form as in civil cases, and our statutes provide that the proceedings prescribed by law in civil cases in respect to the manner of rendering the verdict shall be had upon the trials of indictments.2

The verdict, in cases of felony, must be delivered in open court in the presence of the defendant.3 Though in trials for inferior misdemeanors, or where no corporal punishment is to be inflicted, a privy verdict may be given, and there is no occasion for the presence of the defendant.*

Therefore an agreement, in a capital case, between the district attorney and the counsel for the prisoner that the jury may deliver their verdict to the clerk is void.5

The verdict may be either general, guilty or not guilty, or special, setting forth all the circumstances of the case, and praying the judgment of the court, whether, for instance on the facts stated, if it be murder, manslaughter or no crime at all. This is where they doubt the matter of the law, and therefore choose to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circumstances, and finding a general verdict."

After the verdict is recorded it is a general rule that it cannot be amended, unless the mistake appear and be corrected promptly.8

It is has been held, however, that a general, like a special verdict, may be amended in matter of form, though not in any substantial degree.9

So the jury may change their verdict after they have pronounced it in open court, and before it has been received and entered, and the verdict which is recorded will stand. 10

1 1 Arch. Cr. Pr., § 173, note.

2 R. S., 735, § 14..

* 1 Wend., 91; 1 Term R., 434; 1 Chit. Cr. Law, 636.

1 Chit. Cr. Law, 636.

G. & W. on New Trials, vol. 3, p. 1408, and cases cited. See, also, 2 Hawk., ch. 47, § 2; Co. Lit., 227; 3 Inst., 110.

4 Blac. Com., 361.

1 Chit. Cr. Law, 648; 2 Hale, 299; Co. Lit., 227 b.

1 Ry. & Moo., C. C., 45.

• 5 Burr, 2663; Dougl., 375.

10 G. & W. on New Trials, vol. 3, 1406, and cases cited; 1 Mood. C. C., 46; Dear. C. C., 229.

The court has a right to direct a jury to reconsider their verdict before it has been recorded, and it is its duty to do so if satisfied there has been a palpable mistake.1 Thus, if they deliver an improper or an informal, or an insensible verdict, or one that is not responsive to the issue submitted.2 But the verdict should not be altered even on motion and by direction of the court, after it has been entered by the clerk and the jury discharged.3

So, also, the court may direct a jury whose verdict is informal to retire, and say under which count of the indictment they found the defendant guilty, for, until the verdict is rendered and recorded, and the jury have separated, so far as no longer to constitute a jury, they have a right to modify the verdiet that they have given, and declare the truth according to their judgment; that only is the verdict which, while they are a jury, is their final and definite agreement.4

In general, a verdict rendered on Sunday, is void; but our statute provides that no court shall be opened or transact any business on Sunday, unless it be for the purpose of receiving a verdict or discharging a jury.5

On an indictment for embezzlement charged in several counts, a verdict of "guilty of embezzlement" is not void; for uncertainty, as not finding that the indictment or any part of it is true. The meaning of such verdict is guilty of embezzlement as charged in the indictment."

A verdict of "guilty of assault and battery with intent to kill,” without finding that the assault was made "with a deadly weapon," or "by such force as was likely to produce death," nor referring to the indictment specifically, warrants only a conviction for assault and battery.7

When the indictment charged the commission of an offence upon Mary B, it was held that the verdict should have been that such offence was committed upon her; finding the offence to have

2

1 Nelson v. Peo., 5 Park., 39; Peo. v. Bush, 3 Park., 552.

2 Hale, 299, 300; 2 Hawk. C., 47, § 11; Alleyn, 12; 1 And., 104; 2 Murphey, 571; G. & W. on new trials, vol. 3, 1043, et seq., and cases cited; 1 Chit. Cr. Law, 648.

Guenther v. The Peo., 22 N. Y., 100.

Peo. v. Graves, 5 Park., 134; 7 Johns., 33.

2 R. S., 275, § 16; 15 John., 119; 8 Barb., 385; 13 Ohio, 490.

Guenther v. Peo., 24 N. Y., 100.

Peo. v. Davis, 4 Park. C. R., 61; O'Leary v. Peo., Id., 187.

been committed upon a woman who is not named, does not show that the offence charged has been proved.1

§ 121. VERDICT ON SEVERAL COUNTS OF THE INDICTMENT. Each count in an indictment is a distinct charge, and a general verdict will be sustained although the counts are inconsistent.2

The jury may acquit the defendant of a part, and find him guilty as to another part; thus, they may convict him of one count of the indictment and acquit him of the charge contained in another, or upon one part of a count capable of division and not guilty of the other part, as on a count for composing and publishing a libel, the defendant may be found guilty of composing only.3

So, also, under an indictment for burglariously breaking in and stealing, the charge may be modified by showing a stealing alone, and the burglarious entry may be abandoned.*

If there are three counts in an indictment, and the jury convict the prisoner on the second, finding nothing as to the first and third, the verdict should not be set aside on that account; but the court should enter a verdict of acquittal on those two counts, although a verdict of conviction may be entered on the second.5

Where, upon an indictment containing three counts, the jury find the defendant not guilty on the first and cannot agree on the others the court may refuse to receive the verdict and have it recorded."

A good finding on a bad count, and a bad finding on a good count, stand on the same footing, both being nullities."

A general verdict of guilty is valid if one count of the indictment is good, although the others are defective; but this is not so if it appear that some of the counts are disposed of by the verdict.9

Cobel v. The Peo., 5 Park., 348. 25 Wheat., 184.

1 Chit. Cr. Law, 637; 2 Campbell, 584, 646.

2 Leach, 711; 2 East. P. C., 515, 516; Chit. Cr. Law, 638; 1 Blackf., 37;

1 Leach, 88; 2 Hale, 302; 1 Hayw., 12.

B

2 Vir. Cases, 235.

6

Harley v. State, 6 Ham., 399.

'O'Connell v, Reg., 11 Clark & Fin., 155; 9 Jur., 25.

Peo. v. Cooper, 13 Wend., 379; 1 John., 320; 1 Chit. Cr. Law, 646; 1 Blackf., 319; 3 Hill, 194; 1 Park. Cr. R., 246; 5 Park., 31; 1 Park., 202; 45 Barb., 494.

And a verdict which fails to dispose of all the counts in an indictment cannot stand.1

So a verdict that the prisoners are "guilty of the offence charged in the indictment" is equivalent to a general verdict of guilty, and, where such a verdict is rendered on an indictment charging several offences, the court may pass judgment on the count charging the highest grade of offence.2

Where the verdict, rendered by a jury upon an indictment, was not responsive to either count in the indictment, the court may refuse to receive it, and send the jury back with instructions to respond to the counts.3

Where a party is charged in one count in an indictment with stealing several specific articles, he may be found guilty of the larceny of one and discharged as to the rest; and if in such case the jury find a verdict of guilty of stealing one of the articles, and take no notice of the others, it is in fact a discharge as to the other articles, and a good verdict.4

So upon an indictment for stealing goods of the value of $367, a verdict of stealing goods to the value of $317, and not guilty as to the residue, will be sustained.5

Where the indictment is for burglary, with intent to commit larceny, and for the commission of such larceny, and the larceny itself is insufficiently charged, the prisoner may still be convicted of the burglary alone, if the evidence is sufficient to establish the offence charged.

A count in an indictment which charges the breaking and entering in the night time of a shop adjoining to a dwelling-house with intent to commit a larceny, may be joined with a count which charges the stealing of goods in the same shop, and the defendant, if found guilty generally, may be sentenced for both offences. But if the breaking and entering and the actual stealing are charged in one count, only one offence is charged, and the defendant, on conviction, can be sentenced to one penalty only."

1 1 Park. Cr. R., 246.

Conkey v. Peo., 5 Park., 31; Whart. Cr. Law, 1037, § 3048; 12 Sergt. & R., 191.

Upon an indictment charging nine counts for embezzlement of different grades, and others for larceny, a verdict guilty of embez zlement is an acquittal of the larcenies charged.1

§ 122. VERDICT AGAINST SOME OF SEVERAL DEFENDANTS. If several be jointly indicted for an offence which, in its nature may be committed by one person, or several, the indictment is considered in law as a several indictment against each, and the jury may, upon the evidence, acquit one or more of them, and find the others guilty.?

So, where the jury have agreed as to one or more of several prisoners, their verdict as to them ought to be received, though they cannot agree as to the rest, and are from necessity discharged by the court.3

So, where two defendants are charged, one as principal in the first, and the other in the second degree, as present, aiding and abetting, the latter may be found guilty, though the former is acquitted.4

If, however, an accessory be indicted at the same time with the principal, if the latter be acquitted, the former must also be acquitted, since his guilt is entirely inconsistant with the innocence of him who is charged as principal.5

Where a count in an indictment contains only one charge against several defendants, the jury cannot find any one of the defendants guilty of more than one charge.

Where the charge is of such a nature that one, as in a case of conspiracy, or two, as that of a riot, cannot be guilty without the union of others, if all the rest are acquitted, and the indictment does not charge the offence to have been perpetrated in company with any other persons unknown, the verdict of guilty would be altogether repugnant and void; but where one is indicted for a conspiracy, or two for a riot, with others, the conviction will be

1 Gunther v. Peo., 24 N. Y., 100.

1 Arch. Cr. Pr., 176; 2 Hawk., ch. 47, § 8; R. v. Toggart, 1 Car. & P., 201; 3 Term R., 105; 2 St. Tr., 526.

6 Serg. & R., 577; 12 Mass.,

1 Leach, 360.

• Stark, 332.

7

313.

O'Connell v. The Queen, 11 Clark & Fin., 155; 9 Jur., 25.

1 Chit. Cr. Law, 640; 2 Hawk., ch. 47, § 8; Poph., 202.