The defendants are indicted in the ordinary form for stealing the money of B. E. Barbee and were convicted and sentenced to the penitentiary for seven years. The evidence showed that the defendants assaulted said Barbee and W. "W. Harris, and took from each his separate money during the same asault. They were convicted and sentenced at the same term of the court for the taking of the money of said Harris. The defendants plead former conviction and excepted to the sentence of seven years, as in violation of the Act of 1895, Ch. 285, as follows : “Sec. 1. That in all cases of larceny where the value of the property stolen does not exceed twenty dollars the punishment shall for the first offence not exceed imprisonment in the penitentiary or common jail a longer term than one year.
“Sec. 2. That if the larceny is from the person or from the dwelling by breaking and entering in the day time, Section 1 of this Act shall have no application.
“Sec. 3. That in all cases of doubt, the jury shall in the verdict fix the value of the property stolen.”
There was no evidence that the value of the entire property and money taken was over $20 and the verdict was guilty in the manner and form charged in the indictment. *752The case is taken out of the first Section by the second Section, as the proof showed that the taking was from the person.
There was no evidence of former conviction, as the case referred to and relied upon was for the larceny of the money of ~W. W. Harris at the same time by the defendants. State v. Mash, 86 N. C., 650. It was not essential that the State should have alleged in the indictment that the taking was from the person, so as to take the case out of Section 1 of the Act, as that was a matter of proof to be shown in defense, the second Section being a separate and distinct part of the Act. State v. Downs, 116 N. C., 1064.
Affirmed.