This was an indictment in the Knox circuit court, against Henry P. Ruth, for burglary and larceny, the indictment charging the defendant with each offence. On the trial of the cause the defendant asked the court to instruct the jury as follows:
“Under the indictment in this case the jury may, if in the judgment and belief of the jury the evidence warrants it, find the defendant guilty of larceny, and in their verdict find the value of the property stolen, or may find the defendant guilty of burglary or larceny, or both, under the indictment in this case.”
This instruction the court refused, and the defendant excepted to the decision of the court.
The defendant was on trial for burglary and larceny, and it was the province of the jury to determine from the evidence which one of the two offences was established. If the jury found the evidence established burglary, then it was the duty of the jury to find the defendant guilty of that offence. If, on the other hand, the evidence failed to show burglary, but showed larceny, then it was the duty of the jury to find the defendant guilty of larceny, and in the verdict find the value of the property stolen.
The instruction asked contained a correct proposition of law. It was proper under the indictment, and we are of opinion it should have been given, and as no other instruction contained the same principle, we think the court erred in refusing the instruction, and for this error the judgment will be reversed, and the cause remanded for another trial.
Judgment reversed,.