4 Gill 494 | Md. | 1846
delivered the opinion of this court.
The indictment in this case contained two counts: — the first, for a rape; the second, for an assault, with intent to commit a rape. The jury found the prisoner guilty on the second count, namely, of an assault, with intent to commit a rape.
The prisoner’s counsel filed a motion in arrest of judgment, and assigned as the grounds therefor: — 'First, “because the jury have omitted, in their verdict, to find said Sutton guilty, or to acquit him, on the first count of the indictment, by answering to the second count alone, and have thus rendered a defective verdict.”
The second reason assigned in arrest of judgment, is, “that the State has joined distinct offences in the same indictment, and for that reason, they respectfully submit, the indictment is bad.” Two issues were submitted to the jury: — the first, guilty, or not guilty, of the rape; the second, guilty, or not guilty, of the assault, with intent to commit a rape.
The jury found the prisoner “guilty of the charge as specified in the second count of the indictment aforesaid, in manner and form as the said State of Maryland within against him hath alleged.”
The law seems to be well settled upon authority, that if a jury find but a part of the matters put in issue, and say nothing as to the rest, it is ill. King vs. Hayes, 2 Ld. Raymond, 1521; and in 1 Chit. Crim. Law, 641, it is said: “With respect to the form in which a verdict should be given, which thus partially convicts and acquits, il has been holden, that, it ought to
The same doctrine is held by Hawkins, in his pleas of the Crown B’k, 2, ch. 47, sec. 5.
If the law requires all the matters involved in a single issue, to be found by the jury, unquestionably, it requires, where there are two or more issues submitted to the finding of the jury, that they should find upon each, and all, of the issues.
This verdict, therefore, in the language of the books,, was ill, and should have been set aside by the court.
The second reason assigned as a ground for arresting the judgment, is settled by the case of Burke vs. The State, 2 H. & J., 426, and, therefore, no argument on our part is necessary to maintain the decision of the county court, that a felony and misdemeanor may be joined in the same indictment.
We cannot agree with the county court in the course pursued by them, in arresting the judgment and discharging the prisoner. It cannot be said with correctness, that a verdict, which in legal contemplation is a nullity, could jeopard the life or limb of a party.
In this case, the jury found no verdict on the issue, under the first count in the indictment.
The verdict was imperfect, and the matter in issue not so ascertained, as that the court could render any judgment thereon, and therefore it was a mis-trial. The county court erred in discharging the prisoner; the court should have awarded a venire de novo.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.
