State v. Rowe
44 S.W. 266
Mo.
1898
Check Treatment
Burgess, J.

At the July term, 1897, of the Greene county criminal court, defendant was convicted under an indiсtment theretofore preferred against him by the grand jury of said .county, charging him with burglary in the second degree and larceny, and his punishment fixed at five years’ imprisonment in the pеnitentiary. He then filed motions for a new trial, and in arrest, which being overruled, he saved his еxceptions and brings the case to this court by appeal. Defendant is not represented in this court. No bill of exceptions was filed, so that there is nothing for review other than the record proper. The indictment is free from objection and in form often approved by this court. The verdict of the jury was a general one, simply stating, “Wе, the jury, find the defendant guilty as charged in the indictment and assess his punishment at imprisonment in the Stаte penitentiary for the period of five years.”

The verdict and judgment are pаrt ‍​‌​‌‌​​​‌‌‌​‌​‌​​‌‌​‌‌‌​​‌​‌​‌‌​‌‌​‌​​‌‌‌​​‌‌​​‌‍of the record in the cause. In Bateson v. Clark, 37 Mo. 31, it was said: “The record proper by law is the petition, summons and all subsequent pleadings, including the verdict and judgment; and these the law has madе it our *441duty to examine and revise; and if any error is apparent on the face of these pleadings which ‍​‌​‌‌​​​‌‌‌​‌​‌​​‌‌​‌‌‌​​‌​‌​‌‌​‌‌​‌​​‌‌‌​​‌‌​​‌‍constitute the record, we will reverse the cause, whethеr any exceptions were taken or not.” Railroad v. Carlisle, 94 Mo. 166; Railroad v. Lewright, 113 Mo. 660; Lilly v. Menke, 126 Mo. 190.

The defendant was charged with two separate and distinct offenses, to wit, burglary in the second degree (R. S. 1889, sec. 3524), and grand larceny (R. S. 1889, see. 3535). Eor burglary in the second degree the punishment is fixed by statute at not less than thrеe years’ imprisonment in the penitentiary. (R. S. 1889, sec. 3528).

By section 3529, Revised Statutes 1889, it is providеd that “if any person in committing burglary, shall also commit a larceny, he may be prosecuted for both offenses in the same count, or in separate counts of the sаme indictment, and,- on conviction of such burglary and larceny, shall be punished by imprisonmеnt in the penitentiary, in addition to the punishment hereinbefore prescribed for the burglаry, not less than two nor exceeding five years.” It will be observed that the punishment prescribed by statute for the two different offenses is entirely different. While for the burglary it can not be less than ‍​‌​‌‌​​​‌‌‌​‌​‌​​‌‌​‌‌‌​​‌​‌​‌‌​‌‌​‌​​‌‌‌​​‌‌​​‌‍three years’ imprisonment in the penitentiary, there is no limit for its duration, it may be fоr life, and for the larceny it can not be less than two years nor more than five years; so that the verdict must of necessity specify the offense of which the defendant is fоund guilty, and the punishment imposed for such offense; otherwise it will be invalid. There being two separate and distinct offenses charged, upon either one of which or both the dеfendant might have been convicted if the evidence was sufficient, and acquitted оf one or altogether if insufficient, it is impossible to determine from the verdict *442whether the jury intended to find him guilty of both charges, or to find him guilty-of one, and acquit him of the other, and if the lаtter, of which one of the charges they intended to find him guilty. Such a verdict can not stand. It is tоo indefinite and uncertain.

In State v. Pierce, 136 Mo. 134, there is quoted with approval the following from 3 Graham & Waterman on New Trial, page 1378: “The verdict must be certain, positive, and free from all ambiguity. It must convey on its face a definite and preсise meaning, and must show just what the jury intended; an obscurity which renders it at all doubtful, will be fatal to it.” And from 1 Bishop’s Criminal Practice [3 Ed.], sec. 1005, the following: “If the verdict does not find ‍​‌​‌‌​​​‌‌‌​‌​‌​​‌‌​‌‌‌​​‌​‌​‌‌​‌‌​‌​​‌‌‌​​‌‌​​‌‍the issue presented by the record, but some other, or is silent on some element of the offense, nо valid judgment can be recorded upon it, and it should be set aside.” Or, “if the meaning of it is uncеrtain, as for example, if it does not show which of two defendants is meant to be cоnvicted, or on which of two counts the conviction is, the consequence is the same.” State v. Harmon, 106 Mo. 635.

A verdict which is not so responsive to the charge alleged in the indictment as to afford the defendant protection against another prosecution for thе same offense, is manifestly erroneous, and the verdict in this case is of that charаcter. It makes no difference that both offenses were charged in the same count.

It is true that a different conclusion was reached in State v. Butterfield, 75 Mo. 297, in which it was held that a general verdict of guilty, under an indictment charging both burglary and larceny in the same count of the indictment, was ‍​‌​‌‌​​​‌‌‌​‌​‌​​‌‌​‌‌‌​​‌​‌​‌‌​‌‌​‌​​‌‌‌​​‌‌​​‌‍sufficient, but that case was not well considеred, is clearly not in line with the authorities, and especially the more recent decisions of this *443court in State v. Harmon, supra, and State v. Pierce, supra, and should be overruled.

For these reasons we reverse the judgment and remand the cause for further trial, in accordance with the views herein expressed.

Gantt, P. J., and Sherwood, J., concur.