33 Mont. 490 | Mont. | 1906
-delivered the opinion of the court.
The defendant was by information charged with the crime of murder. Upon his plea of not guilty he was tried and found guilty of voluntary manslaughter and sentenced to a term of ten years in the state prison. He has appealed from the judgment and an order denying him a new trial.
The circumstances attending the homicide are the following: On February 15, 1904, the date of the homicide, the defendant and three others were engaged in a game of cards in a saloon owned and conducted by one Joseph D. Yander, in the
The defendant was sworn as a witness. He denied making any threats against Yander, or that he threatened to kill anyone. He denied, also, that he knew that Yander or anyone else was in the coalshed at the time he fired the rifle into it, and also that he entertained any ill-will toward Yander. He stated that his purpose in getting the rifle was to “bluff” the man who got his money, and that, though he had been drinking during the day, he was perfectly conscious of what he was doing. In o.ther respects the story of the tragedy as told by him agreed throughout with the detailed statements of the state’s witnesses. There was evidence that the previous character of the defendant for peace was good.
Upon these facts the court, among other instructions, submitted to the jury the .following: “Under the charge contained in this information you may find the defendant guilty of mur
The question submitted is, whether or not the paragraph quoted is erroneous, in that it explicitly tells the jury that they cannot, upon the facts detailed by the evidence, acquit the defendant, or, in other words, that they must at any rate find the defendant guilty of involuntary manslaughter.
Contention is made by counsel for defendant that no matter what may be the condition of the evidence, the court may not, in a criminal case, where the defendant has entered a plea of not guilty, direct a verdict. The effect of the instruction, it Is said, leaves no option to the jury to find the defendant not guilty of involuntary manslaughter, and to this extent invades the province of the jury by directing a verdict. It is said by the attorney general that it is the province of the court to declare the law and of the jury to find the facts, and that, such being the case, it must follow that whenever, in a criminal prosecution, the facts are admitted or not disputed, and it appears therefrom that the defendant is guilty, the court may direct the jury to render a verdict accordingly, since there is nothing for decision but a question of law; otherwise it must follow that in criminal cases the jury are the judges of both law and facts.
Assuming that the facts set forth above show conclusively that the defendant was guilty of involuntary manslaughter, upon the theory that at the time the shot was fired he was engaged in the commission of an unlawful act, to-wit, disturbing the peace (Penal Code, section 753), does it follow that the court could properly assume that, as a matter of law, he was guilty of involuntary manslaughter? The Constitution declares (Article III, section 16) : “In all criminal prosecutions the ac
It is true that in section 23 of the same Article it is provided that in prosecutions for misdemeanors the jury in a justice’s court shall consist of not more than six persons, and that the right to a trial by jury may be waived in the justice’s or district court by default of appearance or by consent in such manner as may be prescribed by law; but even in such eases the right to a trial by such a jury as is provided for therein is guaranteed by section 16, and cannot be taken away. •
It is of little importance what significance may be attached to the word “trial” as used in other connections. Manifestly, it is here used in its broadest and most comprehensive sense, and includes all proceedings in the progress of the ease after the issues are made up, down to and including the rendition of the verdict. (State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026.) If this is the correct conclusion as to the meaning of this term, the functions of the court or judge are fully discharged when the case is correctly submitted to the jury and they are left to determine the rights of the defendant. This must be the correct meaning of the term, else we must read into
From these considerations alone it seems to us that in the case at bar the district court clearly invaded the province of the jury. If it be said that this conclusion involves the further conclusion that in all criminal eases the jury are the judges of the law as well as the facts, the only reply proper and possible is that it is this court’s province to construe the Constitution as it is, and not by construction to insert in it provisions which the people through their representatives thought it proper to omit.
We are aware that the legislature has declared (Penal Code, section 2105) that upon the trial for any other offense than libel, questions of law are to be decided by the court and questions of fact by the jury, and that, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are, nevertheless, bound to receive us law what is laid down as such by the court; and that this court has held in the case of State v. Welch, 22 Mont. 92. 55 Pac. 927, that where there is a total absence of proof it is the duty of the court to direct a verdict of not guilty. It has nevertheless always been recognized in practice in this jurisdiction, that the jury has power to disregard the law as declared and acquit the defendant, however convincing the evidence may be, and that the court or judge has no power to punish them for such conduct.
The supreme court of Pennsylvania, in the case of Kane v. Commonwealth, 89 Pa. St. 522, 33 Am. Rep. 787, in discussing the question as to whether the jury are the judges of both the law and facts, has well said: “The distinction between
After all, it is of little moment what the theory of courts or the legislatures may be as to the duty of the jury under their oaths. It is well known that in practice they have the power to determine for themselves whether the law as declared by the court is applicable to the facts, and if they acquit the defendant through a mistaken notion that it is not applicable, or out of a total disregard of it, the case is ended for all time; for, under another constitutional guaranty, that no person shall be twice put in jeopardy for the same offense, the court may not set aside the verdict and grant a new trial in such a case.
Nor is it at all to the point that the statute (Penal Code, section 2096) authorizes the court to advise a verdict of acquittal when in its opinion the evidence does not warrant a conviction, or that the court should, when there is a failure of proof, direct such a verdict. (State v. Welch, supra.) The converse of this is not the law, as we have seen.
Nor do we know of any respectable authority in which the position here assumed by the attorney general has been upheld in a felony case. In Michigan it has been held that where the defendant is charged with a misdemeanor for the violation of a penal statute, and there is no question of intent, and the evidence permits no inferences about which reasonable men might differ, the trial judge may with perfect propriety state to the jury that the law, applied to the facts which are undisputed, shows the defendant to be guilty of the offense charged, and that it is their duty under the law to so find. (People v. Neuman, 85
In Pennsylvania it is the rule that the jury are the judges of both the law and the facts, and that it is error for the court to peremptorily instruct the jury in such a way as to take from them the right of deciding the degree of murder. (Shaffner v. Commonwealth, 72 Pa. St. 60, 13 Am. Rep. 649.) It was held in the same state, in Kane v. Commonwealth, supra, that the same rule applies to a prosecution for a misdemeanor for violation of a statute prohibiting the sale of intoxicating liquor on election day.
In the ease of State v. Maine, 27 Conn. 281, it was held that the defendant may not waive his right to trial by jury under the guaranty of the Constitution, and permit the court to try the question of his guilt or innocence without the intervention of a jury.
So it was held in Alabama in the ease of Huffman v. State, 29 Ala. 40, that a peremptory instruction to a jury to find the defendant guilty is erroneous, because, although the evidence against the prisoner was undisputed, yet its credibility was a question exclusively for the jury. The same rule was declared in the case of Nonemaker v. State, 34 Ala. 211.
Likewise, the supreme court of Georgia, in the case of Tucker v. State, 57 Ga. 503, held that notwithstanding the overwhelming evidence of guilt, it was error for the court to charge that the jury should render a verdict of guilty.
In State v. Picker, 64 Mo. App. 126, it was declared that a peremptory instruction to find the defendant guilty was a grievous error.
In Breen v. People, 4 Park. Crim. Rep. (N. Y.) 380, the court charged the jury that if they found the statements of certain witnesses to be true, it established the larceny by the prisoner. This was held to be error.
So in Howell v. People, 5 Hun, 620, the defendant was charged with a violation of the excise law. The court stated to the jury that the evidence against him was uncontradicted and undis
The law is so declared by the supreme courts of Kansas and North Carolina, and by the federal courts. (State v. Wilson, 62 Kan. 621, 64 Pac. 23, 52 L. R. A. 679; State v. Winchester, 113 N. C. 641, 18 S. E. 657; State v. Riley, 113 N. C. 648, 18 S. E. 168; United States v. Taylor, 3 McCrary, 500, 11 Fed. 470; United States v. Fenwick, 5 Cranch C. C. 562, 25 Fed. Cas. 15,087.) In State v. Riley, supra, the court said: “The plea of not guilty disputes the credibility of the evidence, even when uncontradicted, since there is the presumption of innocence, which can only be overcome by the verdict of the jury. The farthest the court can go in a criminal action is to charge the jury that if they believe the evidence the defendant is guilty.”
The text of Thompson on Trials lays down the rule thus: “Under constitutional provisions existing, it is assumed, in all states which guarantee to persons accused of crime the right of trial by jury, an accused person has, in every case where he has pleaded not guilty, the absolute right to have the question of guilty or not guilty submitted to the jury, no matter what the state of the evidence may be. Such is the nature of the right thus granted, that it has been frequently held that it cannot be waived by the prisoner, and that the trial of a criminal case before the court without a jury is erroneous, even where it takes place with the prisoner’s consent.” (Sec. 2149.)
As we have pointed out, a jury may be waived in this state in a misdemeanor case, under the express provision of the constitution, but, with this exception, we think the great weight of reason and authority supports the view that the court may not in any case upon a plea of not guilty coerce the jury by a mandatory instruction to return a verdict of guilty.
It follows that the judgment and order of the district court must be reversed and the cause remanded for a new trial.
Reversed and remanded.