This case was referred to the court to its commissioners for investigation, who have reported that it should be reversed. After consideration the court concurs in this view.
*58The information filed against plaintiff in error contains two counts: the first for larceny, the second for receiving stolen property. The State elected to rely upon the second co'unt. Plaintiff in error was convicted, the count describing the property ais “two cases of cigars, both of the value of five hundred dollars,” of the goods and property of the Savannah, Florida and Western Railway Company, a corporation.
Assignments of error urged here are that the court erred in giving a certain charge at the request of the State and in refusing one requested by the accused. The one given is ais: follows: “that while it is charged in the information that defendant received two cases of cigars which had been stolen, knowing them ¡to have been stolen at the time he received them, it is not necessary for the State to prove that he received two cases, or any other number; but if the State proves that the defendant received any part of the cigars out of the two cases, whether in or out of a case, or the property of the Savannah, Florida and Western Railway Company, of any value, which has been theretofore stolen, and knew at the time they had been stolen, then yoii should find him guilty.” The one refused reads: “the informaiton charges the defendant with receiving two cases of cigars, and that they werie stolen, and that at the time he received them he knew them to have been stolen, but the court charges you that it not sufficient for a conviction of the . defendant that the proof ©hows he received a lot of loose cigars, neither in cases nor in boxes,'even though all the other elements of the charge are proven to your satisfaction, 'beyond a reasonable doubt, and that the cigars received by him came out of and were part of, the cigars so stolen in the cases.”
*59The proof show that two cases of cigars of the ownership alleged were stolen, and according to one phase of the evidence, the eases were unpacked and s:orae of the cigars taken therefrom and in a loose state were carried to defendant’s house the morning of the day following that on which the cases were stolen and then received by him. There was testimony tending to connect defendant with receiving the stolen cases of cigars before they were broken and unpacked, but the accused had the right to have the law correctly given under the court upon which he was tried in any phase of the testimony which the jury was authorized to accept favorably to him. Shimmy, alias Simmons, was an accomplice, and admitted convict of another grave offense, and contradicted in several particulars, besides being inconsistent in his own statements before the' jury. The credibility of his testimony was for the jury, and the accused had the right to have the jury instructed on the theory that his testimony be entirely rejected. On the showing of the other witnesses the jury' might have found that defendant received loose cigárs carried to his house on the morning after the cases of cigars were stolen, though taken out of them by other parties than defendant, and on this phase of the testimony the court erred, in our judgment, in giving the latter part of the charge excepted to and in refusing to give the request refused.
In an indictment for receiving stolen goods the property which was received must be described, and hot that which was stolen, if the one embraced only such part of the other, or the other in such changed form that a description of one could not apply to the other. If the difference is only in quantity or number, it would be immaterial, as these allegations need not be proven pre*60cisely as made; but matter which is descriptive must be proven as alleged, to apply to the goods as received. The word “cases” as used here is not shown to have a recognized meaning as denoting packages containing a certain number or quantity of cigars; and even if it had such meaning, it should still be construed as descriptive of a case containing cigars, and not of a certain number of cigars without reference to their packing. The charge in the indictment would not be sustained, therefore, by proof of the receipt by defendant of a lot of loose cigars not in cases, or not received directly from cases known to be stolen. Commonwealth v. Gavin, 121 Mass. 54, S. C. 23 Am. Rep. 255; State v. Moore, 11 Ired. 70; 2 Bish. Cr. Proc., section 710; Rapalje on Larceny, etc., section 238. The charge refused states the law correctly, and it was error to refuse it. For the errors pointed out the judgment must be reversed. ,