1. Where no question was raised in the courts below with respect
to the sufficiency of an indictment, and no such question is
presented here, its sufficiency will be assumed. P.
284 U. S.
392.
Page 284 U. S. 391
2. Upon an indictment in three counts charging (1) maintenance
of a common nuisance by keeping intoxicating liquor for sale at a
specified place, (2) unlawful possession, and (3) unlawful sale, a
defendant was found guilty on the first and was acquitted on the
second and third. The evidence was the same on each count. It was
contended that the evidence on the nuisance count was insufficient,
and that the verdict was inconsistent.
Held:
(1) The evidence on the nuisance count was sufficient to warrant
a verdict of guilty. P.
284 U. S.
392.
(2) Consistency in the verdict was not required. P.
284 U. S.
393.
(3) The verdict may not be upset by speculation or inquiry into
whether it was the result of compromise or mistake on the part of
the jury. P.
284 U. S.
394.
3. Where offenses are separately charged in the counts of a
single indictment, though the evidence is the same in support of
each, an acquittal on one may not be pleaded as
res
judicata of the other. P.
284 U. S.
393.
50 F.2d 779 affirmed
Certiorari,
post, p. 607, to review a judgment of the
Circuit Court of Appeals which affirmed a judgment of the District
Court upon a verdict of guilty under the National Prohibition Act.
See Borum v. U.S., post, p. 596.
MR. JUSTICE HOLMES delivered the opinion of the Court.
The petitioner was indicted in three counts, first, for
maintaining a common nuisance by keeping for sale at a specified
place intoxicating liquor, second, for unlawful possession of
intoxicating liquor, and third, for the unlawful sale of such
liquor. The jury acquitted him on the
Page 284 U. S. 392
second and third counts, and found him guilty on the first. No
question was raised in the courts below with respect to the
sufficiency of the indictment on the first count, and no such
question has been presented here. The case was tried upon the
assumption that the indictment was good as to that count, and, in
the opinion of the majority, we should make the same
assumption.
The defendant says that the evidence did not warrant a
conviction, and that the verdict on the second and third counts is
inconsistent with that upon the first, and that, for this reason
also, he is entitled to be discharged. The evidence was the same
for all the counts. The defendant owned the establishment where the
alleged sale took place. It consisted of a front room where fishing
tackle, sporting goods, cigars, and soft drinks were sold, and a
larger room in the rear with pool tables and a bar. Two prohibition
agents and two unknown men walked in and ordered from the defendant
three glasses of whisky and one of beer, and were served without
further conversation. A little later, two more drinks were called
for and furnished. The whisky was served in ordinary whisky glasses
from underneath the bar, and the money paid for it, twenty-five
cents a glass, was put into a cash register behind the bar. The
testimony, if believed, showed a regular course of business, which
manifestly was continuous,
Fisher v. United States, 32
F.2d 602, 604, and warranted a verdict of guilty on the nuisance
count. The defendant gave evidence that he was elsewhere at the
time of the alleged sale, and did not make it. He contends that the
verdict is inconsistent, since it negatives possession and affirms
the nuisance, the proof of the commission of both alleged offenses
consisting of identical evidence. The government says that, even
though the jury seems to have believed that the defendant was
elsewhere at the time of the alleged sale and did not make it, the
verdict
Page 284 U. S. 393
is not necessarily inconsistent, for some third person, with
defendant's knowledge, may have been doing business on the
premises, and, if so, they were a nuisance, and the defendant was
guilty although he neither possessed nor sold intoxicating liquors
upon them; that, whereas the government's witnesses may have been
mistaken in saying that the defendant sold, they may have been
right to the extent that someone did, and, if that be true, the
defendant's knowledge could be inferred, this being his place of
business and he being habitually present there. It is further
argued that it may be inferred that he received the money coming
from the sale, and that he knowingly abetted the seller in the acts
that created the nuisance on the premises that the defendant
controlled.
Consistency in the verdict is not necessary. Each count in an
indictment is regarded as if it was a separate indictment.
Latham v. The Queen, 5 Best & Smith, 635, 642, 643;
Selvester v. United States, 170 U.
S. 262. If separate indictments had been presented
against the defendant for possession and for maintenance of a
nuisance, and had been separately tried, the same evidence being
offered in support of each, an acquittal on one could not be
pleaded as
res judicata of the other. Where the offenses
are separately charged in the counts of a single indictment, the
same rule must hold. As was said in
Steckler v. United
States, 7 F.2d 59, 60:
"The most that can be said in such cases is that the verdict
shows that, either in the acquittal or the conviction, the jury did
not speak their real conclusions, but that does not show that they
were not convinced of the defendant's guilt. We interpret the
acquittal as no more than their assumption of a power which they
had no right to exercise, but to which they were disposed through
lenity."
Compare Horning v. District of Columbia, 254 U.
S. 135.
Page 284 U. S. 394
That the verdict may have been the result of compromise, or of a
mistake on the part of the jury, is possible. But verdicts cannot
be upset by speculation or inquiry into such matters.
Judgment affirmed.
MR. JUSTICE BUTLER, dissenting.
The indictment contains three counts, and accuses petitioner of
violations of the liquor laws. The first is under § 33, and the
other two are under § 12 of Title 27, U.S.Code, being,
respectively, §§ 21 and 3 of title 2 of the National Prohibition
Act, 41 Stat. 308, 314. The pertinent words are:
"§ 33. Any . . . building . . . or place where intoxicating
liquor is manufactured, sold, kept, or bartered in violation of
this chapter, and all intoxicating liquor and property kept and
used in maintaining the same, is hereby declared to be a common
nuisance, and any person who maintains such a common nuisance shall
be guilty of a misdemeanor. . . ."
"§ 12. No person shall . . . sell . . . or possess any
intoxicating liquor except as authorized in this chapter [title]. .
. ."
The first count cites § 33 and charges that petitioner, on the
4th of July, 1930 (the evidence shows that June 26 was meant),
"at a place known as No. 301-2d Street, in the City of Eureka .
. . , did . . . maintain a common nuisance in then and there
knowingly and willfully committing a prohibited and unlawful act of
keeping for sale at said place certain intoxicating liquor . . .
to-wit: five drinks of whisky and one drink of beer. . . ."
The second cites § 12, and charges that he then and there
committed a prohibited and unlawful act of "possession of the said
certain intoxicating liquor." The third cites § 12, and charges
that, on June 26, 1930, he did then and
Page 284 U. S. 395
there knowingly and willfully commit a prohibited and unlawful
act of "sale of certain intoxicating liquor . . . to-wit: five
drinks of whisky and one drink of beer."
The nuisance charged is specifically limited to the "keeping for
sale" of the six drinks mentioned. The unlawful possession count is
limited to the same drinks. The unlawful sale alleged is limited to
six drinks. The evidence showed that the same liquor constituted
the sole basis of each count.
At the trial, it was shown that petitioner owned and carried on
business in the place described; that there was a front room where
sporting goods, cigars, and soft drinks were sold, and a back room
in which defendant had a bar, pool and card tables, and all kinds
of soft drinks. The bar was used to wait on customers in that room.
There were some one-ounce whisky glasses which petitioner testified
were used to serve bitters.
Two federal prohibited agents testified that, about 7:30 o'clock
in the afternoon of June 26, 1930, they and two unknown men, whom
they referred to as "pick-ups," entered the rear room and found
petitioner behind the bar; that one of the agents bought from
petitioner "three whiskys and one beer," and paid him a dollar,
which he rang up on the cash register; that the other agent bought
from him two more drinks of whisky, and that all such liquor was
consumed on the premises by the agents and their companions. No
other sale was shown. No arrest, search, or seizure was then made
or attempted.
Marron v. United States, 275 U.
S. 192. Eight days later, federal officers, having a
warrant for arrest, accompanied by one of the prohibition agents,
raided the place and arrested petitioner. There was no evidence
that any liquor was found. Petitioner testified and introduced
other evidence to show that he was absent from Eureka and not in
the place until some time between 8 and 8:30 o'clock that
evening.
Page 284 U. S. 396
The trial court charged:
"The element of nuisance is the keeping of intoxicating liquor
for sale. If you find from the evidence that the defendant had in
his possession any liquor . . . for the purpose of such sale, then
you must find the defendant guilty. . . ."
"If you find from the evidence that the defendant unlawfully
possessed intoxicating liquor, of course, it will be your duty to
find him guilty of that charge. . . ."
"Of course, if . . . you believe that he is guilty . . . of
having sold liquor at his said place of business, it will be your
duty to find him guilty of that charge. . . ."
"When an indictment charges a defendant with crime, it is not
necessary for the government to prove that the act was committed by
the defendant personally, but it is sufficient for the government
to prove that the act was committed by an agent of the defendant
and committed in the course of the agency and in furtherance of it.
. . ."
"I instruct you . . . that it is the law that 'Whoever directly
commits any act constituting an offense defined in any law of the
United States or aids or abets or procures its commission is a
principal.' [apparently referring to 18 U.S.C. § 550] . . ."
"The defendant has introduced evidence tending to show that he
was not present at the time and place of the commission of the
crime charged in this indictment. . . . If the evidence of an alibi
in connection with all the other evidence raises a reasonable doubt
of the presence of the defendant at the time and place of the
crime, he should acquitted."
The jury acquitted petitioner on the possession and sales
counts, and convicted him on the nuisance count.
The court, by the first quoted instruction, in harmony with the
pleadings, authorized the conviction of petitioner upon the finding
of the possession for sale of the
Page 284 U. S. 397
six drinks without more. The familiar rules that the principal
may be held for acts of his agent, and that one who aids or
procures the commission of crime is a principal applied equally to
all the accusations, and were not limited to the first count. The
charge that, if petitioner were absent, he must be acquitted also
applied on all counts. There is no ground to hold that the jury,
notwithstanding petitioner's absence from the place when the
prohibition agents were there, found him guilty of nuisance, and
that, because of that absence, it found him not guilty of the very
act alleged to constitute the nuisance. The jury must have rejected
his alibi. And, if petitioner, through another, kept for sale the
liquor as charged in the first count, he necessarily acted through
the same agent as to the identical possession alleged in the
second.
The definition of nuisance in § 33 manifestly requires
continuity of maintenance -- that is, a practice or course of
business. Inherently it is a continuous offense having duration.
Cf. Ex parte Snow, 120 U. S. 274,
120 U. S. 281;
Blockburger v. United States, ante, p
284 U. S. 299.
This is confirmed by § 34, which authorizes temporary and permanent
injunctions for the abatement of such nuisances. But to hold that
unlawful possession or a single sale, without more, constitutes a
nuisance as defined
"would be to render meaningless the other provisions of the law
in which the Congress has denounced these specific acts and
provided punishment for their violation."
Barker v. United States, 289 F. 249, 250. A single
sale, if attended by circumstances warranting the inference that
the defendant is engaged in a practice of which the sale is but an
instance, may be sufficient to establish the offense. But mere
possession for sale in a building of a half-dozen drinks does not
measure up to the standard.
Lewinsohn v. United States,
278 F. 421, 425;
Reynolds v. United States, 282 F. 256,
258;
Singer v. United States, 288 F. 694, 696;
Page 284 U. S. 398
Miller v. United States, 300 F. 529, 537;
United
States v. Ward, 6 F.2d 182;
Schechter v. United
States, 7 F.(2) 881;
Fisher v. United States, 32 F.2d
602, 604.
The facts alleged in the first count are not sufficient to
constitute nuisance. They amount only to a charge of unlawful
possession. The count contains nothing as to the character of the
place. No practice or course of business maintained or intended is
alleged. The facts set forth are not distinguishable from those
alleged as constituting the unlawful possession charged in the
second count. It is of no legal significance that the pleader cited
§ 33 in the first count and § 12 in the others, and referred to the
offense as "nuisance" and failed to characterize or name those
charged in the others.
Williams v. United States,
168 U. S. 382,
168 U. S. 389;
Hammer v. United States, 271 U. S. 620,
271 U. S. 625;
People v. Aro, 6 Cal. 207;
State v. Murray, 41
Iowa, 580.
By finding petitioner not guilty under the second and third
counts, the jury conclusively established that the evidence was not
sufficient to prove the unlawful possession or sale there alleged.
Since the first count charged nothing more than unlawful
possession, this amounted to contradictory findings on the same
fact. But, even if that count charged a nuisance, the unlawful
keeping of that liquor for sale was essential to the offense -- in
fact the
corpus delicti -- and the verdict of guilty
necessarily included a finding of the very possession that was
conclusively negatived by the verdict under the second count. If
the finding of guilt on the first count were not contradicted by
another finding contained in the same verdict, or if it stood
alone, a judgment would properly be entered thereon convicting
petitioner of the unlawful possession. 18 U.S.C. § 565.
Samlin
v. United States, 278 F. 170;
Sparf & Hansen v. United
States, 156 U. S. 51,
156 U. S. 62;
Wallace v. United States, 162 U.
S. 466,
162 U. S.
476.
Page 284 U. S. 399
This is not a failure of the jury to pass on all the counts
submitted to them, as in
Selvester v. United States,
170 U. S. 262, and
Latham v. The Queen, 5 B. & S. 635, cited in the
opinion here. In this case, the jury responded to all the issues,
but the findings cannot be reconciled. Possession was alleged in
the second count and negatived by the jury. Nothing remains to
support the opposite finding under the first count. The repugnancy
is such that, if the first is accepted, the second must be
rejected. I am of opinion that this record plainly requires an
express and unqualified decision that these findings conflict and
are completely repugnant.
What is the legal effect of such conflict in the verdict?
Where the jury's action reflects mere inconsistency in the
consideration of the evidence which results in apparently illogical
or unreasonable conclusions, courts will disregard differences and
give effect to the verdict.
*
In civil cases, where there is conflict between a special and
general verdict, the former will prevail.
Lemke v. Chicago,
Milwaukee & St. Paul Railway Co., 39 Wis. 449. If here the
first count stated facts which, taken with the specified possession
of six drinks, would be sufficient to constitute nuisance,
Page 284 U. S. 400
the finding of not guilty on the possession count would be, in
principle and effect, a special finding negativing that element of
the offense charged.
Cf. People v. Piper, 50 Mich. 390, 15
N.W. 523. In a civil case, if the inconsistency is between findings
in a special verdict in respect of a controlling fact, no judgment
can be entered. As said by Chief Justice Ryan:
"The verdict on a material point finds for each party and
against each party, being, in effect, equivalent to disagreement of
the jury. The answer assumes to cut a single and indivisible truth
in two. . . . No judgment can rest on such a verdict, and no court
should receive it."
Carroll v. Bohan, 43 Wis. 218, 220;
Hawes v.
Chicago & N.W. R. Co., 41 Wis. 44, 51.
Davis v. Town
of Farmington, 42 Wis. 425, 431;
German Ins. Co. v.
Smelker, 38 Kan. 285, 16 P. 735. Under the common law, a jury
may give a special verdict in a criminal case. 2 Hawkins P.C., 8th
ed., c. 47, § 3; 4 Blackstone, pp. 360, 361;
Commonwealth v.
Call, 21 Pick. 509, 514;
Commonwealth v.
Eichelberger, 119 Pa. 254, 263, 13 A. 422;
State v.
Bray, 89 N.C. 480;
People v. Piper, supra. No
judgment may be entered upon an uncertain special verdict.
People v. Olcott, 2 Johns. 301, 311.
In criminal cases, no form of verdict will be good which creates
a repugnancy or absurdity in the conviction. 2 Bishop, New Criminal
Procedure, 2d ed., § 1015a(5).
Where one by different counts is accused of two crimes which by
reason of their nature cannot be committed by the same person, a
verdict of guilty on both counts will be held so inconsistent with
itself and so uncertain in law that no judgment can be entered
thereon. Such verdicts are so meaningless as to be without force.
Regina v. Evans, 7 Cox C.C. 151, 157;
Rosenthal v.
United States, 276 F. 714;
Commonwealth v. Haskins,
128 Mass. 60;
Tobin v. People, 104 Ill. 565.
And see
Commonwealth v. Lowrey, 158 Mass. 18, 20, 32 N.E. 940.
Page 284 U. S. 401
In
Regina v. Evans, supra, one count accused the
prisoner of stealing sheep. Another count charged him with having
received them on the same day. There was a verdict amounting to a
finding of guilty on each count. The court of Queen's Bench held it
inconsistent. The Chief Justice announcing the judgment said (p.
157):
"This record must therefore be dealt with as if there had been a
special verdict, on which the court should find matter which would
not justify either an acquittal or conviction. T he practice in
such a case has been to award a
venire de novo. The cases
in Lord Raymond's reports, and the later cases, sanction such a
course, and we cannot see any good grounds for distinguishing an
uncertain general verdict such as this from an uncertain special
verdict."
In
Rosenthal v. United States, supra, three were
indicted under the Act of February 13, 1913, 37 Stat. 670. One
count accused them of having bought and received property that had
been stolen from a car, then being a shipment in interstate
commerce, knowing it to have been so stolen. The second count
charged that, at the same time and place, they had that property in
their possession under like circumstances and with like
knowledge.
On the first count, the jury found all not guilty. On the other
count, all were acquitted but one, and he was found guilty. The
evidence showed that the property had been stolen, and disclosed
only one transaction between the thieves and the defendant who was
found guilty. The court said (p. 715):
"By its verdict upon the first count of the indictment, the jury
found that the plaintiff in error neither bought nor received the
cigarettes from them [the thieves] with knowledge of the theft,
and, by its verdict upon the second count, that the plaintiff in
error was at the same time and place in possession of the property
with such guilty knowledge. The two findings were thus wholly
inconsistent and conflicting. For this reason, we feel obliged to
reverse the judgment and remand the case for a new trial. "
Page 284 U. S. 402
Upon the indictment of several for an offense that could not be
committed without the participation of two or more of them, a
verdict of guilty against one and of not guilty for the others is
deemed wholly repugnant and invalid, 1 Chitty, Criminal Law (5th
Am. ed.) p. 640. On indictment of riot against three, a verdict
finding less than number guilty is void, for more than two must
riot.
Harison v. Errington, Popham (2d ed.) 202;
Rex
v. Heaps, 2 Salk. 593;
The King v. Sudbury, 12 Mod.
262;
Rex v. Scott, 3 Burr. 1262, 1264. And, on a charge of
conspiracy against two, a verdict convicting only one is void.
United States v. Hamilton, 26 Fed.Cas. pp. 90-91, No.
15,288;
Feder v. United States, 257 F. 694, 696;
People v. Olcott, supra, 2 Johns. 310, 311;
Queen v.
Manning, 12 Q.B.D. 241, 245;
Queen v. Thompson, 16 A.
& E. 832, 844
et seq. And on the trial together of
persons accused as principal and accessory, acquittal of the former
renders a verdict against the latter bad because entirely
inconsistent with the innocence of the person charged as the
principal offender. 2 Coke's Inst. 184; Foster, p. 360; 1 Hale P.
C. (1st. Am. ed.) p. 625; 2 Hawkins P.C., c. 29, § 47;
United
States v. Crane, 4 McLean, 317, 319, Fed.Cas. No. 14,888;
Commonwealth v. Andrews, 3 Mass. 126, 131.
One accused in different counts of an indictment of the same
crime, there being no difference in the means alleged to have been
employed, may not be adjudged guilty on a verdict of conviction on
one count and of acquittal on the other.
Speiller v. United
States, 31 F.2d 682, 684;
State v. Akers, 278 Mo.
368, 370, 213 S.W. 424;
State v. Headrick, 179 Mo. 300,
307, 78 S.W. 630.
Cf. Commonwealth v. Edds, 14 Gray 406,
410;
United States v. Malone, 9 F. 897, 900.
Where there is a verdict of not guilty on one count and a
verdict of guilt on another, and the former necessarily determines
that the evidence failed to establish a fact
Page 284 U. S. 403
which is an essential ingredient of the offense charged in the
other count, then, in determining whether the evidence was
sufficient to sustain the finding of guilt, the court must exclude
from consideration the fact so found in favor of the accused. And
so, in every such case, the question of law for the court always is
whether, outside the fact eliminated by the verdict of not guilty,
the evidence was sufficient to warrant the conviction.
Hohenadel Brewing Co. v. United States, 295 F. 489;
Peru v. United States, 4 F.2d 881;
Murphy v. United
States, 18 F.2d 509;
Boyle v. United States, 22 F.2d
547;
Kuck v. State, 149 Ga.191, 193, 99 S.E. 622.
And
see Baldini v. United States, 286 F. 133.
Under an indictment by one count accusing eight persons of
conspiracy to maintain a nuisance and alleging as an overt act the
maintenance of that nuisance and by another charging that they did
knowingly maintain such nuisance, a verdict acquitting them of the
conspiracy (
i.e., the agreement to maintain) and
convicting them of having knowingly maintained the identical
nuisance specified in the conspiracy charge will not support a
judgment of guilt. This for the reason that, by the verdict that
all knowingly maintained the nuisance, the jury necessarily found
that there was an agreement amount them to maintain the nuisance.
The court said:
"It is unthinkable that eight men should for a period of time
have knowingly maintained and operated the place where intoxicating
liquor was sold and kept for sale without some kind of an agreement
among themselves."
Boyle v. United States, supra, 548 of 22 F. 2d.
A brewing company indicted for violation of the National
Prohibition Act was accused by the first count of unlawful
manufacture at divers times between dates more than a year apart.
By the five counts following, it was accused of unlawful sales at
different times, and, by the seventh
Page 284 U. S. 404
count, it was accused of nuisance during that period in that it
maintained a place where liquor was manufactured, kept, and
bartered. The jury found defendant not guilty under the first six
counts and guilty of nuisance under the seventh. The court held the
facts alleged in the counts on which defendant was acquitted were
to be deemed as nonexistent, and excluded from consideration in
determining whether there was evidence to sustain the nuisance
charged. Finding no evidence outside the facts so negatived, the
court held conviction could not be sustained.
Hohenadel Brewing
Co. v. United States, supra.
The government cites
Carrignan v. United States, 290 F.
189;
Marshallo v. United States, 298 F. 74;
Steckler
v. United States, 7 F.2d 59, and
Gozner v. United
States, 9 F.2d 603.
And see Seiden v. United States,
16 F.2d 197.
In the
Carrignan case, defendant was accused in two
counts of violation of liquor laws -- the first count charged
unlawful sale, and the second maintenance of a nuisance. The
opinion does not disclose details alleged. The jury acquitted on
the sale charge and convicted of nuisance. The court distinguished
the
Rosenthal case, supra, and said (p. 190):
"In the present case, plaintiff in error could have been
convicted and sentenced upon both counts of the indictment. He
could have been found guilty of either offense without having been
guilty of the other."
And it supported that statement by reference to the evidence. It
is to be inferred from the opinion that the allegations in the
nuisance count were not, as they are here, limited to the liquor
bought by the government agent. No repugnancy as a matter of law
was found or dealt with in the opinion, and there is nothing in
recognition or support of the principle here contended for by the
government.
In the
Marshallo case, the indictment was in two counts
for violation of liquor laws; the first was for nuisance, and
Page 284 U. S. 405
the second for unlawful possession. The opinion does not show
details alleged. Marshallo was shown to be owner and proprietor of
the place. Government employees testified: the place was a soft
drink parlor having a lunch bar and back room; two witnesses went
into the back room and ordered three drinks. Marshallo was behind
the bar, bottles of liquor were passed from the cellar through a
hole in the floor, three drinks were handed to the waiter, payment
was made and rung up on a cash register. Immediate examination of
the cellar disclosed a large quantity of liquor kept there. The
jury found Marshallo guilty of nuisance, not guilty of possession.
He insisted that the verdict of guilt of nuisance could not stand,
because inconsistent with the acquittal of possession. The court
held there was ample evidence of nuisance, and sustained the
verdict citing the
Carrignan case. The opinion does not
suggest that, outside the possession so specifically found not
proved, there was not ample evidence to establish defendant guilty
of nuisance. The opinion shows no such conflict or repugnancy that,
if one finding were true, the other necessarily must be false.
In the
Steckler case -- which the opinion of this Court
cites -- a druggist with a permit to possess liquor for sale under
prescribed regulations was indicted for violation of liquor laws in
four counts; the first charged nuisance, the maintenance of a place
where liquor was kept for sale in violation of the Act; the second
unlawful possession; the third an unlawful sale on April 8; the
fourth another unlawful sale on that day. The jury found him guilty
of unlawful possession, and acquitted him on the other counts. The
court held
Marshallo v. United States, controlling and --
it need not be considered whether justifiably -- dealt with the
case as if there were an irreconcilable conflict. It said (p.
60):
"No doubt it has generally been assumed that, if the verdict was
rationally inconsistent, the conviction ought not to stand, and
probably that was
Page 284 U. S. 406
the common law, though it is hard to find a case squarely so
holding."
It concluded that the acquittal on the nuisance and sales counts
was an "assumption of a power which they [the jury] had no right to
exercise, but to which they were disposed through lenity," and so
sustained the conviction.
In the
Gozner case, the indictment charged violation of
the liquor laws; the first count charged unlawful possession, the
second unlawful possession of property for use in the manufacture
of intoxicating liquor, the third manufacture, and the fourth the
maintenance of a nuisance. Gozner was acquitted on the first three
and convicted of nuisance. The court held the findings of not
guilty on the three counts did not have the force of
res
adjudicata precluding conviction on the other count. But it
was not held or suggested that, excluding the facts necessarily
found not proved under the first three counts, there was not
evidence to warrant conviction of defendant for the maintenance of
the nuisance. The reasoning of the court does not apply in this
case. One of the judges, in a dissenting opinion, insisted that
there was a legal inconsistency between the findings of not guilty
in favor of Gozner on the three counts and his conviction on the
fourth, and maintained that, outside the facts necessarily
negatived by the acquittals, there was no evidence to convict of
nuisance.
I am of opinion that the authorities establish as well settled,
(1) that, when, upon an indictment charging the same offense in
different counts, the jury acquits as to one and convicts on the
other defendant is entitled to a new trial, and (2) that, when
different crimes are charged in separate counts and the jury
acquits as to one and convicts on the other, the conviction will be
sustained unless, excluding the facts which the jury in reaching
its verdict of
Page 284 U. S. 407
acquittal necessarily found not proved, it must be held as a
matter of law that there is not sufficient evidence to warrant the
verdict of guilty, and where the evidence outside the facts so
conclusively negatived by the acquittal on one count is not
sufficient to sustain guilt on the other count, defendant is
entitled to a new trial.
The rule first stated is applicable here. Excluding the
possession negatived by the finding under the second count, there
is nothing of substance left in the first count, for its
specifications were limited to the keeping for sale of the
identical drinks alleged in the second count to have been
unlawfully possessed. Moreover, even if it be thought that nuisance
was sufficiently alleged in the first count, the unlawful
possession of the six drinks was an essential ingredient of the
offense alleged. The evidence having been found insufficient to
establish such possession, it cannot be held adequate to warrant
conviction under the first count. The finding of not guilty is a
final determination that possession, the gravamen of both counts,
was not proved.
The law does not permit investigations into the deliberations of
juries for ascertainment as a matter of fact upon what
considerations verdicts are reached; the soundness of that rule has
never been questioned. There are stronger reasons against
speculating whether, or assuming that, the jury, through tenderness
of disposition, mercy, or forbearance, acquitted while knowing that
its duty was to convict the accused. Conflict between the findings
may not be explained. The inference that the jury, seeking rightly
to discharge its duty, made a mistake is to be preferred over the
suggestion that it found for defendant upon an assumption of power
it may not lawfully exert.
I am of opinion that the verdict does not support the
judgment.
*
Dimmick v. United States, 121 F. 638, 642;
Boone
v. United States, 257 F. 963, 968;
American Socialist
Society v. United States, 266 F. 212, 214;
Bullock v.
United States, 289 F. 29, 32;
Carrignan v. United
States, 290 F. 189, 190;
Lee Choy v. United States,
293 F. 582, 584;
Dallas v. United States, 4 F.2d 201, 202;
Hesse v. United States, 28 F.2d 770;
United States v.
Anderson, 31 F.2d 436;
Pankratz Lumber Co. v. United
States, 50 F.2d 174;
Thompson v. State, 177 Ark. 1,
10, 5 S.W.2d 355;
People v. Edwards, 72 Cal. App. 102,
117, 236 P. 944;
Holt v. People, 1 P.2d 921, 922;
Rokvic v. State, 194 Ind. 450, 143 N.E. 357;
State v.
Brizendine, 114 Kan. 699, 703, 220 P. 174;
Lanasa v.
State, 109 Md. 602, 609, 71 A. 1058;
State v. Daly,
77 Mont. 387, 391, 250 P. 976;
Weinecke v. State, 34 Neb.
14, 23, 51 N.W. 307;
People v. Haupt, 247 N.Y. 369, 371,
160 N.E. 643;
State v. Brown, 198 N.C. 41, 150 S.E.
635.