John Morehead and Cornelius Rhoades, App’lts, v. Charles Brown, Resp’t.
(Supreme Court, General Term, Third Department,
Filed February 4, 1891.)
Verdict—Inaccuracy in written.
In an action for penalties, the jury returned a written verdict: “ We finde the defende $100." And on being required to correct it, returned a verdict: “We finde the defende of two offences fifty dollars each." The justice received the latter verdict and entered judgment for $100. Held> no error; that the inaccuracies in the verdict did not prejudice the defendant.
(Learned, P. J., dissents.)
Appeal from judgment of county court, reversing judgment of justice’s court The facts appear fully in the dissenting opinion.
E. Dayton, for appl’ts; C. M. Woolsey (Howard Chipp, of counsel), for resp’t.
Landon, J.
I think the judgment of the justice’s court was right upon the merits, and the errors complained of did not prejudice the defendant Code Civ. Pro., § 3063.
The verdict was in writing, and accords with the illiteracy which is often an accepted test of the impartiality of jurors. The practice of requiring a verdict in writing is not prescribed by law, and if technical inaccuracy is to be made a pretext for settipg it aside, cannot be too vigorously condemned.
*767I advise a reversal of the judgment of the county court,
Mayham, J., concurs.
Learned, P. J. (dissenting.)
This is an appeal from a judgment of the county court reversing a judgment recovered by plaintiff before a justice of the peace for $100 and costs.
The action was brought to recover penalties amounting to $200 for four alleged violations of § 14 of chap. 628, Laws of 1857; Excise law.
The alleged violations were the selling of hard cider without a license.
The action is penal and the defendant is entitled to have the matter tried in a due and legal manner.
The evidence given against defendant’s objection by the witness Tanner, that his brother-in-law and Elmendorf fought together when they got back in the woods, was plainly improper. It was not shown that they fought because they were intoxicated; and it was no evidence of the intoxicating quality of the cidet.
The evidence that other complaints had been made about defendant was improper.
The jury brought in a written verdict: “ We finde the defiende $100.” Plaintiff’s counsel requested that the jury retire and make their verdict more explicit They attempted to state their verdict and said, “We find the defendant of two offenses and supposed when we expressed the amount the court would know we meant two offenses.” Defendant’s counsel requested that the written verdict be entered and the jury discharged. The court directed the jury to retire and correct their verdict They did so and brought in: “ We finde the defiende of two offenses fifty dollars each." I think that this was not such a verdict as justified the rendition of a judgment of $100 thereon in favor of the plaintiff. I can of course conjecture what the jury meant And I understand the power of courts to correct verdicts in respect to form.
But I think this verdict too defective to stand. It seems as if the jury might have thought that they could fine the defendant But whatever were their thoughts they did not succeed in expressing them in a manner to justify a judgment in favor of plaintiff.
The judgment of the county court should be affirmed, with costs.
Judgment of county court reversed and that of justice’s court affirmed, with costs.