Summary
In Commonwealth v. King, 238 Pa. Super. 190, 357 A.2d 556 (1976), we reversed a conviction when the jury returned with a verdict finding the defendant guilty of burglary and theft by receiving stolen property.
Summary of this case from Com. v. BlackOpinion
June 9, 1975.
February 2, 1976.
Criminal Law — Burglary — Theft by receiving stolen goods — Practice — Charge to jury — Inconsistent verdict — Verdict indicating that jury was confused — Conviction of mutually exclusive crimes — New trial.
1. In this case, the evidence established that the defendant drove the getaway car after a burglary had occurred. The defendant was charged with burglary and receiving stolen goods as well as other crimes. The court below charged the jury that the defendant could be found guilty of either receiving stolen goods or burglary, but not both. The jury found the defendant guilty of both crimes, and the court below imposed sentence only on the burglary conviction. It was Held that a new trial would be granted as the verdict was inconsistent and indicated that the jury was confused.
2. A jury may not convict a defendant of mutually exclusive crimes where it has been specifically charged by the court that this is improper.
JACOBS and PRICE, JJ., concurred in the result.
Submitted June 9, 1975.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 909, Oct. T., 1975, from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1974, Nos. 297 and 300, in case of Commonwealth of Pennsylvania v. Lorenzo King. Judgment of sentence reversed and case remanded for new trial.
Indictments charging defendant with burglary, attempted theft by unlawful taking, receiving stolen property and conspiracy. Before KUBACKI, J.
Verdict of guilty of burglary, theft by receiving stolen property and conspiracy and judgment of sentence entered thereon. Defendant appealed.
John Myers and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.
William A. Richardson, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, by the appellant-defendant, Lorenzo King, after conviction by a jury of conspiracy, burglary and theft by receiving stolen goods. Post-trial motions were denied and the appellant was sentenced to one and a half to five years imprisonment on the charge of burglary and two years probation on the charge of conspiracy. A demurrer had been sustained to the charge of attempted theft.
The evidence established that the appellant drove the getaway car after the co-defendant had entered the victim's home and stolen the goods. The victim identified the defendant and the co-defendant testified that he had not seen the defendant until after he completed the theft.
The court below charged the jury that they could find the appellant guilty of either receiving stolen goods or burglary but not both. The jury found the defendant guilty of both. The court below sentenced only on burglary. Appellant now contends that he is entitled to a new trial on the ground that the judge should not have accepted the verdict because it was inconsistent and that it showed the jury to be hopelessly confused.
Both the Commonwealth and the appellant cited United States v. DiMatteo, 169 F.2d 798 (3d Cir. 1948), and United States v. Kahan, 479 F.2d 290 (2d Cir. 1973), as supporting their respective positions.
In United States v. DiMatteo, supra, a jury found the defendant guilty of forgery but not guilty of theft of a savings bond and "recommended clemency". The trial court in speaking to the jury after the verdict said that in its opinion the verdict was "laughable" and that the jury had erred in its function. The court, nevertheless, allowed the verdict to be recorded and sentenced on the forgery count. The Circuit Court reversed on the ground that the jury was hopelessly confused and had not carried out the instructions as clearly shown by the trial judge's remarks.
In United States v. Kahan, supra, the Circuit Court allowed a conviction to stand where a jury found the defendant guilty on several stricken counts on a sixty-seven count verdict. The defendant argued that the jury was confused but the court pointed out that the jury had found the defendant not guilty on specific counts in the indictment and even the defendant's counsel admitted that the guilty verdict on the stricken counts was merely an oversight.
The Commonwealth argued that the jury had the right to disregard the judge's instructions and cites United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3d Cir. 1974), as authority for its position that so long as the appellant was only sentenced on the one charge, the verdict should be permitted to stand. See also Commonwealth v. Simmons, 233 Pa. Super. 547, 336 A.2d 624 (1975).
The Commonwealth also cites Commonwealth v. Phillips, 215 Pa. Super. 5, 257 A.2d 81 (1969) as authority for its position. In this case the jury found the defendant guilty of larceny and receiving stolen goods. These charges carried equal penalties so that this Court could remedy the situation by vacating one of the sentences. These are not the facts in the instant case. The offenses of burglary and receiving stolen goods do not carry equal sentences.
All cases cited by the Commonwealth to support the proposition that juries may ignore their instructions deal with juries who found the defendant guilty of an included crime not charged. It has long been recognized that juries have the right to so find. We hold, therefore, that juries may not convict defendants of mutually exclusive crimes where they have specifically been charged by the court that this is improper.
The appellant also argues that evidence of a prior incarceration was improperly presented to the jury. In view of our holding above, we need not discuss it.
Judgment of sentence reversed and the case is remanded for a new trial.
JACOBS and PRICE, JJ., concur in the result.