State v. Toole

• Decision Date: 24 February 1890
• Citation: 11 S.E. 168,106 N.C. 736
• Court: North Carolina Supreme Court
• Parties: State. v. Toole.

11 S.E. 168

106 N.C. 736

State.

v.Toole.

Supreme Court of North Carolina.

Feb. 24, 1890.

Nuisance—Obscene Songs— Indictment—Verdict.

1. When a ribald song containing the stanza charged in the indictment is sung in a loud and boisterous manner on the public streets, in the presence of divers persons then and there present, and such singing continues for the space of 10 minates, this is a nuisance, though the special words charged may not have been repeated.

2. When there is a general verdict of guilty on an indictment containing several counts, and only one sentence is imposed, if some of the counts are defective the judgment will be supported by the good count; and, in like manner, if the verdict as to any of the counts is subject to objection for admission of improper testimony or erroneous instruction, the sentence will be supported by the verdict on the other counts, unless the error was such as might or could have affected the verdict on them.¹

3. A defendant has the right to require a separate verdict to be rendered on each count, as he has the right to require the jury to be polled; but this is a privilege, and there is not error unless the defendant asks for a separate verdict, or that the jury be polled, and is refused. He waives the right to insist on them, if not asked for in apt time.

Shepherd and Avery, JJ., dissenting.

(Syllabus by the Court.)

This was an indictment for nuisance tried before Meares, J., and a jury, at August term, 1889, of Mecklenburg criminal court. There were two counts in the indictment, and a general verdict of guilty. The first count charged the loud and boisterous use of a single profane sentence in a public place, etc., and its repetition for the space of 10 minutes, to the common nuisance, etc. The second count charged the singing in a loud and boisterous manner on the public streets, etc., of an obscene song, setting put five lines thereof, and the repetition thereof, for space of 10 minutes, in presence of divers persons then and there present, to the common nuisance. The indictment was in the usual form, and no objection was taken thereto. On the first count there was evidence tending to show that the profane expression as charged therein was used once; that it was on the public street, in hearing of divers persons, and defendant continued to talk in a loud and boisterous manner; but there was no evidence that this expression was used more than once, or that any other profane words were used. On the second count there was evidence by the state that on the public street, in the hearing of divers persons present then and there, the defendant passed along singing a ribald song in a loud and boisterous manner, in which occurred the five lines charged; that the singing of such vulgar and obscene song continued for the space of 10 minutes, and was loud enough to be heard by many persons, but witnesses could not say whether the song was repeated. The defendant offeredevidence to contradict the state's witnesses on both counts, and asked the court to charge: "If the defendant uttered the words set forth in the first count only a single time, she would not be guilty; and, likewise, if she uttered the words set forth in the second count only one time, she would not be guilty. " The court refused so to charge, and defendant excepted. The jury returned a general verdict of guilty. From the judgment pronounced the defendant appealed, assigning as error the exception above stated.

The Attorney General, for the State.

Clark, J., (after stating the facts as above.) Four witnesses for the state testified that the defendant passed along a thickly-settled street in the city of Charlotte, singing the obscene song set forth in the second count in a boisterous manner, and loud enough to have been heard in several houses; that such loud, boisterous, and obscene singing continued for the space of 10 minutes, but they could not testify that the particular words set out in the bill were used more than once. The defendant testified that she did not sing such song, and also introduced several witnesses who testified that they lived in that neighborhood, near enough to have heard her, and that they did not hear her singing the song as charged. We think it was not error for the court to refuse to instruct the jury, as asked, that "if the defendant uttered the words set forth in the second count only one time she would not be guilty. " The use of the vulgar stanza set out, if uttered as part of a longer song of similar tenor, extending over a period of 10 minutes, along a public street, would be a nuisance, even though the identical words set out may not have been repeated. If this were not so, the perpetrators of such conduct could not be punished unless the hearers are quick enough of ear to catch, and tenacious of memory to retain, the whole of a vile song which disgusts them, and not even then unless there was repetition. The nuisance complained of, in effect, is the loud and boisterous singing for 10 minutes of an obscene song, containing the stanza charged, on a public street, in the hearing of divers persons then and there present. This, though done only on a single occasion, may be a nuisance. State v. Chrisp, 85 N. C. 528.

There having been a general verdict of guilty on two counts for offenses punishable alike, it is immaterial to consider, as to the other count, whether there was error committed or not, unless it was such error as might or could affect the verdict of guilty on the second count; and such is not the case here. When there are several counts in the bill, and there is a general verdict of guilty or not guilty, that is a verdict as to each of the counts of guilty or of not guilty, as the case may be. If it is a general verdict of not guilty, the defendant is entitled to his discharge. If it is a general verdict of guilty upon an indictment containing several counts, charging offenses of the same grade, and punishable alike, the verdict upon any one, if valid, supports the judgment; and it is immaterial that the verdicts upon the oth er counts are not good, either by reason of defective counts, or by the admission of incompetent evidence or giving objectionable instructions as to such other counts, provided the errors complained of do not affect the valid verdict rendered on this count. "To require each distinct though cognate offense to be placed in a separate indictment is to oppress the defendant, by loading him with unnecessary costs, and exposing him to the exhaustion of a series of trials, which the prosecution would encounter with unwaning strength, and with the benefit derived from a knowledge of its own case, and that of the defendant." In criminal cases the practice of uniting counts for cognate offenses has always been encouraged, not merely because in this way the labor of the courts and the expenses of prosecution are greatly diminished, but because it relieves defendants of the oppressiveness which would result from the splitting of prosecutions. Whart. Crim. Pl. (9th Ed.) § 910. Indeed, with this view, the court will, in a proper case, require a consolidation of separate indictments, and treat them as counts in one bill. This was done in the famous tea suits before Judge Washington, (Id. § 294,) in which a separate libel was brought for each of 1, 000 chests of tea alleged to have been smuggled. In State v. McNeill, 93 N. C. 552, the court sustained the consolidation of four separate indictments, and treated them as four counts in one indictment. It is usually a benefit to defendants to combine several counts in one trial. When the defendant thinks he will be damaged by the joinder of several counts in the same indictment, it is open to him to move to quash, or to require the solicitor to elect upon which count he will proceed. State v. Keel, 80 N. C. 442. Each count is in fact and theory a separate indictment. U. S. v. Malone, 20 Blatchf. 137, 9 Fed. Rep. 897. In State v. Johnson, 5 Jones, (N. C.) 221, it is held that a second indictment may be treated as a second count. To the same effect, State v. Brown, 95 N. C. 685; State v. Watts, 82 N. C. 656; and even though they charge different felonies, State v. Reel, supra. A general verdict of guilty is a verdict of guilty on each and every count. Whart. Crim. Pl. (9th Ed.) §§ 292, 738, 771, 907, and cases there cited; also, Hawker v. People, 75 N. Y. 487; Kane v. People, 8 Wend. 203; Moody v. State, 1 W. Va. 337. Indeed, the authorities are uniform and numerous to this effect.

Where the offenses are distinct, the court can impose a sentence on each count, but where it is a stating of the same offense in different ways only one sentence should be imposed. Com. v. Birdsall, 69 Pa. St. 482; Com. v. Sylvester, Brightly, 331; Whart. Crim. Law, (Ed. 1868,) 417, 421; State v. Hood, 51 Me. 363; Crowley v. Com., 11 Mete. 575; Eldredge v. State, 37 Ohio St. 191. If only one sentence is imposed, this is treated as a discontinuance as to all but one verdict. It is open to defendant to have the jury render a separate verdict upon each count, and to have also a separate sentence on each, if he so desires. If he makes no objection to a general verdict, and only one sentence is imposed, it has always beenheld in this state that if one or more counts are defective the sentence will be supported by the good count, if there be one. State v. Morrison, 2 Ired. 9; State v. Miller, 7 Ired. 275; State v. Williams, 9 Ired. 140; State v. Speight, 69 N. C. 72; State v. Bailey, 73 N. C. 70; State v. Beatty, Phil. (N. C.) 52. The same rule prevails generally. Whart. Crim. Pl. (9th Ed.) §292; 1 Chit. Crim. Law, (4th Amer. Ed.) 640. Lord Mansfield, in Grant v. Astle, 2 Doug. 730, regrets that it did not apply in civil cases also, which it could not do under the practice then obtaining, of a single issue. And a general verdict of guilty will be sustained though the counts are inconsistent. State v. Baker, 63 N. C. 270; U. S. v. Pirates, 5 Wheat....