APPEAL from a judgment of the Supreme Court, Erie County (HALPERN, J.), rendered October 15, 1951, upon a verdict convicting defendant-appellant and another defendant of the crime of rape in the first degree.
Charles J. McDonough, John S. McGovern, Donald J. Kohlmeier, Thomas P. Flaherty and Joseph D. Figliola for appellant.
John F. Dwyer, District Attorney (George H. Metz and Leonard Finkelstein of counsel), for respondent.
The defendant-appellant was convicted of the crime of rape in the first degree. The indictment charged rape in the first degree in one count and assault in the second degree in another. Two other counts were dismissed. There were four defendants named; the appellant, one Miller and two other men under the names of 'Doe' and 'Roe'. Only Miller and the
appellant were tried. Defendant Miller, who was also convicted, did not appeal. On this appeal, the defendant-appellant argues that the evidence was insufficient; that the testimony of the complainant was not corroborated in accordance with section 2013 of the Penal Law and that there were errors of law which require a reversal. Of the alleged errors of law, we think the most serious was what occurred or, more precisely, what did not occur upon the coming in of the jury to report their verdict. After the charge of the court, the jury retired at 12:10 P.M. The stenographic minutes then recite: '( * * * and upon returning at 12:45 P.M., the following proceedings were held):
'The Clerk: Members of the jury, have you agreed upon a verdict? The Foreman: We have. The Clerk: How do you find? The Foreman: We find the defendants Miller and Light guilty of rape in the first degree.'
The matter above quoted was all of the 'proceedings' when the jury reported. The clerk's minutes disclose that the defendants and counsel were present. The only reference to the jury in such minutes is the notation: 'The jury returns into court' and the further notation: 'The jury says it finds the defendants William R. Light and Kenneth A. Miller guilty of Rape 1st degree.'
The verdict in a criminal case must, of course, be unanimous. The court did not charge the jury that all twelve of the jurors had to agree in order to reach a verdict. Whether any of the jurors had previously served in civil cases and had been instructed on the five-sixth rule there applicable, we do not know. There is no statute which requires the court to instruct a criminal jury as to unanimity but it is good practice because of the different rule in civil cases. A failure to so instruct the jury might not be serious, however, provided two mandatory provisions in the Code of Criminal Procedure were carried out. The purposes of these sections (Code Crim. Pro., § § 433, 451) are apparent and were clearly enacted as safeguards to a defendant tried for a crime.
Section 433 is as follows: 'When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that event, the cause may be again tried, at the same or another term.'
In this case, the defendant was not asked to waive the calling of the names of the twelve jurors and he did not do so. The record shows that their names were not called and that each
of those sworn to try the case did not answer to their names. In other words, by reason of the failure to follow the mandatory provision of the section, the record does not show that all twelve of the jurors returned into court when their foreman announced the verdict. The duty was laid upon the court to ascertain by a roll call that all were present and the record should show that that was ...