State v. Redman
17 Iowa 329
Iowa
1864
Check Treatment
Dilloít, J.

1. Verdict: larceny. Under our statute, where the value of the property stolen exceeds twenty dollars, the offense is a felony, and is punishable by imprisonment in the penitentiary; where it does not exceed twenty dollars, the offense is a misdemeanor, and is punishable by fine or imprisonment in the county jail. Rev., § 4237. This marked distinction between grand and petit larceny has always existed in this State.

By other provisions of the statute, under an indictment *331for grand larceny, the defendant may be convicted of the inferior offense of petit larceny. In the early case of Ray v. The State, 1 G. Greene, 316 (a. d. 1848), it was expressly decided, in view of the above distinction, that in an indictment for grand larceny, “ the verdict must fix the value of the property stolen, so that the court may know with certainty, of which offense the defendant is convicted; as without such a finding (under the statute providing for the punishment of larceny) the court could not well pass sentence.” As to the necessity of finding the value of the property in such cases, see also Highland v. The People, 1 Scam., 392; Sawyer v. The People, 3 Gillman, 53. And in Ray v. The State, supra, because the verdict did not ascer tain and find the value of the property, the court reversed the judgment; but instead of ordering the discharge of the defendant, awarded a venire de novo. So in a somewhat analogous case, the law in indictments for murder requires the j ury, by their verdict, to ascertain the degree. And it is held, that as a general verdict of guilty on an indictment for murder would be defective, so is a general plea of guilty, and no regular judgment can be entered thereon. McCauley v. The United States, Morris, 486. And a verdict in such a case is fatally defective, unless the jury find specifically the degree of murder. The State of Iowa v. Moran, 7 Iowa, 236.

Ray’s case directly, and the others by analogy, establish that the verdict in this case was defective and uncertain. And this is so. It did not find, and consequently the court could not know whether the defendant was guilty of the larger or smaller offense, and of course could not pass judgment. If it had been the intention of the jury to convict for the larger offense, the court could not legally punish for the smaller, and vice versa.

*3322 and 3. - Criminal law: insufficient verdict. *331But, nevertheless, the defendant claims, and his counsel has made a strong argument to show, that as the indict*332ment is a good one, and as the defendant was put .... ' - . . upon his trial, and as no unforeseen and irresist--h . ible necessity intervened, the proceeding operates practically as an acquittal, and is a bar to any further prosecution on the same indictment. The question is an interesting one, and we proceed to discuss it. Our Constitution provides (Bill of Eights, § 12) that “ no person shall, after acquittal, be tried for the same offense.” It does not contain the provision of the Federal Constitution, declaring that “ no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” Amend, art. 5. We do not purpose to enter upon the mooted question whether this provision is binding proprio vigore upon the several stales; because, in our j udgment, the defendant has not been in jeopardy within the meaning of the common law maxim, or within the proper construction of the provision of the Federal Constitution. We may remark, before proceeding to the main inquiry upon the record, that inasmuch as the Constitution of nearly every State contains the same provision that is contained in the Federal Constitution, the omission of the provision in our Constitution, and the insertion in its place of the one above quoted from the bill of rights, would favor the notion that it was intended that nothing less than a regular acquittal should be considered as depriving the State of the power of putting a party upon trial for an alleged criminal offense. This view also finds some support in § 4714 of the Revisio^ which enacts that “ There are but three pleas to an indictment : a plea of, 1st, guilty; 2d, not guilty; 3d, former judgment of conviction or acquittal.” But see State v. Callendine, 8 Iowa, 288. Waiving this view, however, and assuming that the decisions made and rules established in other States, with reference to the plea or defense of “ once before in jeopardy,” are applicable in this State, and as available to a defendant here as in the other States or in *333England, the question arises whether the defendant, in the case at bar, was twice put in legal jeopardy, for the same offense ?

4. - No bar to new trial. In general, it may be said that jeopardy begins when a trial jury, upon a sufficient indictment, in a court of competent jurisdiction, has been impanneled and sworn to try the cause. Bish. on Cr. Law, § 659; 2 Lead. Cr. Cas., 358. But the jeopardy is not considered as attaching in such cases, although the j ury has been sworn, if during the trial the presiding judge becomes so ill as to be unable to proceed (Nugent v. The State, 4 Stew. & Port., 72); or if a juror’s illness prevents him from sitting farther on the trial (King v. Scalbut, 2 Leach, 620; United States v. Haskell, 4 Wash., 402; Rev., §§ 4804, 4820); or if the prisoner’s sudden illness incapacitates him from attending or managing his defense (King v. Stevenson, 2 Leach, 541); or if the jury, after full deliberation, are unable to agree (Rev., § 4821, 4822); or if the defendant is erroneously convicted, and obtains a reversal of the judgment. In all such cases he may be put upon his trial again, and cannot claim a discharge or acquittal because a jury has been once before impanneled and sworn to try the cause. And we understand the settled doctrine to be, that where the verdict is a nullity (or so defective that no judgment can be rendered upon it), the defendant may again'be put upon his trial, certainly where the verdict was intended to be one of conviction, for in such case it is rather a mistrial than a legal putting in jeopardy. 1 Bish. Cr. Law, § 673.

Thus it has even been held, that if the court refuses the constitutional right of the State to a jury trial, and itself tries the defendant at his instance, and acquits him, this is no bar to another trial at the instance of the State, although the State Constitution provides that no person shall be twice put in jeopardy for the same offense. “ The reason is.” says Blackford, J., who was the organ of the court, *334“because the defendant, in such a case was not legitimo modo acquietatus.” State v. Mead, 4 Blackf., 309. We need not go near this questionable extent to sustain the action of the court below in the case at bar.

So, where it is held that an assault and battery is merged in the felony, and a prisoner, indicted for murder, is found guilty by the jury of an assault and battery, the verdict is a nullity, the defendant is not in jeopard}', the proceeding is a mistrial, and the judgment may be arrested and the defendant again be put upon his trial on the same indictment. Wright v. The State, 5 Ind., 527. If the verdict is insufficient in not properly responding to the whole indictment, and the defendant appeals, the judgment will be reversed and the cause remanded for a new trial. Marshall v. Commonwealth, 5 Gratt., 663; The State v. Moran, 7 Iowa, 236; Wilson v. The State, 20 Ohio, 26; Ray v. The State, supra; Webber v. The State, 10 Mo., 4; The State v. Sutton, 4 Gill., 494. Or, if the verdict is defective and uncertain in not responding to the whole issue, the trial-court may itself set it aside and try the prisoner again on the same indictment. Commonwealth v. Hatton, 3 Gratt., 623; where the prisoner objected to the verdict as imperfect, and the court set it aside and awarded a venire de novo. When the trial was again brought on, he moved “ to be discharged, on the ground that having been tried on the indictment, and the court having arrested the judgment on the verdict found, because not sufficient to warrant judgment, he was not liable to be again tried for the same offense; ” but it was adjudged that he was thus liable. In Lawrence and Donovan v. The People, 1 Scam., 414, which is in all respects in point, the verdict of guilty was defective under the statute, in not finding the age of the defendant. The court below, on its oxon motion, set aside the verdict and ordered a venire de novo. Per Smith, Justice: “ The only question is on the power of the Circuit Court to *335set aside a defective verdict on which no judgment could be rendered, and to award a venire de novo. The right to exercise this power cannot be questioned. It has been exercised in numerous criminal cases, and is undoubted.” To the same effect, without quoting, see People v. Olcutt, 2 Johns. Cas., 301, the third point decided, Id., 311, per Kent, J.; Rex v. Keite, 1 Ld. Raym., 138, and Lord Holt’s judgment, Rep., 141; S. C., Comberback’s R., 406; Commonwealth v. Percavil, 4 Leigh (Va.), 686; The State v. Duncan, 2 McCord, 129, where the court awarded a new trial on a defective special verdict. 1 Chitty Cr. Law, 641; 1 Bish. Cr. Law, § 673. The State v. Callendine, 8 Iowa, 283, does not conflict with this view. The only doubt which has been raised, is whether the verdict could be set aside, a venire de novo awarded in a capital case. Rex v. Huggins, 2 Ld. Raym., 1585; and see Rex v. Burridge, 3 P. Wms., 439, 498. Prom these cases, and from a general examination of the authorities, we feel safe in laying down this general rule: that where the verdict, especially if intended to he a verdict of guilty, is so defective and uncertain that the court does not Icnow for ivhat offense to pass judgment, it may he set aside by the court, even against the defendant's objection, and the proceeding is no bar to another trial. This is good sense. The defendant, in the case before us, has never been acquitted. The jury did not intend to acquit him. They expressly found him guilty. If the court had pronounced judgment against him, and he had appealed the appellate court, under the authorities above referred to, it would not have discharged him, but remanded him for a new trial. It has never been adjudged that, in such a case, he could successfully plead once in jeopardy. The course taken below amounts to the same thing; and is, as we have shown, well warranted by the authorities. "We are not .unmindful of the rights of persons accused of crime, but do not see how this ruling can ever be used to oppress or *336unjustly injure them. It accords, moreover, with the letter and spirit of our Code of Criminal Procedure. This has sought to prevent persons convicted of crime, frota escaping deserved punishmept on refined subtleties and black letter precedents, where no substantial interest or right has been prejudiced. This commendable reform ought not to find an obstacle in the illiberality or the prejudices of the courts. To order, as we are asked to do, upon the facts disclosed in the record, the absolute discharge of the defendant, would strike any fair mind, untutored in the meaningless technicalities and hair-splitting distinctions, formerly too prevalent in the criminal law, as no less ridiculous and absurd than subversive of the ends of public justice.

II. The error assigned in refusing the change of venue presents no new point of law. We therefore content ourselves with saying, that considering the nature of the offense as not being one calculated to awaken general attention, and prej udice, and the showing, and especially if we regard the counter showing, we are not satisfied that the court erred in the action complained of.

Judgment affirmed.