Dunn v. United States, 284 U.S. 390 (1931)
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U.S. Supreme Court DUNN v. UNITED STATES, 284 U.S. 390 (1932)
[Page 284 U.S. 390, 399]
This is not a failure of the jury to pass on all the counts submitted to them as in Selvester v. United States, , 18 S. Ct. 580, and Latham v. The Queen, 5 B. & S. 635, cited in the opinion here. In this case the jury responded to all the issues, but the findings cannot be recondciled. Possession was alleged in the second count and negatived by the jury. Nothing remains to support the opposite finding under the first count. The repugnancy is such that, if the first is accepted, the second must be rejected. I am of opinion that this record plainly requires an express and unqualified decision that these findings conflict and are completely repugnant.
What is the legal effect of such conflict in the verdict?
Where the jury's action reflects mere inconsistency in the consideration of the evidence which results in apparently illogical or unreasonable conclusions, courts will disregard differences and give effect to the verdict. [Footnote 1]
[Page 284 U.S. 390, 407]
acquittal necessarily found not proved, it must be held as a matter of law that there is not sufficient evidence to warrant the verdict of guilty; and, where the evidence outside the facts so conclusively negatived by the acquittal on one count is not sufficient to sustain guilt on the other count, defendant is entitled to a new trial.
The rule first stated is applicable here. Excluding the possession negatived by the finding under the second count, there is nothing of substance left in the first count, for its specifications were limited to the keeping for sale of the identical drinks alleged in the second count to have been unlawfully possessed. Moreover, even if it be thought that nuisance was sufficiently alleged in the first count, the unlawful possession of the six drinks was an essential ingredient of the offense alleged. The evidence having been found insufficient to establish such possession, it cannot be held adequate to warrant conviction under the first count. The finding of not guilty is a final determination that possession, the gravamen of both counts, was not proved.
The law does not permit investigations into the deliberations of juries for ascertainment as a matter of fact upon what considerations verdicts are reached; the soundness of that rule has never been questioned. There are stronger reasons against speculating whether, or assuming that, the jury through tenderness of disposition, mercy, or forbearance acquitted while knowing that its duty was to convict the accused. Conflict between the findings may not be explained. The inference that the jury, seeking rightly to discharge its duty, made a mistake, is to be preferred over the suggestion that it found for defendant upon an assumption of power it may not lawfully exert.
I am of opinion that the verdict does not support the judgment. Footnotes
Footnote 1 Dimmick v. United States (C. C. A.) 121 F. 638, 642; Boone v. United States (C. C. A.) 257 F. 963, 968; American Socialist Society v. United States (C. C. A.) 266 F. 212, 214; Bullock v. United States (C. C. A.) 289 F. 29, 32; Carrignan v. United States (C. C. A.) 290 F. 189, 190; Lee Choy v. United States (C. C. A.) 293 F. 582, 584; Dallas v. United States (C. C. A.) 4 F.(2d) 201, 202; Hesse v. United States (C. C. A.) 28 F.(2d) 770; United States v. Anderson (C. C. A.) 31 F.(2d) 436; Pankratz Lumber Co. v. United States (C. C. A.) 50 F.(2d) 174; Thompson v. State, 177 Ark. 1, 10, 5 S.W.(2d) 355; People v. Edwards, 72 Cal. App. 102, 117, 236 P. 944; Holt v. People (Colo.) 1 P.(2d) 921, 922; Rokvic v. State, 194 Ind. 450, 143 N. E. 357; State v. Brizendine, 114 Kan. 699, 703, 220 P. 174; Lanasa v. State, 109 Md. 602, 609, 71 A. 1058; State v. Daly, 77 Mont. 387, 391, 250 P. 976; Weinecke v. State, 34 Neb. 14, 23, 51 N. W. 307; People v. Haupt, 247 N. Y. 369, 371, 160 N. E. 643; State v. Brown, 198 N. C. 41, 150 S. E. 635.
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