Hechter v. State

Fowler, J., delivered the opinion of the Court. The traverser was twice tried in the Criminal Court of Baltimore City upon an indictment containing four counts. The first and second counts charge him with having'received a certain quantity of tin knowing it to have been stolen. The second is the same except that it names the alleged thief.

The other two counts charge that the traverser was an accessory before the fact to the larceny. The first trial, the jury failed to agree; but on the second trial the jury brought in a sealed verdict convicting the traverser of receiving the stolen goods and recommended him to the mercy of the Court. The sealed verdict was as follows : “ Guilty on the first and second counts as indicted and recommended to the mercy of the Court—and by request of the jury in open Court after their attention had been called thereto by the Court they desire to add “ not guilty on the third and fourth counts.” On motion of the traverser the Court below ordered that the following additional entry be entered on the docket. ⁴³⁸ “ The argument of counsel for the State and for the traverser having been concluded on May 23rd, 1901, the jury withdrew from the Court room on said day in charge of a bailiff, to consider of their verdict, and were locked up in their room for this purpose; and, on the evening of said day, agreed upon their verdict and sealed up the same, and thereupon separated, and went to their respective homes, and returned to the Court at its opening on the morning of May 24th, 1901, and then and there when asked by the Court whether they had agreed upon .their verdict answered that they had, and being further asked whether it was a sealed verdict, replied that it is, and then and there delivered the same to the Judge presiding in said Court, and the same was opened and read by him, and after the attention of the jury had been called to the fact that their sealed verdict did not find whether the prisoner was guilty or not guilty on the third and fourth counts, and were asked by the Judge whether they desired to add to their said verdict a finding on said third and fourth counts, and their expressing the wish so to do, the Court, after the attorneys and counsel for the traverser had objected to any change in, or addition to, said sealed verdict, allowed the said jury to add to their sealed verdict the words ‘ not guilty on the third and fourth counts.’ ” A motion to strike out the sealed verdict was then filed based upon the following grounds : “ X. Because the jury did not by its sealed verdict, find whether the traverser was guilty or not guilty of the offenses charged in the third and fourth counts of the indictment, and did not find on all the issues upon which they were required to find their verdict. “ 2. The traverser moved the Court to strike out the words added by the jury to their sealed verdict in open Court on May 24th, 1901, that is to say, the words ‘ not guilty on the third and fourth counts.’ And to sustain this motion, he relied upon the facts contained in the additional entry above set forth.” On the same day the traverser filed motions in arrest of ⁴³⁹ judgment and for a new trial—both of which were overruled, the former by the trial Judge and the latter by the Supreme Bench—whereupon the traverser was sentenced to be confined two years in the penitentiary.

From this judgment he has appealed. The record presents the following questions, first, was the sealed verdict as delivered to the Court, before it was amended, sufficient? Second, were the jury at liberty to amend their sealed verdict in the manner the record shows they did amend it ? i. It may be observed in the first place that it is conceded that there was nothing irregular in the fact that the jury were allowed under the circumstances of this case to bring in a sealed verdict, but the contention of the traverser is that the verdict is bad, not because it is sealed, but “inasmuch as the crime charged in the first and second counts (that of receiving stolen goods, knowing them to be stolen), and the crime charged in the third and fourth counts (that of being accessory before the fact to the larceny) are two distinct offenses; and there were thus two distinct issues to be found by the jury, their failure by their sealed verdict to find either guilty or not guilty on the third and fourth counts made said verdict a nullity, and therefore a verdict on which no judgment could be rendered.” In support of this position strong reliance was placed upon the case of State v. Sutton, 4 Gill, 494 .

This case was decided in December 1846—more than a Jialf century ago—and it was there held that on an indictment containing two counts, the first charging rape and the second, an assault with intent to commit a rape, a verdict of “guilty on the second count,” without negativing the first count, was bad. In delivering the opinion of the Court Judge Spence said: “The law seems to be well settled upon authority that if the jury find but a part of the matters put in issue, and say nothing as to the rest it is ill.” King v. Hayes, 2 Lord Raymond, 1521, and 1 Chit. Crim. Law, 641 , are cited to sustain this position.

Chitty does lay down the law on this question in accordance with the above quotation ; but in the following sen- ⁴⁴⁰ tence he says : “There are, however, so many instances in which a verdict taking no notice of the aggravation has been regarded as sufficient, that it does not seem to be necessary at the present day.” And the case of King v. Hayes, supra, on which the conclusion reached in State v. Sutton rests, has been discredited even in England, so far as it was said to support the proposition contended for by the traverser, for in the case of Latham v. The Queen, 5 Best & Smith, 635 ,(1864), Mr. Justice Blackburn said that the point we are here considering was not passed upon in King v. Hayes, supra. And in the case of State v. Hill, 30 Wis. 419 , Lyon, J., for the Court said: “It has already been stated that the jury did not find expressly whether the defendant is guilty or not guilty of the charge of forgery contained in three counts of the information, but their verdict was silent in respect thereto.” He then proceeds to dispose of the question thus presented. “We have not deemed it necessary to examine to any considerable extent the English cases on this subject, but it seems to be the opinion-of the Court of King’s Bench in The King, v. Hayes, decided in 1727 (2 Raymond, 1518), that the ancient rule of law was that no judgment could be rendered on such a verdict. On the authority of a single case cited from 1 Anderson, 103, both Hawkins and Chitty (when speaking of a verdict which acquits of a higher offense and convicts of an inferior one), “if it merely find the defendant guilty of the inferior offense, it, will be of no avail.” The learned Judge then quotes the remark of the author which we have already quoted, to the effect that even at that time (1816), there were so many instances in which a verdict like the one we are here considering had been held sufficient, that it would be unnecessary to make it respond to every count. He then says that on the foregoing authorities the Court of Appeals of Maryland in State v. Sutton, supra, held that the verdict was bad if there was a finding on one count only, and concludes by holding “that a verdict which finds a defendant guilty upon part only of the counts in an indictment containing several counts, and is silent as to the other counts, is equivalent to a verdict of ⁴⁴¹ not guilty upon such other counts, and must be so regarded. ” The same proposition is supported by the following cases, among others: Edgerton v. State, 5 Allen, 514 ; Keedy v. People, 84 Ill. 569 ; George v. State, 59 Neb. 163 ; Thomas v. People, 113 Ill. 531 ; State v. Belden, 33 Wis. 120 ; State v. Phinney, 42 Me. 384 .

But without further citations we desire in conclusion upon this branch of the case to cite Selvester v. United States, 170 U. S. 262 , which was decided by the Supreme Court in 1897. The opinion was delivered by Justice White.