Davis v. State

Whitfield, J.,

delivered the opinion of the court.

The appellant in this case was jointly indicted with one Baxter for a sale of intoxicating liquors in violation of law. Only one witness was introduced by the state as to the sale. His testimony was, in all respects and in every detail, identically the same against one defendant as against the other. And yet the jury, trying both together, on an indictment charging a single sale, on evidence equally affecting both, delivered by the same witness — ■ there being but this one witness as to the sale — convicted one and *640 disagreed as to the other. We have found but three oases directly in point: State v. Laurens Co., Harper (S. C.), p. 183; Turner's case, 1 Sid. (English), cited by Mr. Bishop, 1 Bishop’s New Crim. Proc., note 1, at p. 656; and State v. Henry Wilson and James Davis, 3 McCord (S. C.), 187.

In the first case, the two parties were indicted jointly for grand larceny, tried before the same jury on exactly the same evidence, and one was convicted of petit larceny and the other of grand larceny. The court held that the verdict must be set aside as inconsistent, on the express ground that the offense “ charged against each was'the same, and the evidence equally affected both. ’ ’ The third case cited holds the same doctrine on the same state of case, and the reasoning is clear and unanswerable. “Two persons equally concerned in stealing the same article cannot be guilty of different offenses. For although a jury have an almost unlimited power of valuing stolen property at what they please, so as to bring the case within petit larceny, they cannot value it at one price in the hands of one man, and at another price in the hands of another who is equally concerned in the transaction. . . . The prisoners have either been guilty of two distinct offenses, and, therefore, ought not to have been indicted together, or they have been guilty of the same crime, and should have been convicted of the same. The verdict, therefore, is inconsistent, and must be set aside.” In Turner’s case, several were jointly indicted for burglary, and it was held that the jury could not find one guilty of burglary and the other of larceny only. It was not meant that this could not ordinarily be done, but, as Mr. Bishop points out, that it could not be done on the facts in that case. ‘ ‘ There, ’ ’ says Mr. Bishop, "the very nature of the case precluded such a finding, for the evidence was the same as to all. ’ ’

Now, this observation of Mr. Bishop’s furnishes the key to the solution of the peculiar case before us. Of course, as a matter of pleading, two may be jointly indicted for the same offense, whether the offense be in its nature joint or not. And, *641 on a joint trial before the same jury, where the offense is not in its nature joint, one may be convicted and the other acquitted, or one may be convicted and the jury disagree as to the other, provided the evidence warrants the difference in the results. But where there is but one witness, and his testimony equally affects both, it is simply impossible that a different result can be legally reached as to the two. If there were two witnesses as to one, and one as to the other, or if the testimony of a sole witness went further against one than the other, the jury might convict one and acquit the other, or disagree as to him, because there the evidence does not equally affect both, and credibility of the witness is for the jury.

The general rule that where two are jointly indicted for the same offense, it not being in its nature a joint offense, the jury may acquit one and convict the other, or disagree as to the other is, of course, admitted. That is a mere rule of pleading and practice. They may, but when ? Only when the evidence warrants it. They may believe one witness and disbelieve another; they may accept circumstances against positive testimony; where there is the slightest difference in the testimony as between the two, they weighing that testimony may make the difference. But in a case like this, where the whole testimony is that of a single witness in every particular the same against one as the other, it is not legally possible that a verdict which distinguishes is a response to the evidence.

As stated, the general rules are admitted. See them set out in 1 Bishop’s New Crim. Proc., secs. 1036, 1037, and note. Offenses may be joint in their nature — as, conspiracy, affray, unlawful assembly, adultery, fornication, etc. Here, ordinarily, one cannot be guilty and the other innocent. Yet, here it may depend on which one. For if more than two be indicted for conspiracy, or more than three for a riot, one may be convicted, the other being dead or not arrested, or one may be convicted and others acquitted, provided the evidence shows that the party convicted was guilty with others indicted, but not then tried, *642 of committing the particular offense. 1 Bishop’s New Crim. Proced., secs. 1022, 1023. The correctness of the result here, too, depends on the evidence. Klein v. People, 31 N. Y., 236 , 237; Com. v. Wood, 12 Mass., 312 , and see note, p. 313 — a case of disagreement as to one, on evidence different as to one from what it was as to the other; State v. Mainor, 6 Iredell (28 N. C.), 340 — an adultery case; and State v. Bailey et al., 3 Blackford, 209 — an unlawful assembly case. One of many jointly indicted for conspiracy, for example, who may be convicted on a trial of just himself and one other, cannot complain —that other being acquitted — if the evidence shows him guilty cum mullís aliis than the one acquitted, such others being indicted and still to be tried before another jury.

So, where the offense is not in its nature joint (and that is the nature of the case at bar), but two or more are jointly indicted, and tried before the same jury for the same offense, though not joint in its nature, as stated, the jury may, if the evidence warrants the differences in the findings, convict one, acquit another and disagree as to a third; or, where the offense charged includes different degrees, convict one of one degree of guilt, another of another and a third of a still different degree of guilt; but the findings must be responsive to the evidence. Mask’s case, 32 Miss., 405 , is as conspicuous an illustration of the last proposition as can be found in the books. It must, therefore, be obvious that it does not advance the solution of this case a step simply to say that where two are jointly indicted for a single sale, the same offense, not joint in its nature, and are jointly tried before the same jury, as matter of 'pleading and practice one may be convicted and the jury may disagree as to the other. Most assuredly, as matter of pleading and practice, they may; but whether, in such case, they should, depends, manifestly, on whether the “evidence equally affects both.” And where that evidence is, as here, delivered by but one witness, and is identically the same throughout, against one as the other, no jury can be permitted to make a difference in their cases by a purely arbitrary finding.

*643 The first instruction for the state is in conflict with the first for the defense, and both are wrong. It is also in conflict with the other charges given for the state. The first charge for the state is wrong for the reasons already indicated. It is a perfectly correct abstract proposition of law, but wholly erroneous on the case made by the evidence. The first instruction for the defense is misleading, because it told the jury that they could not convict the defendants — in the plural — unless they believed that McCracken was, at the very time he made the sale, the agent of Davis and Baxter. The jury might have understood this to mean, that in no state of the proof could they convict one without convicting the other. But this, as shown, depended on the proof, which, had it been different as to one from what it was as to the other, might well have warranted different findings as between the two defendants. For this is not an offense joint in its nature. Nor is it one that must necessarily, under this indictment, have been jointly committed. It is charged to have been jointly committed. But non constat the proof might show one committed the act and the other did not. Under joint indictments for offenses not in their nature joint, the indictment is considered several as to each. 1 Bish. New Crim. Pro., sec. 1036; 1 Arch. Crim. Pl. & Prac. (8th ed.), p. 303.

Cases cited by counsel for appellant on this point are inapplicable. Ball’s case, 67 Miss., 362 , merely holds that parties cannot be convicted of distinct offenses under an indictment charging a joint act. There — a case of disturbing public worship — all the parties might have been convicted properly of the crime — disturbing public worship — though the evidence might have shown each guilty in a different mode, by conduct of a different kind, the conduct of each constituting a different mode of disturbing public worship.

For the errors indicated in the charges, and in the manifest inconsistency of the verdict, the Judgment is reversed, the verdict set aside cmd the cause remanded for a new trial.