Hechter v. State , 94 Md. 429 ( 1902 )

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.

"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:

"1. 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 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?

1. 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 half 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 sentence 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 ofLatham 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 ofState 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 inState 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 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. He says, "the proposition is that the verdict of guilty as to the separate offenses covered by the first three 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," he continues, "the claim amounts to this: That an indictment, although consisting of several counts, each for a distinct offense, is in law an indivisible unit, 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." After tracing this "erroneous theory" to the case of Hayes v.The King, supra, he cites the case of Latham v. The Queen,supra, in which JUSTICE BLACKBURN said that there was no occasion to decide, and that the Court of King's Bench did not decide, in that case that "no verdict being given on one count vitiates a verdict on another count which is good." The quotation from LORD BLACKBURN thus continues: "In civil cases there is only one process against the defendant, and therefore if a new trial is granted on 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 conclusion LORD BLACKBURN said: "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" — the technical error referred to by his lordship, being the very one here complained of by the traverser. The rule in England, thus clearly announced in Latham v. The Queen, JUSTICE WHITE says has been applied generally in the American cases, citing Whar.Crim. Pl. Prac., sec. 740, and 1 Bishop New Crim. Prac., sec. 1011, where a number of authorities are cited. Classen'scase, 142 U.S. 140; Dealy v. United States, 152 U.S. 539;Ballew v. United States, 160 U.S. 187; Putnam v. UnitedStates, 162 U.S. 687. While JUSTICES GRAY, BROWN and SHIRAS dissented upon another ground, they concurred with the views of the majority upon the question we have been considering.

We conclude, therefore, that the weight of modern authority is opposed to the rule laid down in State v. Sutton, supra, and that we ought not any longer to be bound by it to the full extent there announced. Of course we do not intend by what we have said to criticise or in any manner challenge the correctness of the views announced in State v. Flannigan, 6 Md. 167, where it was held that on an indictment containing two counts both charging murder, a verdict of "guilty of manslaughter" without saying "not guilty of murder" is erroneous; nor those in Manly v. State, 7 Md. 135, where it was held that on an indictment containing two counts, both relating to the same transaction, one charging assault with intent to kill and the other assault andbattery a general verdict of guilty was good; nor do we intend to deny the correctness of the decision in Weighorst v. State,supra, where it was decided upon an indictment containing one count charging murder that the verdict "Guilty of murder in the second degree" without negativing "murder in first degree" and "manslaughter" is sufficient. State v. Flannigan, supra, andWeighorst v. State, 7 Md. 442, and Ford v. State,12 Md. 514, were all disposed of under our statute requiring the jury to specify in their verdict the degree.

2. It would seem that if, as we think, the sealed verdict in this case was good before it was amended, it was clearly not rendered bad by the addition or amendment which the Court allowed by adding the words "not guilty on the third and fourth counts." The circumstances under which the verdict was corrected have already been narrated. Before the jury was askedto hearken, and before the verdict was recorded the correctionwas made, and if allowable at all, it was made at the proper time. Thus in the case of Ford v. State, 12 Md. 546, it is said: "If the jury, through mistake or partiality, deliver an improper verdict, the Court may, before it is recorded desire them to reconsider. They cannot, however, be allowed to make alteration after the verdict is recorded."

But it was contended that it would be a dangerous practice to allow sealed verdicts to be corrected or changed after the jury have separated and have an opportunity to be influenced in an improper and illegal way. In this we entirely agree, and hence we think that the right to amend or correct a sealed verdict should be limited to such correction or amendment as will make the oral verdict given in Court correspond substantially with the sealed verdict. In our opinion such was the result in the case at bar, for, as we have held, the sealed verdict, although it found only on the first and second counts and was silent as to the third and fourth, must be regarded, as a matter of law, as a verdict of not guilty on them, and hence the additional words "not guilty on the third and fourth counts" added nothing to the sealed verdict.

It is said by Mr. Hochheimer in his work on Criminal Law, p. 329, that "Excepting capital cases, and cases in which the sentence may be imprisonment for life, it has been held to be within the discretion of the Court to authorize the jury to separate after agreeing upon, signing and sealing a paper in the form of a verdict, and afterwards to return a verdict in open Court, in accordance with the verdict so stated and sealed up." And so it has been held in a number of cases in Massachusetts. Thus in Com. v. Tobin, 125 Mass. 206, GRAY, C.J., said that in all misdemeanors, if not in all but capital crimes, a practice has been adopted of allowing juries to bring in sealed verdicts. In criminal cases, however, the oral verdict, he says, which is pronounced by the foreman in open Court cannot be received unless it is shown to accord substantially with the form sealed by the jury before their separation. See also Com. v. Slattery, 147 Mass. 425; Com. v. Walsh,132 Mass. 10; Com. v. Durfee, 100 Mass. 146, c.

It was suggested that if the whole doctrine of sealed verdicts be applied to criminal cases a sealed verdict of guilty might be changed into a verdict of acquittal or vice versa; but, as we have limited the application of the rule as applied to criminal cases such a situation could not arise, for the sealed verdict cannot be substantially departed from. Of course there is always a possibility that one or more jurors may dissent from the sealed verdict in open Court. Nor can this be prevented whether the verdict be sealed or not for in either case a juror may dissent. It is said in State v. Engles, 13 Ohio, 494: "The possibility that jurors may dissent from a verdict of guilty when polled, and cast upon the State the burden of a new trial, furnishes a sufficient reason to make Courts cautious in exercising the discretion of allowing jurors to seal up their verdicts."

But whatever may be the objections to sealed verdicts in criminal cases, it must be admitted that the practice has long prevailed in Baltimore City and some of the Circuits to allow them except in capital cases and cases involving imprisonment for life. This is part of the growth of modern practice, in relief of the hardships and inconveniences to which jurors are necessarily subjected, but it cannot be carried beyond the point of reasonable safety to the administration of justice. Kramer v.Kister, 187 Pa. 227.

The change or amendment of the verdict complained of was in favor of the traverser, and upon the whole case, even if we should concede some irregularity exists, we may say here, as LORD BLACKBURN said in Latham v. The Queen, supra, "No authority has been produced to show that we ought to defeat the ends of justice by such a technical error as this."

Judgment affirmed.

(Decided January 17th, 1902.)