Guenther v. . the People

New York Court of Appeals

Guenther v. . the People

24 N.Y. 100

CourtNew York Court of Appeals

DecidedDecember 5, 1861

StatusPublished

Cited by30 cases

This text of 24 N.Y. 100 (Guenther v. . the People) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Guenther v. . the People, 24 N.Y. 100 (N.Y. 1861).

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Opinions

James, J.

The first count in the indictment for embezzlement was good. Whether or not the other counts for that • offence" were good is of no importance, because the verdict was general as to embezzlement, and after a general verdict of guilty the conviction will be sustained, if there" be one good count, even though the indictment contain many defective ones. No objection was made to any of the counts for larceny.

The addition tirade to the verdict by the courts after the discharge of the jury was clearly irregular, and must be disregarded. The act was wholly without authority and without precedent.

The indictment contained counts for both embezzlement and . larceny; the prisoner was tried for both offences; evidence was given endeavoring to establish both, which was submitted to the jury. Finding the prisoner guilty of embezzlement was equivalent to a verdict of .not guilty of the larceny charged. No other construction can be put upon the verdict. The question of guilt or innocence of both offences charged was submitted to the jury, and that body found him guilty of but one, and designated which. Trial and conviction upon this indictment is a bar to any subsequent prosecution for the larceny therein charged. (U. S. v. Keen, 1 McLean, 429; 2 Caines, 304; 18 J. R., 187,206.) Not only may a verdict of guilty be rendered on one count and not guilty upon another, but if the jury find the prisoner guilty on one count, and say nothing in their verdict concerning the other counts, it will be equivalent to a ver- - diet of not guilty on such counts. (Morris v. State, 8 Smede & Mar., 762; 7 Blackf., 186; 9 Leigh, 627 ; 4 Scam., 168.)

*102 The verdict is not void for uncertainty. It finds the prisoner guilty of an offence charged in the indictment, and means that offence as charged therein. Its effect is the same as would ‘be a verdict of guilty under a single count. The words “ of embezzlement ” were added to designate to which offence they intended the verdict to apply.

The judgment should be affirmed.

All the judges concurred, except

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James, J.

The first count in the indictment for embezzlement was good. Whether or not the other counts for that • offence" were good is of no importance, because the verdict was general as to embezzlement, and after a general verdict of guilty the conviction will be sustained, if there" be one good count, even though the indictment contain many defective ones. No objection was made to any of the counts for larceny.

The addition tirade to the verdict by the courts after the discharge of the jury was clearly irregular, and must be disregarded. The act was wholly without authority and without precedent.

The indictment contained counts for both embezzlement and . larceny; the prisoner was tried for both offences; evidence was given endeavoring to establish both, which was submitted to the jury. Finding the prisoner guilty of embezzlement was equivalent to a verdict of .not guilty of the larceny charged. No other construction can be put upon the verdict. The question of guilt or innocence of both offences charged was submitted to the jury, and that body found him guilty of but one, and designated which. Trial and conviction upon this indictment is a bar to any subsequent prosecution for the larceny therein charged. (U. S. v. Keen, 1 McLean, 429; 2 Caines, 304; 18 J. R., 187,206.) Not only may a verdict of guilty be rendered on one count and not guilty upon another, but if the jury find the prisoner guilty on one count, and say nothing in their verdict concerning the other counts, it will be equivalent to a ver- - diet of not guilty on such counts. (Morris v. State, 8 Smede & Mar., 762; 7 Blackf., 186; 9 Leigh, 627 ; 4 Scam., 168.)

*102 The verdict is not void for uncertainty. It finds the prisoner guilty of an offence charged in the indictment, and means that offence as charged therein. Its effect is the same as would ‘be a verdict of guilty under a single count. The words “ of embezzlement ” were added to designate to which offence they intended the verdict to apply.

The judgment should be affirmed.

All the judges concurred, except

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