section 5054, Code 1896.

Appeal from Jefferson Criminal Court.

Heard before. Hon. M. M. Baldwin, Special Judge.

Albert Booker was convicted of receiving stolen goods, and. he appeals.

Reversed and remanded.

Súmter Lea, and Frank S. Andress, for appellant.

—The verdict of the jury finding the defendant guilty’ under the circumstances operated as an acquittal fi's to the 1st *count.’*— Berry *v. The*State/65 Ala.'T20; *Foster v.'The State,*88 Ala. 185. ’ The’offense is not complete if accused fails to acquire dominion over the property so as to give him actual possession dr *control.*— Spivey *v. The State,*26 Ala. 90; *Eclmuncls v,_The State,*70 Ala. 8; *Groom v. The State,*71 Ala. 14; *Frazer v. The State,*85 Ala. 17; *Thompson v. The State,*94 Ala. 535.

Alexander M. Garber, Attorney General, for the State.- — No brief came to the Reporter.

TYSON, C. J.

The indictment upon which the conviction was had contained two counts. The first charged the offense of larceny, and the second the offense of buying, receiving, concealing, or aiding in concealing stolen property, etc.-, in violation of section 5054 of the Criminal. Code. of 1896. On the first trial there was a verdict of guilty by the jury on the second count, which was set aside on motion of defendant before judgment was pronounced upon it by the court. The legal effect of the verdict was to operate as an acquittal of the de*99fendant of the *larceny.-*— Bell *and Murray v.*State, 48 Ala. 684, 17 Am. Rep. 40; *Clifton v.*State, 73 Ala. 473-477, and cases there cited. But the vacating of the verdict did not operate as an acquittal of defendant of the offense alleged in the second count. — 1 Mayfield’s Dig. p. 490, § 12. There was, therefore, no error in the rulings of the trial conrt with respect to the plea; Of former jeopardy as originally filed. And, if error intervened with respect to the replication to the plea after amendment, it was clearly Avithout injury, since the defendant’s conviction Avas again upon the second count of the indictment, upon which he had never been in legal jeopardy.

It is undoubtedly true that, in order to sustain a conviction for receiving stolen property, the defendant must be shown to have had a control over the property. But our statute is broader than the common-law offense, and makes the person who conceals or aids the thief in the concealment of the property stolen equally guilty with him who receives such property. Under-the testimony it Avas open to the jury to find that a portion of the property described in the indictment was stolen; that it Avas received by defendant after being stolen, and concealed in the woods; or that he aided in so concealing it, knowing that it was stolen. Of course, if he did not aid in concealing or did not receive it after it was stolen, he should be acquitted. In- other words, if his only act with respect to the property was to accompany Jones to the place in the woods where it Avas deposited and left by the thief for the purpose of carrying it away, or if he committed the larceny and placed the property where foun,d in order to carry it away at a subsequent time, he should be acquitted.

There was no proof of the value of the property. Under the statute the offender must be punished as if he *100had stolen it. Proof of the value was, therefore, necessary to a conviction, in order to determine whether the punishment should be that prescribed for petit larceny or grand larceny. If the value of the property was less than $25, then the punishment fixed by the statute for petit larceny should be imposed; if greater, then the punishment fixed for grand larceny should be imposed.

Reversed and remanded.

Dowdell, Anderson, and McClellan, JJ., concur.