dict was incomplete, since three offences were charged, but that the facts applied to the two first only, and that as to the last, the jury ought to have found the defendants not guilty. The court held, that if a jury find but part of the matter put in issue, and say nothing as to the rest, the verdict is ill, and a venire facias de novo shall issue if no judgment be given, and if judgment has been given it shall be arrested. But that, in the principal case, as the "not guilty" went to the whole indictment, so the verdict was found as to all the offences charged in the indictment. The jury had found all the facts proved before them, and submitted it to the court whether they did maintain all the charges. They might doubt, though the proof was but of forging one bond and the publication of that bond, whether they could, upon their oaths, safely say, that he was not guilty of publishing a certain forged writing, &c. knowing it to be forged, it not being alleged that it was another forged writing different from the first. But the court held, that though the indictment in mentioning a certain forged writing, did not say a certain other forged writing, yet that it was not to be taken as the same with the one mentioned before; and, therefore, that the proof was not applicable to the last charge, and, upon the whole, declared that the special verdict had found the defendants guilty as to the two first offences, and not guilty as to the last. Where the prisoner is found guilty of the less aggravated offence, and acquitted of the more serious part of the charge, the more correct mode is, to find the prisoner guilty of the offence which has been proved, but not guilty of the circumstance in which the aggravation consists; for a verdict finding the defendant not guilty of the higher offence generally, but guilty of the inferior and included offence, has been objected to as contradictory, since an acquittal of the former includes an acquittal of the lat ter. In Connor's (d) case, upon an indictment for burglary and stealing goods in the house, the verdict was "guilty of felony in stealing goods to the value of 150l. from the dwelling-house, and not guilty of the burglary." According to one report of this case, it was holden, that an acquittal of the burglary included an acquittal of the breaking and entering and taking of the goods; but that, if the entry of the verdict had been "not guilty of breaking and entering the house in the night-time, but guilty of the rest of the indictment, the prisoner would have been convicted of stealing goods to the value of 40s. in the dwelling-house, and been ousted of clergy by stat. 12 Ann. c. 7. But from another report of this case, coming from high authority (e), it appears that Ld. C. J. Lee, Parker, C. B. and the judges Reynolds, Abney, Burnet, Denison, and Clarke, thought that the prisoner was ousted on the finding of the jury. Willes, C. J. inclined that the indictment was ill, Wright, J. contra. But upon the doubt expressed by the minority, the prisoner was recommended for a pardon on condition of transportation. In a subsequent case the prisoner was indicted for a burglarious entry and stealing in the house; the verdict was, "not guilty of the burglary, but guilty of stealing to the amount of 40s. in the dwelling-house (f)." And the entry was made by the officer in those words. The judges, upon consideration, held this to be sufficient to warrant a capital judgment. They agreed that the minute was only for the future direction of the officer, and to shew that the jury found the prisoner guilty of the larciny only. But many of the judges said, that when it occured to them they should direct the verdict to be entered, "not guilty of the breaking and entering in the night, but guilty of the stealing," &c." as that was more distinct and correct. It appeared to be the constant practice, upon every circuit in England, upon an indictment for murder, where the party was only convicted of manslaughter, to enter the verdict, “not guilty of murder, but guilty of feloniously killing and slay. ing," and yet murder includes the killing. It has already been seen, that though several may be jointly charged in respect of the same offence, yet that the law considers the crime of each as several, and that one or more may be convicted on the same indictment and the rest acquitted (g). And, therefore, if two be jointly indicted for murder, he who struck may be found guilty of manslaughter, he who maliciously abetted, of murder. So upon a joint indictment of petit treason, a wife or servant may be found guilty of petit treason, and a stranger of murder. If the offence be in its nature such as to require the concurrence of more than one, the jury cannot acquit one or more, and find another guilty, where the guilt of that person, as alleged in the indictment, is inconsistent with the innocence of the rest. Thus if several be indicted for a riot or conspiracy, and the verdict acquit all but two in the former case, and all but one in the latter, it will be repugnant and void, unless the indictment allege the offence to have been committed in conjunction with other persons (h); for there can be no riot without three, or conspiracy without two. So if an accessory, either before or after the fact, be indicted at the same time with his principal, if the latter C. (g) Vide supra, 35. 2 Haw. 47. s. 8. (h) 2 Haw. c. 47. s. 8. 4 St. Tr. 160. Popham, 202. Str. be acquitted, the accessary must also be acquitted as a matter of course, since his guilt is entirely inconsistent with the innocence of him who is charged as principal. In the case of Turner (h) and others, who were jointly charged with a burglary, the jury found one guilty of the burglary and another of larciny only; but the two chief justices held, that the jury could not, upon the same indictment and the same evidence, find one guilty of the burglary and the other of larciny. III. Special verdict. It is perfectly clear, that the province of a jury is confined to facts, and though a general verdict, which they are in all cases entitled to return, necessarily includes matter of law as well as of fact, yet upon the matter of law, they are in conscience bound in a doubtful case to follow the advice and direction of the court. And a general verdict, though founded upon a mistake in law, can seldom prejudice the defendant; for, since the special facts are stated upon the indictment, the mistake of the jury, in supposing that those facts in point of law constitute the offence, is open to the subsequent correction of the court. But the criminality of the party frequently depends upon circnmstances, which do not appear upon the record; and this happens where a general verdict involves the application of legal and technical terms to facts of a doubtful nature. Thus in case of larciny what amounts to a felonious taking, and in case of homicide what amounts to a felonious killing of malice prepense, is to be collected from circumstances extrinsic of the record, and these frequently so far from being mere conclusions of fact, constitute very difficult and important questions of law. There are two modes of remedy; either the jury find the defendant guilty, and a spe (h) 1 Sid. 171. cial case is reserved for the opinion of all the judges, and afterwards a pardon is applied for, if that opinion be in favour of the prisoner; or, according to the more formal and technical mode, the jury find the facts by a special verdict, which is entered upon the record, upon which the judgment of the court is afterwards pronounced. For it has long been settled, that a jury may give a spe cial verdict in a criminal case, whether capital or not capital, as in a civil one (i). There is also one class of cases, in which a special verdict must necessarily be given: and this happens, where upon an indictment for murder or manslaughter, it appears to the jury, that the killing was by misadventure or in self-defence, for in such case it is not sufficient to find that the killing was by misadventure or in self-defence, but the special matter must be set forth (k); and then, if upon setting forth the facts, it appear to the court, that the killing amounted to murder or manslaughter, the court will give judgment accordingly, though the jury find in conclusion, that it was per infortunium or se defendendo (1). The reason why a jury cannot acquit generally under such circumstances is, that though the facts do not amount to felony, yet they occasion a forfeiture of goods; and since the distinction between a killing by misadventure, or in self-defence and manslaughter, is often very nice and critical, and involves a question of law, it is proper that the whole should be submitted to the judgment of the court (m). But if one of non-sane memory kill another, or if a |