28 Cal. 456 | Cal. | 1865
By the Court,
The defendant was indicted for the murder of James Irwin. He pleaded not guilty. On the trial it was proposed, on the part of the defendant, to prove that he was insane when he committed the homicide. The counsel for the people objected to the testimony offered, and the Court sustained the objection, on the ground that upon the trial upon the plea of not guilty the defendant could not introduce evidence to show he was insane at the time the offense was alleged to have been committed, assigning as a reason for such. decision that it was provided by the Third Chapter of Title XII of the Act to regulate proceedings in criminal cases (Laws 1851, p. 277) that the question of the insanity of the defendant must be tried upon a special issue. To this ruling of the Court the defendant’s counsel excepted. The defendant was found guilty of murder in the first degree. At the time appointed for pronouncing judgment, the Court, in the presence and hearing of the defendant, inquired of his counsel if he desired, on behalf of the prisoner, to move for a new trial, stating, at the same time, that if such motion was made the inclination of the Court was to grant it, and also stating that such inclination arose from a conviction that there was error committed by the Court on the trial in making the decision above noticed. The defendant’s counsel declined to ask or move for a new trial. The Court then pronounced judgment that on a particular day the defendant be hanged by the neck until he should suffer death.
A bill of exceptions on behalf of the defendant was settled and signed by the Judge of the Court, and then filed, which
The defendant’s counsel does not ask this Court to reverse the judgment 'and order a new trial of the cause, but to reverse the judgment and order the defendant discharged.
That the Court below erred in rejecting evidence of the defendant’s insanity at the time he killed Irwin, the learned Judge of that Court admitted when the suggestion was made that if a new trial was applied for on behalf of the defendant it would be granted; and in this Court the Attorney-General has confessed the error. We deem it unnecessary to say more than that we also are satisfied that the ruling of the Court below was erroneous and that on account of it the judgment should be reversed ; but whether it is competent for this Court to order a new trial, upon a reversal of the judgment, involves the consideration of a constitutional provision of grave importance.
The defendant was tried upon a sufficien b indictment. The verdict of the jury was that he was guilty of murder in the first degree, as charged in the indictment. Upon this verdict the judgment of the law was pronounced. By his appeal the defendant asks this Court to reverse this judgment for error of law which occurred prior to the verdict in the progress of the trial, to his injury. For the error, assigned the judgment must be reversed, and we are of the opinion it is proper to order a new trial of the case, if it can be done. But on the part of the defendant the power of the Court to do so is denied on the ground that thereby the defendant would be put in jeopardy the second time, when the Constitution declares that “ no person shall be subject to be twice put in jeopardy for the same offense.”
This question was passed upon and decided in this State in the case of The People v. March, 6 Cal. 546. In that case the defendant was indicted for murder, and was convicted of the crime. The judgment was reversed by the Supreme Court for an error committed on the trial, and a new trial was ordered. After the remittitur had been filed in the Court in which the
It has been a maxim of the common law for centuries, that no person shall be subject for the same offense, to be twice put in jeopardy of life or limb. (4 Black. Com. 335.) This maxim is incorporated in the Constitution of the United States and also in the Constitutions of many of the States of the Union. That “ no person shall be subject to be twice put in jeopardy for the same offense,” is a' part of the Constitution of this State. This constitutional maxim is intended for the protection of the citizen from oppression, and not as a shield to the guilty. If one accused of crime has once been tried and convicted of it, and judgment has passed against him, the law is satisfied. If he has been tried and acquitted, he is in the eye of the law innocent of the offense of which he was accused. But to constitute a former conviction a bar to a second trial for the same offense, it must appear that the judgment or verdict of conviction was final; otherwise the accused cannot say he was in jeopardy. At common law upon a second indictment for the same offense, the prisoner could not avail himself of a former conviction, under the plea
By taking and prosecuting his appeal, the defendant seeks a reversal of the judgment. The reversal of a judgment in such a case, for error in the proceedings prior to the verdict, operates to vacate the verdict. The judgment and verdict being reversed and held for naught, there is nothing left to support the plea of autrefois convict.
As we understand the learned counsel for the appellant, his position is that, while this Court may reverse the judgment of the Court below for error which occurred on the trial, we have no power to order a trial de nova, because by another trial the defendant would be put in jeopardy more than once for the same offense, and in support of his position he cites the case of the United States v. Gilbert, 2 Sumner, 37, in which Mr. Justice Story, in an elaborate opinion, endeavored to show that when a trial had been regularly had before a Court of competent jurisdiction, upon a good indictment, and a verdict has been rendered by a competent jury, the party accused cannot be tried a second time for the same offence. He was of the opinion that the provision of the Constitution which adopts the maxim of-the common law that a man shall not be twice put. in jeopardy for life or limb for the same offense, presented an insurmountable barrier to a second trial, even if applied for by the defendant himself. "But Judge Davis, in the same case, dissented from that part of the opinion of the learned Justice which denied the power to grant a new trial
It is insisted, however, that if it be assumed that this Court 0 has the authority in certain cases to order a new trial, notwithstanding the Constitution provides that “ no person shall be subject to be twice put in jeopardy for the same offense,” such authority cannot be exercised unless it appears that the defendant moved in the Court below for a new trial. The statute provides that on the trial of a person indicted for a felony, exceptions may be taken by the defendant to a decision of the Court upon a matter of law in certain specified cases. Exceptions may be taken for rejecting testimony which ought to be admitted, or for erroneously deciding any,question of law, not a matter of discretion. (Laws 1851, p. 259, Sec. 433.) • On appeal, this Court is to .“ give judgment without
The judgment is reversed, the verdict vacated, and a new trial ordered.