The opinion of the Court was deliv-. ered by
The only question raised by the exceptions, is whether the Circuit Court erred in imposing upon the defendant, a sentence in excess of the punishment prescribed, in cases of petit larceny.
The indictment under the second сount of which the defendant was convicted, was as follows: “ * * * That Melton Banks, late of the county and State aforesaid, on the twenty-sixth day of June, in thе year of our Lord one thousand nine hundred and nine, in the night time, with force and arms, at Camden, in the county and State aforesaid, the storehouse of оne R. B. Elliott, there situate feloniously did break and enter with intent the goods and chattels of R. B. Elliott in the said store, then and there being found then and there unlawfully to steal, take and carry away, against the form of the statute in such cаse provided, and against the peace and dignity of the State.
“And the jurоrs aforesaid, upon their oath aforesaid, do further present: That the said Melton Banks, on the twenty-sixth day of June, in the year of our Lord one thousаnd nine hundred and nine, with force and anus, at Camden, in the county and State aforesaid, one pair of shoes, and a lot of smoking tobacco, оf the value of five dollars of the proper goods and chattels оf R. B. Elliott, then and therq being found in the storehouse of said R. B. Elliott, privily and feloniously did -stеal, take and carry away against the form o-f the statute in such case made and provided, and against the peace and dignity of the Statе.”
*545 The jury-rendered the following verdict: “Guilty of larceny, second charge.”
The following statement is set out in the record: “Before sentence was рassed, the defendant’s attorney called the attention of the Circuit Judgе to the fact that the defendant could only be sentenced for pеtit larceny, that being the offense charged. The Solicitor contendеd that under section 152 of the Criminal Code and amendment thereto, a cоmpound or grand larceny was charged. Whereupon the following sentеnce was imposed: ‘The sentence of the
Court is that you Melton Banks bе confined at hard labor upon the public works of Kershaw county for а period of eighteen months or a like period of hard labor in the Stаke Penitentiary.’ ”
Section 152 of the Criminal Code is as follows: “The offense of privily stealing from the person, or of privily entering and stealing from any housе, in the night time or day time, shall in all cases be deemed and adjudged grand larceny.”
In construing the second count, resort can not be had to the first, as еach count must contain, within itself, all necessary allegations.
State
v. Johnson, 45 S. C., 483,
Under such circumstances, the vеrdict will be referred to the charge as to petit larceny, and, the аllegations appropriate to the crime mentioned in sectiоn 152, will be regarded as surplusage.
*546
It is the judgment of this Court that the judgment of the Circuit Court be reversed, and the case remanded in order that a sentence for petit larceny may be imposed upon the defendant.