Menjou

Petitioner was tried upon a charge of the commission of crime under an information in two counts. The nature of the first count need not be stated, as nothing connected with it is material to the present controversy. The second count charged murder. Under this count petitioner could have been convicted, upon evidence satisfactory to the jury and under the theory of the prosecution, either of murder in the second degree or of manslaughter, or upon a failure of evidence satisfying the jury of his guilt of either crime he could have been acquitted. The jury was so instructed by respondent court and three forms of verdict, drawn in accordance with the instruction, were handed to the trial body upon its retirement for a consideration of the cause. Despite the very plain course thus outlined to its members, the jury used neither of the forms submitted to it but prepared a verdict of its own. This verdict read: “We, the jury in the above-entitled action, find the defendant not guilty of murder, a felony, as charged in count two of the information.” The jury brought this verdict into open court and the foreman was asked by the trial judge whether the jury had agreed upon a verdict as to…