— When a Jury returns with an informal or insensible verdict, or one that is not responsive to the issues submitted, they may be directed by the Court to reconsider it: but not where the verdict is not' of such description. The verdict offered in this case was a plain and explicit response upon the issue submitted, and the addition, of ,the Defendant’s having been guilty of a trespass, did not vitiate it. it was a matter of subsequent consideration witli the Court what should be the judgment. The verdict first offered will he recorded, nunc pro tunc, and judgment entered for the Defendant. For although any larceny imports a taking without the consent of the owner, and of course a trespass, yet that taking does not necessarily import a taking with violence, so as to render it indictable. The offence' found is not within the charge 5 the record must therefore be amended, and judgment of acquittal be entered.
— The verdict first brought in by the Jury was, *6 Not guilty of the felony and horsc-steal- “ ing, but guilty of a trespass.” Had this verdict been so recorded, the judgment would have been arrested ; the rule being, that a Defendant cannot be found guilty of a misdemeanor, on an indictment for felony. • The verdict actually found would then have had the effect of an acquit*573tal. It is laid down in ancient books of authority, that if the Jury, through mistake or evident partiality, deliver an improper verdict, the Court may, before it is recorded, desire them to reconsider it j and a case is quoted with approbation, in Piowden ail, b. where, in a writ of conspiracy against two, the Jury found one guilty, and the other not guilty ; and the Judge toid the Jury that their verdict was contradictory, and that if one was not guilty, the other was not, in a charge of conspiracy ; and that they bad better reconsider their verdict. The Jury accordingly retired, and afterwards returned and found both guilty. Some of the harsh rules of the Common Law, in relation to criminal trials, have been gradually softened by the improved spirit of the times,* and this, among others, is relaxed in modern practice, where the Jury bring in a verdict of acquittal. It is considered as bearing too hard on the prisoner, and is seldom practised. Hawk. ch. 47, sec. 11, 12. Í think this course of proceeding is lit to be imitated here, whenever a prisoner, either in terms or effect, is acquitted by the Jury, and that in all such. cases the verdict should he recorded : although I am persuaded that they were desired to reconsider their verdict in this case, with the purest intention, and solely with a view that they might correct the mistake they had committed. The verdict first returned ought to have been recorded ; and it ought to be done now, valeat quantum valere potest The effect will be the same as if a verdict of acquittal were recorded j but I think it most regular to put upon the record what, the Jury have found. 1 Leach 12. 2 Strange IIS