31 Colo. 365 | Colo. | 1903
delivered the opinion of the court.
An information charging the defendant with murder was filed September 3, 1901. September 21, 1901, the jury returned a verdict as follows: “We, the jury, find the defendant guilty of manslaughter and do recommend him to the mercy of the court.” The defendant excepted to the verdict and gave notice of a motion for a new trial. September 27 the defendant waived the filing of a motion for a new trial and stated to the court that he consented tha't
• By section 18 of the bill of rights it is declared, “that no person shall be compelled to testify against himself in a criminal case, nor shall any person be twice put in jeopardy for the same offense. If the jury disagree, or if the judgment be arrested after the verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy.”
Sec. 1181, Mills’ Annotated Statutes, is in part as follows: “Whenever-a jury shall find a person guilty of manslaughter they shall designate by their verdict whether it be voluntary or involuntary manslaughter. ’ ’
- The sole question for determination is whether the defendant was twice placed in jeopardy for the same offense, within the purview of the constitutional provision cited. But for the requirement of the statute that the jury shall designate in the verdict the
Prior to 1883 the statutes did not require the jury to designate by their verdict the degree of the offense in cases where the defendant was found guilty of murder nor in cases where the defendant was found guilty of manslaughter, but by the act approved March 12, 1883, it was provided that “the jury before whom any person indicted for murder shall be tried, shall if they find such person guilty thereof designate by their verdict whether it be murder of the first or second degree. ’ ’ The act also provided that “whenever a jury shall find a person guilty of manslaughter they shall designate by their verdict whether it be voluntary or involuntary manslaughter.” The 'section of the act requiring the jury to designate the degree of murder has been by this court held to be mandatory, and a judgment was reversed because the-jury failed to designate'the degree of the offense.—Kearney v. People, 11 Colo. 258.
“A verdict defective in omitting an essential ingredient is a nullity, and is no bar, as we have already seen, to a second trial on the same indictment, if there be no constitutional prohibition. It was in the power of the defendant to have it corrected at the time it was rendered; and if he fail to do this, he cannot afterward take advantage of his own laches. ’ ’ —Wharton’s Cr. PI. and Pr., § 756.
“Should a verdict be accepted from the jury so imperfect in form that there can be no judgment entered upon it, the consent of both parties to it will be presumed; because either was entitled to have it perfected when rendered. Therefore a prisoner may be tried anew. But if the indictment (verdict) will sustain a sentence, the court must pronounce it in
“Where the statute requires in the verdict a designation of a degree, or the specific assessment of a punishment, a. general verdict, without such designation or assessment, will be a nullity, and if the jury are discharged, a second trial may be instituted, except in those jurisdictions where constitutional limitations are held to stand in the way.” — Wharton’s Cr. PL and Pr., § 752.
“Whatever may have been the opinion of some of the earlier judges of both the United States and some of the state courts, in respect to the correct interpretation and effect of the constitutional provision, which declares that ‘no person shall be twice put in jeopardy for the same offense,’ we think the rule is now well settled that, when the verdict is so defective that no judgment can be entered upon it, the defendant, who might have had it corrected when rendered, is considered as consenting to it, and as waiving any objections to being put to answer before another jury.”—State v. Rover, 10 Nev. 399; Allen v. State, 26 Ark. 333; Murphy v. State, 7 Caldwell 575.
The jury in this case having failed to designate the grade of the offense of which it found the defendant guilty, the court could not intelligently pronounce judgment, and, in our opinion, the verdict was void. The defendant made no objection to the discharge of the jury. He excepted.to the verdict in the usual form, and gave notice of a motion for a new trial; and under the authorities he must be held to have consented to the discharge of the jury.
The general rule is, as stated by counsel, that when a person has been placed on trial on a valid indictment or information, before a court of competent jurisdiction, has been arraigned and has pleaded, and the jury has been empaneled and sworn, he is in
Our conclusions are that the verdict rendered at the first trial was a nullity; that the court correctly set it aside and correctly overrruled defendant’s plea of former jeopardy. The judgment is therefore affirmed. Affirmed.
