The first count in the indictment for embezzlement was good. Whether or not the other counts for that offence were good is of no importance, because the verdict was general as to embezzlement, and after a general verdict of guilty the conviction will be sustained, if there be one good count, even though the indictment contain many defective ones. No objection was made to any of the counts for larceny.
The addition made to the verdict by the court after the discharge of the jury was clearly irregular, and must be disregarded. The act was wholly without authority and without precedent.
The indictment contained counts for both embezzlement and larceny; the prisoner was tried for both offences; evidence was given endeavoring to establish both, which was submitted to the jury. Finding the prisoner guilty of embezzlement was equivalent to a verdict of not guilty of the larceny charged. No other construction can be put upon the verdict. The question of guilt or innocence of both offences charged was submitted to the jury, and that body found him guilty of but one, and designated which. Trial and conviction upon this indictment is a bar to any subsequent prosecution for the larceny therein charged. (U.S. v. Keen, 1 McLean, 429; 2 Caines, 304; 18 J.R., 187, 206.) Not only may a verdict of guilty be rendered on one count and not guilty upon another, but if the jury find the prisoner guilty on one count, and say nothing in their verdict concerning the other counts, it will be equivalent to a verdict of not guilty on such counts. (Morris v. State, 8 Smede Mar., 762; 7 Blackf., 186; 9 Leigh, 627; 4 Scam., 168.) *Page 102
The verdict is not void for uncertainty. It finds the prisoner guilty of an offence charged in the indictment, and means that offence as charged therein. Its effect is the same as would be a verdict of guilty under a single count. The words "of embezzlement" were added to designate to which offence they intended the verdict to apply.
The judgment should be affirmed.
All the judges concurred, except