(after stating the facts). If the directions given to the jury to confine their verdict to the charge made in the first count of the indictment, and to disregard the others, are to be considered as qualifying the general verdict and restricting it to the first count, (and this is expressly sanctioned as proper in the case of State v. Long, 7 Jones, 24; and State v. Leak, 80 N. C., 403;) the legal result is an acquittal as to the counts not passed on ; State v. Taylor, 84 N. c., 773. After the empanelling of the jury, and beforé verdict, the prosecuting officer cannot enter a nolle proseqwi without the consent of the accused, as he has a right to a response *601from the jury to all the charges, and if such is done, it is deemed to be in effect an acquittal. We do not, of course, mean to question the right of the .Judge in proper cases to cause a mistrial; State v. Weaver, 13 Ired., 203, and subsequent cases; but this right cannot-be exercised at the will of the solicitor. The entry of the nol. pros, after verdict was therefore superfluous and inoperative.
The objection to the rendition of judgment upon the general jury finding upon the indictment in its entirety, and with its incongruous union of counts, which would be fatal, under the ruling in State v. Johnson, 75 N. C., 123, and which is not modified in State v. Lawrence, 81 N. C., 523, for reasons therein stated, is thus removed, and we are at liberty to consider the appeal upon its merits.
During the argument, it occurred to us that perhaps too much stress had been laid upon the question of the defendant’s having property or an interest in the mule, or in his acting upon the honest belief that he had such, and the ■attention of the jury had not been called to the inquiry whether, without reference to property, strictly speaking, the talcing had or had not been under a bona fide belief of the defendant that under the circumstances he had a right to regain possession, which unexplained, the jury might not consider as property or an interest within the meaning of •the charge. The facts were not presented in this aspect to the jury. But no direction of this kind was asked, and the omission is not assigned for error.
In our examination of the case, unaided by argument for the appellant, we discover none of the errors mentioned in connection with the motion for a new trial, and none in the charge, which covers all the material matters to which the accused was entitled in the instructions requested.
The jury find against him upon the alleged bona fides of the taking, and this is exclusively within their province.
*602There is no error, and this will be certified for further action in the Court below.
No error. Affirmed.