| N.C. | May 5, 1819
Lead Opinion
All these facts were spread upon the record, and the Defendant's counsel insisted that the first finding of the Jury was to be taken as their verdict, and, by that, the Defendant was acquitted. The Court was of a different opinion, and directed the Defendant to be whipped, as the act of Assembly directs. The Defendant appealed to this Court, and the judgment of the Court below was reversed, and the Defendant discharged. When a Jury returns with an informal or insensible verdict, or one that is not responsible to the issues submitted, they may be directed by the Court to reconsider it: but not where the verdict is not of such description. The verdict offered in this case was a plain and explicit response upon the issue submitted, and the addition, of the Defendant's having been guilty of a trespass, did not vitiate it. It was a matter of subsequent consideration with the Court what should be the judgment. The verdict first offered will be recorded nunc pro tunc, and judgment entered for the Defendant. For although any larceny imports a taking without the consent of the owner, and of course a trespass, yet that taking does not necessarily import a taking with violence, so as to render it indictable. The offense found is not within the charge; the record must therefore be amended, and judgment of acquittal be entered.
Addendum
The verdict first brought in by the Jury, was, "Not guilty of the felony and horse-stealing, but guilty of a trespass." Had this verdict been so recorded, the judgment would have been arrested; the rule being, that a Defendant cannot be found guilty of a misdemeanor, on an indictment for felony. The verdict actually found would then have had the effect of an acquittal. It is laid (573) down in ancient books of authority, that if the Jury, through mistake or evident partiality, deliver an improper verdict, the Court may, before it is recorded, desire *357 them to reconsider it; and a case is quoted with approbation, in Plowden 211, b. where, in a writ of conspiracy against two, the Jury found one guilty, and the other not guilty; and the Judge told the Jury that their verdict was contradictory, and that if one was not guilty, the other was not, in a charge of conspiracy; and that they had better reconsider their verdict. The Jury accordingly retired and afterwards returned and found both guilty. Some of the harsh rules of the Common Law, in relation to criminal trials, have been gradually softened by the improved spirit of the times; and this, among others, is relaxed in modern practice, where the Jury bring in a verdict of acquittal. It is considered as bearing too hard on the prisoner, and is seldom practiced, Hawk. ch. 47, sec. 11, 12. I think this course of proceeding is fit to be imitated here, whenever a prisoner, either in terms or effect, is acquitted by the Jury, and that in all such cases the verdict should be recorded: although I am persuaded that they were desired to reconsider their verdict in this case, with the purest intention, and solely with a view that they might correct the mistake they had committed. The verdict first returned ought to have been recorded; and it ought to be done now, valeat quantum valere potest. The effect will be the same as if a verdict of acquittal were recorded; but I think it most regular to put upon the record what the Jury have found. 1 Leach 12. 2 Strange 1137.
Cited: S. v. Durham,