¶1The court below committed no error in sustaining the demurrer to the special plea in the nature of a plea of autrefois convict. The former indictment, set out in said plea, was for burglary merely, by breaking and entering the dwelling house with the intent to steal. Under that indictment, the defendant could be convicted of burglary only, but he could not be acquitted of the burglary, and convicted of a larceny, for the plain reason that the indictment did not charge a larceny.
¶2If the indictment had been for burglary, charging a stealing of goods, then there might have been an acquittal for the burglary, and a conviction for the larceny.
¶3The reason for this difference in the two cases is, in the first case, the indictment is for burglary, with intent to steal, only, — no larceny is charged; but in the second case, both burglary and larceny are charged. Therefore, the defendant may be acquitted of the burglary and convicted of the larceny.
¶4In such a case, if there is an acquittal of the,burglary and conviction of the larceny, it is a good defense against a subsequent prosecution for either offense, and e converso.
¶5In Hale’s Pleas of the Crown, vol. 2, p, 246, it is said, “ If A commit a burglary, and likewise, at the same time, steal goods out of the house, if he be indicted of larceny for the goods, and acquitted, yet he may be indicted for the burglary, notwithstanding the acquittal. And e con-verso, if indicted for the burglary, and acquitted, yet he may be indicted of the larceny, for they are several offenses, though committed at the same time. And burglary may be where there is no larceny, and larceny may be where there is no burglary.”
¶6In Russell on Crimes, vol. 1, § 39, note, speaking of ¡these paragraphs in Hale, it is said, an acquittal on burr glary, charging a stealing of goods, is a good bar to an in-dictment for stealing the same goods, for, on the indicR *721ment for the burglary, he might have been acquitted of the burglary and convicted of the larceny only. And although it is said in 2 Hale, 246, that if a man “ be indicted for burglary, and acquitted, yet he may be indicted-for the larceny, for they are several offenses, though committed at the same time,” yet this must be intended of an indictment for burglary with intent to steal the goods, as is evident from the words which follow : “And burglary may be where there is no larceny, and larceny may be where there is no burglary.”
¶7On the trial of the former indictment, set out in the plea in this case, which charged a breaking and entering of the dwelling house, with intent to steal, merely, but not a breaking and entering and a stealing of goods, the court charged the jury that “ if they should not find said defendant guilty of the offense of burglary, they might lawfully go on and ascertain from the evidence whether he, said defendant, was guilty of grand larceny; and if they should believe from the evidence that the defendant was guilty of grand larceny, that they might lawfully render a verdict of grand larceny under said indictment.” Thereupon the jury returned a verdict in the following words: “We, the jury, find the defendant guilty of grand larceny, as charged in the indictment, and we further find that the defendant shall be sentenced to hard labor for the county.”
¶8No objection was made to this verdict, by the State or the defendant, but it was received and recorded by the court, and the said plea avers that it stands unreversed, unrepealed, and not set aside, and not vacated.
¶9This verdict was a mere nullity; it had no indictment to support it. The offense of grand larceny was not included in the indictment for breaking and entering the dwelling-house 'with the intent to steal, merely, which is the indictment set out in defendant’s plea, and the indictment on the trial of which the said verdict was rendered.
¶10It can hardly require an argument to prove that a verdict in a criminal case that has no indictment to support it, is a mere nullity. In such a case the defendant cannot be said to be put in jeopardy for the offense named in such *722verdict, in the sense of that word as used in the b ooks, or as employed in the constitution, any more than when he is put upon his trial on a defective and insufficient indictment. In a loose and incorrect sense, a defendant may be said to be in jeopardy in both cases, as in that sense a party arrested on a criminal charge may be said to be in jeopardy even before indictment found.
¶11The verdict returned as aforesaid, on the trial of the former indictment, being a nullity, the defendant cannot plead it in bar of the trial for the larceny charged in the indictment in this case, although the larceny named in said verdict, and the larceny charged in this case, be averred to be the same.
¶12After said verdict was returned as aforesaid, the court no doubt discovered that the law had been misapprehended in the ■ charge given to the jury, and that said verdict was a nullity; and for that reason, and correctly, refused to render any judgment upon it, and as the record shows no judgment has, in fact, been rendered upon it, and it is very clear no judgment can hereafter be rendered upon it, consequently the defendant has not in any legal sense been put in jeopardy by reason of said void verdict, and so far as we can see he has not been and can not be injured by it.
¶13We therefore hold, that said special plea of autrefois convict, discloses no legal defense or bar to the present indictment for the larceny therein charged, and that the demurrer to said plea was correctly sustained.
¶14Hale says, and cites 4 Coke’s Rep. 44-15, Yauxe’s case, that autrefois convict or autrefois acquit, by verdict, Ac., is no plea in any case, unless judgment be given upon the conviction or acquittal. — 2 Hale’s Pleas of the Crown, 248.
¶15But we do not rest our opinion upon this rule, but upon what we consider a better reason, to-wit: that the defendant was not put in jeopardy in any legal sense by said void verdict.
¶162d. After the demurrer was sustained, the State proceeded with the trial of the defendant, without any plea of not guilty, pleaded by him or entered for him by the court.
¶17*723This was an error for which the conviction, and the judgment and sentence of the court below, must be reversed.
¶18There can be no trial on the merits, in a criminal case, until the defendant has pleaded not guilty, or this plea has been entered for him by the court. — 1 Bish. Crim. Proceed. § 468 ; Sartorious v. The State, 24 Miss. 602, and Slocovitch v. The State, present term.
¶193d. The charge asked by the counsel of the accused, “that the mere possession of the watch is not conclusive evidence that he stole it/’ we think was improperly refused. Possession by the accused, in a prosecution for larceny, of the articles stolen, soon after the larceny was committed, raises a reasonable presumption of guilt. — The State v. Otis S. Merrick, 1 Lead. Crim. Cases, 360. In this case the court say, “evidence of this nature is by no means conclusive, and it is stronger or weaker as the possession is more or less recent.”
¶20As this charge stated the law correctly, on the evidence in this case, the defendant had a right to have the jury so charged.
¶21' The judgment and sentence of the court below are reversed, and the cause is remanded for further proceedings? and the defendant will remain in custody until discharged by due course of law.