Since the establishment of the penitentiary offenses against the public are divided into three classes: (1) (124) Offenses that are punished by hanging. (2) Offenses that are punished by confinement in the penitentiary. (3) Offenses that are punished by fine or imprisonment in the county jail, or both.
If on a trial for an offense of the first class the judge directs a mistrial, he is required to find the facts and his action is the subject of review in this Court, a practice based on the sacred principle of the common law — no man shall be twice put in jeopardy of life or limb. The word "limb" having reference to the barbarous punishment, which has now become obsolete, of striking off the hand. Coke Litt., 227; 3 Inst., 110.
On a trial for an offense of the other two classes the discretion of the presiding judge is not the subject of review, and as in trials of civil actions, he assumes the responsibility of making a mistrial whenever he believes it proper to do so in furtherance of justice. S. v. Weaver,35 N.C. 203; Brady v. Beason, 28 N.C. 425.
In S. v. Williams, 33 N.C. 140, it is said: "The jury should be satisfied that the prisoner was guilty in one of the modes well charged; and if so, it was manifestly of no consequence whether the conviction was on any one or all of those counts, since the offenses were of the samegrade and the punishment the same. The instruction might relieve the jury of some trouble in their investigation, but could work no prejudice to the prisoner."
It is clear our case does not come within that principle, for the offenses charged in the two counts are not of the same grade, and the punishment is not the same; so upon a general verdict "the record" does not enable the court to know upon which count, in other words, for which offense the prisoner should be sentenced, and no judgment can be given without inconsistency and error apparent (125) upon the face of the record. By the Act of 1868 "stealing a horse" is made both as to the principal and the accessory before the fact subject to much severer punishment than ordinary larcenies (see Bat. Rev., ch. 32, sec. 17), while the offense of receiving a horse, knowing it to have been stolen, is left as before. The judge, in passing sentence, would feel it to be his duty, in order to observe the grade of punishment, to be more severe in punishing "horse stealing" than *Page 102 receiving a stolen horse, but the record does not inform him of which one of these two distinct offenses the prisoner is convicted. During the waractual horse stealing grew into alarming proportions. This crime was "a survival of the war," and the Act of 1868 was passed to remedy the evil by increasing the punishment. The evil was so great in the western part of the State that a bill was offered in the General Assembly to make "horse stealing" a capital crime. It may admit of question whether, construing the act in reference to the evil intended to be remedied, it can be made to embrace constructive horse stealing, that is, obtaining a horse with the consent of the owner by means of a forged order, or other fraudulent contrivance, as distinguished from actual horse stealing, that is, taking and carrying away a horse without the consent of the owner. However this may be, the offense certainly comes within the words and the meaning of the act (Bat. Rev., ch. 32, sec. 66), making it a misdemeanor to obtain possession of property by means of any forged or counterfeit paper, etc., with intent to defraud the owner, etc. This embraces a horse as well as any other chattel. There is an apparent incongruity in making the same act amount to "horse stealing" under the highly penal Act of 1868, or to a misdemeanor, at the discretion of the solicitor who draws the bill. This may account for the reluctance of two juries to convict for the crime of "horse stealing."
This suggestion is made for the consideration of the solicitor, (126) in case he shall consider it to be his duty to prosecute the matter any further after the arrest of judgment.
In S. v. Bailey, 73 N.C. 70, where there was a general verdict upon two counts, it is assumed in the opinion that one of the counts was bad, and the question is not discussed.
In S. v. Wise, 66 N.C. 120, it did not appear by the record proper, to wit, the bill of indictment, plea, issue and verdict, whether the prisoner was convicted under the Act of 1869, which punishes the crime of arson by imprisonment in the penitentiary, or under the Act of 1871, which punishes the crime by hanging.
For this error the judgment is reversed, and the Court takes no notice of the fact set out in "the statement of the case," that the crime was committed in August, 1871, after the Act of 1871 had gone into effect, on the ground that "the court must be informed judicially, by the record, under which of these two statutes the prisoner is convicted, before it can proceed to judgment." Error, apparent on the face of the record, cannot be cured by a statement of the judge. So, in our case the error, apparent on the face of the record, is not cured, because his Honor sets out the fact that "on the trial no evidence was offered bearing upon the second count." Upon motion in arrest of judgment, *Page 103 as upon demurrers and writs of error, the Court is confined to what is apparent on the face of the record. This is familiar learning, which applies both to the civil and criminal side of the docket. A statement of the case from the judge's notes is only relevant to motions for a venire denovo and the like. There is error.
PER CURIAM. Reversed.
Cited: S. v. Lawrence, 81 N.C. 526; S. v. Watts, 82 N.C. 658; S. v.Bass, Ib., 573; S. v. Jenkins, 84 N.C. 815; S. v. Thompson, 95 N.C. 601;S. v. Goings, 98 N.C. 767; S. v. Cross, 106 N.C. 651; S. v.Collins, 115 N.C. 719; S. v. Upton, 170 N.C. 770.
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