People v. Werbin

Headnote

Indictment — effect of entering a nolle proseguí on certain of the counts — the remaining counts must charge the offense as fully as though they had, stood alone.

Appeal from a judgment of the Court of General Sessions for the city and county of New York, convicting the appellant of arson in the third degree.

The plaintiff in error was indicted for arson. The indictment contained three counts. The first and second counts were for arson in the first degree; the third for arson in the third degree. After the jury had retired, and had for some time deliberated without arriving at an agreement, a nolle prosequi was entered upon the first and second counts, whereupon the counsel for the plaintiff in error moved for the discharge of the prisoner upon the ground that after the case was submitted to the jury, and after they had retired and had been in consultation for more than twenty-four hours, a nolle prosequi having been entered upon the first and second counts of the indictment, the third count was insufficient, and it was therefore improper to submit that count at that stage of the case, and as it then stood, to the jury for their further consideration. This motion was denied and an exception duly taken. The jury were then again instructed to retire, and shortly afterwards returned into court with a verdict of arson in the third degree. A motion, it seems, was also made for arrest of judgment and a new trial, which was denied.

The'court at General Term said: “We think that the effect of the nolle prosequi was to strike out the first and second counts, and

that the indictment, as it stood, became extinct. These counts having been, in effect, expunged, the third count was wholly insufficient, because its essential elements of time and place rested upon reference to allegations in that respect contained in the other counts.

“ To justify a conviction upon one of several counts, when as to the others a nolle prosequi has been entered, the count retained must charge the offense alleged, in all respects, as required by the rules of law. It must stand upon its own foundation and be complete in itself.”

For these reasons there must be a new trial.

Ordered accordingly.