President. Doubtless, a crime is proved. Larceny seems to be proved. But if you think this crime not proved, you ought to acquit on this indictment.
9 Rep. 71, 11. Rep. 61—2. 1 Hale P. C. 46. Woods's Inst. 345. Note.—The point seems settled that judgment may be given on such conviction. However in this case there was no occasion for any decision of ours, as the woman was acquitted.As to the third point, it is not before you. Indictments are in their nature, joint and several, as the case may be. Though this indictment be against both, they have been tried separately; and the parts relating to the one have not been read over against the other. It is to you a separate indictment against this woman. The presumption of the man’s presence, from his being joined in the indictment, is contradicted by his acquittal. You have no evidence whether she has a husband, or whether he was present, or not. You have only to decide on the two first points. The difficulty, if there be any, in the third point will lie with us. For, if you should find this woman guilty, a question may be made to us, whether sentence can be passed on her for a larceny charged on her jointly with a man stated to be her husband; or, if not on the conviction of both, whether the acquittal of this man will justify such sentence.