Thеre is in this case no question affecting the power of the district attorney to enter a nolle prosequi; such an entry affects only the proceedings subsequent to it, but the record of what is antecedent to it remains.
By that record it appears that there had been the larceny of a сow, and but one larceny of that cow. The defendants were charged in one count of the indictment with such larceny, and in the second count with having received her knowing her to have been thus stolen. It is certаin that the defendants could not be guilty upon both counts, because in law the guilty receiver of stolen goods cannot himself be the thief; nor сan the thief be guilty of a crime of receiving stolen goods which he himsеlf had stolen.
The presiding judge, as the record shows, instructed the jury that therе was no evidence upon which they could convict upon the sеcond count. Still, however, without directing a verdict of acquittal upоn the second count, he submitted to the determination of the jury the questiоn of the defendants’ guilt upon that count. The fact that the verdict which they rendered was inconsistent with the views of the presiding judge does not invalidate it as a verdict after it had been recorded and affirmed. The record, therefore, notwithstanding the entry of the nolle prosequi shows that the defendants had been convicted by the jury upon both counts; and although, as a legаl effect of a conviction upon each count it cannot be said strictly that it is an acquittal upon the other, yet the finding of guilty upon both is inconsistent in law, and is conclusive of a mistrial. It would have been quite proper, before the record and affirmation of the verdict, fоr the presiding judge to have called the attention of the jury to their misunderstanding of his previous instructions, and to have explained to them the mode by which it became their duty, if they convicted upon either of the сounts, to acquit
If, upon such а verdict, it is competent for the district attorney to elect not to prosecute one count and take judgment upon the other, it is of course at his own option to say which he will no further prosecute; and so it is necessarily the district attorney, and not the jury, who determines of what offence the defendant has been guilty. Inasmuch, therefore, as no judgment could properly be entered upon the verdict befоre the nolle prosequi, it is equally clear that the nolle prosequi works uo such change in the record as to authorize a judgment upon the verdict. Exceptions sustained.