majority">Roberts, J.

The indictment does not allege the value of the mule. If this be a substantial defect, and one not of form, it *301cannot be amended. (Code of Crim. Proc. Art. 508.) The penalty, imposed by the section under which this indictment is found, is, “double the value of the animal, and costs.” (Hart. Dig. Art. 1254.)

Although the value may not be one of the prominent ingredients of the offence, it is necessary to prove it, to determine the amount of the penalty; and as the indictment was found since the adoption of the Code, it should conform to its rules of certainty, as far as practicable ; which would seem to require, that every thing should be stated, which it is necessary to prove. (Code Crim. Proc. Art. 376.)

A statement of value is generally necessary, in indictments for larceny. And the main reason of it, if not the entire reason, is, to distinguish between grand and petit larceny, which the law makes dependent upon the value of the thing stolen. For, since the abolition of the distinction, in England, it is not necessary to state the value of the property stolen. (2 Arch. Cr. Pl. 357.) The fact, that it is stated to be “of the goods and chattels of,” &c., implies value sufficiently. (Ibid.) By the analogy here furnished, it would seem, that the value should be stated in this indictment. But if the object of this provision be considered, the necessity will be much more obvious. It does not proceed on the idea, that working a stray mule, before advertising it as an estray, is necessarily injurious to the owner, in every case, but that, if permitted at all, the whole policy of the estray laws might be defeated, for want of an adequate sanction. It enforces a penalty for the non-observance of those laws, irrespective of whether positive injury has been done or not. It is in the nature of a qui tam action, to recover a penalty. In such action, the petition would certainly be held bad, if it furnished no criterion for determining the amount of the penalty, unless it was fixed by law, certain and definite. (3 Bouv. Inst. 228-9.) We are of opinion, that the indictment is fatally defective, in not stating the value of the mule alleged to have been worked by defendant, and that it cannot be amended. The judgment is affirmed.

Judgment affirmed.

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