Commonwealth v. Carey

103 Mass. 214 | Mass. | 1869

Morton, J.

It is well settled that several offences may be charged in separate counts of the same indictment, if they are of the same general character and subject to the same kind of punishment; and whether they shall be tried separately or together is a matter within the discretion of the presiding judge. But if. they are tried together, the cardinal principles of the criminal law apply in the same manner as if each offence was charged in a separate indictment and tried separately. Each offence charged must be proved beyond reasonable doubt, by evidence legally applicable thereto. It necessarily follows that the jury must pass upon .each count separately, and apply to it the evidence bearing upon the defendant’s guilt of the offence therein charged. And if they fail to do so, their verdict cannot be sustained.

In the case at bar, the jury returned a general verdict of guilty, but, before it was affirmed and recorded, their foreman stated, in answer to a question by the court, that they did not pass upon the counts separately. It was thus made to appear in a proper manner, that the jury, probably through misapprehension of the instructions given, had failed to perform the duty required of them, and that their verdict was unauthorized by law. It was undoubtedly a matter within the discretion of the presiding judge whether inquiry should be made of the jury as to the grounds or counts upon which they found their verdict; and if no inquiry had been made, the general verdict of guilty would apply to each count, upon the presumption that the jury had correctly understood and applied the instructions given them. But, the inquiry having been made, and having elicited the fact that the verdict had not been found in a manner authorized by law, it was erroneous in the court to order the verdict thus found to be affirmed and recorded.

Exceptions sustained.