¶1By the Court.
¶2This .indictment accuses the defendants “of the crime of burglary,- committed as follows: ” and then states facts constituting the crime of simple larceny'. This, we think, is good as an indictment for larceny, although the grand jury have called it by the wrong name. The case of the State vs. Hinckley, 4 Minn. 345, is conclusive on this point.
¶3“When a question arises as to the sufficiency of an indict- • ment, the test to be applied is, whether it substantially conforms to the provisions of sec. 66, of the statute above quoted, [viz. : Pub. Stat., ch. 105, sec. 66, p. 755, being identical with Gen. Stat., ch. 108, sec. 1,] and not whether it conform to the precedents given in the subsequent section,” [identical with Gen. Stat., ch. 108, sec. 2.]
¶4“Here the offense is plainly set forth, and the omission of the pleading' to term it a £ crime, ’ or to £ accuse 5 the party of £ 'committing a crime,’ in express words, cannot change “the legal effect of the fact pleaded. The facts constituting the offense, must be stated, and from those facts the law determines its nature, which cannot be affected by any term or appellation, which the gp'and jury may apply, or fail to apply to. it. lb. 358.
¶5.So, in State vs. Garvey, 11 Minn. 155, the indictment was held sufficient, under ch. 41 of Laws of 1864; yet in naming the offense in the indictment it was termed an assault with intent to do great bodily harm, without charging that the de*522fendant was at the time armed with a dangerous weapon; that is to say, it no more termed it the offense defined and punished by said statute, than this indictment gives the offense set out its proper name when it terms it burglary. But in the statement of the acts constituting the offense, it was plainly and specifically stated that the defendant was armed with a dangerous weapon. See Gen. Stab., ch. 108, sec. 10, 'sub. 6 and 7; lb. sec. 11.
¶6The defendant could be no more misled or substantially prejudiced by the error in this case, than if the grand jury had called the offense arson. It is also immaterial that the indictment does not conclude against the form of the statute. Larceny is not defined by our statutes. They divide it into several classes or degrees, more or less aggravated, according to the circumstances under which it is committed, and affixing to each a punishment more or less severe, according to the nature of such circumstances. State vs. Eno, 8 Minn. 220.
¶7As to what constitutes the offense, however, we must go to the common law. Our statutes, that is to say, do not create the offense, but as it were, grade it. “ Simple larceny is the lowest degree, being divided into larceny of over one hundred dollars in value, and under that sum, the former being a felony and the latter a misdemeanor simply.” Ib. 222. In such a case it is not necessary that the indictment should conclude against the form of the statute. “ When statutes prescribe or modify, the punishment for crimes at the common law, they do not thereby create the crimes, and the indictment may be at common law, while the court will inflict the statutory punishment. 1 Bish. Cr. Pr. § 345; Russel vs. Com., 7 S. & R. 489. The district judge was, therefore, right in overruling the defendants’ motion to dismiss.
¶8As to the, second question certified, .however, we are of *523opinion that no judgment whatever can be rendered upon the verdict.
¶9At common law, simple larceny, when it is the stealing of goods above the value of twelve pence, was called grand lar-, ceny; when of g-oods to that value, or under, petit larceny ; offenses, says Blackstone, which are considerably distinguished in their punishment, but not otherwise. 2 Bl. Com. Book 4, ch. 17, p. 230. The common law distinction between them has been abolished in England, by statute, and is not recognized by our statutes. The indictment charges a larceny of divers articles of the value in the whole of more than one hundred dollars. But, if we attach any meaning to the word “ grand,” it is impossible to say, whether or not the jury meant to find the defendant guilty of a larceny of goods to a value exceeding one hundred dollars, or of goods to some other value exceeding twelve pence, but not exceeding one hundred dollars. If, moreover, we reject that word as senseless, as was suggested at the bar, the verdict is" still as ambiguous as before. The jury in that case, will have convicted the prisoner of larceny, but whether of the larceny charged, which is a felony, and punishable by imprisonment in the state prison, or of one which would be but a misdemeanor, punishable by fine and imprisonment in the county jail, is wholly uncertain.
¶10A verdict, however, should be certain, positive, and free from all ambiguity; any obscurity which renders it at all doubtful will be fatal to it.. 1 Archbold Cr. Pr. and Plea. by Waterman, (7th Ed.) p. 666, note a. The jury should in this case have been instructed upon the law of the crime, and directed to specify the value, if they did not find the defendant guilty of the offense charged in -the indictment. State vs. Eno, 8 Minn. 220p. 225 ; Lock vs. State, 32 N. H. 106; 1 Scam. 392. There must, therefore, be a new trial in this case.
¶11Mr. Bishop states the. law on this point as follows : “ As *524already intimated,” (referring to sec. 831, which see) “there ought never to be a defect in the verdict. It is in the power equally of the prisoner and the prosecuting attorney to have it set right; and suppose the prisoner chooses not to interfere, and suffers a defective verdict to be entered, as his interest would always prompt him to do, in preference to a verdict of guilty in due form, he by thus failing to interpose waives his objection to being put a second time in jeopardy for the same offense. In all such cases, therefore, the verdict iss simply set aside as a nullity and a new trial is ordered. The court cannot, instead of this, make the verdict or judgment what it thinks it ought' to be.” 1 Bishop Cr. Pr., § 842, and cases cited.
¶12This is not a case of doubt, but of entire uncertainty as to what the defendant has been found guilty of.
¶13The verdict, therefore, is simply void, and a new trial must be had.