CHAPTER XVIII.

VERDICT.

WE have already considered the province of the jury, and the opportunities afforded to them for considering their verdict. In order to clear up any difficulties, they may ask the opinion of the judge on any point which is not exclusively for their determination; or may have read over to them by the judge any part of the evidence; or, through the judge, in court, may ask any additional question of any witness. If they can not, after a reasonable time, agree upon their verdict, they are discharged, (l) the prisoner, of course, being liable to be tried again. Before finding the prisoner guilty, they must be unanimous in believing that there is no reasonable doubt of his guilt-not necessarily that there is no other possible explanation. If they do all agree, on coming into court again, if they have retired, they answer to their names. The clerk of the assize, clerk of the peace, or other officer, thus addresses them: "Gentlemen, have you agreed upon your verdict?" "How say you, do you find John Styles guilty or not guilty?" They deliver their verdict through the foreman. In treason or felony, the prisoner must be present when this is done, but not necessarily in misdemeanor.

Verdicts in criminal cases may be distinguished intoGeneral-i. e., "guilty" or "not guilty" on the whole charge.

Partial-as when the jury convict on one or more counts of the indictment, and acquit on the rest.

Special-when the facts of the case, as found by the jury, are set forth, but the court is desired to draw the legal inference from the facts, for example, whether they amount to murder or manslaughter.

The jury may acquit one of several codefendants who are

(1) v. p. 327, as to discharge on account of death, etc., of juror.

joined in the same indictment, and convict the others, and vice versa; even though charged with jointly receiving.(m) But in cases where, to constitute the crime, it is necessary that a certain number should join in it, if so many are acquitted that less than the requisite number are left, these also must be acquitted-thus, three are necessary for a riot, two for a conspiracy.

A person charged with a felony or misdemeanor may be found guilty of an attempt to commit the same offense,(n) the same consequences following as if he had been in the first instance charged with the attempt only. [This applies, in states where there are only statutory crimes, only to such attempts as are specifically made criminal by statute.]

Upon an indictment for a misdemeanor, if the facts given in evidence amount to a felony, the prisoner is not on that account to be acquitted of the misdemeanor, unless the court thinks fit to discharge the jury and to order the defendant to be indicted for the felony.(0)

[The verdict must correspond with both the indictment and the evidence. A verdict finding the defendant guilty in a higher degree than charged, is erroneous. (1) The verdict can not find the defendant guilty of a distinct offense from the one charged; and finding him guilty with a different intent from that charged, is finding him guilty of a different offense. (2) If the charge is proved, the verdict may be guilty as charged, though the evidence also proves a different or a greater offense. (3) Where value constitutes an essential element of the crime, a general verdict of guilty is a finding of the amount charged. (4) But where statute requires the verdict to state the value of the thing stolen, embezzled, or obtained by false pretenses, an omission

1

(m) 24 and 25 Vict., c. 96, 94.

(n) 14 and 15 Vict., c. 100, 9.

(0) Ibid., 12.

(1) Commonwealth v. Smith, 2 Va. Cases, 327.

(2) Morman v. State, 24 Miss. 54.

(3) Commonwealth v. McPike, 3 Cush. 181; White v. People, 32 N. Y. 465.

(4) State v. White, 25 Wis. 369; Schoonover v. State, 17 Ohio St. 294; Clifton v. State, 5 Blackf. 224.

to state the value invalidates the verdict. (1) A general verdiet of guilty convicts the defendant of all matters well charged in the indictment, and hence convicts him of the highest degree well charged.(2) Where the statute provides that counts for larceny, embezzlement, and obtaining goods by false pretenses may be joined in one indictment, and the defendant found guilty of either, a general verdict of guilty, under an indictment so drawn, is not valid. Where there is a verdict of guilty as to some counts in the indictment, and the jury fail to make a finding as to the other counts, the court may direct a verdict of acquittal to be entered as to the counts for which there is no verdict, or the prosecuting attorney may enter a nolle prosequi as to them. But it has lately been held, in Illinois, that finding guilty as to one count, and omitting to mention the other counts, is equivalent, of itself, to an acquittal of the others.(3) The earlier cases held such a verdict, failing to respond to all the issues, was irregular, and could not stand.(4) When the verdict is delivered, the jury may be polled at the request of either party. After the jury have returned their verdict, have been discharged, and have separated, they can not be recalled to alter or amend it.(5) In Kentucky (6) and Indiana,(7) when the jury find a verdict of guilty, they also, as part of their verdict, fix the punishment. In Illinois, (8) the jury do so in felonies.]

Upon an indictment for robbery, the prisoner may be found guilty of an assault with intent to rob.(p)

Upon an indictment for larceny, the prisoner may be found guilty of embezzlement, and vice versa.(q)

Upon an indictment for obtaining by false pretenses, if the

(p) 24 and 25 Vict., c. 96, § 41.

(1) Armstrong v. State, 21 Ohio St. 357.

(9) Ibid., 8 72.

(2) People v. March, 6 Cal. 543; Schoonover v. State, 17 Ohio St. 294; Estes v. State, 55 Ga. 131.

(3) Keedy v. People, 84 Ill. 569.

(4) United States v. Keen, 1 McLean, 429; Hurley v. State, 6 Ohio 399.

(5) Sargent v. State, 11 Ohio, 472.
(7) Rev. Stat. (1876), vol. 2, p. 401.

(6) Crim. Code, & 258
(8) Rev. Stat. (1877), 407.

385

offense turns out to amount to larceny, the defendant may still be convicted of false pretenses.(r)

And whenever a person is indicted for an offense which includes in it an offense of minor extent and gravity of the same class, the prisoner may be convicted of such minor offense. (s) Thus, on an indictment for murder, he may be convicted of manslaughter; so of simple larceny, if indicted for stealing in a dwelling-house, or any other aggra vated form of larceny.(t)

If the judge is dissatisfied with the verdict, he may direct the jury to reconsider it, and their subsequent verdict will stand as the true one. If, however, the jury insist upon having the first recorded, it must be recorded; but if it be a verdict of guilty, and contrary to the evidence, it will be set aside and a new trial granted by the queen's bench division.(u)

[In the United States, the court in which the trial was held can, for cause, set aside the verdict of guilty, and award a new trial. When the indictment contains several counts setting out the same offense in different terms, and the verdict is guilty on one count and not guilty on the rest; or when the offense charged in a single count has several degrees, and the verdict is guilty of an inferior degree; or when the verdict is not guilty of the offense charged, but guilty of a less included offense; and the verdict is set aside, the courts are at variance as to what the defendant may be tried for at the new trial. hold that in all such cases the verdict is a unit; it is the Some courts finding of the jury upon the offense charged, and when the verdict is set aside, the jeopardy which once existed as to that offense is wholly removed, and the defendant is to be tried upon the indictment as if there never had been a trial.(1)

(r) 24 and 25 Vict., c. 96, § 88; v. p. 194.
(8) v. Rosc. 81
(t) v. Arch. 223.

(u) v. p. 406.

(1) United States v. Harding et al., 1 Wall, Jr., 127, see p. 148; Livington's Case, 14 Gratt. 592; State v. Stanton, 1 Ired. Law, 424; State

Commissioners, 3 Hill (S. C.), 239; Bailey v. State, 26 Ga. 579; Jarvis v State, 19 Ohio St. 595; State v. Behimer, 20 Ohio St. 572; Ex parte Bradley, 48 Ind. 548; State v. Knouse, 33 Iowa, 365.

Others hold that the application of the defendant can be considered only as applying to so much of the verdict as was against him; that the acquittal is absolute, and so much of the charge as was covered by the acquittal can not be tried again, and the new trial must be restricted to that part of the charge as to which there was a conviction.(1)]

If a verdict of acquittal is returned, the prisoner is for ever free from the present accusation; and he is discharged in due course, unless there is some other charge against him. If he is acquitted on account of some defect in the proceedings, or not, as above, on the merits of the case, he may be detained and indicted afresh. If he is acquitted on the ground of insanity at the time of the commission of the offense, whether such an offense was a felony(x) or misdemeanor,(y) he must be kept in custody until the queen's pleasure be known; and the queen may order his confinement during her pleasure.(z) ́

If a verdict of guilty is brought in, the accused is said to be convicted. The jury may annex to such verdict a recommendation to mercy on any grounds they think proper, which recommendation will usually be taken into consideration by the judge. (a) If there are several counts in the indictment, the verdict specifies on which count the prisoner is convicted.

If there is a second indictment against a prisoner who has been found guilty, frequently it is not proceeded with, if the charge is similar to that on which he has just been convicted. The counsel for the prosecution often merely gives the court an outline of the case. If he is acquitted, the second indictment is then proceeded with, unless it

(x) 39 and 40 Geo. 3, c. 94, 8 1.

(y) 3 and 4 Vict., c. 54, § 3.

(z) v. pp. 300 and 331, as to insanity at time of trial and not of commission of offense.

(a) Unless, indeed, as is not unfrequently the case, it appears that the recommendation is founded on some lingering doubt as to the sufficiency of the evidence.

(1) Hurt v. State, 25 Miss. 378; State v. Chandler, 5 La. Ann. 489 State v. Desmond et al., Ib. 398; Jones v. State, 13 Texas, 168; Bar nett v. People, 54 III. 325; State v. Ross, 29 Mo. 32; State v. Martin 30 Wis. 216.