ON PETITION FOR REHEARING. The appellant claims, in his petition for a rehearing, that two separate verdicts were returned in this case and that this matter was presented by the record and briefed in argument 12, 13. and that the court did not consider or pass upon it. Appellant also claims that the record affirmatively shows that the judgment was upon the second verdict. *Page 613 He also claims that the court did not pass upon the question of former jeopardy which he claims was presented by the record and briefs. He also claims that no notice was taken of his request for oral argument. The record, however, shows that only one verdict was returned and received by the court, and upon that verdict, judgment was rendered. The record shows that the jury came in with a verdict which was not in legal or proper form and the court sent the jury back to correct the verdict. This it was the duty of the court to do. The jury returned with a verdict in proper form, which the court accepted and ordered spread upon the record and judgment was entered on such verdict. The verdict is a part of the record proper and the record is the appropriate and only necessary place where it should appear. The verdict as it appears in the record is controlling. 4 C.J. 157; Vest v.State (1910), 174 Ind. 556; Harris v. State (1900),155 Ind. 15; Wilson v. State (1901), 156 Ind. 631; Daube v.Philadelphia, etc., Iron Co. (1897), 77 Fed. 713, 23 C.C.A. 420.
If a verdict is so uncertain that the court cannot understand it and is clearly not in compliance with the law, it is the duty of the court to send the jury back with proper 14. instructions as to the mode of framing a verdict. This the court did, and, in so doing, no error was committed.Crocker v. Hoffman (1874), 48 Ind. 207; Reed v. Thayer (1857), 9 Ind. 157; Noble v. Epperly (1855), 6 Ind. 468;Tyrrell v. Lockhart (1832), 3 Blackf. (Ind.) 136; 1 Watson, Revision Works' Practice § 839; Pehlman v. State (1888),115 Ind. 131.
Instructions given under such circumstances by the court as to the form or character of the verdict need not be in writing, although written instructions had been requested at the 15. beginning of the trial. Bradway v. Waddell (1884), 95 Ind. 170; Peelle *Page 614 v. State (1903), 161 Ind. 378; Herron v. State (1897),17 Ind. App. 161.
This correction of the verdict does not constitute a second jeopardy. Pehlman v. State, supra. The first verdict brought in by the jury was defective and it was proper for the 16, 17. court to refuse it and instruct the jury to retire and return a proper verdict. No person excepting the judge can receive a verdict. McClure v. State (1881), 77 Ind. 287;Quinn v. State (1892), 130 Ind. 340; Spurlock v. State (1916), 185 Ind. 638.
The judge refused to receive the verdict first brought in because it did not pass upon the issues of the case. After an explanation, the jury retired and brought in a verdict 18. covering the issues. The first verdict was not one upon which the court could render a judgment; it was therefore no verdict at all. It was proper and the duty of the court to refuse it and to point out to the jury its error, all of which was done. The jury having returned to the jury room to correct its verdict retained its power as to the form of the verdict and could have returned whatever verdict it decided upon the same as though it had not previously returned a defective verdict.Gianino v. State (1915), 183 Ind. 199; Grant v. State (1894), 33 Fla. 291, 14 So. 757, 23 L.R.A. 723; Turbaville v.State (1877), 58 Ga. 545.
Rule 26 of this court provides as follows: "Upon separate petition in writing by either party, on the original hearing of a cause, the court will set it down for oral argument, if 19. the application is made within the time allowed for filing briefs, otherwise, the court in its discretion will refuse the application." This rule was not complied with by the appellant. The last sentence in appellant's brief is as follows: "In addition to the observations in this brief, *Page 615 we respectfully ask for oral argument on the Points and Propositions set forth herein." This is not in compliance with Rule 26 of the Supreme Court.
The petition for rehearing is overruled.