though in some instances the imposition of the punishment is left to the jury. Where, by statute, a particular penalty is attached to a particular act, the punishment which may be imposed for its commission is not affected by the value of the property,2 specially provided for. White v. State, II Tex. 769. The minimum penalty affixed by the statute to the larceny of a horse, mare or gelding, is ten years' imprisonment in the penitentiary, and it was error in the circuit court to reduce the punishment assessed by the jury below the minimum thus affixed by the statute. State v. Daniels, 32 Mo. 558. Under a conviction for larceny, or receiving stolen goods, if the value of the goods is assessed by the jury at $100, the punishment must be by imprisonment in the county jail or hard labor for the county, and cannot exceed twelve months (Ala. Rev. Code, §§ 3708, 3710); if it exceeds $100, the offence is a felony, and punishable by imprisonment in the penitentiary. Cohen v. State, 50 Ala. 108. If convicted of petit larceny, defendant may, since the adoption of the code, be imprisoned for not more than one year, or fined not more than $500, or both, as prescribed in § 15, Pen. Code. The punishment prescribed by Rev. St. 690, is inconsistent with the above, and is repealed by code, § 726. People v. McTamaney, 30 Hun (N. Y.) 505; s. c., 13 Abb. (N. Y.) N. Cas. 55; 66 How. (N. Y.) Pr. 70. If a person, while engaged in gratuitously assisting a postmaster, at his request, in sorting the letters, steal one of them, he is liable to the several penalties imposed by the statute 7 Will. IV and Vict., ch. 36, § 26, as a person employed under the postoffice. Reg. v. Reason, 22 Eng. Law & Eq. 602. Breaking, Entering and Stealing. The respondent was found guilty of breaking and entering a church in the day time and stealing property worth less than seven dollars, and was sentenced to five years' imprisonment. Held, that the word larceny, as used in the statute, R. L., § 4133, includes not only grand, but petit larceny, and, consequently, that there was no error in the sentence. State v. Keyser, 56 Vt. 622. Larceny from the Person.-The offence of stealing from the person, upon an indictment and conviction thereof in the court of common pleas or municipal court, is punishable by imprisonment in the State prison, as provided in the Rev. Stat., ch. 120. § 16, although the property alleged to be stolen does not exceed five dollars in value. Com. v. Nolan, 5 Cush. (Mass.) 288. Fines. Under the S. Car. statutes of 1789, 1866 and 1872, defining and punishing larceny, the offence of stealing a cow of a value not exceeding $20 was held to be a misdemeanor punishable only by a fine of £10, after whipping was abolished, until the repealing act of 1872. State v. Hamblin, 4 S. Car. I. A fine of $50 or three months in a chain gang, imposed upon a chicken thief, is lenient. thief, is lenient. Buchanan v. State, 74 Ga. 835. 1. See Fowler v. State, 9 Tex. App. 149. In relation to grand larceny, it was the intention of the legislature that the jury should only assess the punishment when, in the exercise of their discretion, they thought that the defendant deserved the punishment of death. If they did not agree to such punishment upon finding the defendant guilty, then they should find a general verdict. People v. Littlefield, 5 Cal. 355. Recommendation to Mercy -Cattle stealing is felony and punishable by imprisonment in the penitentiary, unless the jury recommend the prisoner to mercy, in which event the offence is not deemed felonious, but only punishable by fine or imprisonment in the common jail or the chain gang. This mitigation or punishment is confined to the free discretion of the jury. Johnson v. State, 58 Ga. 491. Petit Larceny in Alabama.-Under the provisions of the Alabama Code (Ala. Rev. Code, §§ 3708, 3783), the power to impose imprisonment for petit larceny is vested in the judge and not in the jury. Moss v. State, 42 Ala. 546. 2. Hoge v. People, 117 Ill. 35; People v. Jones, 49 Mich. 591; McDowell v. State, 61 Ala. 172. The punishment which may be imposed by the court of common pleas, under Mass. Rev. Stat., ch. 126, § 17, for larceny of property not exceeding but such punishment can only be imposed when the information or indictment is based on that particular statute.1 Where different offences are created and defined by the same enactment, and a separate and distinct punishment is provided for each offence, and a single act may constitute a violation of two or more of these provisions, it is for the courts to determine whether the act prohibited was intended to be punished by one indictment and conviction, and, if so, for which offence.2 Thus, on a count for breaking and entering with intent to steal, and another for stealing, on a general verdict of guilty, distinct sentences may be imposed.3 Larcenies committed before the amendment or alteration of the statute creating and defining the crime and prescribing its punishment, though conviction be had under the new law, are punishable only by the penalties of the old.4 6 The statutes of several States provide a penalty of increased severity for a second perpetration of the same offence. A former conviction in a foreign state or country is not, however, a sufficient basis for the imposition of the aggravated penalty. And the enactments of Texas, and perhaps of some other States, provide for the mitigation of the punishment for larceny in case of the voluntary return of the property stolen within a reasonable time;7 but this provision does not apply where the thief has been caught in possession or where he has changed the character of the thing stolen one hundred dollars in value, is not affected by the value of the property, notwithstanding the concurrent jurisdiction given by § 18 to justices of the peace, where the value is not alleged to exceed fifteen dollars. Com. . McKenney, 9 Gray (Mass.) 114. One indicted under the act of 1830 for stealing a colt cannot be convicted and punished for petit larceny. If, therefore, the jury found him guilty of petit larceny, a new trial will be granted. State v. Major, 14 Rich. (S. Car.) L. 76. Infancy. The disqualification of infancy, under Tenn. Code, §§ 5226-7, does not attach to horse stealing. Wilcox v. State, 3 Heisk. (Tenn.) 10. 1. People v. Seller, 58 Mich. 327. A sentence, as to the crime of horse stealing, to six years' confinement in the State prison (the information being for grand larceny), is not authorized by the Michigan statutes. Boody 7. People, 43 Mich. 34. 2. People. Krank, 46 Hun (N. Y.) 632; s. c., 12 N. Y. S. R. 845. 3. Com. v. Birdsall, 69 Pa. St. 482. See Stanley v. State, 58 Ga. 430; Com. v. Mahar, 8 Gray (Mass.) 469. 12 C. of L-57 The punishment for stealing and receiving stolen goods is the same under our statute. Maynard v. State, 14 Ind. 427. Section 4247 of the Iowa revision, which provides that if any person at the same term of court is convicted of three distinct larcenies, he shall be deemed a common and notorious thief, and shall be punished. etc., does not provide for the punishment of common and notorious thieves as such, but for their punishment under an ordinary indictment for larceny. State . Riley, 28 Iowa 547. 897 4. State . Putney, Phill. (N. Car.) L. 543. 5. Whart. Crim. Pl. & Pr. (Sth ed.), § 334. See People v. Stanley, 47 Cal. 113; Com. 7. Morrow, 9 Phila. (Pa.) 583. 6. People v. Caesar, 1 Park (N. Y.) Cr. 645. 7. Owen だ。 State, 44 Tex. 248; Grant. State, 2 Tex. App. 163; Brill v. State, I Tex. App. 372; Ingle v. State, 1 Tex. App. 307. One who has stolen a watch, and denied knowledge of it when questioned, but who, nevertheless, has given before the offer to return; 1 and it should appear that the return was not prompted by consciousness of unconcealed evidence of guilt and fear of discovery.2 That restitution of stolen property must be made is a principle of the common law,3 as well as of American jurisprudence.4 By the common law it could not, however, be followed into the hand of an innocent purchaser,5 though the rule is probably different in most of the United States.6 Summary restitution, however, is limited to the articles stolen, and does not extend to money or other things into which or for which they have been changed by the thief.7 LARGE AT LARGE-(See also AT).-"Running at large," in statutes imposing a penalty on one who suffers animals to run at large in public places, is used in the sense of strolling without restraint or confinement; as wandering, roving, or rambling at will, unrestrained. Perhaps no precise abstract rule under the statute can be laid down, applicable to every case, as to the nature, character and amount of restraint necessary to be exercised over a domestic animal when suffered to be on the highway incident to its use. But the restraint need not be entirely physical; it may depend much upon the training, habits and instincts of the animal in the particular case; and the sufficiency of the restraint is to be determined more from its effect upon, and controlling and restraining influence over, the animal than from its nature or kind.8 it up of his own accord before prosecution commenced, is within the protection of the Texas statute mitigating the penalty where there has been a voluntary return of the stolen property. Bennett v. State, 17 Tex. App. 143. 1. Horseman 7. State, 43 Tex. 353; Grant v. State, 2 Tex. App. 163. 2. Stephenson v. State, 4 Tex. App. 591. 3. 2 Whart. Cr. L. (9th ed.), § 981. 4. See Lance v. Cowan, I Dana (Ky.) 195; Com. v. Boudrie, 4 Gray (Mass.) 418. Upon the conviction of a thief or robber, the owner is entitled to restoration of the thing stolen, or its produce. Lance v. Cowan, 1 Dana (Ky.) 195. 5. Scattergood v. Sylvester, 15 Q. B. (Eng.) 506; Rex. v. Wollez, 8 Cox C. C. (Eng.) 337. See 2 Whart. Cr. L. (9th ed.), § 981. 6. Lance v. Cowan, 1 Dana (Ky.) 195; Bassett . Spofford, 45 N. Y. 387. 7. Com. Boudie, 4 Gray (Mass.) 418. On a conviction of larceny of money, the court ought not to enter judgment against the prisoner for the amount, nor award an execution in favor of the person from whom it was stolen. Com. v. Henley, 1 Va. Cas. 145. 8. Russell v. Cone, 46 Vt. 604-5. "Suppose a span of horses be so accustomed to be kept and driven together that while the owner is riding one the other will voluntarily follow as closely almost as if led by a halter; the owner, while taking them along the highway in this manner, could not be said to suffer the horse so voluntarily following its mate, to run at large in violation of the statute. The same may be said of a young sucking colt upon the highway, with no restraint other than instinct to follow its dam, which is being driven in a carriage on the highway." It was accordingly held in this case that a horse accustomed to be ridden to a certain point by the owner and then to return home alone to a point where the owner's boy was waiting for him and took care of him was not "running at large," if the owner or his son kept so near that, owing to its training, it would not wander about the highway, but go directly home. So, in trespass for shooting a dog, it appeared that the dog was a hound kept for the chase and chained when not in pursuit of game; that when shot he, followed by his master, and by S, who had joined in the chase in accordance with a previous understanding between the two, was in pursuit of a fox which he had just driven to cover and about which he was playing, out of sight and hearing of his master but near S. Held, that the dog when shot was not "running at large." Wright v. Clark, 50 Vt. 130; s. c., 6 Repr. 409; 28 Am. Rep. 496. The court, after citing the above case, say: "This is so recent and so full a definition of these words that nothing further need be added. The dog is the most tractable of animals, and yields most readily to restraint other than physical. The voice and look of his master are often more potent to restrain him than cord or chain. He is often trained so that at his master's command he will remain by and guard his property for a whole day in the absence of his master, or go out of sight and miles away and gather in his flocks and herds. Different species have special instincts which render them particularly susceptible to training and restraint in certain directions. The trained hound, when pursuing the fox or deer with and at his master's bidding, is no more 'strolling without restraint' or 'wandering, roving or rambling at will' than a boy while going on an errand at his master's command. Either, when out of sight and hearing of the master, have it in their power to 'stroll without restraint' or 'rove at will;' but neither do, so long as they continuously and rigorously pursue the thing commanded. Hence the fact that the dog when shot was out of sight and hearing of his master is not determinative of whether he was 'running at large.' If the plaintiff's testimony gained credit, when shot, the dog was in hot pursuit of the fox in obedience to the command of the plaintiff, with all his instincts urging him thereto as each bound brought nearer and nearer the coveted prize. We do not think such a dog thus running is, within the meaning of the statute, running at large." Jennings v. Wayne, 63 Me. 468 (vol. I, supra, 891). And see In the case of stock killed upon a railroad track, it was said in Hinman v. Chic. R. I. & Pac. R. Co., 28 Iowa 494: "In our opinion, the words 'running at large,' as used in the section above named, import that the stock are not under the control of the owner; that they are not confined by enclosures to a certain field or place, nor under the immediate care of a shepherd or herdsman; that they are left to roam wherever they may go. Now, if they are left in an enclosure which is insufficient to restrain them, they are evidently 'running at large,' for they are not under the control of the owner. If placed in such an enclosure and they escape from it and go upon the track of an unfenced railroad they will be considered as 'running at large.'" see, to the same effect, mond v. The C. & N. W. R. Co., 43 Iowa 168. And Ham his Where a penalty was imposed on suffering rams to run at large, the court said, in Goener v. Woll, 26 Minn. 157: "We think that the statute uses the words 'at large' in the sense of 'without restraint or confinement,' in accordance with the definition given in Webster's Dictionary. The principal object of the statute we take to be the protection of the owners of ewes, both as respects the breed of lambs and the time of yeaning. Now, whether a ram is allowed to go at large-that is, without restraint restraint or confinement-upon owner's land, or upon other lands, the risk to owners of ewes in the neighborhood still exists; and the only way to put an end to it is to so confine or restrain him that he cannot roam where he pleases. This may be done by keeping him in an enclosure, by tying him, by watching him, and perhaps in other ways. It seems to us, therefore, that there can be no doubt that the words at large' are used in the sense before indicated. It follows that if a ram is suffered to go about without restraint or confinement, even though it be upon land belonging to his owner, or of which such owner has a rightful use, he runs at large within the meaning of the statute." Cattle driven along a road in charge of a herder, which, in passing, casually eat of the grass growing on the roadside are not "estray" or "running at large," nor are they rendered so by the fact that the herder accidentally falls asleep while attending to them. Thompson. Corpstein, 52 Cal. 653. And see Bertwhistle v. Goodrich, 53 Mich. 457, where it was held that cattle in anybody's charge are not "running at large." If the marshal of a town seizes sheep as "running at large" within its limits, and on trial of an action to replevy them, testifies that there was a boy with the sheep but he did not know what he was doing, while several persons testify that the boy was herding the sheep and had them under his control, there is not such a conflict in the evidence as will justify a court in finding that the sheep were "running at large." Spect v. Arnold, Arnold, 52 Cal. 455. A team of horses attached to a sleigh and wandering on the prairie at night, driven by a man in a drunken stupor, are not "live stock running at large.' Grove v. Burlington etc. Co., 39 N. W. Rep. 248 (Iowa). A dog following its owner is not "running at large." Spence . City of St. Catharines, 23 Can. L. J. 167, where it is said: "Several cases can be found under the act against horses or cattle being at large upon any highway within half a mile of any railway unless in charge of some person to prevent their loitering or stopping at the intersection (20 Vict., ch. 12, 16). See Cooley v. G. T. R. Co., 18 Ú. C. R. 95; Markham v. G. W. R. Co., 25 U. C. R. 572. In these great stress was laid on the necessity of the animals being in charge of some person, and upon the object of public safety contemplated by the legislature. In the case of Hillyard v. G. T. R. Co., 8 Ont. R. 583, it was held that a colt which was injured by a wire fence of defendants could not be said to be running at large, as it was following its dam, which was being led by a man with a halter along the road, as that is the customary way and the universal custom ought to give the rule. I have found some cases in the American reports, but they do not appear to be uniform. . . . The council have chosen to use the word 'roam' in their by-law, and this word may narrow, although it cannot extend, the meaning of the word in the act, which is 'run at large.' I do not, how ever, see that there is any appreciable difference in the two words. I think that both mean 'wandering about at will,' to adopt the expression made use of by CHIEF JUSTICE ROBINSON ROBINSON in the passage I have already quoted, and I cannot think that a dog following its owner or other person having charge of it can be said to be wandering about at will or to be roaming or running at large; its general course is governed by its master, although it does run backward and forward while accompanying him, and it is controlled by his will." And see McAneany v. Jewett, 10 Allen (Mass.) 151 (vol. I, supra, 891-2). Compare Com. v. Dow, IO Metc. (Mass.) 382 (vol. 1, supra, 891). A horse driven across depot grounds held not "running at large." Johnson v. Chic. & N. W. R. Co., 35 Am. & Eng. R. Cas. 131 (Iowa). A sucking colt, following its mother, which was in the plaintiff's control, strayed and was injured by defendant's train. Held, that the colt under such circumstances must be deemed to have been "running at large." "The fact that the colt was a sucking colt and its mother was in the control of the plaintiff did not, we think, hold that the colt was in such control. It might perhaps under ordinary circumstances be expected to follow its mother, but there was nothing but its own inclination to restrict its freedom and prevent it from straying, and we think that it must be deemed to have been running at large." Smith . The K. C. St. J. & C. B. R. Co., 58 Iowa 622. A steer with eighty cattle was being herded by a boy, who left them for an indefinite period and went home. Another boy returned and drove the cattle hurriedly across a railway track, without noticing the steer, which had separated from the rest and been left behind, and subsequently was killed while crossing the track. Held, that the steer was "running at large." Vallean v. Chicago, M. & St. P. R. Co., 36 N. W. Rep. 760 (Iowa). In Welsh . The C. B. & Q. R. Co., 53 Iowa 632, it is said: "The evidence shows that when the horse was injured he had on a bridle with the rein over his head, and a halter rope, which was untied and dragging. It is urged that the animal was not running at large within the meaning of the statute. The court instructed the jury as follows: The words "running at large," as used in the statute, import that the stock are not under the control of the owners; that they are not confined by enclosure to a certain field or place, nor under the immediate care of a shepherd or herdsman; that they are left to roam wherever they may go. But where an animal escapes from the control of the owner, and cannot be caught by the owner, then such animal would be running at large within the meaning of the statute.' This instruction is correct; and we think the jury was fully warranted in finding that the animal was running at large, notwithstanding he had on the bridle and halter strap. It does not appear that he was |