Kellum v. State

1. Criminal Practice. Verdict. Certainty therein. K. was indicted and tried on a charge of grand larceny. The jury returned a verdict in these words : “ We, the jury, find the 1 defendd ’ guilty as charged in the indictment.” Held, that this verdict was good, as it evinces clearly the intention of the jury to find the defendant and no one else “guilty as charged in the indictment.” 2. Same. Instruction, assigned for error. No evidence in record. The supreme court will not reverse a judgment because of instructions given, where the record contains none of the evidence, and it does not appear that such instructions would in no state of case have been proper. Hartford. Ins. Co. v. Orem, 52 Miss. 332, cited.

Appeal from the Circuit Court of Clay County. HoN. W. M. Rogers, Judge. Simon Kellum was indicted for grand, larceny. He was tried and convicted. The verdict of the jury was as follows: “ We, the jury, find the defendí ” [or defendd] “ guilty as charged in the bill of indictment.” The defendant excepted to this verdict, and judgment having been rendered thereon, appealed to this court. Our statute is silent on what a verdict shall contain. We must therefore look to the common law and test this verdict by the principles of the common law. The verdict of the jury in this case does not name the defendant; it does not appear from the record that the verdict was written out, or, if written, whether on the indictment or on another piece of paper, it does not state of what they found the defendant guilty, but only “ guilty AS charged in the bill of indictment.” Not guilty of the crime charged in the bill, etc. This falls very far short of what was required at common law. 2 Hawkins Pleas of the Crown 622 and note 2; Clay v. The State, 43 Ala. 350; Levison v. The State, 54 Ala. 520; The People v. Ah Good, 53 Cal. 627 ; The State v. Belte, 76 N. C. 10; The State v. Blue, 84 N. C. 807; The State v. Lowry, 74 N. C. 121. 1. M. Miller, Attorney General, for the State. Trifling errors which cannot mislead and are evidently clerical afford no ground for an arrest of judgment. Comm. v. McMahon, 133 Mass. 394. Defendant’s name in the indictment was “ Rich,” in the verdict “ Richard.” Held, immaterial. State v. Dodson, 16 S. C. 453. The law does not require jurors to be philologists. , A verdict, therefore, finding the defendant guilty of “ mansluder ” was held to be valid. State v. Smith, 33 La. Ann. 33. A verdict fixing the punishment at two years in the State “peni-tenilery ” held valid. Hoy v. State, 11 Tex. Ápp. 32. ■' The charge may be looked to and considered in determining questions involving the import of a verdict. Vincent v. Stats, 10 Tex. App. 330. “ We, the jury, find the defendant guilty to the amount of thirteen dollars.” Sustained in trial for larceny. Timmons v. State, 56 Miss. 786. ■ In applying the rule that a verdict is not to be avoided unless from necessity, originating in doubt as to its import, immateriality of the issue, or tendency to work injustice, reference is to be had to the specific offense charged, and to the question whether a conviction thereon could be successfully pleaded in bar of a second prosecution. Bland v. State, 4 Tex. App. 15.