Heinze v. State

• Decision Date: 12 April 1945
• Docket Number: 37.
• Citation: 42 A.2d 128,184 Md. 613
• Parties: HEINZE et al. v. STATE.
• Court: Maryland Court of Appeals

42 A.2d 128

184 Md. 613

HEINZE et al. v. STATE.

No. 37.

Court of Appeals of Maryland

April 12, 1945

Appeal from Circuit Court of Baltimore City; John T. Tucker, Judge.

Horace A. Heinze and another were jointly convicted of stealing $20 from a named person, and they appeal.

Affirmed.

Paul B. Mules, of Baltimore, for appellants.

Wm. H Maynard, Deputy State's Atty., of Baltimore (Wm. C Walsh, Atty. Gen., J. Edgar Harvey, Asst. Atty.

Gen., and J. Bernard Wells, State's Atty., of Baltimore, and Bernard G. Peter, Asst. State's Atty., of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS GRASON, MELVIN, HENDERSON and MARKELL, JJ.

DELAPLAINE, Judge.

Horace A. Heinze and Henry Schaefer, Jr., policemen of Baltimore City, were jointly indicted on two counts: (1) for stealing $20 from Andrew J. Conner, and (2) for receiving $20 knowing the money to have been stolen from Andrew J. Conner. At the trial of the case in the Criminal Court of Baltimore City Conner, a railroad boilermaker's helper, 18 years old, testified that the two policemen ordered him to stop his automobile on Edmondson Avenue at about 1 a. m. on September 11, 1944; that they demanded his motor vehicle operator's license, and he handed to them his pocketbook containing the license; and that after they had handed it back to him and had started to drive away in the police car, he found that a twenty-dollar bill was missing from his pocketbook. He made a complaint to the Baltimore City Police Department, and both of the officers singed reports positively denying that they had stopped his automobile. However, on September 13 they called at Conner's home and, while denying that they had taken the money, offered to pay him $20 if he would say that he had found the bill in his automobile. Both of the officers admitted that they had made false statements in their reports, but they pleaded not guilty.

In accordance with our common-law procedure, the clerk of the court asked the jury, when they returned from their consultation room at the close of the case, whether they had agreed upon a verdict, and they replied that they had. The clerk asked them who would speak for them, and they said, 'The foreman.' He then asked the foreman what their verdict was as to Heinze, and the foreman answered, 'Guilty.' The clerk queried: 'Guilty on the first count, not guilty on the second count?' The foreman answered, 'Yes.' The same questions were asked as to Schaefer, and the foreman gave the same replies. The clerk then declared that the verdict of the jury was: 'Guilty on the first count, not guilty on the second count, as to each defendant, with recommendation of mercy.' Immediately the foreman and several other jurors protested that they had not recommended mercy. Accordingly the clerk repeated the questions, and after the foreman had answered again, the clerk redeclared the verdict, this time without adding recommendation of mercy. Counsel for the defendants then requested that the jury be polled, and thereupon every juror announced the verdict: 'Guilty on the first count, not guilty on the second count, as to each defendant.' The defendants then moved that a mistrial be declared, and excepted to the overruling of their motion. After a motion for a new trial was overruled by the Supreme Bench of Baltimore City, the court sentenced each defendant to imprisonment in jail for six months. The defendants moved to strike out the verdict, judgment and sentence, and this motion was likewise overruled.

On this appeal from the judgment, the defendants argue that the clerk influenced the foreman to amend the verdict, and the other jurors repeated the amendment parrot-like without deliberation, and thus the court invaded the province of the jury. It is a fundamental principle that the verdict of a jury in a criminal case has no effect in law until it is recorded and finally accepted by the court. Commonwealth v. Green, 302 Mass. 547, 20 N.E.2d 417; State v. Di Pietro, 120 Conn. 537, 181 A. 716. Any member of the jury has the right sua sponte to dissent from the verdict as announced by the foreman at any time before it is recorded and affirmed by the jury. If no objection is made by any of the jurors or by the State or the accused, the verdict as announced is the verdict of the whole panel; and it is then the duty of the clerk to record the verdict and have it affirmed by the jury in the presence of the court by calling upon the whole panel to hearken to their verdict as the court has recorded it, and by repeating to them what has been taken down for record. Until the announcement that the verdict has been recorded, the jury have the right to amend or change any verdict; and when it is so amended it is the real verdict of the jury and it may be properly accepted by the court. Ford v. State, 12 Md. 514, 546; Givens v. State, 76 Md. 485, 25 A. 689; Grant v. State, 33 Fla. 291, 14 So. 757, 23 L.R.A. 723, 731; 23 C.J.S., Criminal Law, § 1412.

It is unquestioned that a finding of guilty on two inconsistent counts is invalid. Thus, where a defendant is charged in one count with larceny and in another count with receiving stolen goods, and it plainly appears that the property alleged to have been stolen is that also alleged to have been received, a general verdict of guilty is fatally defective, because in law a thief cannot be guilty of the crime of receiving stolen goods which he himself has stolen, and a guilty receiver of stolen goods cannot himself be the thief, and hence the defendant could not be guilty on both counts. Novak v. State, 139 Md. 538, 115 A. 853; Harris v. State, 182 Md. 27, 31 A.2d 609; Commonwealth v. Haskins, 128 Mass. 60; 2 Bishop, New Criminal Procedure, 2d Ed., sec. 1015a; Hochheimer, Criminal Law, 2d Ed., sec. 181. In the case at bar the general verdict of guilty, as originally announced by the foreman, was inconsistent in law and consequently was inadequate to support a judgment unless properly corrected.

It is a generally accepted rule that if the jury should return a verdict which is defective in form or substance, it should not be accepted by the trial judge. It is essential for the prompt and efficient administration of justice to prevent defective verdicts from being entered upon the records of the court as well as to ascertain the real intention of the jury in their finding. Where a verdict is ambiguous, inconsistent, unresponsive, or otherwise defective, it is the duty of the trial judge to call the jury's attention to the defect and to direct them to put the verdict in proper form either in the presence of the court or by returning to their consultation room for the purpose of further deliberation. Ford v. State, 12 Md. 514, 546; Hechter v. State, 94 Md. 429, 443, 50 A. 1041, 56 L.R.A. 457; State v. Foulds, 127 N.J.L. 336, 23 A.2d 895; Grant v. State, 33 Fla. 291, 14 So. 757, 23 L.R.A. 723, 735; Denham v. Commonwealth, 119 Ky. 508, 84 S.W. 538; Kuenzli v. State, 208 Wis. 340, 242 N.W. 147; United States v. Frankel, 2 Cir., 65 F.2d 285; 2 Bishop, New Criminal Procedure, 2d Ed., sec. 1004.

If a verdict is defective merely in form, and the meaning of the jury is clear, it is proper for the judge to suggest the correction in the presence of the accused without requiring the jury to return to their room. State v. Jankowski, 82 N.J.L. 229, 82 A. 309; Quinn v. State, 123 Ind. 59, 23 N.E. 977; State v. Cary, 124 Kan. 219, 257 P. 719. When, however, it becomes necessary to amend a verdict in substance, it is the safer practice to send the jury back to their room with instructions as to the corrections that ought to be made, so that they can amend the verdict as they think proper unhindered by the presence and possible influence of others. The law does not permit the judge to suggest the alteration of a verdict in...