Stephens v. State

• Decision Date: 01 June 1891
• Citation: 21 A. 1038,53 N.J.L. 245
• Parties: STEPHENS v. STATE.
• Court: New Jersey Supreme Court

21 A. 1038

53 N.J.L. 245

STEPHENS

v. STATE.

Supreme Court of New Jersey.

June 1, 1891.

(Syllabus by the Court.)

Error to court of quarter sessions, Monmouth county; Conover, Bennett, and Curtis, Judges.

Argued before the Chief Justice, and Depue, Van Syckel, Scudder, Magie, Knapp, Peed, and Garrison, JJ.

B. T. & W. Stout, for plaintiff in error.

Chas. Haight, for the State.

BEASLEY, C. J. The indictment in this case contained two counts, the first laying a charge of embezzlement, the second of larceny. The language of the jury in announcing their verdict was "that they find the defendant guilty of larceny and embezzlement as he stands charged in the indictment." From this statement two things are obvious, viz.: That the jury convicted the defendant of two distinct offenses; and that the court has punished such offenses conjointly, and not separately. It will be noticed that the case does not belong to the class that is so common, in which one and the same crime is laid, with a variety of circumstances, in different counts. Of this description was the instance in Donnelly v. State, reported in 26 N. J. Law, 491; the indictment charging in four independent counts the homicide to have been committed in a variant way with respect to the weapon used. The form of the verdict was: "That the said James P. Donnelly is guilty of the felony and murder on him above charged in form aforesaid, as by the said first four counts of the indictment aforesaid is above supposed against him," etc. The court decided that such pleading and finding were right, and in consonance with the common-law practice, as it was the legal intendment that but a single offense was charged by this form of pleading. But in the case at bar the two counts in question cannot be so construed, for each plainly describes a distinct misdemeanor, for the statutory crime of embezzlement is unlike that of larceny. Their penal consequences, according to our laws, are dissimilar; for while the perpetrator of the former is subject, as a maximum punishment, to a fine of $500, or imprisonment for three years, the latter may be punished by a fine "not exceeding five hundred dollars, or imprisonment at hard labor not exceeding ten years, or both." The result is that in this case the defendant stands convicted by the fin ding of the jury of both of these distinct trangrossions, and an indiscriminate judgment, based on that verdict, has passed against him. Two questions thence arise, the first relating to the action of the jury in the particular just stated, and the second with respect to the judicial course thus taken.

There seems to be no doubt that, according to the legal practice in this state, these two various offenses, as they are of the same general nature, and are triable in the same mode, may be united as the subjects of a single indictment, each of them being charged in a separate count. When misdemeanors are thus conjoined, they may be tried together, or separately, at the discretion of the court before which the trial takes place. If the offenses are jointly tried, the methods of procedure should be substantially the same, with respect to each several charge, as they would be such charge formed the basis of a separate provocation; each must be proved, and each must be severally passed upon by the jury. In the case of Com. v. Carey, 103 Mass. 214, the indictment contained three counts, each of which laid a distinct offense, and the jury returned a general verdict of guilty, but, upon being interrogated at the time, declared that they did not pass upon the counts separately. This was pronounced to be erroneous, the court saying "that, it no inquiry had been made, the general verdict of guilty would apply to each count, upon the presumption that the jury had correctly understood and applied the instructions given them. But the injury having been made, and having elicited the fact that the verdict had not been found in a manner authorized by law, it was erroneous in the court to order the verdict thus found to be affirmed and recorded." In the case of Wilson v. State, 20 Ohio, 26, a similar view of the subject was expressed. In the case now before us the verdict conforms to the requirement of the rule thus exemplified and expressed, for the jury passed upon each of the two several charges when they declared that the defendant was "guilty of larceny and embezzlement as he stands charged in the indictment." In this respect this course of law was correct.

But the same vindication is not due to the judgment that was founded on the verdict. That procedure is irregular in the extreme. It imposes a single punishment for the two crimes of which the defendant stood convicted. It makes no discrimination or distribution, so that it is impossible to infer how much of the sentence is to be attributed as a penalty to the one or the other of the misdemeanors. Manifestly there is no law in this state that imposes a punishment on a conviction of these two offenses. It lays an infliction on each separately, but not, as the trial court in this case did, on the two conjointly. Nevertheless, although this procedure is thus greatly informal and incorrect, I incline to think that on this ground the judgment should not be reversed. As the case is presented to us on this record, the objection on this score is of a purely technical character. My mind has failed, after considerable reflection, to suggest how the defendant could be injured, by any possibility, in consequence of this imperfection. It seems to be quite unreasonable to believe that the punishment would have been less if two separate sentences had been pronounced, first for the embezzlement, and then for the larceny. In point of fact, the punishment is less than that which the statute imposes for the perpetration of the lesser of these two misdemeanors. It seems to me, therefore, that the defendant has not suffered any hurt from this defect in the proceeding, and...