The appellant was indicted for the larceny of a hog. He was charged in the first count of the indictment with stealing the hog, and in the second count with receiving the hog knowing that it had been stolen, with the intent to deprive the true owner thereof.
The jury returned a general verdict of guilty, and he was sentenced to one year’s imprisonment in the penitentiary. The evidence tended to show that the hog had been stolen, and that the appellant knew of the theft, and assisted in concealing the head and offal; and that he also ate some of the pork into which the hog had been converted, at the home of another' in whose employment he was at the time, and who, he said, had killed the hog. There is no proof of the value of the pork appearing in the record.
The following instruction was given to the jury over the objection of the defendant, to which he excepted at the time: “You are further instructed that if you believe from the evidence beyond a reasonable doubt that the defendant received any portion of the hog mentioned in the indictment, knowing that it had been stolen, with the intent to deprive the true owner thereof, he would be guilty, as charged in the second count of the indictment.”
Upon an indictment for receiving a stolen hog, a defendant cannot” be convicted of stealing the pork.
As it does not appear upon which count of the indictment the appellant was convicted, and as he may have been convicted and sentenced for receiving the pork, knowing it to have been stolen, the instruction referred to above is erroneous.
The judgment is reversed, and the cause is remanded for a new trial.