State v. Gregory.

Dec 7, 1910
Versions:153 N.C. 646
69 S.E. 674
1910 N.C. LEXIS 148
Walker, J.

The defendant was indicted in the court below for larceny and receiving stolen goods, the property of the Henderson "Wholesale Grocery Company. He was tried for receiving the goods knowing them to be stolen. The evidence tended to show that the goods had been stolen by Dave Harris and received by the defendant with the guilty knowledge. The evidence and charge of the court were all directed to the particular crime alleged in the second count, that is, the one for receiving. There was no evidence of any other crime having been committed by the defendant, and as it is stated that the court *647 fully informed tbe jury as -to tbe law “upon all phases of tbe evidence,” we must assume tbe judge gave proper instructions and told tbe jury tbat, unless tbey found beyond a reasonable doubt tbe defendant bad received tbe goods described in tbe indictment, knowing them to have been stolen, tbey should acquit him, and tbey could convict only if tbey found tbat be was guilty as charged in tbe count for receiving. This charge, of course, confined tbe jury, in tbe consideration of tbe case, to tbe single question whether tbe defendant was guilty of tbe offense, in manner and form, as alleged in tbe second count of tbe indictment. Tbe jury returned tbe following verdict: “We find tbe defendant guilty of receiving goods, knowing them to be stolen.” Tbe defendant moved for a new trial because tbe verdict is defective, in tbat it is not found to whom tbe goods belonged, nor does tbe verdict show tbat tbe defendant has been convicted of tbe crime alleged in tbe indictment. He also moved to arrest tbe judgment. Tbe court refused both motions, and from tbe judgment upon tbe verdict, tbe defendant appealed.

It is contended tbat the jury may have convicted the defendant of receiving stolen goods other than those described in the bill. Tbe verdict should be read in connection with the issue being tried, the evidence and the charge of the Court. Greenleaf v. R. R., 91 N. C., 33. This is so in a civil action and we do not see why the same rule should not apply to an indictment. S. v. Long, 52 N. C., 24. We have frequently held tbat where there are several counts in a bill and a general verdict is rendered without specifying the count upon which it is given, we can look to the evidence and to the charge, and if it is found from them tbat the trial related to only one of the counts, the verdict will be restricted to that count. S. v. Long, supra; Morehead, v. Brown, 51 N. C., 367; S. v. Leak, 80 N. C., 403; S. v. Thompson, 95 N. C., 596; S. v. Gilchrist, 113 N. C., 673; S. v. McKay, 150 N. C., 816. The verdict is to have a reasonable intendment and should receive a reasonable construction. It should not be avoided except from necessity. Clark Cr. Prac., 486, and cases cited. Why should we infer tbat the jury intended to convict the defendant of an offense which was not stated in the bill and of which there was no evidence? Is it *648 not more reasonable and sensible to conclude tbat they obeyed the judge’s instructions' and considered only the evidence in the case ? In S. v. May, 132 N. C., 1020, it is said by Douglas, J., that “when an indictment contains two counts, but the evidence, instructions of the court and the argument of counsel refer to one of the counts only, it will be presumed that the verdict followed the trial and related to such count.” If the presumption was permissible in that ease, it- would seem to apply as well to-the facts of this ease. In Hoback’s case, 69 Va., 922, the defendant was found guilty of “unlawfully shooting with intent to maim,” without stating the name of the person upon whom it was alleged in the bill the assault had been committed. The court, after saying that the verdict must always be read in connection with the indictment, and if it appear, upon reading them together, what is meant by the verdict, it is sufficiently certain, as it refers to or adopts the indictment, either expressly or by clear implication, concludes with these words: “Can we place upon the verdict so unreasonable a construction as to make it doubtful whether the jury intended to find that Brown Seagle was the person shot, or that no person was in fact shot?” In Guenter v. People, 24 N. Y., 100, the bill contained counts for larceny and embezzlement, and the verdict was “guilty of embezzlement.” The defendant contended that the verdict was void for uncertainty, because it did not find the defendant guilty of the embezzlement charged in the indictment, but the court replied: “The verdict is not void for uncertainty. It finds the prisoner guilty of an offense charged in the indictment, and means that offense 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 offense they intended the verdict to apply.” S. v. Wilson, 40 La. Ann., 751. In S. v. Kinsauls, 126 N. C., 1095, the defendant was indicted for murder of the person named in the bill and the jury found him “guilty of the felony of murder in the first degree.” The judge, the next day after the verdict, added thereto the following words: “In the manner and form as charged in the indictment.” The court held the verdict, as returned by the jury and without the added words, to be sufficient and that the amend *649 ment of the judge was merely formal and not prejudicial to the defendant. We cannot avoid the conclusion that the jury intended to convict the defendant of the crime alleged in the indictment and for which he was tried. S. v. Whitaker, 89 N. C., 472, and S. v. Parker, 152 N. C., 790, cited by the defendant’s counsel in their brief, are not in point. In both cases, the jury found the defendant guilty of the commission of an act which was not criminal. The defendant may have committed the act and yet not have been guilty of the crime alleged in the indictment. An essential element of the crime was omitted by the verdict, in the one case, the “guilty knowledge,” and in the other the “concealment of the weapon.”

We find no error in the record.

No error.