#### State of South Carolina vs. Commissioners of Cross Roads, Charleston Neck.

Tried before his Honor Judge BUTLER, Charleston, January Term, 1836.

At October Term, 1833, the grand jury found the following bill, viz:

1st count. That on the 11th day of September, 1833, and on divers other days and lime&, Elisha Carson, Jas. H. Smith, Wni. A. Hayne, and Wm. Newton, ~ommissionors of cross roads, of Charleston Neck, in the distfict aioresaid, across a certain street opposite to Flynn's church, running to the west of the same, and. bounded on the east by the lot on which the said church is built, and to the west by Wragg square, did erect certain fences, and did then and there unlawfully, and injuriously, on the said other days and times, permit the said fences respectively to be and remain in and across the said public street, for the space of several weeks whereby the said public street, then, and on the said other days and times, for, and during all the time aforesaid, on each of the days respectively, was obstructed and ~traitened; so that the good citizens of the State could not then and en the said other days and times, go, set urn, pass, repass, ride and labor with their horses, carts, and coaches, in, through, and along the public street aforesaid; as they ought, and were wont and accustomed to do; to the great damage and common nusance of all the citizens afbresaid, going, returning, passing, ro.passing, riding, awl laboring, in, through, and along the said public street~ to the evil example ui all others, in Lice *274cases offending, and against the peace and dignity of the- Stafé’ aforesaid.

2d count. That on the 11th day of September, 1883, and on divers other days and times, Elisha Carson, James H. Smith, Wm. A. Hayne, and Wm. Newton, commissioners of cross roads, oil Charleston Neck, on a certain square, or common, called “ Wragg square,’ being a' common highway, and for all the citizens of the State, with-their horses, soaches, carts, and carriages, to pass, re-pass, ride, and labor, at their free will and, pleasure ; unlawfully and injuriously, did put and place certain fences, and did then and there on the.said other days and times, there unlawfully permit, and suffer the said fences, respectively to be and remain in and upon the said public square, or common highway aforesaid, *for*the space of several weeks, to wit, for the space of three weeks *%*whereby the said public street, then and on the said other days and times, for and during all the time aforesaid, on each of the days and weeks respectively, was obstructed and straitened, so that the good’ citizens of the said State, could not then and on the other days and times, go, return, pass, re-pass, ride, and labor, with their horses, carts, coaches, and carriages, in, through, and along, the public square, and common highway aforesaid, as they ought, and were wont and accustomed to do, to the great damage and common nuisance of all' the good citizens aforesaid, going, returning, passing,, re-passing, riding, and laboring, in, through, and along, the public square aforesaid, to the evil example of all others, in like case offending, and against the peace and dignity of the State aforesaid.

At May Term, 1834, the jury were charged with this bill, and-returned the following verdict: “ We find the defendants guilty on the 2d count.” From this finding of the jury on the 2d count, defendants appealed, and on the hearing of the case, the court granted the motion, and ordered a new trial.

At January Term, 1836, the case was called for trial and the jury sworn ; the defendants objected to the evidence in -support of the first count, on the ground that defendants could not be tried again on any but the 2d count. His honor overruled the motion, and admitted testimony. The evidence was heard, and the jury pot being able to agree, a juror was withdrawn by consent, and defendants moved for leave to enter up judgment on the former finding on the first count, which motion his honor overruled.

The defendants appeal and tender their motion in the Court of Appeals on the following grounds :

1st. That the finding of the jury is substantially an acquittal on the first count of the indictment, and that the defendants cannot be tried again on that count, even if the finding was not intended by the. jury, as an acquittal of the offence charged in that count.

2d. That the decision of the Court of Appeals, goes only to order a *veneri de novo*for the bail of the matter contained in the second-count.

JAMES H. SMITH, *for Appellants.*

Judge Butlek, The above statement presents the question,' *275which I decided on circuit. There was no finding by the jury on one count in the indicrme.it, which charged a distinct offence, from that on which the defendants are found guilty, and which may be regarded as a separate indictment. Certainly the usual form in England and in this State, as far as I am informed, is to find on each count separately, — when there is an acquittal on one and a conviction on the others. The question is resolved into this, Is the neglect, or refusal of the jury, to find on one count, equivalent to an acquittal, when there is a verdict of guilty on another count? It seems to me, at most, it would amount to nothing more than a missed trial.

Signed, A. P. BUTLER.

Mr. Justice Butler

delivered the opinion of the court.

The defendants were indicted for obstructing a public street, and also for obstructing a public square, commonly called and known by the name of Wragg square. Whether the street is distinctly ■separate from, or forms a part of the square, is not established by the verdict of till jury, that found the defendants guilty on the second count; neither does it appear from the testimony, with <suf-ficieot clearness, to enable the court to form a satisfactory judgment on the whole case. It may be that the street forms a part of the square, or it may be that it is defined by marked and recognized li" mits, so as to make the offences essentially different to obstruct one or the other. The issues made by the indictment may be so con-neeted that it is necessary to find on both, before there could be a final judgment on either ; and if so the verdict found by the jury was imperfect, and a *venire faciat de novo*should have been ■awarded ; so that a new jury might have found ou all the issues, and established all the facts. The defendants were found guilty only on one count, and upon appeal, the verdict was set aside, and a new trial ordered. The verdict was set aside in favor of, and at the instance of the defendants, who were found guilty. There ic nothing on the record that could avail them by way of plea in bar to another prosecution. If the verdict of guilty had remained, it would have protected them, perhaps, against another indictment for the same offence. As long as the verdict of guilty remained on the. record there was a finding; but what proceeding is there now on it ? I consider all the proceedings on the indictment, since tho finding by the grand jury, to be set aside; and set aside at the instance, and for the benefit of the defendants. The case stands a* though it never had been tried. The defendants contended that a verdict of guilty on one count, led to the conclusion that they' *276were acquitted on the other; that is, that omitting to find on one-count, and finding on another, is an exclusion of guilt to the extent Slot passed on by the jury. Such inference could not have been fairly drawn from what was apparent on the record ; and the inference cannot be drawn when all the proceedings on the record are obliterated. If the defendants had moved to be discharged, on the first count, when the verdict was rendered, and had said to the attorney general, that they intended to appeal, from the verdict on the second count, the court would no doubt have refused to discharge them, either upon the ground that both issues were connected, or that the defendants had never been tried on the first count. Indeed the jury might have been instructed to find on tlje first count, before they were legally discharged from the whole case. In such a ease the court would not have discharged the jury till they had found upon all that was submitted to- them, unless the defendants had consented. There is no pretence for saying that the jury were discharged by the court, contrary to the ^onsent of the defendants. The defendants obtained a new trial, on the implied understanding that the whole case should go back and be tried ; and let it be tried on its merits. The jury can distinguish, if they choose, on the final trial between the two counts, if they contain separate issues, and find the defendants guilty or not guilty, according to the nature of the proof, and the extent of the issues.

James HL Smith, *for Appellants..*

Attorney General, *for*Appellees>

Filed 20th February, 1837.

The present motion is dismissed.

A. P. BUTLER,

We concur,

J. S RICHARDSON,

JOSIAII J. EVANS.

J. B. O’NEALL,

The opinion of

Mr. Justice Gantt.

I am of opinion that the verdict of guilty pronounced in this case, on the second count, was an acquittal on the first count in the indictment, and that the new trial ordered at the instance of the defendants found guilty on the second count, involved the subject matter of charge in that count only, and will not authorize a re-investigation of the offence set forth in the first count, on which the defendants had been acquitted.

RICHARD GANTT.