The opinion of the-Court was delivered by
Mr. Chief Justice McIver.The defendant was tried and convicted,' in the Court of General Sessions for Green-ville County, under an indictment containing two counts. In the first count .the charge was, that defendant, in the night of the day named: “the fowl house of A. H. Bridwell, the same being appurtenant to the dwelling house of *487A. H. Bridwell, and within 200 yards thereof there situate, feloniously and burglariousl}r did break and enter, with intent the goods and chattels of A. H. Bridwell, in the said fowl house then and there being, there and then feloniously and burglariously to steal, take, and carry away, against the form of the statute,” &c.
In the second count the charge was, that on the day named, the defendant: “from the fowl house of one A. H. Bridwell, and two hens and twenty-one chickens, of the value of $5, of the proper goods and chattels of A. H. Bridwell, then and there being found, feloniously did steal, take, and carry away, against the form of the statute,” &c. The jury were explicitly instructed, amongst other things, as follows: “If you find the defendant guilty on both counts, your verdict will be guilty. If you find him guilty of the burglary and not guilty of the larceny, or guilty of the larceny and not guilty of the burglary, you will specify the same in your verdict as guilty on the first count, and not guilty on the second, or vice versa. ' If the State has failed to prove either one of these charges to your satisfaction, and beyond a reasonable doubt, your verdict should be, not guilty.”
The jury having returned a general verdict of guily, a motion for a new trial was made and refused, the Circuit Judge saying, in refusing the motion: “While there was no testimony to connect the defendant with the breaking and entry, there was some testimony on the second count, and he would sentence the defendant for that.” The defendant was accordingly sentenced to “work upon the public works of the county of Greenville, for the period of one year, or be imprisoned in the State Penitentiary, at hard labor, for the period of one year.” From the order refusing the motion for a new trial, as well as from the judgment rendered, the defendant appealed upon the several grounds set out in the record, which should be incorporated in the report of the case.
*4881 *4892 *487The first ground of appeal imputes error to the Circuit *488Judge in instructing the jury, as herein above set out, and the point of the exception seems to be, that there was error in instructing the jury that, even if they did not find the defendant guilty of the burglary charged in the first count of the indictment, they might still find him guilty of the larceny charged in the second count. This depends upon the inquiry as to what was the distinct offense charged in the second count. If it was simple petit larceny, then the Court of Sessions would have no jurisdiction. State v. Cooler, 30 S. C., 105. If, however, it was compound larceny, then, though the value of the goods alleged to have stolen was less than $20, the Court of Sessions would still have jurisdiction. State v. Clary, 24 S. C., 116. What, then, is the offense charged in the second count of the indictment? To determine this question, we must look alone to the language used in that count, which cannot be supplemented by anything found in the first count. Bven in civil cases this is the rule (Hammond v. Railroad Company, 15 S. C., 10), where the following language is cited, with approval, from Pom. on Rem., section 275: “Where a complaint contains several counts, it is a settled rule that each separate division or count must be complete by itself, and must contain all the averments necessary to a perfect cause of action. Defects and omissions in one cannot be supplied by allegations found in another, nor can the pleader, by merely referring to material facts properly set forth in a former count, incorporate them into and make them part of a subsequent one. In other words, all issuable or material facts constituting the ground for recovery must be stated in each cause of action, even though some repetition might thereby become necessary.” This, then, being the settled rule in civil cases, how much more should it be applicable in criminal cases? We must, therefore, in order to determine what offense is charged in the second count of this indictment, read that count just as if there was no other count in the indictment. So reading it, we think it clear *489that the second count charges only a simple larceny of goods below the value of $20. There are no words in the second count which show, or even imply, that a compound larceny is charged. There is no’ allegation, as in the first count, that the offense was committed in the night time, and no allegation that the fowl house was either broken or entered in the night or day time. It is not alleged that the fowl house was appurtenant to the dwelling house of the prosecutor. The simple allegation is, that the chickens were stolen from the fowl house of one A. H. Bridwell; and until some statute is found imposing a special penalty for stealing from a fowl house, like those statutes which impose special penalties for stealing from a dwelling house, or from the person of another, and other like statutes, investing the larceny with a compound character, we must regard the larceny here charged as a simple larceny of goods below the value of $20, of which the Court of Sessions has no jurisdiction. The first ground of appeal must, therefore, be sustained.
What we have already said renders it unnecessary for us to say more as to the point which seems to be raised by the second ground of appeal.
3 The third ground cannot be sustained, as the charge requested would have required the Circuit Judge to pass upon a question of fact, to wit: whether the fowl house was an appurtenance to the dwelling house of the prosecutor. The undisputed fact that the fowl house was separated from the dwelling house by ■ a public highway, does not necessarily show that it was not appurtenant. The case of The State v. Sampson, 12 S. C., 567, cited by appellant’s counsel on this point, does not sustain their view. In that case, the defendant was charged with burglary, in breaking and entering a mill house in the night time, .and stealing therefrom flour and corn. No one slept in the mill house, which was seventy-five yards from the dwelling house, on the opposite side of a public highway, and was not enclosed. The Court undertook to consider, first, *490whether it could be a case of burglary at common law; and there it was intimated that the undisputed fact that the mill house was not in the same common enclosure with the dwelling house — not within the curtilege — but was separated therefrom by a public highway, might be sufficient to prevent a conviction at common law, especially as there was no evidence that the mill house was parcel of, or appurtenant to, the dwelling house. The Court next proceeded to inquire whether the conviction could be sustained under the statute, and there nothing was said about the mill house being separated from the dwelling by a public highway; but the question turned upon the inquiry, whether the mill house was within 200 yards of the dwelling, and was also appurienatit thereto; and as there was no evidence whatever that it was appurtenant to the dwelling, it was held that the conviction could not be sustained even under the statute. It seems to us that, under the statute, the only question is, whether the house broken into is within the requisite distance from the dwelling house, and is appurtenant thereto. Whether it is separated from the dwelling by a public highway, is immaterial, provided it is an appurtenance thereto.
The fourth and fifth grounds of appeal are disposed of by what we have already said.
4 The sixth and seventh grounds must be sustained. The Circuit Judge having held that “there was no testimony to connect the defendant with the breaking and entry,” we think the Judge was bound to grant a new trial; for the verdict being general, it must, upon well settled principles, be regarded as a verdict of guilty of burglary — the highest offense charged in the indictment — and if there was no evidence, as his Honor held, to sustain that charge, then the defendant was clearly entitled, as a matter of law, to a new trial; for otherwise the record would show that he had been convicted of an offense, in a case where it has been judicially ascertained that there was no evidence to connect him with such offense. Circuit Judges are invested with the power to grant new trials for the very *491purpose of preventing just such an anomalous (to use no stronger term) result, and if they fail or refuse to exercise the power thus conferred upon them, then there is error of law, which this Court has the power to correct. State v. David, 14 S. C., 428; Wood v. Railway Co., 19 S. C., 579. It is said, however, that the general verdict of guilty amounted also to a conviction on the second count of the indictment, and as the Circuit Judge expressly-declared his intention to sentence the defendant only on that count, there was no error of law in doing so. We cannot accept that view for two reasons: 1st. If, as we have seen, the second count only contained a charge of simple petit larceny, then the Court of Sessions had no jurisdiction of that offense, and, of course, had no power to pass the sentence imposed. 2d. But even if we are in error in this, we think it clear that the defendant had the legal right to demand a new trial, in order that he might be relieved, on the record, from the much graver charge contained in the first count of the indictment, when it had been judicially ascertained that there was no evidence to sustain such charge.
The judgment of this Court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.