Bazelon, Chief Judge, and Wright and Robinson, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON
Appellant was placed on trial before a jury in the District Court on a single count of housebreaking. *fn1 The jury, instructed on the elements of housebreaking and of unlawful entry *fn2 as a lesser included offense, *fn3 rejected appellant's insanity defense, returned a one-word verdict of "guilty," and this single word each of the jurors repeated when polled. Though the verdict thus failed to specify which of the two offenses this finding related to or whether it related to both, no one sought clarification from the jury before its discharge.
The trial judge entered a judgment convicting appellant of housebreaking and sentenced appellant to imprisonment for a term of from three to nine years. That sentence was within limits permissible for conviction of housebreaking but was far in excess of the statutory maximum for unlawful entry. *fn4 Appellant now argues that there was ambiguity in the verdict which rendered it fatally defective, *fn5 and with this position we agree. I
The Constitution provides that "The Trial of all [federal] Crimes, . . ." unless waived, "shall be by Jury." *fn6 To the extent that the evidence is legally sufficient to support conviction, the jury, and the jury alone, ascertains both whether the defendant is guilty and, if so, the crime or crimes of which he is guilty. Manifestly, the judge who allows the jury to rest after finding the accused's guilt of some unidentified offense and then proceeds to himself determine the offense of which the accused is to be held guilty invades the province of the jury. *fn7 Appellant's contention, in substance, is that that is just about what happened in this case.
The Government demurs, arguing that the trial judge, in passing the judgment and sentence under attack, accurately appraised the intent of the jury. To this end, it urges upon us "a strong presumption" that under the circumstances obtaining when the verdict was returned *fn8 "appellant was found guilty as charged." *fn9 Our initial difficulty with this approach is that any sort of presumption as to what an unspecific verdict determines, save in the clearest of cases, is apt to run counter to the well embedded and well justified judicial disinclination to second-guess juries -- a disinclination which we ourselves have shared. *fn10 The courts, rather, have insisted upon definiteness as an indispensable quality of a valid verdict, and have adhered to the rule that a verdict must be set aside if its meaning is unalterably ambiguous. *fn11 Our concern heightens beyond the danger point when we realize that the Government would rest appellant's fate on a presumed premise that in total circumstantial context does not follow as a matter of reasonable certainty. For whatever the efficacy of such a presumption in other situations -- areas in which we need not now tread -- a careful review of the record before us convinces us that it cannot safely be permitted operation here. II
The presumption the Government espouses interprets the jury's general verdict of guilty by ultimate reference back to the indictment alone. This may be an acceptable course where the jury returns a verdict of "guilty as charged," *fn12 or merely a verdict of "guilty" where neither the indictment nor the court's charge to the jury mentions more than one crime, or more than one degree of a single crime. *fn13 In the case at bar, however, there is nothing to reliably indicate that the jury's verdict was intended to refer to the indictment rather than to the judge's charge, which defined for the jury two different offenses. *fn14 And we perceive no other reason why the indictment, as opposed to the charge, should dictate the reading of the verdict.
In like fashion, scrutiny of the verdict from the vantage point of the charge leads inevitably to speculation. The charge set forth the elements both of housebreaking and unlawful entry but, except for characterizing the latter as "a lesser included offense" of the former -- a term of art the charge left unexplained -- the jury received no guidance as to their interrelationship. The jury was not told that it should consider the lesser offense only if it first concluded that appellant was not guilty of the greater offense. *fn15 It was not told that any verdict of guilty it reached might relate to one of the two offenses but could not properly relate to both. *fn16 Nor was it told that on any verdict of guilty all twelve jurors had to find appellant guilty of the same offense. *fn17
Thus twelve people untutored in the law were left on their own as to such crucial questions as which offense to treat first, whether both had to be treated, and whether all jurors must find the elements of the same offense proven beyond a reasonable doubt. How they answered those questions is central to any attempt to define the meaning of the verdict and, of course, we know not how. And even if we knew that the jurors properly conceived their function, we must indulge in guesswork in any effort to determine the intent behind their verdict. *fn18 It goes without saying that that sort of conjecture is an impermissible technique in a system of jurisprudence entitling the accused "to have his guilt found by a jury directly and specifically, and not by way of possible inference." *fn19 We hold that the verdict in this case was equivocal, and that the court's conviction of housebreaking could not be founded upon it. III
There remains for resolution only the question of the disposition that should now be made, a matter to which the parties have spoken. Anticipating, at oral argument, the possibility that the conviction might not stand up, we requested both sides to submit supplemental memoranda articulating their thoughts on the alternatives available in that event, *fn20 and this invitation both accepted. Appellant seeks the benefit of the doubt generated by the indistinct verdict by advocating a remand for resentencing for unlawful entry only. *fn21 The Government, on the other hand, urges a remand for a new trial, and in our view it has much the better of the argument.
The normal remedy for a hopelessly ambiguous verdict is the grant of a new trial, *fn22 and we deem that course particularly appropriate here. We have no more reason to believe that the jury intended to refer to unlawful entry as the offense on which it found guilt than that housebreaking was the crime it had in mind. We are in no better position to specify unlawful entry as the offense for which appellant is now to be sentenced than was the trial judge in fixing housebreaking as the measure of the sentence already imposed. And while certainly our appellant should be afforded a chance to show that the product of the evidence is the lower offense -- or indeed, on a retrial, no offense at all -- the Government is not to be deprived of a comparable opportunity to demonstrate that the proper outcome is the higher crime.
Moreover, we must ascribe due weight to the fact that, as appellant readily concedes, the evidence adduced at trial could reasonably have warranted a conviction of housebreaking. Nor can we ignore the additional fact that appellant did not object to the court's charge in the aspects by which it paved the way to the present dilemma, or the further fact that appellant, no less than the Government, failed to seek elimination of the vagueness in the verdict that resulted. All circumstances considered, we think the cause of justice is best served by adopting the Government's suggestion.
Accordingly, we vacate the judgment of appellant's conviction and remand the case to the District ...