State v. McCormick , 84 Me. 566 ( 1892 )

Walton, J.

In capital cases and cases in which the accused, if found guilty, is liable to be punished by imprisonment for life, it is error’ to allow the jury to seal up their verdict and then separate before returning it into court.

In cases not capital, and in which the accused, if found guilty, is not liable to be punished by imprisonment for life, the jury may be allowed to seal up their verdict, if it is agreed upon during an adjournment of the court, and return it into court when the court is again in session.

But such a verdict must be in proper form and signed by the foreman of the jury. A piece of paper with nothing but the word "guilty ” upon it, and not authenticated by the signature of the foreman, is not a proper verdict, and can not properly be affirmed as such.

To secure accuracy and a uniformity of practice in such cases, this court prepared a suitable form for sealed verdicts in criminal cases, with instructions in relation to the cases in which they could properly be used, and the manner in which they should be received, opened, read and affirmed, and caused the same to be published in its official reports. See 63 Maine Beports, 590. And when, in a proper case, a jury is allowed to seal up their verdict, they should be furnished with a proper blank, and be instructed how to use it.

In the case now under consideration, the exceptions state that the defendant was tried on an indictment for rape. Rape is one of the highest crimes known to the law. It is not many years since it was punishable by death. And it is now a crime for which a person, if found guilty, is liable to be punished by imprisonment for life. The punishment may be for a term of years, or it may be for life, at the discretion of the court. It was not, therefore, a case in which the jury could properly be allowed to separate after agreeing upon a verdict and before returning it into court. No one now knows, and no one can know, till after the sentence is passed, that it wrill not be a sentence for life. And yet the jury was allowed to separate after agreeing upon a verdict and before it was returned into court; and the exceptions state that this was done without the knowledge or consent of the defendant. And the exceptions further state that the verdict which "was returned was a piece of paper with nothing upon it but the word "guilty.” It did not state the name of the defendant, nor was it authenticated by the signature of the foreman. Clearly such a verdict could not be accepted. And we do not understand that it was accepted. We understand from the exceptions that an oral verdict was taken and affirmed in the usual way, and as would have been proper in this case if the jury had not separated before returning it.

It is urged in behalf of the State that rape ought not to be regarded as a crime punishable by imprisonment for life, because it is not necessarily so punished. Precisely the same argument has been urged in cases arising under the statute defining felony. The statute declares that the term "felony ” includes every offense punishable by imprisonment in the state prison. And it has been several times urged upon the court that unless the offense is necessarily so punished, it should not be regarded as a felony. But the court has uniformly held that an offense that is liable to be so punished must be regarded as a felony, although not necessarily so punished. And we think these decisions are sound ; for no one can know till sentence is passed that the offense will not be so punished. As it is liable to be so punished, the only safe and proper course to pursue, is to try the offender precisely as if it were certain to be so punished. And by parity of reasoning, the only safe and proper way to try a man charged with rape, is to proceed as if it were certain that his punishment, if he should be found guilty, would be imprisonment for life. State v. Smith, 32 Maine, 369 ; Smith v. State, 33 Maine, 48 ; State v. Mayberry, 48 Maine, 218.

This conclusion is not in conflict with State v. Fenlason, 78 Maine, 495. It is true that in that case the defendant was on trial for an offense liable to be punished by imprisonment for life ; and it is true that the jury were allowed to seal up their verdict and return it into court after a separation. But the direction to the jury that they might seal up their verdict and then separate before returning it into court, was in the presence of the defendant and his counsel, and the direction was impliedly, if not expressly, assented to by the defendant and his counsel; and the verdict was afterward received and affirmed in their presence without objection. Under these circumstances, the court held that the objection must be regarded as waived. In the present case, the direction to the jury, that they might seal up their verdict, was not in the presence of the defendant or his counsel; and, of coui’se, was neither expressly nor impliedly assented to by either. Nor was the verdict received and affirmed without objection. On the contrary, the action of the court in both particulars was vigorously objected to. Under these circumstances it is impossible to hold that the proceedings were assented to, or the errors waived. The case cited is not, therefore, opposed to our conclusion in. the present case.

The proceedings in the reception and affirmation of sealed verdicts, in both civil and criminal cases, may be, and usually are, as follows : After the court is opened, and the jurors are in their seats, the clerk, by the direction of the court, inquires of the jury if they have agreed upon a verdict. Upon receiving an answer in the affirmative, the clerk directs the jury to pass it in. The foreman of the jury then delivers the sealed verdict to the officer in attendance upon them, and he hands it to the clerk. The clerk then opens the verdict and reads it aloud, so that all present can hear what it is. Then, after a short pause, if no objection is made to the verdict, and it appears to the court to be in proper form, he directs the clerk to affirm it. The clerk then addresses the jury as follows: " Gentlemen of the jury, hearken to your verdict as the court has recorded it.” The clerk then reads the verdict to the jury, and concludes by saying, "So say you, Mr. Foreman? So say you all, gentlemen of the jury?” To these inquiries, the foreman, and other members of the panel, sometimes respond vocally, but more usually by an affirmative gesture, such as a nod or a slight inclination of the head or body. The verdict is regarded as affirmed by the jury, if no dissent is expressed.

The proceedings in Massachusetts appear to be somewhat different. It appears that their practice is to require an oral verdict in addition to the sealed verdict. The difference seems to us to be no more than a mere matter of form. In this State verdicts are often so taken. A verdict in either form will be legal.

It is further urged in behalf of the State that the case is not properly before the law court. We think it is.

In Commonwealth v. Tobin, 125 Mass. 203, a case almost precisely like this, where a sealed verdict had been improperly affirmed in the Superior Court, and a motion had been made to have the verdict set aside, which motion had been overruled by the court, and the defendant had excepted, Chief Justice Gray said that the verdict received and recorded by the court not being a legal verdict, it was the right of the defendant, upon motion duly filed, to have it set aside; and that the order of the Superior Court overruling his motion and denying him this right, was a decision upon a question of law which could not have been raised before verdict, and was therefore a proper subject of a bill of exceptions.

In this case, the defendant moved for an arrest of judgment, and for a new trial, because an illegal verdict was received and affirmed. There being no dispute in relation to the facts, whether or not his motion should be sustained was a pure question of law. The decision was against him. We think he had a right to except, and that his exceptions are properly before the law court. The defendant’s motion is not simply for an arrest of judgment. It is also a motion asking for a new trial for an error in law. We think he is entitled to a new trial.

There is one other ground on which the court is urged not to grant a new trial; and that is that the errors were in matters of form merely. When a man’s liberty for life, or for a term of years even, is involved in a trial, it is his right to insist that all the proceedings shall be strictly according to law. If one of the safeguards which the law throws around a man's liberty may be disregarded to-day, another may be to-morrow, and another the next day, and so on till they are all swept away. The proper place to stop is at the beginning.

Exceptions sustained. New trial granted.

Peters, C. J., Libbey, Emery, Haskell and Whitehouse, JJ., concurred.