Stuart v. Commonwealth
| Decision Date | 26 July 1877 |
| Citation | 69 Va. 950 |
| Parties | STUART v. THE COMMONWEALTH. |
| Court | Virginia Supreme Court |
1. It is settled law in this state, that where there are several counts in an indictment, and the jury find the accused guilty upon one of the counts, saying nothing as to the others, the verdict operates as an acquittal upon the counts of which the verdict takes no notice; and the court should enter a judgment accordingly.
2. In such a case, if the accused applies for and obtains a new trial, he does not thereby waive the advantage of the acquittal thus obtained. But he must be tried, and can only be tried again, on the count on which he was convicted, and not on the counts on which he has been before acquitted. And the rule is the same whether the new trial is granted because the verdict is contrary to the evidence, or because the verdict is so defective, or uncertain, that legally no judgment can be pronounced thereon.
3. And the same rule applies where on an indictment for murder, the jury found the prisoner guilty of manslaughter, or on an indictment for malicious stabbing, & c., with intent to maim, disfigure or kill, the jury find the prisoner guilty of unlawful stabbing with intent to kill.
4. Where there is but one count in an indictment on which the accused may be convicted of one of several offences which are covered by the indictment, the verdict of the jury finding the accused guilty of one of the said offences is a verdict of acquittal of all the others of a higher grade of offence as on an indictment for murder, a verdict finding the accused guilty of manslaughter, is a verdict of acquittal as to the murder: and on an indictment for malicious stabbing with intent to kill, a verdict finding the accused guilty of unlawful stabbing with intent to kill is an acquittal of malicious stabbing. And the rule stated in No. 2 applies. Quæ re: If this rule applies where on an indictment for murder the jury find the prisoner guilty of murder in the second degree.
5. On a second trial of the offence for which the accused was found guilty by the jury, if the jury find him guilty they may fix his imprisonment or other penalty at any period or penalty authorized by the statute, though it be greater than that fixed by the first jury.
6. Under an indictment with only one count, for malicious shooting, stabbing or cutting, with the intent to kill, the accused may be convicted of the offence charged, or of unlawfully doing such acts, or indeed, of any other offence--felony or misdemeanor--which is substantially charged in the indictment.
7. The acquittal obtained by the first verdict is not affected, if the indictment under which it was found is afterwards quashed by the court on the motion of the attorney for the commonwealth; nor is the prisoner entitled to be discharged from prosecution on another indictment for the offence of which he was convicted in the first indictment, because that indictment was quashed; he would have every right under the second indictment that he had under the first, and no more.
8. The mere pendency of one indictment is no bar to another, even for the same offence; the accused cannot be tried on both but the commonwealth may elect on which it will prosecute.
9. The discharge of a jury, after they have rendered a verdict against a prisoner, but which verdict is adjudged to be a nullity because it was not duly perfected, and thereupon set aside as insufficient, is no bar to a prosecution under the same or a new indictment.
10. When a prisoner is arrested under a warrant of a justice examined and committed to jail, and indicted and tried, and afterwards that indictment quashed and a new indictment found against him for the same offence, he is not then entitled to a new preliminary examination before a justice under the last indictment found against him.
11. Where a prisoner has been carried to the penitentiary in execution of the judgment of the court below, and after that a new trial is granted him by the court of appeals, the last named court will award a writ of habeas corpus, directed to the superintendent of the penitentiary, to bring the prisoner before it, and order him to be committed to the sheriff of the county in which the court of appeals is sitting, to be by him conveyed to the jail of the county in which the judgment of conviction was rendered, for the purpose of being again tried in conformity with the judgment of the appellate court.
Robert Stuart was indicted in the county court of Washington at the July term 1876, for " unlawfully, maliciously and feloniously" assaulting one Leander Galliher, with intent to " maim, disfigure, disable and kill" him. There were two counts in the indictment, both charging the same offence. The second count was more specific as to the weapon used in the assault. The defendant demurred to the indictment; which was overruled, and the trial proceeded with on the plea of " not guilty" at that term. At that trial a verdict was found in these words: " We, of the jury, find the defendant guilty of unlawful assault, and fix the term of his imprisonment in the state penitentiary for two years." On the motion of the plaintiff in error this verdict was set aside and a new trial granted, and the cause continued until the August term of the court. At the August term, owing to the " mutilated" condition of the indictment, on the motion of the attorney for the commonwealth it was quashed. The plaintiff in error then moved the court to discharge him from custody, which motion was overruled, and he was remanded to jail, and the plaintiff in error excepted. At the September term the plaintiff in error was again indicted for the same offence, the second indictment being the same in every material point as the first. The plaintiff in error then moved the court to be sent before a justice of the peace for a preliminary examination on this latter indictment (such examination was had before the finding of the first indictment), which motion was overruled, and the plaintiff in error excepted. He then offered two special pleas to this indictment: one of a former acquittal; the other setting out all the proceedings on the first indictment, and claiming that he could not be convicted under the second indictment. Both of these pleas were, on the motion of the attorney for the commonwealth, rejected by the court; and the plaintiff in error again moved the court to discharge him, which the court refused to do. He then pleaded " not guilty." A trial was had, and a verdict was found in these words: " We, the jury, find the prisoner, Robert Stuart, guilty of the malicious assault, with intent to maim, disfigure, disable and kill, and ascertain the term of his imprisonment in the penitentiary to be five years; " which verdict the plaintiff in error moved the court to set aside; but the court overruled the motion, and entered up judgment on the said verdict: to all of which rulings the plaintiff in error excepted, and filed his bill of exceptions. A writ of error was awarded by the circuit court of Washington, and the judgment of the county court was affirmed by it. The plaintiff in error then obtained a writ of error from a judge of this court. The errors assigned are fully stated and discussed in the opinion of the court.
Buchanan & Trigg, for the prisoner.
The Attorney General, for the commonwealth.
It is well settled law in this state, that where there are several counts in an indictment, and the jury find the accused guilty upon one of the counts, saying nothing as to the others, the verdict operates as an acquittal upon the counts of which the verdict takes no notice, and the court should enter a judgment accordingly. Lithgow v. Com., 2 Va. Cases 297; Page v. Com., 9 Leigh 683; Canada's case, 22 Gratt. 899; Page's case, 26 Gratt. 943. It may be regarded as equally well settled, that in such case if the accused applies for and obtains a new trial, he does not thereby waive the advantage of the acquittal thus obtained. But he must be tried, and can only be tried again on the count on which he was convicted, and not on the counts of which he had been before acquitted. The reason is, that the accused having been rightfully acquitted of one or more of several offences which have been joined in the said indictment, he cannot again be brought into jeopardy for these alleged offences, because, having been wrongfully convicted on another, he seeks and obtains redress against the wrong done him.
The attorney general did not seriously controvert this doctrine. He maintained, however, that the rule applied only in those cases where the new trial is granted, because the verdict is against evidence; and that it had no application when the new trial is granted on account of a defective verdict, which is in effect a mistrial. In other words, if the finding is so defective or uncertain that legally no judgment can be pronounced thereon, it is a mere nullity, and the accused is precisely in the same condition as if there had been no trial; the whole case being again open for investigation upon its merits. The learned counsel cited no authority for the supposed distinction in the two cases, nor have we been able to find any that sustains it.
It would seem to be clear, that whether the verdict be set aside because it is defective, or because it is contrary to evidence, the legal result must be the same. If, in the first case, the verdict is not severable, but is so entire, that to vacate the conviction necessarily carries with it the acquittal, the like consequences must ensue, whatever may be the ground upon which the verdict may be set aside. On the other hand if, where the finding is set aside because it is against evidence, the new trial is to be...
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