as applying to the larceny counts only or to the embezzlement counts as well.3A
In support of his contention that the verdict of guilty under Count 1 is contrary to the weight of the evidence and not supported by substantial evidence, counsel for the defendant argued that if any offense were proved, it was larceny from Mrs. Thrasher, rather than embezzlement from the Association. As has been stated, there is substantial evidence in the record to support a verdict of guilty under Count 1, particularly in view of the provision of our embezzlement statute as to ownership of the embezzled property.
The next question raised by defendant's motion is as to the propriety of the court's action upon the jury's return of guilty verdicts on both Count 1 and Count 2, contrary to the court's instructions. Counsel argues that the jury's verdicts showed a total lack of understanding or disregard by the jury of the charge as a whole, especially in view of its return of not guilty verdicts as to Counts 5 through 8 after the charge was repeated on the following day. Defense counsel further pointed out the jury's request, during its deliberations, for the copies of the death certificates, which had been introduced in evidence, as supporting his contention that the jury was concerned with irrelevant matters, expressing the view that the certificates could have had no rational bearing on the verdict.
It must be pointed out that distinguishing facts may well account for the not guilty verdicts as to the Ewers transaction. The fact that the defendant paid Mrs. Ewers' claim in full within a few days after she endorsed the check and promptly after the Board's determination of the amount due her, could have raised a reasonable doubt whether the defendant intended to convert the funds permanently, while the defendant did not pay over to Mrs. Thrasher the balance of her claim for more than twenty months, and then only after he was threatened with trouble in connection with his handling of a similar death benefit. Further, the defendant's payment to Mrs. Thrasher of $ 100 more than she was entitled to -- according to the defendant, in order to keep out of any trouble in connection with the Thrasher account -- raises an inference that his actions in the matter would not bear inspection.
It is the view of the court that the jury's request for the death certificates showed a careful consideration of the evidence bearing on essential issues in the case. On the back of each certificate the defendant had noted the purported date of payment of the total death benefit, the Thrasher certificate indicating that payment had been made in full August 12, 1954.
It has often been held that rational consistency in a verdict is not necessary, and that each count in the indictment is to be regarded as if it were a separate indictment. Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356; Borum v. United States, 284 U.S. 596, 597, 52 S. Ct. 205, 76 L. Ed. 513, affirming 61 App.D.C. 4, 56 F.2d 301; United States v. Dotterweich, 320 U.S. 277, 279, 64 S. Ct. 134, 88 L. Ed. 48; Gillars v. United States, 87 U.S.App.D.C. 16, 182 F.2d 962. Where inconsistent verdicts of conviction and acquittal are returned, it has been said: 'While the verdict as to each count must be consistent in itself, the verdicts on the several counts need not be consistent with each other. The question * * * is not whether the verdict of guilty * * * is consistent with the verdict of acquittal on the other counts. It is whether it is consistent with the evidence, that is whether the evidence supports the verdict, and this is true even though the inconsistency can be explained upon no rational considerations.' Mogoll v. United States, 5 Cir., 158 F.2d 792, 793, certiorari denied Perniciaro v. United States, 331 U.S. 806, 67 S. Ct. 1189, 91 L. Ed. 1827, rehearing denied 331 U.S. 865, 67 S. Ct. 1315, 91 L. Ed. 1870; reversed on other grounds Mogall v. United States, 333 U.S. 424, 68 S. Ct. 487, 92 L. Ed. 783.
On the other hand, where a guilty verdict on one count negatives some fact essential to a finding of guilty on a second count, two guilty verdicts may not stand. Fulton v. United States, supra, 45 App.D.C. at page 41; Davis v. United States 37 App.D.C. 126, 133.
At the defendant's request, the court instructed the jury if it should find the defendant guilty of embezzlement as to either transaction, it must return a verdict of not guilty as to the companion larceny count and, again, that verdicts of guilty of both larceny and embezzlement might not be returned with respect to the same transaction. Despite the court's instruction, which clearly would have been correct as to taking of the same property from the same person, it is not entirely clear, in view of the ownership provision of the District embezzlement statute, that the taking of property which is lawfully in the custody of the taker by virtue of his office or employment cannot be both embezzlement and, at the same time, larceny from a third person who owns the property, as to whom the taking would be unlawful.
The court's instruction with respect to dual verdicts therefore may have been more favorable to the defendant than the facts of this case warranted, particularly in view of the instruction as to variance in proof of ownership of the funds. A determination of this question is unnecessary for disposition of the instant motion since the court instructed the jury not to return dual guilty verdicts, but it may well be that some such reasoning brought about the jury's guilty verdicts on the two counts.
Admittedly, the jury disregarded the court's injunction against finding the defendant guilty of both embezzlement and larceny as to the same funds. It is equally clear that the jury found the defendant guilty of feloniously converting to his own use the money due Mrs. Thrasher, since it found him guilty of both embezzlement and larceny.
Rule 29(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides that the court, on motion of a defendant or of its own motion, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. Under subsection (b) of the same rule the court may reserve decision on a motion for judgment of acquittal made at the close of all the evidence, submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty, and the motion may be renewed after conviction.
The court therefore had a right to direct a verdict of acquittal under Count 2 upon the jury's return of a verdict of guilty as to Count 1, in execution of the instruction to acquit defendant under Count 2 if he be found guilty under Count 1.
Even if this action be deemed a choice of verdicts by the court, the defendant was in no wise prejudiced, since the statutory penalty for embezzlement
is less severe than the penalty for larceny
with its mandatory minimum sentence of imprisonment for one year.
Courts have the power also to correct any uncertainty in a verdict before discharging the jury. Bernhardt v. United States, 6 Cir., 169 F.2d 983, 985, certiorari denied 335 U.S. 903, 69 S. Ct. 407, 93 L. Ed. 437; Shiflett v. Welch, 4 Cir., 161 F.2d 933, 934, certiorari denied 332 U.S. 777, 68 S. Ct. 41, 92 L.Ed 362, rehearing denied 332 U.S. 845, 68 S. Ct. 264, 92 L. Ed. 416; Anderson v. United States, 2 Cir., 294 F. 593, 597.
For the foregoing reasons, the defendant's motion for a new trial or judgment of acquittal will be denied.