| Kan. | Jan 15, 1881
Lead Opinion
The opinion of the court was delivered by
This case was originally submitted to this court on the written briefs of counsel, without any oral argument being made. The brief for the state is immaterial. The briefs for the defendant are as follows (court and title-omitted ):
“Defendant was sentenced as for murder in the first degree,, on a verdict of ‘guilty as charged.’ We cite 8 Kan. 447" court="Kan." date_filed="1871-07-15" href="https://app.midpage.ai/document/state-v-huber-7882845?utm_source=webapp" opinion_id="7882845">8 Kas. 447, but more especially 7 Kan. 143" court="Kan." date_filed="1871-01-15" href="https://app.midpage.ai/document/state-v-reddick-7882601?utm_source=webapp" opinion_id="7882601">7 Kas. 143, as conclusive. The defendant has already had a valid trial, and the verdict is not a nullity. It will support a sentence. Otherwise, habeas eorpus would lie.
“We ask that he be remanded to receive the highest sentence necessarily intended by the jury, viz.: manslaughter in the fourth degree. The jury must have intended this much; ■they may have intended more, and they may not.
Cates & Keplinger.”
Murray & Smith,
Attorneys for Defendant.”
Upon the record and the briefs of counsel, the court decided the case, affirming the judgment of the court below, and the following opinion of the court, and dissenting opinion of the Chief Justice, were filed in the case, to wit:
'“ The opinion of the court was delivered by
“ Valentine,-J.: The defendant was prosecuted on an information for murder in the first degree. The jury found the defendant guilty, by a verdict in the following form (omitting title), to wit:
!‘We, the jury, find the defendant guilty in manner and form as charged in the information.’
“The defendant was sentenced by the court as for murder in the first degree. No motion was made for a new trial, or in arrest of judgment, but the defendant duly excepted to the sentence imposed upon him, on the ground that the verdict was not sufficient to sustain such a sentence. And whether the verdict is sufficient or not, is the only question now presented to this court. That such a verdict is insufficient and voidable when attacked by a motion for a new trial,' has long ago been held by this court. [The State v. Reddick, 7 Kan. 143" court="Kan." date_filed="1871-01-15" href="https://app.midpage.ai/document/state-v-reddick-7882601?utm_source=webapp" opinion_id="7882601">7 Kas. 143, 154; The State v. Huber, 8 Kan. 447" court="Kan." date_filed="1871-07-15" href="https://app.midpage.ai/document/state-v-huber-7882845?utm_source=webapp" opinion_id="7882845">8 Kas. 447.) But whether it is insufficient if not attacked by motion for a new trial, or whether it is absolutely void or not, and if not void, what sentence should be pronounced upon it, has never before been presented to this court. • In prior cases this court may have spoken -of such a verdict as though it were void; but the language was of course used with reference to. the circumstances of the particular case then under consideration; and
“We must, then, not consider said verdict as void, but as valid; and then comes the question, What does it mean? What sentence, if any, should be pronounced upon it? We cannot, of course, grant a new trial, for the defendant does not ask for such a thing, and we cannot again place him in jeopardy against his consent. We must therefore construe the verdict as best we can, and determine what sentence, if any, it will require.
“Now as the information clearly charged the defendant with being guilty of murder in the first degree, and.as the jury in their verdict “find the defendant guilty in manner and form as charged in the information,” there can be but little doubt as to what the jury intended, or as to what the verdict means. But the court also charged the jury, previously to their finding their verdict, that if they found the defendant guilty of murder in the first degree, the form of their verdict should be j ust such as the j ury afterward in fact used. And the court also gave the jury a written form of verdict for murder in the second degree, and also for each degree of manslaughter. This makes it clear beyond all doubt what the jury intended to find, and what they did in fact find. They in fact found the defendant guilty of murder in the first degree. • As the
“Before closing this opinion, we might say that we adhere strictly to the former decisions of this court with reference to verdicts in murder cases, but we do not think that such decisions control this case.
“The judgment of the court below will be affirmed.
Dissenting Opinion
dissenting: I dissent. Since the explicit declaration of this court in the cases of The State v. Reddick, 7 Kan. 143" court="Kan." date_filed="1871-01-15" href="https://app.midpage.ai/document/state-v-reddick-7882601?utm_source=webapp" opinion_id="7882601">7 Kas. 143, and The State v. Huber, 8 Kan. 447" court="Kan." date_filed="1871-07-15" href="https://app.midpage.ai/document/state-v-huber-7882845?utm_source=webapp" opinion_id="7882845">8 Kas. 447, that upon the trial under an information for an offense where by law there may be a conviction of different degrees of the offense, it is the duty of the jury, if they convict, to specify in their verdict of what degree of the offense they find the defendant guilty, there is no reasonable excuse for a .trial court to accept a verdict in a capital case like the foregoing, of “ guilty as charged.” If a defendant obtains an unjust advantage by such a verdict, it is the fault or carelessness of the trial court, or of the prosecuting attorney. While I do not think such a verdict void, or a nullity, yet I am of the opinion that the verdict must speak for itself, and that we cannot go to the evidence or the instructions to ascertain its meaning. Under such a verdict, it seems to me that the punishment to be inflicted ought to be for the lowest degree of the offense included in such a finding, rather than the highest. Especially do I think that this ought to be the rule, where the highest degree of the offense demands the infliction of the death penalty. I am unwilling to say that the defendant must die upon the verdict rendered.”
It will be noticed that the court in its opinion virtually assumed that the verdict upon which the defendant was sentenced was not void; and as counsel for the defendant and the dissenting Chief Justice admitted that the verdict was not void, this course seemed to be-entirely proper. It would have been useless indeed to discuss what was already admitted. The court, however, attempted in the opinion to show that this court had not in its previous decisions held that such verdicts are void, but that in effect it had really held that
Assuming, then, that the verdict in the present case is not void, or waiving that question for the present, what should the court below have done in the case ? That the verdict is irregular in not stating specifically (as required by § 239 of the criminal code) that the defendant was guilty of murder in the first degree, (just what it in fact did state in general terms,) must be admitted; and if the defendant had asked for a new trial, on the ground of such irregularity, the court below should and would unquestionably have granted it. That a new trial will be granted under such circumstances, is in effect the sum and substance of nearly all the decisions upon this question. In quite all the cases involving this question, the defendant asked for a new trial, and the appellate court simply ordered that it should be granted him. (The State v.
It may be that in some cases the appellate court, after setting aside a judgment at the defendant’s request, which judgment was not ■void but only voidable, would have the power to grant a new trial, although the defendant had not asked for it in the court below, and some of the authorities would seem to indicate that this might be done; but upon this question we do not now desire to express any opinion. A judgment, however, rendered upon nothing, or rendered upon an absolutely void verdict, or upon anything else which is absolutely void, would be itself void. A judgment rendered upon a void thing, would be virtually rendered upon nothing; it would be given without jurisdiction, and" having nothing to stand upon, would itself be void. And here I would reiterate the substance of what was said in the former opinion of this court in this case concerning jeopardy. That statement concerning'jeopardy in the former opinion might, in some cases, need explanation, but generally it will be found to be correct. A defendant can never be put in jeopardy a
The verdict in the present case was unquestionably intended by the jury to be a verdict for murder in the first degree; and if the defendant was dissatisfied with it, he could have had it set aside, and a new trial granted, merely by asking for it. But he refused to ask for it, and in so doing took a risk which no person charged with murder in the first degree, and convicted, and liable to be sentenced upon the verdict to suffer death for his crime, should ever take. But this may perhaps seem like mere clap-trap, to speak of death as a punishment for murder in the first degree; for no person has ever yet been executed, under our present laws, for murder in any degree, and probably no person ever will be. Our present laws upon this subject have been in force for nearly, nine years. (Comp. Laws 1879, p.762, §§259 to 262.) The decisions, however, in the cases of The State v. Reddick, 7 Kan. 143" court="Kan." date_filed="1871-01-15" href="https://app.midpage.ai/document/state-v-reddick-7882601?utm_source=webapp" opinion_id="7882601">7 Kas. 143, and The State v. Huber, 8 Kan. 447" court="Kan." date_filed="1871-07-15" href="https://app.midpage.ai/document/state-v-huber-7882845?utm_source=webapp" opinion_id="7882845">8 Kas. 447, were rendered under our former laws, when defendants, who were properly convicted and’sentenced for murder in the first degree, were executed.
The defendant, by his counsel, now asks and urges that this court shall set aside the judgment of the court below,. and grant him a new trial; and if the new trial cannot be granted, he still urges that we shall set-aside the judgment of the court below, so as to place the defendant back in the same situation and condition in which he was prior to the rendering of such judgment, and subsequent to the rendering of the verdict; and he urges this upon the ground, among others*
We wish to confine this decision within the particular facts and circumstances of this case. Therefore, such decision- will be as follows:
Where a defendant is charged on information with committing murder in the first degree, and “the jury find the defendant guilty in manner and form as charged in the information,” without otherwise stating the degree of the offense of which they find him guilty, and no motion for a new trial is made, and the court sentences him as for murder in the first degree, and the record of the case does not show that he was informed by the court of the verdict of the jury, and asked whether he had any legal cause to show why judgment should not be pronounced against him, it will be held by the supreme court that the judgment of the court below must be set aside, and the cause remanded with the order that the defendant be again taken before the court below for sentence and judgment, and for such other, and further proceedings as may be properly had in the case; and that before sentence or judgment shall be again pronounced against him,
The effect of this decision we think will be, that the defendant will obtain a new trial in the court below. The judgment of the district court will be reversed as above indicated, and the defendant will be returned from the penitentiary and delivered over to the jailer of Allen county, there to abide the further order of that court.
Concurrence Opinion
I concur in the order reversing the judgment of the district court, but do not concur in all the views expressed by my associates. This order gives the defendant opportunity, under §276 of the criminal code, to apply for a new trial, as such application can be made at any time before judgment, and under the decisions in The State v. Reddick, 7 Kan. 143" court="Kan." date_filed="1871-01-15" href="https://app.midpage.ai/document/state-v-reddick-7882601?utm_source=webapp" opinion_id="7882601">7 Kas. 143, and The State v. Huber, 8 Kan. 447" court="Kan." date_filed="1871-07-15" href="https://app.midpage.ai/document/state-v-huber-7882845?utm_source=webapp" opinion_id="7882845">8 Kas. 447, even as interpreted (and in my opinion restricted and modified) by the remarks of my associates, the district court will be in duty bound, upon a motion for a new trial by defendant, to grant another trial. On the original presentation of this case to this court, I said that I did not think the judgment ought to stand; but at that time it seemed to me that punishment might be inflicted upon the defendant for the lowest degree of the offense included in the finding of the jury. There are some authorities to that effect. A more careful consideration of the whole subject, since the reargument before us, leads me to have grave doubts of the validity of the verdict to sustain any judgment. Aside from the decisions of a few states, the reasoning of which is in conflict with the views of this court expressed in The State v. Reddick, supra, and The State v. Huber, supra, the weight of authority seems to me to be in favor of the doctrine, that where the statute requires a designation of a degree, or the assessment of a punishment, a general verdict of “ guilty as charged,” without such designation or assessment, is a nullity, or at least so defective and
Concurrence Opinion
concurring: I concurred in the decision of this case in the first instance, and did so for reasons stated in the present opinion written by Mr. Justice Valentine. The opinion in the Reddick case never seemed to me right. I concurred in following it in the Huber case, upon the ground of stare decisis. But where an information alleges certain facts, a general verdict seems to me equivalent to a finding that all those facts are true. Suppose, to this information, defendant had pleaded “guilty:” what would such plea admit, and what sentence could be pronounced? When the plea is “not guilty,” and the jury find that he is guilty, is not that finding as broad and comprehensive as a plea of guilty? But I do not care to discuss the question. I wish simply to state the reasons for my concurrence. I am willing to abide by the decisions in the Reddick and Huber cases whenever the exact question in them is presented, but I think that going a step beyond would be simply heaping error on error.
I also, with some hesitation, concur in the order setting aside the judgment and remanding the defendant for a new sentence. I think that the section of the statute referred to is obligatory; that it is error to disregard it, and that the fact that the defendant was informed of the verdict, etc., should appear upon the record. If the record was perfectly silent in this respect, the question would not be so doubtful; but it is not a very strained inference from its language to hold that he was informed of the verdict and given an opportunity to show cause why judgment should not be pronounced. Still, as this is a grave offense, and the punishment the highest known to the law, it is probably right that the order be made setting aside the judgment.