(108 A.)

ones; that they declare each plaintiff in error to be guilty of the "misdemeanor" charged in the indictment, that is, the crime set out in the first and second counts of that pleading, and argues that to declare the findings of the juries to be a conviction of the defendants on the last two counts would subject them to a higher penalty than that imposed for the misdemeanor. As a fact the sentence imposed by the trial court in each case was far less than the maximum penalty for a misdemeanor, but I think that makes no difference; and I think too that the finding was a good conviction of the defendants on all of the counts, and that the sentences imposed, being less than the maximum prescribed for a high misdemeanor, are lawful, except in the case of Cohn, as will hereafter appear.

These cases were argued together here. The Supreme Court goes on to hold that It was assigned for error in the Supreme the verdicts are specific, and not general Court that the trial judge refused to direct a verdict in favor of the defendant on the first and second counts of the indictment upon the ground that the offense alleged in each, if committed at all, had been committed more than two years before the finding of the indictment, and was therefore outlawed. The record shows the proof to be that the illegal tampering occurred more than two years prior to the finding of the indictment. It also showed that the abstraction of the water was persisted in until a period within the two-year limit. The state contended there and here that the situation was similar to the offense of obtaining money by false pretenses, in which the pretense might be anterior to two years before indictment found, while the obtaining of the money might be within the period of limitation, conviction for which would be lawful. The Supreme Court, I think, properly held that the intent of the act of the Legislature, upon which the first two counts were rested, was not the punishment of one who feloniously abstracts water, for that crime, like any other felonious taking is dealt with in other provisions of the statute. In fact the third and fourth counts charge the defendants with the offense of unlawful abstraction, that is, the larceny of water. I think that the Supreme Court properly held that the motion to direct a verdict of acquittal on the first and second counts should have been granted.

It was further insisted on behalf of the state that there should not be a reversal of the conviction, even if there were error in not directing an acquittal on the first and second counts, because the verdicts were general ones, and that it is the law of this state that where there are several counts in an indictment, each charging a distinct crime, a general verdict of guilty amounts to a conviction of each separate offense, and even if the verdict cannot be supported as to one or more of the crimes charged, it will be held good as to the offense described in a single good count. That is the law. That is the law. State v. Huggins, 84 N. J. Law, 254, 87 Atl. 630. The Supreme Court concedes that if each of the counts had charged what it calls "a simple misdemeanor," the verdict of guilty would include all the counts, and the rule of the Huggins Case would apply, but holds, however, that the third and fourth counts charge a "high misdemeanor." The first and second counts are framed on section 164 of the Crimes Act (Comp. Stat. 1794), which denounces the offense as a "misdemeanor," not "simple misdemeanor"; while the last two counts are framed on section 158 of the Crimes Act (Comp. Stat. 1792), which denounces the offense therein described as a "high misdemeanor."

The term "misdemeanor" is synonymous with crime, though not one of the gravest character. Van Meter v. People, 60 Ill. 168, 170. Now if "crime" comprehends "misdemeanor," then "high misdemeanor" compre hends "misdemeanor." A misdemeanor is a misdemeanor, whether it be "high" or "low" or "simple." If the verdict had been recorded in terms "guilty as charged in the third and fourth counts," we could with perfect propriety have referred to it as a conviction of a "misdemeanor," without saying "high misdemeanor"; the latter term being efficacious only in the matter of sentence, a court and not a jury function.

distinction between felonies and misdemeanThe criminal laws of this state ignore the ors. Statutory offenses, if designated at all, are called misdemeanors or high misde

meanors.

252, 255, 9 Atl. 740. The grade of the offense Jackson v. State, 49 N. J. Law, in our Criminal Code is determined by the character and degree of the punishment prescribed, rather than upon the common-law classification of felonies or misdemeanors. Brown v. State, 62 N. J. Law, 666, 695, 42 Atl. 811.

Thus it appears that the "misdemeanor" in our statute called a "high misdemeanor" is not necessarily an offense, which was a felony at common law, and in our act it is simply descriptive of the punishment to be meted out for the offense; and with the punishment to be inflicted upon a criminal defendant the jury has nothing to do; that is the prerogative of the court. Therefore the word was not inserted in the act with reference to any jury question, whose only function is to find the defendant guilty or not guilty of the crime charged as a fact.

I pause here to inquire where the jury in these cases got this word "misdemeanor" from? It nowhere appears in any of the indictments. It does not appear anywhere in

(108 A.)

they did not get it anywhere or use it; that, a general verdict of guilty or not guilty as on the contrary, it is an invention of the charged, or a verdict of guilty or not guilty, clerk's, so far as the verdict was concerned. as to any separate count or counts." And why should we say it applies to the first, instead of to the last, two counts?

Here is no question of construing a penal statute. The simple question is, What does this verdict mean in the form in which we find it in the record? And this is to be tested by the ordinary rules. The meaning of a word may be ascertained by reference to the meaning of words associated with it. Noscitur a sociis.

In the Levin and Rudner Cases the verdict was that the defendant was guilty of the misdemeanor, then continuing, aforesaid of him above charged in the form aforesaid, and as by the indictment aforesaid is above supposed against him. These latter words about his being guilty as charged and in the form as above supposed against him, comprehensive as they are, clearly indicate a conviction on the entire indictment, and all that is in it. And here is a significant thing, one not to be overlooked, namely, that these were three separate cases, tried separately before different juries, and yet the verdict in each one is identical, except in the Cohn Case as above pointed out. This might have come from the juries themselves if the verdicts were, generally, guilty or not guilty; but these somewhat involved sentences never could have emanated verbatim et literatim from separate juries rendering verdicts distinct from, and not in concert with, each other. This alone makes it clearly appear that the verdicts, as written out, were made up by the clerk, and when we find in them the words guilty, and as charged, and as is supposed, without any formula of not guilty, the only rational conclusion to be drawn is that the jury convicted the defendants generally, except perhaps in the Cohn Case, and that the verdicts are general ones, and not specific ones, except in the case of Cohn, and that only by construction, as will hereafter be pointed out.

If the words "misdemeanors" (plural) had been used I presume there would be no question but that the verdicts were of guilt on all the counts. I do not think it would then be contended that the descriptive adjective "high," with reference to the offense charged in the last two counts in the indictments, could be said to restrict the convictions to the counts charging misdemeanors only, for both equally are misdemeanors, simple or high.

When necessary to give effect to legislative intent, words in the plural number are construed to include the singular, and words importing the singular are applied in the plural sense. 36 Cyc. 1123, and note, 63.

In the Cohn Case the court charged the jury as follows:

"Under this indictment, gentlemen, in case you find he is guilty of any offense, your verthere may be a verdict of guilty as to one or dict may be a general verdict as charged, or more counts of the indictment and not guilty as to the others. This, of course, is assuming that the defendant is guilty at all, under any count."

In the Rudner Case the judge charged the

jury as follows:

"Under this indictment, gentlemen, the jury may find a general verdict of not guilty, or if the facts indicate he is guilty, there may be a general verdict of guilty. On the other hand, you may find a verdict of either guilty or not guilty on any one or more of the individual counts."

Thus it will be seen that the trial judge distinctly charged the jury in each one of these cases that they might return a general verdict of guilty or not guilty, or of guilty as to certain of the counts and not guilty as to others.

Under these clear instructions it would, to my mind, be imputing ignorance to the jury to say that they intended to convict on the first two counts and to acquit on the latter two, without having rendered any verdict of acquittal at all; although in the Cohn Case a different view must be taken under the law, as I interpret it.

In Stephens v. State, 53 N. J. Law, 252, 21 Atl. 1038, the indictment contained a count charging embezzlement and another charging larceny, and the jury found the defendant guilty "of larceny and embezzlement as he stands charged in the indictment." On error the Supreme Court held the count in embezzlement invalid, but as the sentence was not greater than the penalty for larceny, the judgment was affirmed. Chief Justice Beasley, speaking for the court said, at page 250 of 56 N. J. Law, at page 1039 of 21 Atl.:

"Is this court constrained to intend that the judgment in question relates, in any degree, to the offense charged in this abortive count?

"My conclusion is a negation of the propposition. The charge of larceny is well laid in the second count in this indictment, and the judgment is in accord with the punishment for dition of facts the principle is that it will be that offense here inflicted; and in such a conintended that the tribunal pronouncing the sentence disregarded the nugatory finding, and exclusively based its action on such part of it as is valid. It has always been the rule of criminal procedure to sustain a judgment on error where there has been one good count on which it could rest, no matter to what extent it was associated with bad ones. The principle is but

In the Levin Case the judge charged as the outcome of the maxim touching judicial pro

follows:

"As this indictment is drawn, the jury may, according as the evidence warrants, find either

cedures, viz., 'Omnia præsumuntur esse rite acta.' In the case before us the trial court could not rightly punish but for the larceny,

and therefore this court must infer that the punishment, notwithstanding the scope of the verdict, was restricted to that misdemeanor of which the defendant had been properly convicted. For exemplifications and statement of this legal principle it is only necessary to refer to the ordinary text-books. 1 Chit. Cr. L. 700; 2 Burr. 984; 1 Arch. Cr. Pl. & Pr. 580,

note.

"Against this objection, therefore, this judgment must prevail."

In State v. Kind, 80 N. J. Law, 176, 177, 75 Atl. 438, in the Supreme Court, one of the exceptions was that the record failed to disclose on which count of the indictment, if any, defendants, or either of them, were convicted; and the Supreme Court, regarding this, said:

"As to this last, it is sufficient to say that a general verdict of guilty operates as a conviction on all the counts, and there was evidence justifying a conviction on every count and the sentence imposed is justified under any count. See State v. Mount, 43 Vroom [72 N. J. Law] 365 [61 Atl. 259]."

verdict of guilty of the misdemeanor of aiding and abetting in tampering with the water meter, and was silent as to the charge of stealing, taking and carrying away certain water, the larceny charge. This differs radically from the verdicts in the Levin and Rudner Cases, where each verdict was guilty of the misdemeanor charged and as by the indictment supposed. The form of the Cohn verdict requires, I think, a discontinuance of the prosecution against him.

In Commonwealth v. Hackett, 170 Mass. 194, 48 N. E. 1087, the indictment contained 10 counts. As to 1, a nolle pros. was entered. · The jury returned a verdict of guilty on 4, not guilty on 3, and returned no verdict and reported no disagreement on 2. The defendant moved in arrest of judgment for the failure of the jury to act upon the two counts. This was overruled, and an appeal was taken. The Supreme Court in affirming held that the fact that the jury failed to return a verdict on two counts of the indictment did not prevent a judgment being entered against defendant upon the counts upon which he was found guilty. The effect of the acceptance of the verdict and the

ther as an acquittal of defendant on the two counts or as a discontinuance of them.

In the cases at bar the issue between the state and the defendants was submitted to the jury on all four counts in the indictments judgment consequent thereon operated eiagainst them. And the form of their verdict was, in effect, that the defendants were guilty as charged, and there was no acquittal of any one on any count, except perhaps in the case of Cohn, as will hereafter appear. In State v. Jankowski, 82 N. J. Law, 229, 232, 82 Atl. 309, 310, where a crime was charged and the jury found the defendant guilty of "attempt," the Supreme Court held that upon writ of error it might deal with the case as if the verdict were set forth with technical precision as guilty of an attempt to commit the crime charged. And Justice Swayze said:

"The jury having found the defendant guilty clearly meant by this verdict to find him guilty of a crime. The only crime of which they could find him guilty under the instructions of the court was an attempt to commit the crime charged in the indictment. Unless, therefore, they meant to find him guilty of an attempt to commit that crime, their verdict was an absurdity. That we cannot presume. Verdicts are often taken in the absence of the court by the clerk, who is not supposed to set them down with technical nicety and precision. In fact, a mere note is made of the verdict, and it is only reduced to legal form when the record is subsequently made up. The Essex Sessions might well have stated in the record returned to this court the verdict according to its legal effect, and, notwithstanding their failure to do so, we may deal with it as if the verdict were set forth with technical precision."

It is now well settled that where several counts are included in the same indictment a conviction upon one of them may be sustained though the jury ignores the others. 12 Cyc. 694, and note 30.

Therefore, in the Cohn Case, where the jury discriminated between the charge of tampering with the meter and that of larceny of the water, specifically convicting of the first, but returning no verdict and reporting no disagreement as to the second, I think their finding may be interpreted as an acquittal of the latter, and, in any event calls for a discontinuance of the prosecution against defendant.

Not so in the case of Levin and Rudner, where the verdicts were not specific, but general, guilty as charged and as supposed, which the word "misdemeanor" clearly interpolated by the clerk, is, in my judgment, impotent to restrict and change into a finding on the first two counts alone.

While I favor an interpretation of these verdicts which will attribute to them the force of general ones, except in the Cohn Case, carrying with them a verdict of guilty on the last two counts, but, as the court does not agree, I think the prosecutor should be given leave to move to amend the verdicts in the Levin and Rudner Cases, either by certiorari or by remand to the Supreme Court, with direction to further remand to the sessions, for the purpose mentioned, so that, ultimately, the actual verdicts rendered in these cases may be brought before this court for adjudication.

In Lefferts v. State, 49 N. J. Law, 26, 29, 6 Atl. 521, 523, a criminal case, Chief Justice Beasley, speaking for the Supreme Court, said:

"A faulty verdict, although accredited by a

(108 A.)

(92 N. J. Law, 641) STATE v. COHN.

March 3, 1919.)

Error to Supreme Court.

deemed amendable, and the record has been remitted to that end by a court of error. Delaware, Lackawanna & Western R. R. Co. v. Toffey, 9 Vroom [38 N. J. Law] 525. In the (Court of Errors and Appeals of New Jersey. case of Apgar's Adm'r v. Hiler, 4 Zab. [24 N. J. Law] 808, this course was taken with a judgment that had been improperly entered. There are many similar and analogous cases in our reports, to which it is unnecessary to refer. "This being the condition of the law with respect to the correction of judicial proceedings in these important respects, it seems difficult to suggest any reasonable ground on which it can be claimed that a bill of exceptions is exempt from such a beneficial control."

The same learned Chief Justice in another criminal case (Acker v. State, 52 N. J. Law, 259, 261, 19 Atl. 258) Supreme Court, ob

served:

"Nevertheless, as the record before us now stands, and unless it can be and is amended, the judgment must be reversed. We have before us making up what was designed to be a judgment record, composed of disjointed and imperfect fragments from the minutes of the sessions. These memoranda are defective and incomplete in many respects. Indeed, one of their statements imports that only a part of the jury were sworn. It is impossible to treat such a farrago as the record of a judgment in a criminal case.

"The court will withhold its judgment until the prosecutor shall have an opportunity to apply for an amendment of the record."

In Matthews v. Booye, 58 N. J. Law, 593, 34 Atl. 754, a civil case in the Supreme Court, it was held:

"After a judgment in the Supreme Court has been removed into the Court of Errors and Appeals by writ of error, and a return has been made to such writ, and errors assigned, and joinder therein filed, the court below will not, on a mere motion upon notice, correct and amend its record. The proper course is for the party desiring the correction or amendment, to allege diminution of the record, in the appellate court, and sue out a writ of certiorari, directed to the court below, for the amendment to be made and returned according to the truth of the case.' 99

The views above expressed lead me to affirm in the Cohn Case and to reverse in the Levin and Rudner Cases.

Haefel Cohn was convicted of a crime. The Supreme Court reversed judgment, and the State of New Jersey brings error. Judgment of Supreme Court affirmed.

For opinion of Walker, Ch., in this and two other cases, see 108 Atl. 11.

The following is the opinion of the Supreme Court:

"The only question to be determined in this case is whether the crime of which the defendant was convicted had been outlawed prior to the finding of the indictment. For the reasons set forth in the opinion which was delivered by us at the present term, in the case of State v. Rudner, 92 N. J. Law, 20, 104 Atl. 320, we consider that it was. The judgment under review must therefore be reversed."

A. Dayton Oliphant and Martin P. Devlin, both of Trenton, for the State. Harry Heher, of Trenton, for defendant in error.

(Court of Errors and Appeals of New Jersey. March 3, 1919.)

Error to Supreme Court.

Morris Rudner was convicted of unlawfully tampering with a water meter and stealing water, and he brought error to the Supreme Court, which reversed (104 Atl. 320), and the State brings error. Judgment of the Supreme Court affirmed.

For dissenting opinion, see 108 Atl. 11. A. Dayton Oliphant and Martin P. Devlin, both of Trenton, for the State. Harry Heher, of Trenton, for defendant in error.

PER CURIAM. The judgment of the Supreme Court is affirmed for the reasons stated in the opinion of the Chief Justice. 92 N. J. Law, 20, 104 Atl. 320. The supplement thereto by our opinion just filed in State v. Levin, 108 Atl. 10, is applicable also to the present case.

THE CHANCELLOR and WHITE and WILLIAMS, JJ., dissent.