delivered the opinion of the Court:
It is impossible to sustain this conviction without disregarding well established rules of law applicable to criminal trials. As will be seen from the foregoing statement, the attention of the jury was specially directed to the first count of the indictment by the twenty-second instruction, and they were directed to fix the prisoner’s term in the penitentiary at twenty years, if they found he committed the crime charged in that count. It is true, it requires the jury to also believe, from the evidence, - that the defendant had been previously convicted of the crime of burglary and larceny, and sentenced to the penitentiary; but it does not require that belief to be based on any charge made in the first count, or, in fact, any count of the indictment. The first count does not charge a former conviction. It is an ordinary count for burglary, and upon a. conviction under it the jury could fix the punishment at confinement in the penitentiary for any number of years not less than one or more than twenty. It was therefore error to instruct it to fix the term absolutely at twenty years, if the conviction was based on that count.
It is said, however, that the allegation of former conviction may be referred to and treated as a part of -the first count. This position can not be maintained. By all the rules of criminal pleading, where an indictment contains several counts each count is to be treated as a separate charge, and must be complete within itself, except that for some allegations subsequent counts may refer to the first or former counts. Here, however, there is no attempt to make any allegation in the indictment a part of the first count, except that which expressly appears in it. It can not be seriously contended that this indictment does not contain four separate and distinct counts, the third of which alone charges a former conviction. The pleader very properly put in these several counts, so that if his proof failed to meet the third, he might convict on either the first or second; and after the proof was in, he evidently intended to insist upon a verdict on the one charging the former conviction, but by mistake wrote “first count” in his instructions instead of “third count.” The effect of that mistake can not be avoided by now attempting to make the first count charge that which it does not, "and which, manifestly, it was not intended to charge.
But the twenty-third instruction is still more objectionable. It tells the jury, that if they find the defendant guilty under the first count, of burglary, to say, “We, the jury, find the defendant guilty in manner and form as charged in the first count of the indictment, and fix the time he shall serve in the penitentiary at twenty years.” Under this instruction, if the jury found the defendant guilty of burglary they were bound to fix his punishment at twenty years, whether there was any proof of a former conviction or not. What is known as the “Habitual Criminal act,” in force July 1, 1883, (1 Starr & Curtis’ Stat. p. 832, sec. 351,) expressly provides that the former conviction and judgment shall be set forth in apt words in the indictment, and, of course, like any other material allegation, it must be proved as alleged. By this instruction the jury were not required to find that the defendant had been previously convicted of the crime of burglary, as a condition to their fixing his punishment at twenty years, and they did not so find. He was found “guilty in manner and form as charged in the first count of the indictment.” The jury might have thought a less number of years in the penitentiary adequate punishment for the crime of which they convicted him; but under the instructions they were bound to either acquit, or fix his term at twenty years.
These instructions were erroneous. The judgment of the court below must be reversed and the cause remanded.
Judgment reversed.