Statement of the Case.

SELVESTER v. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.

No. 897. Argued March 14, 1898. - Decided April 25, 1898.

Plaintiff in error was indicted for alleged violations of Rev. Stat. § 5457 The indictment contained four counts. The first charged the unlawful possession of two counterfeit half dollars; the second, an illegal passing and uttering of two such pieces; the third, an unlawful passing and uttering of three pieces of like nature; and the fourth the counterfeit. ing of five like coins. After the jury had retired, they returned into court and stated, that, whilst they were agreed as to the first three counts, they could not do so as to the fourth, and the court was asked if a verdict to that effect could be lawfully rendered. They were instructed that it could be, whereupon they rendered a verdict that they found the prisoner guilty on the first, second and third counts of the indictment, and that they disagreed on the fourth count, which verdict was received, and the jury discharged. Held, that there was no error in this. Latham v. The Queen, 8 B. & S. 635, cited, quoted from, and approved as to the point that, "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."

THE plaintiff in error was indicted for alleged violations of section 5457 of the Revised Statutes. The indictment contained four counts. The first charged the unlawful possession of two counterfeit half dollars; the second, an illegal passing and uttering of two such pieces; the third, an unlawful passing and uttering of three pieces of like nature, and the fourth, the counterfeiting of five like coins. The case came on for trial, and, after the jury had retired, they returned into court and stated that, whilst they were agreed as to the first three counts, they could not do so as to the fourth, and the court was asked if a verdict to that effect could be lawfully rendered. They were instructed that it could be. The District Attorney thereupon asked leave to enter a nolle prosequi as to the fourth count, but, upon objection by the accused, the motion was withdrawn, and the jury rendered the following verdict:

Opinion of the Court.

"We, the jury, find James Selvester, the prisoner at the bar, guilty on the first, second and third counts of the indictment, and disagree on the fourth count of the indictment."

Despite objection and exception by the accused, the court received this verdict and discharged the jury.

By motions in arrest of judgment, to set aside the verdict, and for a new trial, the defendant asserted that the verdict was a nullity, because "insufficient, incomplete and uncertain." Exceptions were duly noted to the overruling of these several motions, and the court having imposed sentence a writ of error was allowed.

Mr. Arthur English for plaintiff in error.

Mr. Assistant Attorney General Boyd for defendants in

error.

MR. JUSTICE WHITE, after stating the case, delivered the opinion of the court.

The assignments of error challenge the sufficiency of the verdict to support the judgment which was entered thereon. The claim is that as the verdict expressed the agreement of the jury as to the guilt of the accused as to the distinct crimes charged in three of the counts, and stated a disagreement as to the distinct crime covered by the fourth count, the verdict was not responsive to the whole indictment, and was void. That is to say, the proposition is that the verdict of guilty as to the separate offences covered by the three first 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 offence from those embraced in the other counts.

Reduced to its ultimate analysis, the claim amounts to this: That an indictment, although consisting of several counts, each for a distinct offence, 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 in

Opinion of the Court.

dictment. In effect it is claimed that where an indictment consists of several counts, repeated trials must be had until there is an agreement either for acquittal or conviction as to each and every count contained in the indictment. It needs but a mere statement of the proposition to demonstrate that it in reason rests necessarily on the premise just stated. That this is its essential postulate is conclusively shown by the authorities which are cited to sustain it. They are: Hurley v. State, 6 Ohio, 399; Wilson v. State, 20 Ohio, 26, 31; Williams v. State, 6 Nebraska, 334; Casey v. State, 20 Nebraska, 138, and Muller v. Jewell, 66 California, 216.

In the Hurley case, upon the assumption that the same rules, as respects the sufficiency of verdicts, governed in criminal as in civil cases, the Supreme Court of Ohio held that a trial court acted properly in refusing to enter a verdict which found the defendant not guilty on one count of an indictment, and stated their inability to agree as to other counts; and further held that no error was committed in discharging the jury and again putting the accused upon trial.

In the Wilson case, the opinion in the Hurley case was criticised, but it was held to be "prudent," where in one indictment distinct offences were charged in separate counts, especially when these offences might subject the accused to different degrees of punishment, to require the jury in their finding, in the absence of a general verdict, to affirm or negative each charge. In consequence of this view the court reversed, because the verdict had found the defendant guilty as charged in one series of counts in the indictment, but had omitted any reference whatever to his guilt or innocence as to certain other offences charged in another series of counts. The rule thus applied was declared to be necessary because of a possible doubt as to whether a defendant might not be subject to further prosecution for an offence not passed upon by a jury in a verdict under an indictment consisting of several counts.

The Nebraska cases followed the ruling in the Wilson case, mainly, however, because the Ohio decision was regarded as a construction of a statute, existing in Ohio, and which had been adopted into the Nebraska Code.

Opinion of the Court.

The California case relied upon may be dismissed from view, as it related to a verdict in a civil cause.

In passing, we note that the doctrine that a verdict in a criminal case must respond to every count in an indictment in order to warrant a judgment thereon, as stated in the Ohio cases just referred to, seems to be no longer maintained in that State. Jackson v. State, 39 Ohio St. 37. In the Jackson case the issues presented were as follows: The trial court had refused to receive a verdict on an indictment containing several counts for distinct offences, which found the defendant "guilty as charged in the first count of the indictment." The jury thereupon after further deliberation returned a general verdict of guilty. The Supreme Court of the State of Ohio, in considering an exception taken to the entry of the general verdict, said: "The objection is untenable. The prisoner might have been sentenced under the first verdict, for the count on which it was based was sufficient. (Whar. Crim. Pl. and Pr. sec. 740.) But the proper course was to endeavor to obtain a verdict responding to both counts, and that course was pursued."

Whatever may be the present rule in Ohio, it is manifest from the foregoing brief analysis of the cases cited by the plaintiff in error to sustain the contentions upon which reliance is placed, that they rest upon the theory that, even although the offences charged in the several counts of an indictment be distinct and separate crimes, such a solidarity is created between them by charging them in several counts. of one indictment as to render void any verdict which does. not specifically and affirmatively respond to each and every count. But this proposition, whatever may be the support found for it in early cases, is not sound in reason, and is negatived by the decisions of this court and the opinion of text writers, that is to say, it is refuted by the conclusive weight of authority.

The erroneous theory as to the indivisible union presumed to arise from charging distinct offences in separate counts of one indictment, applied in the cases referred to and in some other early American cases, took its origin from the case of

Opinion of the Court.

Rex v. Hayes, (1727) 2 Ld. Raym. 1518. (See observations in the opinion in State v. Hill, 30 Wisconsin, 421.) But it has been held in England that that case did not justify the view which had been sometimes taken of it, Latham v. The Queen, 5 B. & S. 635, and that it was a mistake to apply to the several counts of distinct offences in one indictment the rule which obtains as to verdicts in civil cases. In the course of his opinion, in the case just cited, Mr. Justice Blackburn said (p. 642):

“Then it is said we are concluded by authority. There is only one case which has the least bearing on the question, namely, Rex v. Hayes, 2 Ld. Raym. 1518. In that case the indictment contained three counts, and a special verdict was returned, finding the prisoners guilty on two of them, but said nothing on the third, and the question was whether judgment could be given against them as guilty on the whole. The court held, that as the jury had virtually found, and the facts showed, the prisoners not guilty on the third count, the record established that they were guilty on two counts, and not on the third. The counsel who argued that case for the defendants referred to authorities to show that where a verdict finds but a portion of an issue, or only one of several issues, it is bad and ground for a venire de novo; but the court did not determine that point at all—there was no occasion to decide that no verdict being given on one count vitiates a verdict on another count which is good. In civil cases there is only one process against the defendant, and therefore if a new trial is granted on one 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 O'Connell v. The Queen, 11 Cl. & F. 155, which has been referred to, Parke, B., says pp. 296-7: 'So in respect of those counts on which the jury have acted incorrectly, by finding persons guilty of two offences, (on a count charging only one,) if the Crown did not obriate the objection, by entering a nolle prosequi as to one of, the offences, Rex v. Hempstead, R. & R.