* Head-notes by CLARK, J.
AVERY, J., and SHEPHERD, J., dissenting.
There were two counts in the indictment, and a general verdict of guilty. The first count charged the loud and boisterous use of a single profane sentence in a public place, etc., and its repetition for the space of ten minutes, to common nuisance, etc. The second count charged the singing in a loud and boisterous manner on the public streets, etc., of an obscene song (setting out five lines thereof), and the repetition thereof for the space of ten minutes, in the presence of divers persons then and there present, to the common nuisance. The indictment (737) was in the usual form, and no objection was taken thereto.
On the first count there was evidence tending to show that the profane expression charged therein was used once; that it was on the public street, in hearing of diverse persons, and defendant continued to talk in a loud and boisterous manner; but there was no evidence that this expression was used more than once, or that any other profane words were used.
On the second count there was evidence by the State that, on the public street, in the hearing of divers persons present then and there. the defendant passed along, singing a ribald song in a loud and boisterous
manner, in which occurred the five lines charged; that the singing of such vulgar and obscene song continued for the space of ten minutes, and was loud enough to be heard by many persons, but witnesses could not say whether the words charged were repeated.
The defendant offered evidence to contradict the State's witnesses on both counts, and asked the court to charge:
"If the defendant uttered the words set forth in the first count only a single time, she would not be guilty; and likewise, if she uttered the words set forth in the second count only one time, she would not be guilty."
The court refused so to charge, and defendant excepted.
The jury returned a general verdict of guilty. From the judgment pronounced the defendant appealed, assigning as error the exception above stated.
Four witnesses for the State testified that the defendant passed along a thickly settled street in the city of Charlotte, singing the obscene song set forth in the second count, in a boisterous manner and loud enough to have been (738) heard in several house; that such loud, boisterous and obscene singing continued for the space of ten minutes, but they could not testify that the particular words set out in the bill were used more than once. The defendant testified that she did not sing such song, and also introduced several witnesses who testified that they lived in that neighborhood near enough to have heard her, and that they did not hear her sing the song as charged. We think it was not error for the court to refuse to instruct the jury, as asked, that "if the defendant uttered the words set forth in the second count only one time, she would not be guilty." The use of the vulgar stanza set out, if uttered as part of a longer song of similar tenor, extending over a period of ten minutes along a public street, would be a nuisance, even though the identical words set out may not have been repeated. If this were not so, the perpetrators of such conduct could not be punished, unless the hearers are quick enough of ear to catch, and tenacious of memory to retain, the whole of a vile song which disgusts them, and not even then, unless there was a repetition. The nuisance complained of, in effect, is the loud and boisterous singing for ten minutes of an obscene song, containing the stanza charged, on a public street, in the hearing of divers persons then and there present. This, though done only on a single occasion, may be a nuisance. S. v. Chrisp,85 N.C. 528.
There having been a general verdict of guilty on two counts, for offenses punishable alike, it is immaterial to consider, as to the other count, whether there was error committed or not, unless it was such error as might or could affect the verdict of guilty on the second count, and such is not the case here. When there are several counts in the bill, and there is a general verdict of guilty (or not guilty), that is a verdict, as to each of the counts, of guilty (or not guilty, as the case may be). If it is a general verdict of not guilty, the defendant (739) is entitled to his discharge. If it is a general verdict of guilty upon an indictment containing several counts, charging offenses of the same grade, and punishable alike, the verdict upon any one, if valid, supports the judgment, and it is immaterial that the verdict as to the other counts is not good, either by reasons of defective counts, or by the admission of incompetent evidence, or giving objectionable instructions as to such other counts, provided the errors complained of do not affect the valid verdict rendered on this count.
"To require each distinct though cognate offense to be placed in a separate indictment is to oppress the defendant by loading him with unnecessary costs, and exposing him to the exhaustion of a series of trials, which the prosecution would encounter with unwaning strength, and with the benefit derived from a knowledge of its own case and that of the defendant." In criminal cases the practice of uniting counts for cognate offenses has always been encouraged, not merely because in this way the labor of the courts and the expenses of prosecution are greatly diminished, but because it relieves defendants of the oppressiveness which would result from the splitting of prosecutions. Wharton's Cr. Pl., and Pr. (9 ed.), 910. Indeed, with this view, the court will, in a proper case, require a consolidation of separate indictments and treat them as counts in one bill. This was done in the famous tea suits before Judge Washington, in which a separate libel was brought for each of a thousand chests of tea, alleged to have been smuggled. InS. v. McNeill, 93 N.C. 552, the Court sustained the consolidation of four separate indictments, and treated them as four counts in one indictment. It is usually a benefit to defendants to combine several counts in one trial. When the defendant thinks he will be damaged by the joinder of several counts in the same indictment, it is open to him to move to quash, or to require the solicitor to elect upon (740) which count he will proceed. S. v. Reel, 80 N.C. 442.
Each count is, in fact and theory, a separate indictment.United States v. Malone, 20 Blatch., 137. In S. v. Johnson, 5 Jones, 221, it is held that a second indictment may be treated as a second
count. To the same effect, S. v. Brown, 95 N.C. 685; S. v. Watts,82 N.C. 656, and even though they charge different felonies.S. v. Reel, supra,
A general verdict of guilty is a verdict of guilty on each and every count. Whart. Crim. Pl. and Pr. (9 ed.), secs. 292, 738, 771, 907, and cases there cited; also Hawker v. People, 75 N.Y. 487; Kane v. People, 8 Wendell, 203; Moody v. State, 1 W. Va. 337. Indeed, the authorities are uniform and numerous to this effect.
Where the offenses are distinct, the court can impose a sentence on each count; but where it is a stating of the same offense, in different ways, only one sentence should be imposed. Commonwealth v. Birdsall, 69 Pa. St., 482; Commonwealth v. Sylvester, Brightley, 331; Whart. Am. Cr. Law (Ed.
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* Head-notes by CLARK, J.
AVERY, J., and SHEPHERD, J., dissenting.
There were two counts in the indictment, and a general verdict of guilty. The first count charged the loud and boisterous use of a single profane sentence in a public place, etc., and its repetition for the space of ten minutes, to common nuisance, etc. The second count charged the singing in a loud and boisterous manner on the public streets, etc., of an obscene song (setting out five lines thereof), and the repetition thereof for the space of ten minutes, in the presence of divers persons then and there present, to the common nuisance. The indictment (737) was in the usual form, and no objection was taken thereto.
On the first count there was evidence tending to show that the profane expression charged therein was used once; that it was on the public street, in hearing of diverse persons, and defendant continued to talk in a loud and boisterous manner; but there was no evidence that this expression was used more than once, or that any other profane words were used.
On the second count there was evidence by the State that, on the public street, in the hearing of divers persons present then and there. the defendant passed along, singing a ribald song in a loud and boisterous
manner, in which occurred the five lines charged; that the singing of such vulgar and obscene song continued for the space of ten minutes, and was loud enough to be heard by many persons, but witnesses could not say whether the words charged were repeated.
The defendant offered evidence to contradict the State's witnesses on both counts, and asked the court to charge:
"If the defendant uttered the words set forth in the first count only a single time, she would not be guilty; and likewise, if she uttered the words set forth in the second count only one time, she would not be guilty."
The court refused so to charge, and defendant excepted.
The jury returned a general verdict of guilty. From the judgment pronounced the defendant appealed, assigning as error the exception above stated.
Four witnesses for the State testified that the defendant passed along a thickly settled street in the city of Charlotte, singing the obscene song set forth in the second count, in a boisterous manner and loud enough to have been (738) heard in several house; that such loud, boisterous and obscene singing continued for the space of ten minutes, but they could not testify that the particular words set out in the bill were used more than once. The defendant testified that she did not sing such song, and also introduced several witnesses who testified that they lived in that neighborhood near enough to have heard her, and that they did not hear her sing the song as charged. We think it was not error for the court to refuse to instruct the jury, as asked, that "if the defendant uttered the words set forth in the second count only one time, she would not be guilty." The use of the vulgar stanza set out, if uttered as part of a longer song of similar tenor, extending over a period of ten minutes along a public street, would be a nuisance, even though the identical words set out may not have been repeated. If this were not so, the perpetrators of such conduct could not be punished, unless the hearers are quick enough of ear to catch, and tenacious of memory to retain, the whole of a vile song which disgusts them, and not even then, unless there was a repetition. The nuisance complained of, in effect, is the loud and boisterous singing for ten minutes of an obscene song, containing the stanza charged, on a public street, in the hearing of divers persons then and there present. This, though done only on a single occasion, may be a nuisance. S. v. Chrisp,85 N.C. 528.
There having been a general verdict of guilty on two counts, for offenses punishable alike, it is immaterial to consider, as to the other count, whether there was error committed or not, unless it was such error as might or could affect the verdict of guilty on the second count, and such is not the case here. When there are several counts in the bill, and there is a general verdict of guilty (or not guilty), that is a verdict, as to each of the counts, of guilty (or not guilty, as the case may be). If it is a general verdict of not guilty, the defendant (739) is entitled to his discharge. If it is a general verdict of guilty upon an indictment containing several counts, charging offenses of the same grade, and punishable alike, the verdict upon any one, if valid, supports the judgment, and it is immaterial that the verdict as to the other counts is not good, either by reasons of defective counts, or by the admission of incompetent evidence, or giving objectionable instructions as to such other counts, provided the errors complained of do not affect the valid verdict rendered on this count.
"To require each distinct though cognate offense to be placed in a separate indictment is to oppress the defendant by loading him with unnecessary costs, and exposing him to the exhaustion of a series of trials, which the prosecution would encounter with unwaning strength, and with the benefit derived from a knowledge of its own case and that of the defendant." In criminal cases the practice of uniting counts for cognate offenses has always been encouraged, not merely because in this way the labor of the courts and the expenses of prosecution are greatly diminished, but because it relieves defendants of the oppressiveness which would result from the splitting of prosecutions. Wharton's Cr. Pl., and Pr. (9 ed.), 910. Indeed, with this view, the court will, in a proper case, require a consolidation of separate indictments and treat them as counts in one bill. This was done in the famous tea suits before Judge Washington, in which a separate libel was brought for each of a thousand chests of tea, alleged to have been smuggled. InS. v. McNeill, 93 N.C. 552, the Court sustained the consolidation of four separate indictments, and treated them as four counts in one indictment. It is usually a benefit to defendants to combine several counts in one trial. When the defendant thinks he will be damaged by the joinder of several counts in the same indictment, it is open to him to move to quash, or to require the solicitor to elect upon (740) which count he will proceed. S. v. Reel, 80 N.C. 442.
Each count is, in fact and theory, a separate indictment.United States v. Malone, 20 Blatch., 137. In S. v. Johnson, 5 Jones, 221, it is held that a second indictment may be treated as a second
count. To the same effect, S. v. Brown, 95 N.C. 685; S. v. Watts,82 N.C. 656, and even though they charge different felonies.S. v. Reel, supra,
A general verdict of guilty is a verdict of guilty on each and every count. Whart. Crim. Pl. and Pr. (9 ed.), secs. 292, 738, 771, 907, and cases there cited; also Hawker v. People, 75 N.Y. 487; Kane v. People, 8 Wendell, 203; Moody v. State, 1 W. Va. 337. Indeed, the authorities are uniform and numerous to this effect.
Where the offenses are distinct, the court can impose a sentence on each count; but where it is a stating of the same offense, in different ways, only one sentence should be imposed. Commonwealth v. Birdsall, 69 Pa. St., 482; Commonwealth v. Sylvester, Brightley, 331; Whart. Am. Cr. Law (Ed. 1868), 417, 421; S. v. Hood, 51 Me. 363;Crawley v. Commonwealth, 11 Metc., 575; Elridge v. State, 37 Ohio St. 191. If only one sentence is imposed, this is treated as a discontinuance as to all but one verdict. It is open to defendant to have the jury render a separate verdict upon each count, and to have also a separate sentence on each, if he so desires. If he makes no objection to a general verdict, and only one sentence is imposed, it has always been held in this State that if one or more counts are defective, the sentence will be supported by the good count, if there be one. S. v.Morrison, 2 Ired., 9; S. v. Miller, 7 Ired., 275; S. v. Williams, 9 Ired., 140; S. v. Speight, 69 N.C. 72; S. v. Bailey, 73 N.C. 70; S. v.Beatty, Phil., 52. The same rule prevails generally. Whart Cr. Pl. and Pr. (9 ed., sec. 292); Chitty's Cr. L., 4 Am. Ed., 640; Bish. Cr. Pr., 841. Lord Mansfield, in Grant v. Astle, 2 Doug., 730, regrets that this rule did not apply in civil cases also, which it (741) could not do under the practice then obtaining of a single issue. And a general verdict of guilty will be sustained though the counts are inconsistent. S. v. Baker, 63 N.C. 276; United States v. Pirates, 5 Wheat., 184.
Where there are several counts, and evidence was offered with reference to one only, the verdict, though general, will be presumed to have been given on that alone. S. v. Long, 7 Jones, 24; State v. Bugbee, 22 Vt. 32. In the latter case, the court say: "There was no evidence tending to support the second count, and the jury should have been so charged. But the conviction on the first count was right. The court will not arrest the sentence by granting a new trial, but will sentence on that count alone upon which the conviction was properly had, though the jury rendered a general verdict of guilty. This is in analogy to cases where there has been a general verdict of guilty on several counts when a part of them is bad."
For the same reason, in S. v. Stroud, 95 N.C. 626, it is held by Ashe,J., that a general verdict of guilty upon two counts will be sustained, if the evidence justifies either. The objection made in that case was, that certain evidence was not admissible, and, therefore, that the instruction to the jury was erroneous upon one of the counts. The Court, in the opinion, says that it makes no difference, if the evidence was applicable to either count. To the same effect is Hudson v. State, 1 Blackf. (Ind.), 317, and S. v. Posey, 7 Rich., 484. The same general principle as to verdicts upon indictments containing several counts is laid down by Mr.Justice Davis in S. v. Smiley, 101 N.C. 709, and Mr. Justice Shepherd inS. v. Allen, 103 N.C. 433, the two latest cases on the subject.
In opposition to the numerous authorities to the same effect is S.v. McCauless, 9 Ired., 375, which seems to distinguish the case where the error complained of is an erroneous charge as to one of the (742) counts, but we fail to see the force of the distinction. As we have seen, where there is a general verdict on several counts, held by the court below to be valid, and some of the counts are held invalid in this Court, the judgment is supported by the valid count S. v.Morrison, 2 Ired., 9, and other cases, supra, And when incompetent evidence is admitted as to one count, the judgment is imputed to be given on the other count. S. v. Stroud and S. v. Smiley, We see no difference whether the verdict on the count assailed is invalid upon those grounds, or for erroneous instructions. The principle is this: That when there is a general verdict of guilty upon a bill containing several counts, there being as many verdicts of guilty as there are counts, if the offenses are punishable alike and of the same grade, any one of the verdicts, if valid, supports the judgment and defendant cannot complain. In a case like ours, the Supreme Court of South Carolina, in S. v. Dawkins, in an opinion filed at this term and to appear in the next volume of South Carolina Reports, have held, as we do, that where there is a general verdict upon two counts, if one of the verdicts is good, "it is immaterial that there was error in the charge of the court upon the other counts."
It cannot be said that the judge imposed the sentence upon the objectionable count or verdict, for the law places it on the valid count and unobjectionable verdict. Nor that his judgment was increased by reason of the number of the counts, for so long as the judgment on the valid verdict is within the limits allowed by law for the offense charged in it, this Court cannot find error.
It is consonant to precedent and the reason of the thing, that when there is a verdict against a defendant to which no error can be assigned, and a judgment is pronounced thereon within the limits allowed by
law, such verdict and judgment should not be disturbed by reason of defects, whether in the indictment, the evidence or the instructions, alleged as to other verdicts against the same defendant, and it can make no difference whether such other verdicts are in other (743) indictments or on other counts in the same indictment, if they are such errors as do not, and cannot, affect the valid verdict.
In the present case, the defendant was charged in separate counts for different offenses, but of the same grade and punishable alike. She might have been tried on two separate indictments, but she made no objection, and the court had the discretion to try in one action. By the general verdict, there stand two verdicts of guilty against her. As to one, no valid objection has been raised, and the judgment upon it is such as the law authorizes. She is not entitled to a new trial as to the and it can serve no good purpose to give or refuse a new trial as to the other verdict, which is surplusage. If there was error, it was error immaterial to theverdict on the second count, and, there being but one sentence, it is placed upon the sound verdict, as it would be placed on the sound count, if the other were defective.
It would put the State to a great disadvantage and greatly increase the difficulties and technicalities which already hamper the administration of justice upon the merits, if, when a defendant is tried upon several counts (which practice is favored to save defendants unnecessary costs), and found guilty upon all, a slight error in the judge's charge upon one count, in no wise affecting the trial on the other counts, should be allowed to vitiate the verdicts on all the other counts, though no error whatever can be found against the verdicts thereon. The rule herein stated can work no hardship to defendants, for they can always move to quash or to require the solicitor to elect, which motion, it is to be taken, the presiding judge, in all proper cases, will allow. S. v. Reel, supra; Carlton v.Commonwealth, 5 Met., 532.
The defendant also has the right to require a separate verdict to be rendered on each count if he doubts that the general verdict of guilty applies to all, and if he does not ask to have this done he (744) cannot afterwards be heard to complain. S. v. Basserman,54 Conn. 88. It is like the right to have the jury polled, which is waived unless asked for at the time. S. v. Young, 77 N.C. 498.