Selvester v. United States, 397

• Decision Date: 25 April 1898
• Docket Number: No. 397,397
• Citation: 170 U.S. 262,18 S.Ct. 580,42 L.Ed. 1029
• Parties: SELVESTER v. UNITED STATES
• Court: U.S. Supreme Court

170 U.S. 262

18 S.Ct. 580

42 L.Ed. 1029

SELVESTER

v UNITED STATES.

No. 397.

April 25, 1898.

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, while they 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asked leave to enter a nolle prosequi as to the fourth count, but upon objection by the accused the motion was withdrawn, and the jury rendered the following verdict:

'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.

Arthur English, for plaintiff in error.

Asst. Atty. Gen. Boyd. for the United States.

Mr. Justice WHITE after stating the facts in the foregoing language, 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 offenses 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 offense from those embraced in the other counts.

Reduced to its ultimate analysis, the claim amounts to his: That an indictment, although consisting of several counts, each for a distinct offense, is in law an indivisible unit, and 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- dit ment. 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 Neb. 343; Casey v. State, 20 Neb. 139, 29 N. W. 264; and Muller v. Jewell, 66 Cal. 216, 5 Pac. 84.

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 offenses were charged in separate counts, especially when these offenses 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 offenses 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 offense 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.

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 offenses, 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 upon which it is based was sufficient. Whart. Cr. Pl. § 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 offenses 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 offenses 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 Rex v. Hayes (1727) 2 Ld. Raym. 1518. See observations in the opinion in State v. Hill, 30 Wis. 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. Reg., 5 Best & S. 635), and that it was a mistake to apply to the several counts of distinct offenses 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 (page 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 prisoner 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 defendant referred to authorities to...