PLAINTIFFS in error are hereinafter referred to as defendants, or as Crane and Flynn respectively. A jury returned them guilty of "conspiracy to obtain money by means of false pretenses." Thereon Crane was sentenced to the penitentiary for a term of five to six years and Flynn for a term of four to five years. To review that judgment they prosecute this writ.
Defendants and one Dill were jointly charged in each of eleven counts of an information. Dill was not apprehended. At the close of the people's evidence they withdrew six of the counts. The jury returned verdicts of guilty on the second count and not guilty on the remaining four.
There are eleven "amended assignments of error" set forth in the abstract. We are advised by defendants' brief that there were originally "several hundred" and in the "obiter dicta" section thereof some of these are pressed and their bases indicated. We ignore them for
the reason suggested by the above quoted title of the brief under which they appear, and commend the wisdom which dictated the amendment.
Counsel for defendants sum up their contentions, covered by these eleven assignments, in two short statements, which we think may be thus fairly further condensed: (1) The withdrawal of the six counts amounted in law to verdicts of acquittal on all; (2) the verdicts of not guilty on the four counts are inconsistent with, and hence render impotent, the verdicts of guilty on the second.
These eleven counts vary in statement, and even, in some instances, as to the particular offense which it is charged the acts complained of constitute. But every possible presumption in defendants' favor is indulged by treating them, as we do, as identical. When the first six were withdrawn the position of the prosecution was thus stated by the district attorney: "The counts withdrawn were just a repetition of what is left, practically;" and the court said that the remaining five "arise out of and are based upon the same transaction."
It should be first noted that there is here presented no question of jurisdiction, sufficiency of charge, admission or rejection of evidence, sufficiency thereof, legality or misconduct of the jury. Defendants simply say, in substance, that when one charge was dismissed, or a verdict of not guilty returned on one, no verdict of guilty on a substantially identical charge can stand, nor can they ever be retried.
Among the Colorado cases cited in support of defendants' position are: Roland v. People, 23 Colo. 283,47 Pac. 269; Bigcraft v. People, 30 Colo. 298, 70 Pac. 417; Davidsonv. People, 64 Colo. 281, 170 Pac. 962; Castner v. People,67 Colo. 327, 184 Pac. 387; Briola v. People, 76 Colo. 489,232 Pac. 924. It is clear, however, that no one of these reaches the identical question here raised. The most that can be said in this connection is that they lead logically up to our announcement in the Webb case,
hereinafter noticed. In fact it may be that some of them were inferentially overruled in Loos v. People, 84 Colo. 166,268 Pac. 536, which comes very close to the question now before us. In the Bigcraft case, supra, a conviction on one such count was held to operate as an acquittal on the other. Certainly the effect of such conviction on the one count could not be weakened by failure of the jury to take any action on a verdict of acquittal submitted to them on the other. Yet in the Loos case, supra, we held this no such acquittal as resulted in a conflict.
We need not, however, further notice these cases of doubtful application because in Webb v. People,83 Colo. 1, 262 Pac. 906, on which defendants now rely, the question was squarely presented to this court en banc, and under that decision, announced without dissent, defendants here would prevail. True, when announced, it rested in part on Kuck v. State, 149 Ga. 191, 99 S.E. 622, which was later modified by that court in Boyd v. State,156 Ga. 48, 118 S.E. 705, upon which modification we largely rested our decision in the Loos case, decided some six months later. But our conclusion in Webb v. People,supra, was also supported by state and federal cases, perhaps by the distinct weight of authority, excluding, however, the United States Supreme Court, in which the identical question had, apparently, never risen. We are not now, however, without enlightenment from that great tribunal. January 11, of the present year, two months before the instant case was at issue and prior to the filing of the last two briefs herein, that court handed down its opinion in Dunn v. United States, 52 Sup. Ct. 189, not herein cited by counsel. Therein, in a brief opinion by Mr. Justice Holmes, the identical question was decided contrary to the contention of these defendants and contrary to our conclusion in the Webb case.
There Dunn was tried on three counts, convicted on the first and acquitted on the others. We disregard the third as unnecessary to our examination. The first charged maintenance of a nuisance by keeping for sale
at the place designated "five drinks of whiskey and one drink of beer." The second charged unlawful possession of the same liquor at the same time and place. It is perfectly apparent that if defendant was not guilty on the second count he could not have been guilty on the first. The United States Supreme Court held that this inconsistency did not invalidate the verdict of guilty. That holding is supported by state and federal courts.State v. Huff, 75 Kan. 585, 90 Pac. 279, 12 L.R.A. (N.S.) 1094; Browning v. State, 120 Ohio St. 62, 165 N.E. 566;Steckler v. United States, 7 F.2d 59; Gozner v.United States, 9 F.2d 603. Mr. Justice Butler alone dissented in the Dunn case. In a very able opinion he presents the authorities to the contrary and the reasons upon which they rest. Among these may be noted: Statev. Headrick, 179 Mo. 300, 78 S.W. 630; Speiller v. UnitedStates, 31 F.2d 682; Rosenthal v. United States, 276 Fed. 714.
[1-3] While little is cited in the way of authority in support of the decision, the dissenting opinion emphasizes the clear cut question before the court and sets forth the numerous authorities on both sides of it which were considered. True, Mr.
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PLAINTIFFS in error are hereinafter referred to as defendants, or as Crane and Flynn respectively. A jury returned them guilty of "conspiracy to obtain money by means of false pretenses." Thereon Crane was sentenced to the penitentiary for a term of five to six years and Flynn for a term of four to five years. To review that judgment they prosecute this writ.
Defendants and one Dill were jointly charged in each of eleven counts of an information. Dill was not apprehended. At the close of the people's evidence they withdrew six of the counts. The jury returned verdicts of guilty on the second count and not guilty on the remaining four.
There are eleven "amended assignments of error" set forth in the abstract. We are advised by defendants' brief that there were originally "several hundred" and in the "obiter dicta" section thereof some of these are pressed and their bases indicated. We ignore them for
the reason suggested by the above quoted title of the brief under which they appear, and commend the wisdom which dictated the amendment.
Counsel for defendants sum up their contentions, covered by these eleven assignments, in two short statements, which we think may be thus fairly further condensed: (1) The withdrawal of the six counts amounted in law to verdicts of acquittal on all; (2) the verdicts of not guilty on the four counts are inconsistent with, and hence render impotent, the verdicts of guilty on the second.
These eleven counts vary in statement, and even, in some instances, as to the particular offense which it is charged the acts complained of constitute. But every possible presumption in defendants' favor is indulged by treating them, as we do, as identical. When the first six were withdrawn the position of the prosecution was thus stated by the district attorney: "The counts withdrawn were just a repetition of what is left, practically;" and the court said that the remaining five "arise out of and are based upon the same transaction."
It should be first noted that there is here presented no question of jurisdiction, sufficiency of charge, admission or rejection of evidence, sufficiency thereof, legality or misconduct of the jury. Defendants simply say, in substance, that when one charge was dismissed, or a verdict of not guilty returned on one, no verdict of guilty on a substantially identical charge can stand, nor can they ever be retried.
Among the Colorado cases cited in support of defendants' position are: Roland v. People, 23 Colo. 283,47 Pac. 269; Bigcraft v. People, 30 Colo. 298, 70 Pac. 417; Davidsonv. People, 64 Colo. 281, 170 Pac. 962; Castner v. People,67 Colo. 327, 184 Pac. 387; Briola v. People, 76 Colo. 489,232 Pac. 924. It is clear, however, that no one of these reaches the identical question here raised. The most that can be said in this connection is that they lead logically up to our announcement in the Webb case,
hereinafter noticed. In fact it may be that some of them were inferentially overruled in Loos v. People, 84 Colo. 166,268 Pac. 536, which comes very close to the question now before us. In the Bigcraft case, supra, a conviction on one such count was held to operate as an acquittal on the other. Certainly the effect of such conviction on the one count could not be weakened by failure of the jury to take any action on a verdict of acquittal submitted to them on the other. Yet in the Loos case, supra, we held this no such acquittal as resulted in a conflict.
We need not, however, further notice these cases of doubtful application because in Webb v. People,83 Colo. 1, 262 Pac. 906, on which defendants now rely, the question was squarely presented to this court en banc, and under that decision, announced without dissent, defendants here would prevail. True, when announced, it rested in part on Kuck v. State, 149 Ga. 191, 99 S.E. 622, which was later modified by that court in Boyd v. State,156 Ga. 48, 118 S.E. 705, upon which modification we largely rested our decision in the Loos case, decided some six months later. But our conclusion in Webb v. People,supra, was also supported by state and federal cases, perhaps by the distinct weight of authority, excluding, however, the United States Supreme Court, in which the identical question had, apparently, never risen. We are not now, however, without enlightenment from that great tribunal. January 11, of the present year, two months before the instant case was at issue and prior to the filing of the last two briefs herein, that court handed down its opinion in Dunn v. United States, 52 Sup. Ct. 189, not herein cited by counsel. Therein, in a brief opinion by Mr. Justice Holmes, the identical question was decided contrary to the contention of these defendants and contrary to our conclusion in the Webb case.
There Dunn was tried on three counts, convicted on the first and acquitted on the others. We disregard the third as unnecessary to our examination. The first charged maintenance of a nuisance by keeping for sale
at the place designated "five drinks of whiskey and one drink of beer." The second charged unlawful possession of the same liquor at the same time and place. It is perfectly apparent that if defendant was not guilty on the second count he could not have been guilty on the first. The United States Supreme Court held that this inconsistency did not invalidate the verdict of guilty. That holding is supported by state and federal courts.State v. Huff, 75 Kan. 585, 90 Pac. 279, 12 L.R.A. (N.S.) 1094; Browning v. State, 120 Ohio St. 62, 165 N.E. 566;Steckler v. United States, 7 F.2d 59; Gozner v.United States, 9 F.2d 603. Mr. Justice Butler alone dissented in the Dunn case. In a very able opinion he presents the authorities to the contrary and the reasons upon which they rest. Among these may be noted: Statev. Headrick, 179 Mo. 300, 78 S.W. 630; Speiller v. UnitedStates, 31 F.2d 682; Rosenthal v. United States, 276 Fed. 714.
[1-3] While little is cited in the way of authority in support of the decision, the dissenting opinion emphasizes the clear cut question before the court and sets forth the numerous authorities on both sides of it which were considered. True, Mr. Justice Holmes says: "If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the courts of a single indictment the same rule must hold." We cannot, however, regard this portion of the opinion as more than the announcement of a general rule; because, where different offenses are separately charged and separately tried, the same evidence being offered in support of each, an acquittal on one can be pleaded as res judicata of the other if the facts which the jurors must have found, or failed to find, to acquit on the first are involved in and inconsistent with, guilt on the trial of the second. All this
is clearly demonstrated in the dissenting opinion of Mr. Justice Butler in the same case. From the latter source also we learn in detail what is inferentially admitted in the main opinion, i. e., that the possession negatived by the verdict of not guilty on the second count was essential to support the verdict of guilty on the first. The true reason for the majority opinion in the Dunn case is not to be found in the general rule so stated, supra, but in the holding which is supported by the quotation which Mr. Justice Holmes gives from Steckler v. UnitedStates, 7 F.2d 59, 60. That case and that quotation dealt, not with separate offenses, charges and trials, but with separate counts charging the same offense in the same trial. The basis of the judgment in the Dunn case, like the basis of the judgment in the Webb case, is clear and unequivocal. In the first it is thus stated: "Consistency in the verdict is not necessary;" in the second it is thus stated: "The two verdicts are irreconcilable," hence "each * * * destroys the other." These propositions are in direct and irreconcilable conflict. The Supreme Court of the United States is thus clearly committed to what we may properly term the Kansas rule, because it has been so often announced and upheld in that jurisdiction.State v. Jackson, 121 Kan. 711, 249 Pac. 688; State v.Geselle, 131 Kan. 729, 293 Pac. 494. See also State v.Daly, 77 Mont. 387, 250 Pac. 976, and cases cited in the three foregoing.
These "inconsistent verdicts" have perhaps been unduly censured by reviewing courts, even by those following the Kansas rule. To clearly understand and correctly interpret them we have but to change places with the jurors, laying aside our familiarity with technical rules and remembering that they are often inadequately instructed thereon. They can not imagine that a trick is being played upon them, or that something superfluous is being injected "just to make it hard." They are asked to answer a given question, propounded in different ways. That question is not, "Is defendant not guilty,"
but, "Is defendant guilty?" If they can not say "Yes" to the last the law requires them to say "Yes" to the first. Their primary duty is to find what defendant is, not what he is not. Once they answer that he is guilty and find themselves confronted with the necessity of again answering the same question put in a different way, knowing that defendant is charged with, proved guilty of, and can be sentenced for, but one offense, it never occurs to them that they should repeat that finding. Hence they select that charge whose wording seems to them to best fit their view of the evidence, write "guilty" as to that and perfunctorily dispose of the remainder with a "not guilty." If A be twice charged in an information with the murder of B, at the same time and place and by the same means, must a jury, convinced of A's guilt, be obliged, at the peril of discharging him entirely, to find in effect that B has been twice killed?
From the practical standpoint of the administration of the criminal law, the reason for the Kansas rule is readily comprehended when we remember that it is the well known and repeatedly approved practice of prosecutors to charge the same offense in varying language in separate counts of the same information. This is often necessary because the state can not, in advance, be certain what facts may be developed by the evidence, and a bill of particulars is thus obviated. When the people's evidence is in, an election between the counts is equivalent to a dismissal or abandonment of those not selected. But if this is equivalent to an acquittal thereon, as held in the Rowland case and the Briola case, supra, the state, though having a water tight case again defendant, would dare neither to elect, dismiss, nor abandon. Nor would it dare submit verdicts on each count save under an instruction to convict on all or none, since an acquittal on one operates as an acquittal on all, as held in the Webb case, supra. But since sentence could be pronounced on but one, verdicts of guilty on others would be an idle gesture, and the law never requires the doing of a futile
thing. If an acquittal on one count operates as an acquittal on all it can, with equal plausibility, be contended that verdicts of guilty on all are inconsistent and constitute double jeopardy. The tactical move would therefore be, first to have all but one set aside on that ground, then attack the remaining verdict on the ground that the action taken on the others was equivalent to an acquittal on all. It follows that the state could never safely file separate counts based on a single offense, and could only respond to a motion for a bill of particulars by anticipating, at its peril, what the evidence would develop.
The reasoning which must be relied upon to support the authorities on which the Webb case rests leads to another illogical conclusion. If an instructed verdict, or a withdrawal during the trial, or the failure of the jury to return any verdict, on one of two practically identical counts, operates as an acquittal thereon and bars further prosecution on the other, this amounts to a decision of fact, by court or prosecutor, or mere inaction, in cases where the evidence is in conflict. But in criminal cases such questions of fact can only be determined by the jury.
Suffice it here to say that, convinced that no peril to personal rights can arise from the establishment of the Kansas rule, that the administration of the criminal law will be greatly simplified by following it, and met by the conflicting conclusions of state and federal courts, we now elect to overrule the Webb case and follow the highest judicial tribunal of the nation.
The judgment is accordingly affirmed.
MR. JUSTICE BUTLER and MR. JUSTICE HILLIARD dissent.