COMMONWEALTH vs. JOHN M. BURKE.

WILLIAMS, J. This is an indictment charging that on September 28, 1957, at Revere in the county of Suffolk the defendant "did assault and beat one Marie F. Burke, with intent to murder her, and by such assault and beating did kill and murder the said Marie F. Burke." It contains the statement that "the defendant is guilty of murder in the

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second degree and not in the first degree." At the trial the judge instructed the jury that they would be warranted in returning a verdict of guilty either of murder in the second degree or of manslaughter, depending on whether they found that the alleged assault was committed with malice aforethought. When the jury reported they were asked by the court, "What say you . . . as to murder in the second degree?" and the foreman answered "Not guilty in the second degree." By order of the judge they were then asked, "What is your verdict as to manslaughter?" and the foreman answered "Guilty." The verdict was recorded "Guilty of so much of the indictment as charges manslaughter." Sentence on the charge of manslaughter was imposed.

The defendant appealed to this court in accordance with the provisions of G. L. c. 278, Sections 33A-33G. We reversed the judgment and set aside the verdict because of the erroneous admission of evidence harmful to the defendant. Commonwealth v. Burke, 339 Mass. 521. Thereafter the defendant filed a pleading entitled "Plea in Bar" in which he pleaded autrefois acquit to so much of the indictment as charged murder in the second degree and moved that "the Commonwealth be ordered to prosecute said indictment on the charge of manslaughter and/or assault and battery." See Commonwealth v. Devlin, 335 Mass. 555, 566. After a hearing on the plea a judge of the Superior Court reported the case to this court for decision as to whether on a subsequent trial of the indictment the defendant should be "tried on the full indictment; to wit, murder in the second degree, or is the prosecution limited to so much of the indictment as alleges manslaughter." G. L. c. 278, Section 30A.

It is a fundamental principle of the common law that a person cannot twice be put in jeopardy for the same offence. Commonwealth v. Roby, 12 Pick. 496, 502. Commonwealth v. Anthes, 5 Gray 185, 207. Commonwealth v. McCan, 277 Mass. 199, 201. This principle is embodied in the Fifth Amendment to the United States Constitution in the form "nor shall any person be subject for the same

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offence to be twice put in jeopardy of life or limb." There is no similar provision in the Constitution of this Commonwealth but the principle is recognized in G. L. c. 263, Sections 7 and 8. "Section 7. A person shall not be held to answer on a second indictment or complaint for a crime of which he has been acquitted upon the facts and merits; but he may plead such acquittal in bar of any subsequent prosecution for the same crime, notwithstanding any defect in the form or substance of the indictment or complaint on which he was acquitted. Section 8. If a person has been acquitted by reason of a variance between the indictment or complaint and the proof, or by reason of a defect of form or substance in the indictment or complaint, he may be again arraigned, tried and convicted for the same crime on a new indictment or complaint, notwithstanding such former acquittal." These provisions are intended "to define and determine, as far as may be, the cases in which a former acquittal shall, or shall not, be a bar to a subsequent prosecution for the same offence." Commonwealth v. Cabot, 241 Mass. 131, 154. United States v. Ball, 163 U.S. 662, 668-669. The defendant was tried on an indictment in which he was expressly charged with murder in the second degree and incidentally with the lesser offences necessarily included in the description of the crime alleged. On this indictment he could properly be found guilty of manslaughter. Commonwealth v. Wakelin, 230 Mass. 567, 572-573. See Commonwealth v. Drum, 19 Pick. 479; Commonwealth v. Hope, 22 Pick. 1, 8; Commonwealth v. Squire, 1 Met. 258; Commonwealth v. Lang, 10 Gray 11; Commonwealth v. Dean, 109 Mass. 349; Commonwealth v. Crowley, 167 Mass. 434, 442; Commonwealth v. Clifford, 254 Mass. 390, 392; Commonwealth v. Novicki, 324 Mass. 461, 467. If he had not appealed from his conviction of manslaughter his acquittal of murder would have been a bar to further prosecution for that crime. See Commonwealth v. Squire, 1 Met. 258, 264-265; Morey v. Commonwealth, 108 Mass. 433, 434-435; Commonwealth v. McCan, 277 Mass. 199, 203; Commonwealth v. Mahoney, 331 Mass. 510, 513, and cases cited.

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The reversal of his conviction enabled the Commonwealth to bring forward the indictment to be retried, and raised the question reported by the judge as to whether on the retrial the defendant could be tried on the whole indictment or only for the lesser offence of which he had been convicted.

Where more than one crime is charged in an indictment the court may receive separate verdicts in respect to the different offences and enter separate judgments thereon. It was said in Commonwealth v. Fitchburg R.R. 120 Mass. 372, 380, that "It has long been the practice in this Commonwealth to charge several misdemeanors in different counts of the same indictment, and to enter verdicts and judgments upon the several counts, in the same manner and with the same effect as if a separate indictment had been returned upon each charge." In G. L. c. 277, Section 46, which applies to both misdemeanors and felonies it is provided that "Two or more counts describing different crimes depending upon the same facts or transactions may be set forth in the same indictment if it contains an averment that the different counts therein are different descriptions of the same acts." The joinder of such counts is permitted although there has not been exact conformity with this proviso. See Commonwealth v. Ismahl, 134 Mass. 201, 202; Commonwealth v. Jacobs, 152 Mass. 276, 281; Commonwealth v. Ryan, 152 Mass. 283. In the case of seperate counts it is settled that verdicts may be set aside as to one or more of the counts and "leave undisturbed verdicts as to other counts." Barnett v. Loud, 243 Mass. 510, 514-515. Carlton v. Commonwealth, 5 Met. 532, 534. Commonwealth v. Nickerson, 5 Allen 518, 529. Commonwealth v. Dyer, 243 Mass. 472, 509-510. Commonwealth v. Szczepanek, 235 Mass. 411, 412. See Commonwealth v. Edds, 14 Gray 406, 410; Commonwealth v. Ismahl, 134 Mass. 201, 202; Commonwealth v. Lowrey, 158 Mass. 18;

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Commonwealth v. Cornell, 213 Mass. 135; Commonwealth v. Dow, 217 Mass. 473, 484; Commonwealth v. Donovan, 170 Mass. 228, 242; Commonwealth v. Walsh, 255 Mass. 317, 320; Commonwealth v. Bloomberg, 302 Mass. 349, 356, for instances of the receipt of different verdicts on separate counts.

If the verdicts as to murder and manslaughter had been returned on separate counts there is no doubt that the verdict of acquittal would have stood as a final adjudication in favor of the defendant on the charge of murder. Since the two offences were as effectively charged as if set forth in separate counts, the verdicts must be dealt with separately and regardless of the reversal of the conviction of manslaughter the verdict of acquittal held to be a final adjudication that the defendant is not guilty of murder. It is provided in G. L. c. 278, Section 12, "If a person indicted for a felony is acquitted by the verdict of part of the crime charged, and is convicted of the residue, such verdict may be received and recorded by the court, and thereupon the defendant shall be adjudged guilty of the crime, if any, which appears to the court to be substantially charged by the residue of the indictment, and shall be sentenced and punished accordingly." This statute apparently contemplates a single verdict which in a case like the present would commonly be returned in the form "Guilty of so much of the indictment as charges manslaughter." We think that when as here two verdicts are received the statute should be construed as authorizing the recording of both verdicts. In Commonwealth v. Stebbins, 8 Gray 492, 495, 496, where the defendant was charged with larceny of bank bills and a gold coin, the court allowed a verdict to be affirmed and recorded "Guilty, except as to so much of the indictment as relates to one gold coin; and not guilty as to so much thereof as relates to said gold coin." As a verdict has no effect in law unless it is affirmed and recorded (see Commonwealth v. Green, 302 Mass. 547, 557), the statutory provision

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entitles the defendant to have his verdict of acquittal validated by recording. See also Commonwealth v. Fischblatt, 4 Met. 354, 355.

We recognize that there is substantial disagreement among the State courts as to whether, on an indictment similar to the one we are considering, after the defendant has obtained a reversal of a conviction for a lesser included offence, he can thereafter be retried on the entire indictment. See Green v. United States, 355 U.S. 184, and cases collected in footnote page 216; annotation, 61 A. L. R. 2d 1141. Advocates of the right of retrial generally argue that the verdict is indivisible; that by his appeal the defendant on a new trial must be held to have waived the defence of double jeopardy; or that he is not put in double jeopardy for the reason that his original jeopardy continues. The opposing view is adequately presented in Stuart v. Commonwealth, 28 Grat. 950, Johnson v. State, 27 Fla. 245, and State v. Tweedy, 11 Iowa, 350.

In view of our holding that the defendant's acquittal is independent of and unaffected by the verdict of conviction and the appeal therefrom, we need not discuss questions presented by the Green and similar cases. The defendant has been acquitted on the "facts and merits" and is entitled to have the verdict of acquittal recorded. We see no reason to deprive him of the benefits attaching to his acquittal. His plea in bar should be sustained.

So ordered.