Plaintiff in error was indicted for alleged violations of
Rev.Stat. § 5457. The indictment contained four counts. The first
charged the unlawful possession of two counterfeit half-dollars;
the second, an illegal passing and uttering of two such pieces; the
third, an unlawful passing and uttering of three pieces of like
nature, and the fourth the counterfeiting of five like coins. After
the jury had retired, they returned into court and stated that,
whilst they were agreed as to the first three counts, they could
not do so as to the fourth, and the court was asked if a verdict to
that effect could be lawfully rendered. They were instructed that
it could be, whereupon they rendered a verdict that they found the
prisoner guilty on the first, second and third counts of the
indictment, and that they disagreed on the fourth count, which
verdict was received, and the jury discharged.
Held that
there was no error in this.
Latham v. The Queen, 8 B. & S. 635, cited, quoted
from, and approved as to the point that,
"in a criminal case where each count is, as it were, a separate
indictment, one count not having been disposed of no more affects
the proceedings with error than if there were two indictments."
The plaintiff in error was indicted for alleged violations of
section 5457 of the Revised Statutes. The indictment contained four
counts. The first charged the unlawful possession of two
counterfeit half-dollars, the second an illegal passing and
uttering of two such pieces, the third an unlawful passing and
uttering of three pieces of like nature, and the fourth, the
counterfeiting of five like coins. The case came on for trial, and
after the jury had retired, they returned into court and stated
that, while they agreed as to the first three counts, they could
not do so as to the fourth, and the court was asked if a verdict to
that effect could be lawfully rendered. They were instructed that
it could be. The district attorney thereupon asked leave to enter a
nolle prosequi as to the fourth count, but, upon objection
by the accused, the motion was withdrawn and the jury rendered the
following verdict:
Page 170 U. S. 263
"We, the jury, find James Selvester, the prisoner at the bar,
guilty on the first, second, and third counts of the indictment,
and disagree on the fourth count of the indictment."
Despite objection and exception by the accused, the court
received this verdict and discharged the jury.
By motions in arrest of judgment, to set aside the verdict, and
for a new trial, the defendant asserted that the verdict was a
nullity because "insufficient, incomplete, and uncertain."
Exceptions were duly noted to the overruling of these several
motions, and, the court having imposed sentence, a writ of error
was allowed.
MR. JUSTICE WHITE, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The assignments of error challenge the sufficiency of the
verdict to support the judgment which was entered thereon. The
claim is that, as the verdict expressed the agreement of the jury
as to the guilt of the accused as to the distinct crimes charged in
three of the counts, and stated a disagreement as to the distinct
crime covered by the fourth count, the verdict was not responsive
to the whole indictment, and was void. That is to say, the
proposition is that the verdict of guilty as to the separate
offenses covered by the three first counts was, in legal
intendment, no verdict at all, because the jury stated their
inability to agree as to the fourth count, covering a different
offense from those embraced in the other counts.
Reduced to its ultimate analysis, the claim amounts to this:
that an indictment, although consisting of several counts, each for
a distinct offense, is in law an indivisible unit, and must be
treated as an entirety by the jury in making up their verdict, and
such verdict, in order to be valid, must finally pass upon and
dispose of all the accusations contained in the indictment.
Page 170 U. S. 264
In effect, it is claimed that where an indictment consists of
several counts, repeated trials must be had until there is an
agreement either for acquittal or conviction as to each and every
count contained in the indictment. It needs but a mere statement of
the proposition to demonstrate that it, in reason, rests
necessarily on the premise just stated. That this is its essential
postulate is conclusively shown by the authorities which are cited
to sustain it. They are
Hurley v. State, 6 Ohio 399;
Wilson v. State, 20 Ohio 26, 31;
Williams v.
State, 6 Neb. 343;
Casey v. State, 20 Neb. 139, and
Muller v. Jewell, 66 Cal. 216.
In the
Hurley case, upon the assumption that the same
rules, as respects the sufficiency of verdicts, governed in
criminal as in civil cases, the Supreme Court of Ohio held that a
trial court acted properly in refusing to enter a verdict which
found the defendant not guilty on one count of an indictment, and
stated their inability to agree as to other counts, and further
held that no error was committed in discharging the jury, and again
putting the accused upon trial.
In the
Wilson case, the opinion in the
Hurley
case was criticized; but it was held to be "prudent" where in one
indictment distinct offenses were charged in separate counts,
especially when these offenses might subject the accused to
different degrees of punishment, to require the jury, in their
finding, in the absence of a general verdict, to affirm or negative
each charge. In consequence of this view, the court reversed
because the verdict had found the defendant guilty as charged in
one series of counts in the indictment, but had omitted any
reference whatever to his guilt or innocence as to certain other
offenses charged in another series of counts. The rule thus applied
was declared to be necessary because of a possible doubt as to
whether a defendant might not be subject to further prosecution for
an offense not passed upon by a jury in a verdict under an
indictment consisting of several counts.
The Nebraska cases followed the ruling in the
Wilson
case -- mainly, however, because the Ohio decision was regarded as
a construction of a statute existing in Ohio, and which had been
adopted into the Nebraska Code.
Page 170 U. S. 265
The California case relied upon may be dismissed from view, as
it related to a verdict in a civil cause.
In passing, we note that the doctrine that a verdict in a
criminal case must respond to every count in an indictment in order
to warrant a judgment thereon, as stated in the Ohio cases just
referred to, seems to be no longer maintained in that state.
Jackson v. State, 39 Ohio St. 37. In the
Jackson
case, the issues presented were as follows: the trial court had
refused to receive a verdict, on an indictment, containing several
counts for distinct offenses, which found the defendant "guilty as
charged in the first count of the indictment." The jury thereupon,
after further deliberation, returned a general verdict of guilty.
The Supreme Court of the State of Ohio, in considering an exception
taken to the entry of the general verdict, said:
"The objection is untenable. The prisoner might have been
sentenced under the first verdict, for the count upon which it is
based was sufficient. (Whar.Crim.Pl. and Pr. sec. 740.) But the
proper course was to endeavor to obtain a verdict responding to
both counts, and that course was pursued."
Whatever may be the present rule in Ohio, it is manifest from
the foregoing brief analysis of the cases cited by the plaintiff in
error to sustain the contentions upon which reliance is placed that
they rest upon the theory that, even although the offenses charged
in the several counts of an indictment be distinct and separate
crimes, such a solidarity is created between them by charging them
in several counts of one indictment as to render void any verdict
which does not specifically and affirmatively respond to each and
every count. But this proposition, whatever may be the support
found for it in early cases, is not sound in reason, and is
negatived by the decisions of this Court and the opinion of text
writers -- that is to say, it is refuted by the conclusive weight
of authority.
The erroneous theory as to the indivisible union presumed to
arise from charging distinct offenses in separate counts of one
indictment, applied in the cases referred to and in some other
early American cases, took its origin from the case of
Page 170 U. S. 266
Rex v. Hayes (1727), 2 Ld.Raym. 1518.
See
observations in the opinion in
State v. Hill, 30 Wis. 421.
But it has been held in England that that case did not justify the
view which had been sometimes taken of it,
Latham v. The
Queen, 5 B & S. 635, and that it was a mistake to apply to
the several counts of distinct offenses in one indictment the rule
which obtains as to verdicts in civil cases. In the course of his
opinion in the case just cited, Mr. Justice Blackburn said (p.
642):
"Then it is said we are concluded by authority. There is only
one case which has the least bearing on the question, namely,
Rex v. Hayes, 2 Ld.Raym. 1518. In that case, the
indictment contained three counts, and a special verdict was
returned finding the prisoner guilty on two of them, but said
nothing on the third, and the question was whether judgment could
be given against them as guilty on the whole. The court held that,
as the jury had virtually found, and the facts showed, the
prisoners not guilty on the third count, the record established
that they were guilty on two counts, and not on the third. The
counsel who argued that case for the defendant referred to
authorities to show that where a verdict finds but a portion of an
issue, or only one of several issues, it is bad, and ground for a
venire de novo, but the court did not determine that point
at all. There was no occasion to decide that no verdict being given
on one count vitiates a verdict on another court which is good. In
civil cases, there is only one process against the defendant, and
therefore, if a new trial is granted on one part of the case, it is
granted on the whole. But in a criminal case, where each count is,
as it were, a separate indictment, one count, not having been
disposed of, no more affects the proceedings with error than if
there were two indictments. In
O'Connell v. The Queen, 11
Cl. & F. 155, which has been referred to, Parke, B., says, pp.
296-297:"
"So, in respect of those counts on which the jury have acted
incorrectly, by finding persons guilty of two offenses [on a count
charging only one], if the Crown did not obviate the objection by
entering a
nolle prosequi as to one of the offenses,
Rex v. Hempstead, R. & R.
Page 170 U. S. 267
C.C. 341, and so, in effect, removing that from the indictment,
the court ought to have granted a venire
de novo on those
counts in order to have a proper finding, and then upon the good
counts it should have proceeded to pronounce the proper judgment.
In short, I should have said that the defendants should, on the
fact of the record, be put precisely in the same condition as if
the several counts had formed the subject of several
indictments."
"That is exactly what I say here. Each count is, in fact and
theory, a separate indictment, and no authority has been produced
to show that we ought to defeat the ends of justice by such a
technical error as this."
And the rule in England, thus clearly announced, is generally
applied in the American cases. Whar.Crim.Pl. and Pr. § 740; 1
Bishop New Crim.Proc. § 1011. Indeed, the doctrine, as settled by
repeated adjudications of this Court, is in entire harmony with the
English rule as announced in the
Latham case. In
Claassen's Case, 142 U. S. 140, it
was held that where a jury found an accused guilty on some counts
of an indictment and the trial judge imposed a general sentence
which did not exceed the punishment authorized by law to be
inflicted for a single offense, it was immaterial whether some of
the counts upon which conviction was had were bad, as the judgment
was valid if only one of the counts was legally sufficient. In
Dealy v. United States, 152 U. S. 539, it
was held that the reception of a verdict on an indictment
containing numerous counts was valid although the verdict, which
set out an affirmative finding as to all but one count, was silent
as to that count. The discharge of the jury under such
circumstances was conceded to have been proper, and it was observed
(p.
152 U. S.
542), as to the count upon which the verdict was silent,
that such silence "was doubtless equivalent to a verdict of not
guilty as to that count." In
Ballew v. United States,
160 U. S. 187, it
was found that a judgment entered upon a general verdict of guilty
on an indictment consisting of several counts was erroneous as
respects one of the counts alone, and for this cause the judgment
was not reversed
in toto, but was only set aside as to the
count in regard to which error had been committed, and the case was
remanded to the
Page 170 U. S. 268
trial court for sentence on the count as to which no error was
found to have arisen, and for further proceedings as to the other
count. In
Putnam v. United States, 162 U.
S. 687, where distinct sentences of concurrent
imprisonment had been imposed under separate counts of an
indictment, reversible error having been found to exist as to one
of the counts only, the judgment was affirmed as to the count where
there was no error and was reversed as to the other, and the cause
was remanded for further proceedings with respect to the count as
to which error had been committed.
These rulings are absolutely in conflict with the proposition
upon which the plaintiff in error relies, and conclusively
demonstrates its unsoundness. True, it is claimed that there is a
distinction between the doctrine announced in these cases and the
proposition here relied on. Thus, it is urged that, in the
Claassen Case, there was no question presented of a
failure of the verdict to affirmatively respond to all the counts
in the indictment, but that the sole issue was, where the verdict
did respond to all the counts and thereafter some of the counts
were found to be bad, whether the verdict and sentence, which did
not exceed the punishment imposed by law for the offense specified
in the good counts, would be held to relate alone to the good
counts, and be therefore not subject to reversal. While it is true
that the claimed distinction between the facts in the
Claassen
Case and those in this exists, it is one, however, which in no
way distinguishes the two cases insofar as the legal principle is
concerned by which they are to be determined. This is at once made
apparent by considering that if the charging of distinct offenses
in several counts in one indictment so unified the various offenses
that action on all of them was necessary to action on any one, the
conclusion reached in the
Claassen Case was erroneous. The
necessary effect of the decision in that case was to establish that
although distinct offenses were charged in separate counts in one
indictment, they nevertheless retained their separate character to
such an extent that error or failure as to one had no essential
influence upon the other. It is also asserted that the ruling in
Dealy's Case does not control the question
Page 170 U. S. 269
here raised. There, on an indictment charging distinct offenses
in several counts, the jury returned a verdict of guilty as to
certain of the counts and were silent as to the others. The
maintaining of this verdict, it is urged, did not import the right
of a jury to agree to convict as to some counts and disagree as to
others, since the court in that case imputed the verdict to all the
counts, and therefore treated it as affirmatively responsive to
all. That is, the argument by which alone it is possible to
distinguish this case from the
Dealy Case must rest on the
extreme and unsound assertion that in that case, although the
record plainly disclosed that the jury had found only as to certain
counts, nevertheless the court, as a matter of fact, held that the
jury had found as to all. The statement in the opinion in the
Dealy Case, to which we have already referred and cited,
that the silence of the verdict as to a particular count "was
equivalent to a verdict of not guilty as to that count," when
properly understood, does not lend itself to the construction which
the argument seeks to place upon it. The contention arises from a
failure to observe the difference between discharging a jury on
mere silence on their part as to the guilt or innocence of an
accused as to a particular count, and doing so only after a formal
disagreement, and its entry of record. Doubtless, where a jury,
although convicting as to some, are silent as to other counts in an
indictment, and are discharged without the consent of the accused,
as was the fact in the
Dealy Case, the effect of such
discharge is "equivalent to acquittal" because, as the record
affords no adequate legal cause for the discharge of the jury, any
further attempt to prosecute would amount to a second jeopardy as
to the charge with reference to which the jury has been silent. But
such obviously is not the case where a jury have not been silent as
to a particular count, but where, on the contrary, a disagreement
is formally entered on the record. The effect of such entry
justifies the discharge of the jury, and therefore a subsequent
prosecution for the offense as to which the jury has disagreed, and
on account of which it has been regularly discharged, would not
constitute second jeopardy. The error in the conviction
Page 170 U. S. 270
may additionally be shown by presupposing that each crime
charged in several counts of one indictment, instead of being
included in one, had been prosecuted by way of separate indictments
as to each. Under these conditions, if a charge contained in any
one of the indictments had been submitted to the jury, and the
court had, after such submission and without verdict, undertaken,
of its own motion, over objection, to discharge the jury, it is
elementary that such discharge would be equivalent to an acquittal
of the particular charge for which the accused was tried, since it
would bar a subsequent prosecution. But if, on the other hand,
after the case had been submitted to the jury, they reported their
inability to agree, and the court made record of it and discharged
them, such discharge would not be equivalent to an acquittal, since
it would not bar the further prosecution. This distinction was
illustrated by the rulings in the cases of
Putnam and Ballew,
supra. In those cases, as the error found to exist as to the
particular counts which caused the reversal prevented the trial, as
to these counts, from constituting legal jeopardy, the case, as to
such counts, was remanded for further proceedings thereunder,
although the conviction as to the counts in which there was no
error was maintained.
Affirmed.
MR. JUSTICE GRAY, MR. JUSTICE BROWN, and MR. JUSTICE SHIRAS
concurred in part, as follows:
We concur in the judgment of affirmance, and upon this short
ground: the indictment contained four counts. The defendant pleaded
not guilty to the whole indictment, and thereby joined issue on
each and all of the counts, and the jury might find the defendant
guilty upon all or any of them. The jury did return a verdict of
guilty upon each of the first three counts, and disagreed as to the
fourth count. The jury thus answered the whole of the issue
presented by the plea to each of the first three counts, and failed
to answer the issue presented by the plea to the fourth count.
Their failure to return a verdict on the fourth count did not
affect the validity
Page 170 U. S. 271
of the verdict returned on the other three counts or the
liability of the defendant to be sentenced on that verdict. The
defendant was sentenced upon those counts only upon which he had
been convicted by the jury. There is no error, therefore, in the
judgment rendered upon the verdict.
But in so much of the opinion of the Court as suggests that the
plaintiff in error may be hereafter tried, convicted, and sentenced
anew upon the fourth count we are unable to concur. No attempt has
been made to try him anew, and the question whether he may be so
tried is not presented by this record. Upon principle, on one
indictment, and against one defendant, there can be but one
judgment and sentence, and that at one time and for the offense or
offenses of which he has been convicted, and a sentence, upon the
counts on which he has been convicted by the jury definitely and
conclusively disposes of the whole indictment, operates as an
acquittal upon, or a discontinuance of, any count on which the jury
have failed to agree, and makes any further proceedings against him
on that count impossible. No case has been found in which, after a
conviction and sentence, remaining unreversed, on some of the
counts in an indictment, a second sentence, upon a subsequent trial
and conviction on another count in the same indictment, has been
affirmed by a court of error.
In
Ballew v. United States, 160 U.
S. 187,
160 U. S. 203, and
in
Putnam v. United States, 162 U.
S. 687,
162 U. S. 715,
in each of which a judgment upon conviction on an indictment
containing two counts was affirmed as to one count and reversed as
to the other count, the order of reversal did not direct a new
trial on the latter count, but was guardedly framed in general
terms "for such proceedings with reference to that count as may be
in conformity to law;" and under such an order, it would be open to
the defendant, if set at the bar to be tried again on that count,
to plead the previous verdict and sentence in bar of the
prosecution.