| Ill. | Apr 15, 1860
Admitting that the verdict was proper, the prisoner should have been sentenced to the common jail, and not to the penitentiary. At the time when the alleged offense was committed, he was under the age of eighteen years, but was past that age when he was tried and convicted. We entertain no doubt that the true meaning of the statute is, that no one who is under the age of eighteen years when he commits the offense, shall be liable to punishment in the penitentiary. Admitting that there is no doubt that the prisoner is the party who stole the sheep, and that four or even five sheep were stolen, still it is beyond doubt that no more than two sheep were taken at one time, of the value of four dollars. It was not proper for the jury to aggregate the value of the property stolen at several times, for the purpose of finding the value of the property stolen to be over five dollars. A party may be guilty of several larcenies, but if the value of the property taken at any one time amounts to less than five dollars, he is not liable to be sent to the penitentiary.
But more than all this, the evidence is not sufficient in our judgment to justify the conviction of the prisoner at any rate. The most that can be said from this evidence is, that somebody stole the sheep, and that there is some probability that the prisoner was one of those engaged in it. But we think even the decided preponderance of evidence is in favor of Ms innocence, or rather that there is not a preponderance of evidence in support of his guilt, which is the same thing. In this state of the case we do not think proper to remand the cause for another trial, but shall reverse the judgment, and direct the prisoner to be discharged.
Judgment reversed,.