Opinion · Supreme Court of North Carolina
State v. . Taylor
84 N.C. 773
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1881-01-05
- Topic
- general
How later courts describe this case
- tried on less than all counts in the indictment
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STATEv. TAYLOR,84 N.C. 773(1881)
STATE v. L. D. TAYLOR.
Supreme Court of North Carolina
(January Term, 1881.)
1. The ruling inStatev.Moore,82 N.C. 659, affirmed.
2. The courtintimatethat a count in an indictment in containing a charge which the court may be incompetent to try for want of jurisdiction, will not disable it from trying an offence charged in another count of which the court has jurisdiction.
3. Anolle prosequias to one count in an indictment ought, in strictness, only to be entered before the jury are empaneled or after rendition of verdict against defendant; but if entered upon the conclusion of the evidence, the prosecution is deemed to have assented to a verdict of acquittal on that, and to have elected to proceed on the other counts.
4.Held, further, That where the jury find a defendant guilty on one count, and say nothing in their verdict concerning other counts, it will be equivalent to a verdict of acquittal as to them.
(Statev.Moore,82 N.C. 659;Statev.Taylor,83 N.C. 601;Statev.Thornton, 13 Ired., 256, cited and approved.)Page 774
The act of 1879 contains provisions which we find it difficult to harmonize, and as the result of a careful examination and to give effect to the legislative will, we put upon the enactment what we deemed a fair and reasonable construction in the case first cited. It is there held that when the assault and battery are with intent to kill, or commit rape, or a deadly weapon has been used, or serious damage done, the offence is committed to the exclusive cognizance of the superior court; that the jurisdiction is concurrent with that of a justice of the peace in regard to the offencesPage 775specified in the eleventh section; and that "in framing bills of indictment for such offences, (those in that section) it is not necessary to aver that the offence was committed more than six months before the finding of the bill, and that no justice of the peace has taken official cognizance of it." The last count does not then disclose a case outside the jurisdiction of the court, although it might so appear upon the trial. But we do not concede, if it were otherwise, that the presence of a count containing a charge which the court may be incompetent to try for want of jurisdiction will disable the court from proceeding with the trial of an offence charged in a count of which it has jurisdiction, although they are parts of the same bill. We do not undertake, as it unnecessary, to decide the point.
The second exception is equally without support. As we understand the record, the effect of the entry was to withdraw the last count from the consideration of the jury, and have them to pass upon the others. Strictly, anolle prosequican only be entered by the prosecuting officer, before the jury are impaneled, or after the rendition of a verdict against the defendant. While then, in strictness, anol. pros. could not be entered, and the count thus reserved for a future prosecution of the defendant, which is its effect when properly entered, (State v. Thornton, 13 Ired., 256,) the action of the solicitor must be deemed an election to proceed on the other counts and an assent to a verdict of acquittal on that. The same result follows the failure of the jury to pass upon the count on which a conviction is asked. For this, ample authority is found. "If the jury find the defendant guilty on one count," says Mr. WHARTON, "and say nothing in their verdict concerning other counts, it will be equivalent to a verdict of not guilty as to them." 1 Whar. Cr. L., § 421. This proposition rests upon numerous adjudications, to some few of which we propose to refer.Page 776
InWerngopperv.State, 7 Black., (Ind.) 186, the defendant was found guilty on four counts, and the jury did not pass on the first. With leave of the court anol. pros. was entered as to this and judgment rendered on the verdict. It was held that the entry of anol. pros. was a nullity, and that the failure to find on one of the counts was "equivalent to an express verdict of not guilty."
The same principle is declared with equal explicitness inMorrisv.State, 8 S. and M., (Miss.) 762;Stotzv.People, 4 Scam., (Ill.) 168;Guentherv.People, 24 Smith, (N.Y.) 100;Kishv.Commonwealth, 9 Leigh, (Va.) 627; and inStatev.Phinney,42 Maine, 384.
In the last case the subject is discussed and the rule fully vindicated. Referring to the old doctrine that a failure to find on all the issues vitiated the verdict, the court proceed in these words: "The tendency of modern decisions however has been to relax the severity of the rule and sustain the verdict when the intention of the jury can be ascertained. What is the reasonable view to be drawn from this verdict? The people prefer two charges of criminal offences against the defendant. He is arraigned on them, and the question of his guilt submitted to the jury for their determination. They hear the testimony adduced to substantiate both charges and find affirmatively that he is guilty of one. Is not the inference inevitable that the prosecution failed to establish his guilt on the other charge, and therefore the jury find negatively on it? We are of the opinion that the verdict should be regarded as an acquittal of the defendant on the second count. If such be the effect of the verdict, he certainly has no right to complain. He can never again be put on trial for the same offence."
In the case reported in 9 Leigh, 627, the general court say that a verdict of acquittal should be entered. Concurring in these views we pursue the subject no further.Page 777
There is no error. This will be certified, that judgment may be entered on the verdict.
Per Curiam. No error.