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erable or entire. There is nothing to indicate the company would not have assumed the risk on the house without taking one also on the goods, nor vice versa.

In the very recent case of Coleman v. Neir Orleans Ins. Co., 49 Ohio St. 810, 16 L. R. A. 174, the supreme court of Ohio aligns itself in this conflict of authority on the side taken by this court in Loehner v. Home Mut. Ins. Co. 17 Mo. 247, and Koontz v. Hannibal Sav. & Ins. Co. 42 Mo. 126, 97 Am. Dec. 325, holding such contracts as this severable. Vide, also, Rogers v. Phenix Ins. Co. of Brooklyn, 121 Ind. 570; Commercial Ins. Co. v. Spankneble, 52 Ill. 53, 4 Am. Rep. 582 ; Quarrier v. Peabody Ins. Co. 10 W. Va. 580, 27 Am. Rep. 582; State Ins. Co. of Desmoines v. Shreck, 27 Neb. 527, 6 L. R. A. 524.

The risk was not increased. The premiums were taken, kept, and enjoyed for insurance on the personal property. The policy as to the house was avoided, doubtless, through the ignorance of the insured; but they have violated no condition as to this personal property. Holding, then, as we do, that this was a divisible contract, it results that the legal effect is the same as if two distinct and sep

The contract as to each admitted of being separately executed as to the separate sub jects of insurance. The application is for separate insurance, and it is kept distinct in the policy. Nor are the cases of Koontz and Loehner, supra, unsupported by authorities in other states. In Phoenix Ins. Co. v. Law. rence, 4 Met. (Ky.) 9, 81 Am. Dec. 521, the supreme court of Kentucky held that when insurance was obtained upon a storehouse and stock of goods, in an action for loss on When this contract was made, then, it was the goods the fact that the insurance on the the settled rule of decision in this state that house was void because the interest on the such a contract as this was divisible or sev insured was incorrectly stated did not vitiate erable, although the policy had a clausethe policy on the goods, but it would be which would avoid the whole contract. The treated as a separate policy; citing Lochner addition of the word "entire" given its utmost v. Home Mut. Ins. Co., 17 Mo. 247, with ap- latitude could not avoid any more than the proval. In Clark v. New England Mut. F. whole policy; hence it added nothing to the Ins. Co., 6 Cush. 342, 53 Am. Dec. 44, a policy. Forfeitures are not favored in the policy made separate insurance on two build-law, and will not be enforced if any reasonings, with a clause declaring it void if the able interpretation can be made which will insured should alienate the property. It was prevent one. No reason is given here why a held that alienation of one building did not forfeiture should be enforced, except the inavoid it as to the other. In Merrill v. Agri-sertion of the word "entire" into the policy. cultural Ins. Co., 73 N. Y. 452, 29 Am. Rep. 184, the policy was upon several separate and distinct classes and species of property, each, as in the case at bar, separately valued; the sum total of the valuation was insured for a premium in gross; the contract was held sev erable. Judge Folger reviewed all the cases, including the two cases of Lochner and Koontz, supra, decided by this court, and in a most satisfactory manner sustained the rea-arate policies were issued, and, so reading the soning of those cases upon the analogies of the law and the proper construction of the contract. Johnson v. Johnson, 3 Bos. & P. 162; Mayfield v. Wadsley, 3 Barn. & C. 357; Goring v. Insurance Co. 10 Ont. Rep. 236; Hartford F. Ins. Co. v. Walsh, 54 Jl. 164, 5 Am. Rep. 115; Date v. Gore Dist. Mut. F. Ins. Co. 14 U. C. C. P. 548; Deidericks v. Commercial Ins. Co. of New York, 10 Johns. 234; Trench v. Chenango County Mut. Ins. Co. 7 Hill, 122; Phillips v. Insurance Co. 46 U. C. Q. B. 334; Heacock v. Saratoga M. & F. Ins. Co. (unreported), referred to in Merrill v. Agricultural Ins. Co. 73 N. Y. 462, 29 Am. Rep. 184; Moore v. Virginia, F. & M. Ins. The judgment of the St. Louis Court of ApCo. 28 Gratt. 508, 26 Am. Rep. 373. The Mer-peals is affirmed in so far as it adjudged the rill Case came under review in 1886 in Schuster policy on the dwelling house avoided, and rev. Dutchess County Ins. Co. 102 N. Y. 260, versed in so far as it avoids the insurance on the and was unanimously sustained. In 1891, in personal property, and the cause is remanded Pratt v. Dwelling House Mut. F. Ins. Co. 130 to that court with directions to affirm the N. Y. 206, the question again recurring, judgment of the circuit court to the amount the court of appeals says: Whatever may of $250, the amount of insurance on personal be the rule elsewhere, it is settled in this state property and piano, and reverse it as to the that where insurance is made on different remainder of said judgment. The costs of kinds of property, each separately valued, the appeal to this court are adjudged to the contract is severable, even if but one plaintiffs, and the costs of the appeal to the premium is paid, and the amount insured is St. Louis court of appeals are adjudged to the sum total of the valuations." See also defendant, as also the costs in the circuit Smith v. Home Ins. Co. 47 Hun, 30; Wood-court, after the offer of judgment was made; ward v. Republic F. Ins. Co. 32 Hun, 365; the other costs to plaintiffs. German Ins. Co. v. Fairbank, 32 Neb. 750. All concur.

23 L. R. A.

contract, we do not reject the word "entire" at all, but apply it to that policy, or portion of this policy, which the insured has forfeited by the change of title to which alone this clause refers; and it avoids that "entire" policy, and not the policy in which no condition or warranty has been broken. This construction logically follows from the divisibility of the contract, and best accords with fair dealing and the presumed intention of the parties. Our conclusion is that neither the law nor common honesty will permit the defendant to avoid paying the loss as to this personal property.

FLORIDA SUPREME COURT.

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The court cannot withhold from the jury the power to return a verdict according to their will, for any grade of the offense charged against a defendant. Fagg v. State, 50 Ark. 506.

court, and before it is accepted by the court for record, the accused has the right to have the jury polled in order to ascertain if the verdict offered is unanimous, and in the absence of a polling of the jury any member thereof has the right sua sponte to recede from the verdict agreed upon at any time before it is accepted for record.

2. At common law the verdict of the jury in cases of felony was pronounced in open court, then entered on the record by the clerk, and after this affirmed by the en

the appellate court may reverse, affirm, or modify a judgment appealed from, "and may, if proper, order a new trial."

A verdict of a jury under an indictment for murder must show the degree, and in the absence thereof the court has the power to order the jury to retire and amend the same by adding the degree. People v. Marquis, 15 Cal. 38.

It the facts necessary to sustain the verdict of guilty on one count are inconsistent with a verdict. of guilty on the other, further deliberation is necessary in order that the jury may decide between the alternatives, and the judge cannot have cut the knot by drawing a verdict of not guilty upon either. Com. v. Lowiey, 158 Mass. 18.

Where, in an indictment for murder the jury found the defendants guilty as charged in the indictment, a new trial was granted upon the ground It is the jury's duty to take the court's exposi- that the verdict did not fix the degree of murder, tion of the law as that applicable to the case, but the court stating that when such verdict was anthe court cannot direct a verdict for a higher of-nounced, it being insufficient, the court, before fense nor restrain the jury from returning it for a lower grade. Ibid.

The verdict which binds the parties is that at which the jury finally arrive and deliver to the court. State v. Clementson, 69 Wis. 628.

Verdicts are to have a reasonable intendment and to have a reasonable construction, and are not to be avoided unless from necessity originating in doubt of their import or immateriality of the issue found, or they show a manifest tendency to work injustice. McMillan v. State, 7 Tex. App. 100; Curry v. State, Id. 91; Lindsey v. State, 1 Tex. App. 327. Verdicts are to have a reasonable intendment and to receive a reasonable construction, and are not to be avoided unless from necessity. Welch v. State, 50 Ga. 128, 15 Am. Rep. 690; Ga. Code, §8 3503, 3561: Arnold v. State, 51 Ga. 144.

discharging the jury, should have ordered them to retire and return a verdict in proper form. Ford v. State, 34 Ark. 649.

II. By the court.

a. General doctrine.

In People v. Jenkins, 56 Cal. 7, it is said to be the duty of a court to look after the form and substance of a verdict, so as to prevent a doubtful or insufficient finding from passing into the records of the court. For that purpose, the court can at any time while the jury are before it or under its control, see that it is amended in form so as to meet the requirements of the law.

The courts have power to correct a verdict with the consent of the jury, and an irregularity is never to be presumed, and therefore a formal verdict

The judge should look after its form and sub-rendered upon the record may be shaped by the distance, so as to prevent a doubtful or insufficient finding from passing into the records of the court. Cattell v. Dispatch Pub. Co. 88 Mo. 356.

It is competent for the court to make such inquiry of the jury as will enable it to comprehend | the intention and will of the jury in reference to their finding, where, in the opinion of the court, there is no doubt or uncertainty in the language employed by the jury. Gipson v. State, 38 Miss. 295.

A defective or informal verdict is no verdict. State v. Clifton, 30 La. Ann. 951.

To correct a mistake where no prejudice can result from it, is not only proper but the duty of the court. Levells v. State, 32 Ark. 585; Brister v. State, 26 Ala. 132; Rex v. Parkin, 1 Moody, C. C. 45. In Fagg v. State, 50 Ark. 506, it is stated as being the better practice, in every case where the verdict is not complete on its face, for the judge to point out its defects before receiving it, and to inquire of the jury what their intention is and show them how to perfect it.

rection of the court with the jury's consent, which need not necessarily be entered on the record. State v. Steptoe, 1 Mo. App. 19, where the defendant was indicted for robbery in the first degree, the jury finding the defendant guilty of robbery, the verdict being corrected by the court.

A verdict may be put in proper form in the presence of a jury with their consent. Pehlman v. State, 115 Ind. 131.

If the jury find a verdict which is informal, their attention should be called to it, and with their consent the verdict may, under the direction of the court, be reduced to proper form. Ellis v. State, 27 Tex. App. 190.

Such a correction may be made in open court, as well as by sending the jury back to their room State v. Anderson, 24 S. C. 109.

There is no necessity for sending the jury out again to cure a mere technical defect in the verdict. Clough v. State, 7 Neb. 323.

It is within the power of the court to have a second verdict corrected, the jury assenting thereto.

Under section 1260 of the California Penal Code, Taylor v. State, 14 Tex. App. 340.

tire jury, when it became complete. The manner of receiving and affirming verdicts in cases of felony discussed.

3. When a jury returns into court an informal, insensible, or repugnant verdict, or one that is not responsive to the issues submitted, they may be directed by the court to reconsider it, and present a verdict in proper form. The court should, however, use great caution, and not intimate to the jury the kind of verdict in substance that should be returned.

It has been the practice for the trial judge in the | presence of the jury to make formal corrections of the verdict, and he should undoubtedly have this power. Blair v. Com. 14 Ky. L. Rep. 495.

"Howsoever the verdict seem to stray and conclude not formally or punctually unto the issue, so as you cannot find the words of the issue in the verdict, yet if a verdict may be concluded out of it to the point in issue the court shall work it into form, and make it serve." Foster v. Jackson, Hob.

54.

Mere clerical errors are amendable in criminal as well as in civil cases. Sharff v. Com. 2 Binn. 516.

And so as to make them conform to the real intentions of the jury. State v. Underwood, 2 Ala. 744, In such a case this course may be taken instead of directing the jury to retire for that purpose. People v. Jenkins, supra.

But a direction to the jury to retire and correct such informality is not error. Ibid.

Such amendments are the mere exercise of discretion when kept within proper limits, therefore the refusal to amend is not revisable on error. State v. Underwood, supra.

So the judge has the right to direct that proper corrections shall be made in the minutes, so as to conform the same to the facts within his personal knowledge, even after the trial, the verdict having been rendered. State v. Harris, 39 La. Ann. 1105.

In Guffy v. Com. 2 Grant, Cas. 69, it was held that the court had a supervision over so much of the verdict in a criminal prosecution as related to the costs, notwithstanding an acquittal.

If the jury persist in finding an informal verdict from which, however, it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it should be entered in the terms in which it is found, and the court shall give judgment of acquittal, but no judgment of couviction can be given unless the jury find expressly against the defendant upon the issue, or judgment be given against him upon a special verdict. Laws 1851, § 427, p. 258: People v. Ah Ye, 31 Cal. 451.

When a jury returned a verdict of not guilty in a criminal case, the trial court has no power to set it aside or modify it in any respect. Lowe's App. 46 Kan. 255.

Where, in a conviction of murder the verdict of the jurors was accompanied with a recommendation to mercy, the court ordered the verdict entered without the recommendation, held it was no error, the recommendation being solely addressed to the court and constituting no part of the verdict. People v. Lee, 17 Cal. 76.

So where the jury found "the defendant, J. M. Boggs, guilty" it was held that the words "J. M. Boggs" might have been rejected as surplusage, and their presence worked no injury, it being sufficient that the jury found the defendant guilty. People v. Boggs, 20 Cal. 433.

Where, in an indictment for burglary, the court charged the jury that if they found the defendants guilty they must do so on the first of the two counts of the indictment, as the second was defective, the Jury found the verdict "guilty on the first account" the court ordered the syllable "ac" to be erased

4.

After the case had been submitted to the jury under the charge of the court they returned into court the following verdict viz.: "We, the jury, find the defendant guilty of manslaughter in the first degree." The court refused to accept this verdict, and stated to the jury that it was not in proper form, as there were no degrees in manslaughter, and that they must retire and present a verdict in proper form. The jury retired and returned the following verdict, viz.: "We, the jury, find the defendant guilty of murder in the first degree, and re

from the last word, having the power to order the correction. Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528.

Upon an indictment for an assault with intent to murder, by shooting with a pistol, the jury returned a verdict, "We, the jury, find the defendant guilty of shooting, not in his own defense, and recommend him to the mercy of the court." It was held that such verdict was not uncertain, and might properly be aided by the indictment showing that the prisoner shot at the party injured, not in his own defense and without justification. Arnold v. State, 51 Ga. 144.

And where, in an indictment for assault with a deadly weapon upon the person of Mary Danner, it appeared upon the trial that her name was spelled Dannaher, it was held that the difference in the sound in the two names being apparent the incorrect spelling would be disregarded, it being 80 slight. Gahan v. People, 58 Ill. 160.

Where upon an indictment containing two sets of counts, the first set for robbery, the second for an assault and battery with intent to rob, the jury found the defendant guilty of the charge contained in the second count, and also of grand larceny, and assessed the punishment adapted to the charges in the indictment, it was held, there being no charge of larceny, that there was no error in the prosecuting attorney's ascertaining from the jury in the presence of the court, and with its permission, whether it was a general verdict of guilty which they intended to find, and in his presenting them with the form of such a verdict to be disposed of as they might think proper. M'Gregg v. State, 4 Blackf. 101.

Upon a prosecution before a justice of the peace for assault, the jury returned a verdict, “We, the undersigned, do find the defendant guilty of a breach of the peace, and agree that he shall pay the sum of five ($5.00) dollars and costs,”—the court held that, the surplusage being left out, the verdict was still good. State v. Douglass, 1 G. Greene, 551.

So where the defendant was indicted for murder, and the jury were instructed that if they found him guilty of murder they should fix his penalty at death or confinement in the state penitentiary for life, and if they found him guilty of manslaughter that the maximum punishment was confinement in the state penitentiary for the term of twenty-one years, and they returned a verdict finding defendant guilty and fixing his penalty in the penitentiary for ninety-nine years, it was held that the court's reformation of the verdict so as to read, "We, the jury, find the defendant guilty and fiix his punishment at confinement in the penitentiary for life," was correct and the verdict as reformed by the court expressing in unambiguous terms, what was manifestly the verdict of the jury, they agreeing in open court, in the presence of defendant and his attorney, that the said verdict as written out by the court was their verdict. Bledsoe v. Com. 10 Ky. L. Rep. 909.

Upon an indictment for uttering a forged writing, the verdict of a jury as follows. "We, the jury, find S. E. Blair guilty of forgery as per indictment and fix penalty at three years penitentiary,"—was

commend him to the mercy of the court," and this verdict was accepted by the court. Held, that the court did not err in refusing to receive the first verdict and in accepting the second one. 6. In the opinion of a majority of this court, the testimony in the record is not sufficient to sustain the verdict of murder in the first degree, and a new trial is awarded.

(March 1, 1894.)

defendant of murder in the first degree. Re-
versed.

The facts are stated in the opinion.
Messrs. T. A. MacDonell and B. B.
MacDonell for plaintiff in error.

Mr. William B. Lamar, Atty.-Gen., for the State.

Mabry, J., delivered the opinion of the

court:

ERROR to the Circuit Court for Duval
The indictment against the plaintiff in error
County to review a judgment convicting was for murder, and the sentence of the court

felonious intent."-was amended during the sitting of the court, by striking out the words "and battery" so as to conform to the truth. Com. v. Lang, 10 Gray, 11.

altered by the judge so as to read, "We, the jury, find S. E. Blair guilty and fix punishment at three years in the penitentiary,”—it was held, such verdict being afterwards read to the jury, and assented to by them, and so received, that such alteration was not error, such verdict only con-ant was the same person whose name purported to forming to the intention of the jury and the real meaning of the finding. Blair v. Com. 14 Ky. L. Rep. 495.

Where the defendant was charged with the embezzlement of a gun, and the jury found him guilty of a breach of trust, the verdict as recorded being: "We, the jury, find the accused guilty in manner and form as he stands charged in the indictment," the indorsement on the indictment showing the verdict: "We, the jury, find the accused guilty of breach of trust and recommend him to the mercy of the court."-it was held that such verdict showed the intention of the jury and ought not to be sustained. State v. Reonnals, 14 La. Ann. 276.

Where the verdict did not find that the defend

be signed to the acceptance set forth in the indictment, or that he had any connection with or interest in the bank on which the draft purported to be drawn, nor that he was a banker or in any manner connected with, responsible for, or interested in the paper in question except was to be in. ferred from the single fact of taking it out upon a check drawn upon him, the court held that if any of these facts were omitted the verdict could not be supplied by the court. People v. Wells, 8 Mich. 104.

Where, upon an indictment for unlawful banking a special verdict found that the defendant "did pay out" the paper in question, it was held that the court could not add anything to this finding but could only draw the legal conclusions from the facts found; that no facts could be inferred by the court which the jury had not inferred and set forth, especially against a defendant in a criminal case. People v. Wells, supra.

In an indictment for murder, the jury returned a verdict: "We are the jury find Watkins guilty of mansluder" signed "Ja. Washington" and upon being polled separately assented thereto, and ordered to be recorded, the court held there was no man on the jury whose name was "Ja. Washington," but one whose name was Jiles Washington" whose identity was not disputed; that the irregularity was trivial and not worthy of no-judicium." tice. State v. Smith, 33 La. Ann. 1414.

To such a verdict the maxim applies, "de non apparentibus, non existentibus, eadem est ratio et

Upon an indictment for an assault with intent to kill and murder, with a verdict of guilty of an attempt to commit manslaughter and recommendation to mercy, the jury believing that the higher penalties inflicted for the actual committal of such offense were severer than the circumstances

Upon a trial for grand larceny, and for receiving and having stolen goods, knowing the same to have been feloniously stolen, the jury returned a verdict: "Guilty of knowingly receiving stolen property." The court ordered the same annulled, as nothing could be taken by the court by implica-attending the case required, such verdict being in tion or intendment, that which is not found not being supposed to exist. State v. Burdon, 38 La. Ann. 357.

In State v. Pierre, 39 La. Ann. 915, upon a conviction of horse stealing and sentenced to two years' imprisonment at hard labor, the minutes not showing that the indictment was returned into court indorsed by the foreman of the grand jury, who had permitted the district attorney to have them amended by the clerk instanter, by inserting the name and capacity of the foreman, it was held that the court might at any time make necessary corrections of its minutes, especially for the purpose of supplying material omission and correcting one within the personal knowledge of the judge, the same being done for no other purpose than to make the minutes conform to the facts. Such a correction might be made after a motion in arrest of judgment was filed.

writing, the court asked the jury, "if they found the accused not guilty of an assault and battery with intent to kill and murder, and found him guilty of an assault in the attempt to commit manslaughter,"-to which the jury replied in the affirmative, and the verdict was recorded: "We, the jury, find the defendant not guilty of an assault with intent to kill and murder as charged, but guilty of an assault in the attempt to commit manslaughter."-this was held no error. Gipson v. State, 38 Miss. 295.

A verdict which originally read, "We, the undersigned jurors in the above case, find a verdict of guilty as charged in the indictment," was corrected so as to read, "We, the undersigned jurors in the above case find a verdict of guilty as charged in the indictment against A. P. Waterman." The court held there was no error in the correction, both verdicts meaning the same thing and it was always competent for the court to suggest a correction in a mere matter of form. State v. Waterman, 1 Nev. 543.

Where, upon an indictment for embezzlement a verdict, "guilty of embezzlement," was entered and the jury discharged, and subsequently during the term, the court, on motion, directed the £nd

On an indictment for larceny of bank bills and gold coin, a verdict, "Guilty, but not of taking the gold piece," which was recorded as one of not guilty with respect to stealing the gold coin, but guilty as to the remainder, after the jury had separated, was held sufficient although objected to by the defendant. Com. v. Stebbins, 8 Gray, 492. Where upon an indictment charging an assaulting to be entered: "The jury find the prisoner not with intent to murder, a verdict, Guilty of assault and battery as charged, but without the

guilty of the larceny charged," the court held such addition to the verdict after the discharge of

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pronounced against him was confinement in the state penitentiary for life, based upon a verdict of guilty of murder in the first degree with a recommendation of mercy to the court. A motion in arrest of judgment was made and overruled. The first ground of the motion is, "that the allegations in the indictment are not sufficient to charge the defendant with murder in the first degree, but that necessary and material allegations to. constitute such charge are not therein made, and that judgment thereon, in view of the verdict received and recorded by the court, cannot be entered."

The only supposed defect pointed out in the brief under this ground of the motion is, that the indictment does not allege that the wound was the cause of the death of the deceased. We have examined the indictment and find that the objection urged cannot be sustained. It is sufficiently alleged that the deceased died of the wound inflicted upon him by the accused. The other grounds of the motion in arrest of judgment are not discussed by counsel, and may be considered as abandoned. They call for no discussion by us.

The other points presented by counsel for

the jury clearly irregular and must be disregarded, | formal or illegal verdict. Robinson v. State, 23 being without authority and precedent. Guenther Tex. App. 315. v. People, 24 N. Y. 100.

An indorsement made upon an indictment of a plea of not guilty as on a given date, upon which date the bill was not found nor the crime committed, was held to be a clerical error which was amendable by the insertion of the true facts. Com. v. Chauncy, 2 Ashm. 91.

In United States v. Keen, 1 McLean, 429, the indictment contained five counts; the jury found the defendant guilty upon the last four but did not pass upon the first, and it was held that the verdict could not be amended so far as to enter "Not guilty" upon the first count nor amend it at all.

Section 334 of the compiled statutes of Montana, ed. 1887. p. 465, gives power to the court to correct the verdict in the jury's presence and with their

In Com. v. Yeager, 3 Pa. Dist. Rep. 237, where the defendant, charged with forgery, was found not guilty, and the costs were placed upon the prose-consent in matters of form. cution, it was held that the court had a right to supervise such verdict so far as it related to the costs and set it aside, the prosecution being founded upon a probable cause, there being no evidence of malice.

And under section 348, the court may reduce the sentence.

In an indictment for murder the jury returned a verdict, "We find the prisoner Samuel Yancey guilty of murder," the words "Samuel Yancey" being interlined by order of the court some days after the verdict was returned into court, the other defendant being found not guilty, and it was held that the amendment of the verdict was irregular but did not vitiate the conviction, which was regular, the verdict although badly written and incorrectly expressed being clear enough and sufficient, there being no reasonable doubt as to which of the indictees the word "guilty" was applied. State v. Yancey, 3 Brev. 142.

Where, in an indictment for feloniously and willfully breaking open and entering a dwelling house, for the purpose of committing a larceny therein, the jury found "defendant is guilty in manner and form as charged in the writ of indictment," and fixed his imprisonment in the jail and penitentiary house of the state at a period of five years, the court held, there being error in the verdict, that it could render no judgment except in accordance with the verdict, having no power to change the verdict or to pronounce any other judgment. Murphy v. State, 7 Coldw. 516.

Where a verdict of the jury found the defendant guilty of murder in the first degree, and omitted the word "confinement" before the words "in the penitentiary for life," the court with the consent of the jury inserted the word "confinement" before such words, which was held no error. Taylor v. State, 14 Tex. App. 310.

Upon a conviction for robbery in which there were two trials, the prisoner pleading guilty at the first was convicted of theft, the punishment being assessed at confinement in the penitentiary for thirty years, the foreman requesting the presiding judge to have the verdict put in proper form, and the district attorney wrote a verdict finding the defendant guilty of robbery as charged in the indictment and assessing the punishment as above, such verdict as amended being signed by the foreman, and read to the jury who answered it was their verdict-held the court had the power to amend such verdict, and as amended it was legal, the case standing as though there had been no in

b. To assess punishment.

Under section 4230 of the Revised Statutes of Missouri, ed. of 1889, p. 981, where the jury find a verdict of guilty and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, or assess a punishment not authorized by law, and in all cases of judgment by confession, the court shall assess and declare the punishment and render judgment accordingly. Rev. Stat. 1879, § 1930.

By section 4232 of the same, if a jury assess a punishment, whether of imprisonment or fine, greater than the highest limit declared by law for the offense of which they convict defendant, the court shall disregard the excess and pronounce sentence and render judgment according to the highest limit prescribed by law in the particular

case.

Where the punishment given by the judgment is greater than the law authorizes, it is void. Ex parte Page, 49 Mo. 291.

Where the defendant was convicted of felonious assault, and the jury found him guilty as charged in the indictment, ten being in favor of two years' penitentiary sentence, and two in favor of $100 fine, and, after such judgment was received and the jury discharged, the court fixed the punishment at imprisonment in the penitentiary for a period of two years, it was held that the court had such power to fix the punishment under section 4230 of the above statutes. State v. Dennison, 108 Mo. 541.

Where the verdict of the jury found the defend. ant guilty of murder in the second degree, but failed to assess the punishment, it was held that the court had power to assess and declare the punishment and render judgment accordingly. State v. Foster, 115 Mo. 448.

Where a jury upon a verdict ascertained a term of imprisonment shorter than that prescribed by law, upon which the court rendered a judgment for a different term, it was held error. Nemo v. Com. 2 Gratt. 558.

c. To find the degree of offens

Where, in an indictment for murder, no degree of the offense was found by the jury, the court held that there was no power subsequently to ascertain

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