103 P. 502 | Or. | 1909
Lead Opinion
Opinion by
The defendant, Harry Daley, was convicted of the crime of murder in the first degree, alleged to have been committed by killing Harry Kenny purposely and with deliberate and premeditated malice. He appeals from the sentence of death which resulted; his counsel contending that an error was committed in refusing to instruct the jury as requested, to which denial an exception was taken.
“The defense of insanity having been interposed by the defendant, in this case, you are instructed that if you find him not guilty on that ground, to state the fact in your verdict (and the court must thereupon, if it deems his being at large dangerous to the public peace or safety, order him to be committed to any lunatic asylum authorized by the state to receive and keep such persons, until he becomes sane, or be otherwise discharged therefrom by authority of law)
That part of the charge so requested, which is included within the parentheses as here indicated, was refused;
The doctrine that in criminal cases the jury should have the right to determine the law and the facts probably originated in the American Colonies prior to the Revolution, and was a protest against what was considered to have been the arbitrary rulings of the judges in the trial of causes involving freedom of speech and of the press: Williams v. State, 32 Miss. 389, 396 (66 Am. Dec. 615). A text-writer, speaking upon this subject, observes:
“In many of the states the arbitrary temper of the colonial judges, holding office directly from the crown, had made the independence of the jury in law, as well as in fact, of much popular importance. Thus, John Adams, in his Diary for February 12, 1771, in a passage which is probably either an extract from or a memorandum of a speech before the colonial legislature, urges that in the then state of things public policy demanded that not only in criminal, 'but in civil cases, juries should be at liberty to take the law in their own hands”: Wharton’s Crim.*517 PI. & Pr. (8 ed.), § 806. To the same effect see Sparf & Hansen v. United States, 156 U. S. 51, 143 (15 Sup. Ct. 273: 39 L. Ed. 343).
The earliest recorded assertion of this legal principle which we have found appears in the report of the trial of John Peter Zenger for libel, before James De Lancy, Chief Justice, in the province of New York, August 4, 1735 (17 Howell’s St. Tr. 675, 706), as follows:
Mr. Chief Justice: “All words are libelous,.or not, as they are understood. Those who are to judge of the words must judge whether they are scandalous or ironical, tend to the breach of the peace, or are seditious. There can be no doubt of it.” Mr. Hamilton, attorney for the defendant, said: “I thank your honor. I am glad to find the court of this opinion. Then it follows that those 12 men (the jurors) must understand the words in the information to be scandalous ,* that is to say, false; for I think it is not pretended they are of the ironical sort; and when they understand the words to be so, they will say we are guilty of publishing a false libel and not otherwise.” Mr. Chief Justice: “No, Mr. Hamilton, the jury may find that Mr. Zenger printed and published those papers, and leave it to the court to judge whether they are libelous. You know this is very common. It is in the nature of a special verdict, where the jury leave the matter of law to the court.” Mr. Hamilton: “I know, may it please your honor, the jury may do so; but I do likewise know that they may do otherwise. I know they have the right, beyond all dispute, to determine both the law and the fact; and where they do not doubt of the law, they ought to do so.”
In the case of Rex v. Shipley, Dean of St. Asaph, 21 Howell’s St. Tr. 847, 923, the defendant was tried at the Assizes of Shrewsbury, August 6, 1784, for the publication of a criminal libel. His attorney, Thomas Erskine, afterwards Lord Chancellor of Great Britain, referring to the doctrine under consideration, says: “A jury are no more bound to return a special verdict in oases of libel than upon other trials criminal and civil where law is mixed with fact. They are to find generally upon both,
“Although the court was unanimous in discharging the rule, Mr. Justice Willes, in delivering his opinion, sanctioned by his authority Mr. Erskine’s argument that upon a plea of not guilty, or upon the general issue on an indictment or information for a libel, the jury had not only the power, but a constitutional right, to examine, if they thought fit, the criminality or innocence of the paper charged as a libel; declaring it to be his settled opinion, that notwithstanding the production of sufficient proof of the publication, the jury might upon such examination, acquit the defendant generally, though in opposition to the directions of the judge, without rendering themselves liable either to attaint, fine or imprisonment, and that such verdict of deliverance could in no way be set aside by the court.”
The doctrine thus asserted was generally recognized in this country for some time after the adoption of the Federal Constitution: Wharton’s Crim. Pl. & Pr. (8 ed.) § 806. The fear that a judge, elected by popular vote, might encroach upon the rights of personal liberty in the trial of criminal actions has been very much dispelled, except possibly in causes involving political questions, and at the present time, in the absence of a constitutional or
The constitution of Indiana contains a provision, as follows: “In all criminal cases whatever the jury shall have the right to determine the law and the facts.” In construing that clause it was held that the court’s refusal to permit counsel to argue to the jury, the constitutionality of a statute was erroneous: Lynch v. State, 9 Ind. 541. So, too, in Williams v. State, 10 Ind. 503, the jury was instructed as follows: “You are the exclusive judges of the evidence, and may determine the law; but it is as
In Franklin v. State, 12 Md. 236, in construing a clause of the organic act of Maryland, as follows: “In the trial of all criminal cases the jury shall be the judges of law as well as fact,” it was stated that the constitutional provision was merely declaratory of a pre-existing law regulating the powers of the court and jury; and it was held that the jury had no right to determine the constitutionality of an act of the assembly, and that the trial court properly prevented counsel from arguing that question before the jury.
A statute of Illinois contained the following enactment: “Juries in all criminal cases shall be judges of the law and the fact.” In construing that clause in Schnier v. People, 23 Ill. 17, it was held that the jury, in a trial for murder, were the judges of the law and the fact, and
It will be borne in mind that the clause of our constitution under consideration confers upon the jury in all criminal cases the right to determine the law and the facts, “under the direction of the court as to the law,” thereby restricting the authority of the jury to a much greater extent than is prescribed by the organic law of Indiana, or of Maryland, or by the statute of Illinois, to which notice has been directed. Notwithstanding the restricted application of the doctrine under consideration the jury in the trial of a criminal action in this state have the power to disregard the instructions of a court and to find a defendant not guilty. A verdict of that kind cannot be set aside, and necessarily discharges the defendant whose liberation results from the application of another clause of our organic act, to wit: “No person shall be put in jeopardy twice for the same offense”: Section 12, Article I, Constitution of Oregon. Though such power of the jury is recognized, their right, in the trial of a criminal action, to ignore the charge of the court, may well be doubted, for if an instruction misstates the law appli
No error was committed in refusing to give the instruction requested, and the judgment is affirmed.
Affirmed.
Rehearing
On Petition For Rehearing.
[104 Pac. 1.]
Opinion by
Believing that no error was committed in the trial of this cause, the petition for a re-hearing is denied.
Affirmed: Rehearing Denied.
Dissenting Opinion
delivered the following dissenting opinion on the petition for rehearing:
Defendant was charged, tried and convicted of murder in the first degree. At the trial his counsel interposed the defense of insanity, pursuant to which the court was requested to instruct the jury that: “The defense of insanity having been interposed by the defendant in this ease, you are instructed that if you find him not guilty on that ground, to state the fact in your verdict, and the court must thereupon, if it deems his being at large dangerous to the public peace or safety, order him to be committed to any lunatic asylum authorized by the state to receive and keep such persons until he becomes sane, or be otherwise dicharged therefrom, by authority of law.” All of that portion of the requested instruction after the word “verdict” was refused by the trial court. This refusal is assigned as error, and constitutes the sole question presented. I think it clear from the instruction requested that the point involved relates solely to the right of the jury to know the full effect under the law of their verdict in the event the defense of insanity should be sustained, and not the question, as considered and determined by the majority, whether the jury should know the penalty, if any, under such circumstances. As instructed, they received but a part of the law respecting the defense of insanity applicable to such cases. They
In State v. Cody, 18 Or. 506, 521 (23 Pac. 891; 24 Pac. 895) the court had under consideration the giving of instructions not requested, while here the instruction not given was demanded by the defendant and the language to have been intended by way of argument only, quoted from State v. Cody in the petition appears The defense of insanity under Section 1393, B. & C. Comp., must be proved beyond a reasonable doubt, and, when relied upon, must be considered in connection with Section 1424 of the Code, which provides the course to be pursued in such cases. Section 16, Article I, of the Constitution clearly contemplates that the jury should be fully instructed as to the law, and as to the practice whether this was intended to be imperative only in the event it is requested by the defense under the record in this case becomes unimportant. It needs no argument to demonstrate that where a man has committed what appears to the jury to be a deliberate murder, if they should believe a verdict of not guilty on account of insanity would turn him at large upon the public it would materially affect their determination of the cause. The court should therefore inform the jury that such a verdict may not necessarily so result, and that under the law it is a matter for the court to determine whether his running at large would endanger public peace and safety. This would in no sense be stating to the jury what the penalty would be, or what the court would do under such circumstances; nor is such the import of the requested instruction. Since the law
Believing that the defendant has been deprived of his constitutional and statutory rights in this respect, I therefore dissent from the conclusions announced by the majority, and think the judgment of the court below should be reversed, and a new trial ordered.