The jurors have not the right, in place of rendering a verdict, to demand further evidence. Should they nevertheless make such a request, the court is at liberty to take cognizance of it and may re-open the trial. If the jurors, before the verdict has been announced to the court, feel that further instruction is necessary, a motion to that effect is made. The president recalls the jury to the court-room and imparts the desired instruction. A motion for such instruction must be transmitted to the president, if only a single juror considers it necessary. The individual juror must not be put in a position where he is compelled to vote on a matter with respect to which he believes himself incompetent to judge intelligently without further instruction.1

3

A unanimous vote is not required in finding a verdict. The law prescribes that for the affirmation of the question of guilt (Schuldfrage), a majority of two-thirds is necessary. That is, it takes eight votes to convict. If the vote, therefore, stands seven for conviction and five for acquittal, the defendant must be declared to be acquitted. The same majority of two-thirds is required for the affirmation of a question as to the existence of circumstances increasing the penality (Strafbarkeit) of the offense. On the other hand, a question as to the existence of circumstances lessening, or wholly removing, the penality is regarded as affirmed when only five vote "yes." A question relating to the existence of "mitigating circumstances," however, since it belongs to the domain of penalty (Straffrage) rather than to that of guilt (Schuldfrage) or penality (Strafbarkeit), requires, for its denial, a simple majority. That is, seven votes will suffice to deny. In case of a tie on such a question, it is considered as answered in the affirmative. In connection with every answer unfavorable to the defendant it must be stated expressly in the verdict that the question was decided by the majority required by law. The court is thus in a position to determine whether the legal provisions have been met, or whether, on the other hand, the verdict may not set forth as affirmed a question which, under the law, should be

1 Löwe, note I to StPO, sec. 306; Keller, p. 397; Hellweg-Dochow, p. 327; Stenglein, note 2 to StPO, sec. 306; Bennecke, p. 608, note 10. The question is

a disputed one. See, e.g., von Bomhard, p. 228; Dalcke, Komm. p. 208; Frage

stellung, p. 117.

2

StPO, sec. 262, cl. 1; and 297, cl. 2.

See RGer. IV, June 8, 1886; Rspr. in Strafsachen, vol. viii, p. 441.

regarded as denied, or vice versa. The actual vote, i.e. the exact number voting for and the exact number voting against, must not be given. The verdict must state simply that the question was decided by a majority of more than seven votes, or more than six votes, as the law may require.'

VI.

2

The verdict is announced to the court the jury having returned to the court-room for that purpose-by the foreman, who must begin by reciting the formula: "Upon my honor and conscience I certify as the verdict of the jurors He then reads the questions together with the answers.

The verdict as

read is signed by the president and by the clerk of the court before it is made known to the defendant.

If the court - not the president alone is of the opinion that the verdict does not fulfil the requirements of the law as to its form, or that it is obscure, incomplete or contradictory in substance, the president requests the jury to return to the jury-room to remedy the defect. Such an order is permissible so long as the court has not yet pronounced its judgment based on the verdict. Inasmuch as the content of the questions constitutes, at the same time, the content of the verdict, it makes no difference whether the defect attaches to the answers or to the questions. In the latter case, an amendment of the questions must be made.

1 See, however, RGer. I, November 16, 1899; Entscheidungen, vol. xxxii, p. 372. An infraction of this provision would not entail nullity of the judgment.

2 This announcement to the court is to be distinguished from the notification of the defendant. When the jury returns to the court-room for the purpose of announcing the verdict to the court, the defendant is not present.

3 "Auf Ehreund Gewissen bezeuge ich als den Spruch der Geschworenen . . .” The omission of this formula will nullify the proceedings. RGer. IV, December 22, 1880; Rspr. in Strafsachen, vol. ii, p. 661. Different opinion held by von Kries, p. 625. StPO, sec. 308.

6 StPO, sec. 309. The fact that the president and the clerk of the court have signed the verdict does not prevent the correction of errors therein.

Thus the process of correction is set in motion if it develops that the questions have not exhausted the essential elements of the state of facts before the law (RGer. I, January 14, 1886, Entsch. vol. xii, p. 229, Rspr. vol. viii, p. 56, and RGer. IV, May 12, 1893, Goltdammers Archiv, vol. xli, p. 124); or that a question required by law has not been put (RGer. II, April 16, 1886, Rspr. vol. viii,

There is no express provision in the law for the case where the verdict itself does not show a material defect, but where neverthe less an explanation is given by the jury, or by one or more of the jurors, which suggests the existence of such a defect. A declaration of this kind certainly cannot be ignored by the court. For, as Löwe well says,' it would be in direct conflict with the end and aim of criminal procedure — viz. to establish the material truth of the matter should the court base its judgment upon a verdict which, as the jury itself points out, is founded upon a misunderstanding or does not express the true intent of the jurors. The disregarding of such a declaration would be a subordination of law to form, whereas the function of form is merely to serve in the realization of the law. Moreover, the very nature of the procedure before the Schwurgericht · - this rendering of a decision in the form of question and answer - enhances the liability to misunderstanding. For this reason the law allows the amendment of the verdict up to the very moment when the court pronounces its judgment. That a declaration or indication by

the jury, or by a single juror, that a defect exists in the verdict must receive consideration, so long as judgment has not actually been pronounced, is a doctrine fully justified by the whole tenor of the law and by the principles of criminal procedure.2

p. 286); or that a question which should have been put as a Hauptfrage is put as a Hülfsfrage (RGer. II, March 20, 1891, Entsch. vol. xxi, p. 405). In these cases, however, such an error is set forth as would nullify the judgment. On the general subject of the process of correcting the verdict, see Freudenstein, in Goltdammers Archiv, vol. xxxiii, pp. 369 et seq.; Dalcke, Fragestellung, pp. 139 et seq.; Bischoff, in Goltdammers Archiv, vol. xlvi pp. 1 et seq.

1 Note to StPO, sec. 309. Compare also Dalcke, Fragestellung, p. 140; Bischoff, cited above, p. 5; Stenglein, notes 6, 7 to StPO, sec. 309; Isenbart, note 128 to StPO, sec. 309; von Kries, p. 625.

'Here belongs, in particular, the case where a juror declares that the verdict as read does not conform to the finding of the jury, or does not express it fully or accurately; or where it is declared that the verdict was not constructed in harmony with the provisions of the law with reference to the number of votes necessary. To these cases is also related the case where it appears, from the declaration of the jury or of one of the jurors, that the verdict or the vote rests on a misconception of the question, or that the jury has materially erred in its deliberation with respect to its authority and duties. See RGer. III, January 8, 1883; Entsch. vol. vii, p. 434, Rspr. vol. v, p. 19. In all these cases, a further deliberation is required in order to establish the true mind of the jury. Otherwise, however, if it appears from the declaration of the jury that the jurors merely had a wrong

If it appears that the defect is purely formal, and the jury, sent out to remedy it, undertakes a material change in the verdict, a judgment cannot be based upon the verdict thus amended.1 If, however, the jury is ordered by the court to retire for the correction of a defect in the matter of the verdict, the jury becomes to such a degree possessed again of the whole material content of the verdict that it may amend even the answers not affected with error. In other words, the jury has absolute freedom, in the correction of a material defect, to reconsider and reconstruct the entire verdict. Even if several offenses, independent of each other, are involved, the jury is not bound by any part of its original verdict. This holds where the defect consists merely in the omission of the answer to one of the questions. Nor does it matter whether the amendment is in favor of the defendant or to his disadvantage; e.g. the jury may affirm a Hauptfrage or Hülfsfrage which it had previously denied.

It is the province of the court to determine officially whether the defect in the verdict does not arise from an error in putting the questions. If it appears that there is occasion for amending or adding to these questions, then is the court not in any wise bound by the deliberation of the jury which may have taken place in the meantime. New questions, both Hauptfragen and Hülfsfragen, may be put, provided that they would have been proper when the list of questions was first fixed.

If the new verdict also shows a defect such as falls within the provisions of the law already discussed, a defect either in form or matter, the same remedial process must be repeated. Should the

conception of the effect of their verdict, or that they were influenced by a wrong interpretation of a material legal principle. Such declarations are not to be considered. See RGer. I, March 3, 1896; Entsch. vol. xxviii, p. 242.

1 See StPO, sec. 310. 2 See StPO, sec. 311; also Motiven, p. 204.

3 See RGer. II, April 26, 1887, Rspr. vol. ix, p. 287; RGer. IV, April 27, 1888, Rspr. vol. x, p. 349, Goltdammers Archiv, vol. xxxvi, p. 188; RGer. IV, January 24, 1890, Entsch. vol. xx, p. 188; RGer. IV, October 10, 1893, Entsch. vol. xxiv, p. 302.

RGer. IV, November 15, 1895, Entsch. vol. xxvii, p. 411.

'RGer. IV, January 24, 1890, Entsch. vol. xx, p. 188.

RGer. III, October 13, 1880, Entsch. vol. ii, p. 361, Rspr. vol. ii, p. 332. The court may also re-open the case and hear testimony. See StPO, secs. 305, 243, cl. 3, and 245.

jury refuse to make such correction as the court considers requisite, then, since a defective verdict cannot support a judgment, the trial is suspended and the case must be reheard before a new jury. As to whether a stubborn jury may be fined by the court, under those sections of the law, already referred to in an earlier part of this paper, touching the punishment of jurors who neglect their duties, there is a great diversity of opinion.'

2

If the court has erred in attributing a defect to the original verdict and has therefore wrongfully ordered a correction of the same, this wrongful procedure does not impair the rights, either of the defendant or of the prosecutor, arising out of the first verdict. Logically, the party injured by the action of the court has a right to contest the judgment based on the later verdict. In such a contingency, the revising judge is to determine "whether the original verdict was affected with an error requiring correction." Such a determination is possible, however, only when the earlier verdict has been clearly preserved in making up the new one. Hence the law expressly provides, that "the corrected verdict shall be written in such a manner that the original verdict remains recognizable." Hence the first verdict may not be amended by means of penstrokes through clauses or words to be stricken out, nor by the insertion of words or clauses to be added. All those answers to which any correction is made must be written de novo, with a distinct reference to that part of the original verdict which it is the aim of the jury to alter.*

1 Löwe, note 10 to StPO, sec. 309, holds that the jury may be fined. This is the view also of Dalcke, Komm. p. 212, Fragestellung, p. 142; of Thilo, p. 371; of Geyer, p. 766; of Stenglein, note 10 to StPO, sec. 309, Lehrbuch, p. 333; and of von Kries, p. 631, note 1. Keller denies the applicability of secs. 96 and 56, GVG, on which the above commentators rest their opinion, but he agrees as to the necessity for a new trial; see Keller, p. 405. Against the view of Löwe may be cited also: H. Meyer in Holtzendorff, vol. ii, p. 209; Isenbart, note 128 to StPO, sec. 309, who holds that the judgment must be pronounced even on a defective verdict; Freudenstein, op. cit., p. 392; Bischoff, op. cit., p. 16, who holds that a judgment of acquittal must be rendered, and Puchelt, p. 495, who says that the jury must remain in the jury-room until their task is properly accomplished. Compare RGer. III, October 13, 1880, Entsch. vol. ii, StPO, sec. 312.

2 Motiven, p. 204.

p. 361, Rspr. vol. ii, p. 332. See, however, RGer. III, April 30, 1881, Entsch. vol. iv, p. 122, Rspr. vol. iii, p. 257; RGer. III, May 24, 1886, Rspr. vol. viii, p. 383; RGer. II, December 16, 1890, Goltdammers Archiv, vol. xxxix, p. 56; RGer. II, September 24, 1895,