State v. Levin

The opinion of the court was delivered by Swayze, J. We are entirely satisfied with the view of the Supreme Court and should affirm on the opinion of the Chief [554] Justice, but for suggestions made for the first time in this court. The indictment charges both a misdemeanor and a high misdemeanor. The latter offence — grand larceny — is charged in terms appropriate to a felony at common law. The punishment of the two crimes is different and the consequence of a conviction of grand larceny in disqualifying the defendant as an elector is serious. If the verdict were a general verdict, it could, if there were no’ other error, be applied to any count in the indictment, and if the count was good, judgment might pass upon the verdict. This cannot be done in the present case. The verdict is not general. It is “guilty of the misdemeanor, aforesaid.''” Such a verdict on the trial of an indictment which charges both a misdemeanor and a high misdemeanor shows most pointedly that the jury exercised discrimination and declined to find a verdict on the charge of high misdemeanor. If the state was not satisfied, it might have asked an instruction that the jury find a verdict on the count charging the more serious offence. This the state failed to do, probábly because the learned prosecutor was content with the judgment that might follow the conviction of the lesser offence. He now argues that the failure of the jury to find a verdict on the counts for high misdemeanor, is cured by the fact that the punishment imposed was justified’ under either count. This cannot be. The prosecution for the misdemeanor was barred by the statute of limitations; no judgment could be pronounced on that count. The only counts on which a judgment could be pronounced were the counts for high misdemeanor, and on these counts there is no verdict and hence no basis for a judgment. It is not a case of defective count, but a case where the only counts on which a verdict has been found charge no crime for which a prosecution will lie. The defendant was entitled to have the court direct a verdict in his favor on the counts for misdemeanor. The conviction is only on those counts and it was manifest error to pronounce sentence on a conviction for an alleged crime for which the legislature has said he shall not be prosecuted, tried [555] or punished. Criminal Procedure act, section 152 (Comp. Stat., p. 1810). Moore v. State, 43 N. J. L. 203. It is, however, urged in this court that the verdict shown on the record is not the verdict rendered by the jury; the state seeks to have the alleged error which is now attributed to the clerk, corrected. This is beyond our power. Even if we had, or were willing to invent, a writ running from this court direct to the Mercer Sessions to have the truth certified, we could not in justice pass over the Supreme Court. We have directed our writ of error to that tribunal and required it to send us the record in their court. If we now undertook to alter that record, we should not be acting as a court of review to consider possible errors of the Supreme Court. We should be ostensibly passing on the case as it was presented to them, but really passing on an entirely different ease. It is for the Supreme Court to say, when the record goes down, whether it will permit the state now to make out a new ease, or whether it will consider that the state has elected, by suing- out the pending writ of error after the attention of the prosecutor was called to the difficulty, to stand on the record as it is. We may properly call attention to the question whether the submission by the trial court to the jury of the counts for misdemeanor was not such an error as would be fatal even on a general verdict, which might be predicated on those counts alone. The question is not a technical one, but one of substantial justice in securing to the defendant his right to trial by jury. Desirable as it is to punish crime, it is still more important to administer justice according to law; when that is once abandoned, we are adrift without chart or compass. Let the judgment be affirmed and the record remitted to the Supreme Court for further proceedings, according to the practice of that court.