which, without the error, he would not haye made.
In the Delahoussaye Case the accused, pleaded guilty to plain horse stealing. The court found that he had simply acknowledged himself guilty of the horse stealing, and that in a matter so plain there was no room for error. **
In the Williams 'Case the court was satisfied that the entering of the plea of guilty had been resorted to merely in order to secure a continuance, and had not been induced by error.
It is intimated in the brief of the state that in the instant case also the object of the accused was to obtain a continuance. While it is quite possible the accused had that object in view, the record does not show that fact. It does not show, as in the Williams Case, that when the motion was made the jury had been discharged for the term. And, besides, even if the discharge of the jury were shown, that bare fact, especially in the case of a first continuance, would not be of itself sufficient to overthrow the sworn statement of the accused.
It is next urged that the motion to set aside the plea and the affidavits accompanying it, which have been transcribed herein-above, are not made part of the bill of exception, and that, in consequence, the facts upon which the motion is based, and upon which the lower court acted, are not brought up to this court, so as to enable this court- to review the ruling on the motion. That is true as to the affidavit of the attorney attached to the motion, and not forming part thereof; but it is not true of the affidavit of the accused, which forms part of the motion, and comes up to this court with it as a part of the record. And this affidavit of the accused, standing, as it does, uncontradicted and unimpeached, is of itself sufficient, we think, to make out a case of error.
It is urged that the bill of exception was not submitted to the district attorney. This might have been good ground.for a refusal on the part of the trial judge to sign the bill, but would not justify this court in refusing to consider it.
The second contention of defendant also is well founded. The minutes do not show affirmatively that the defendant was present in court in person when the plea was entered, as is necessary. State v. Meekins, 41 La. Ann. 543, 6 South. 822; State v. McMichael, 50 La. Ann. 428, 23 South. 992; Bishop, Crim. Pro. vol. 1, § 268.
A point not made in the brief of defendant, but which suggests itself to the court, is whether the plea as entered was sufficient for serving as a basis for sentence.
By Act No. 124 of 1874, p. 223, § 8, the crime of larceny • is divided into grand and petit larceny; grand larceny being where the value of the property stolen is more than $100, and petit larceny being where it is less.
By Act No. 107 of 1902, p. 162, § 5, the penalty of petit larceny is made to vary according to the value of the stolen property, and may or may not be imprisonment in the penitentiary, accordingly as the value is above or below $20.
Under the latter act, before a sentence of imprisonment in the penitentiary can be imposed, the value of the stolen property must have been established either by plea or by conviction, and must have exceeded $20. Now, the plea in this case was not the general plea of guilty, which would have meant guilty as charged, and would have established the value of the stolen property, but it was the restricted and special plea of guilty of petit larceny, which left the value of the stolen property at large — perhaps above, perhaps below, $20. The court assumed that the value of the property was as charged in the indictment. But nothing can be taken by intendment against a prisoner; and, besides, had the prisoner intended to admit that the value of the property was as charged, he would have pleaded simply guil