65 Conn. 265 | Conn. | 1894
The defendant was indicted for the crime of murder in the second degree, was acquitted upon trial to the jury, and this is an appeal by the State, in the nature of a motion for a new trial, on the ground of alleged errors in the charge of the court and in the admission and exclusion of evidence.
■The defendant makes a preliminary claim that the State has, under our law, no right of appeal to this court when the accused has been acquitted by a jury, and bases his claim upon two propositions: 1. A law authorizing procedure for the correction of errors in instructions to the jury, or in the admission and exclusion of evidence made by the court in a criminal trial, and followed by an acquittal of the accused, is in violation of the fundamental principle of the common law which declares that “ no person shall be subject for the same offense to be twice put in jeopardy; ” 2. Section 1687 of the General Statutes does not in express term’s"authorize an appeal when the accused has been tried and acquitted by the jury.
First: “ That no one shall be put in jeopardy twice for the same offense, is a universal, maxim thought worthy to be incorporated, to a certain extent, into the Constitution of the United States; and that an acquittal or conviction by a court having jurisdiction, on a sufficient indictment or information, is in all cases whatsoever a bar, is equally clear.” State v. Benham, 7 Conn., 418. This maxim is based upon a principle common to all systems of jurisprudence, i. e., the finality of judicial proceedings. Broom’s Legal Maxims, p. 312. If questions once tried and determined could be again agitated at the option of the parties, one main object of any administration of justice would be defeated. The function of courts is to settle controversies according to law. The object of settlement is secured by the principle of finality of judgments. Finis finem Utibus imponit. The object of settlement in accordance with law
This distinction has been lost sight of in some cases which discuss the application of common law rules, or statutory provisions, to the correction of errors in criminal causes; and owing to the confusion of principle with practice, a theory seems to have at times prevailed which assumes that the punishment of crime is a sort of invasion of natural right, and that a person accused of crime should be exempt from established rules of law binding on all other citizens; and therefore a procedure which proves incompetent to the correct application of legal principles in criminal trials can be changed like any other rule of practice when the change may tend to protect an accused from unjust punishment, but becomes a fundamental principle of jurisprudence that cannot be altered when the change may tend to secure his just punishment. It needs no argument to dispel such an illusion, or to demonstrate that the natural rights of the
Judicious legislation for securing a full, fair and legal trial of each criminal cause, is not in derogation, but in protection, of individual right, and is in full accord with the principle that no man shall twice be put in jeopardy for the same offense.
That maxim, as we have seen, is based on the truth that a judicial proceeding lawfully carried on to its conclusion by a final judgment puts the seal of finality on the controversies determined by that judgment, and is not based on a theory that a person accused of crime has any natural right of exemption from those regulations of a judicial proceeding which the State deems necessary to make sure that the conduct and final result of that proceeding shall be in accordance with law. And so the putting in jeopardy means a jeopardy which is real and has continued through every stage of one prosecution, as fixed by existing laws relating to procedure ; while_such prosecution remains undetermined the one jeopardy has not been exhausted. The jeopai^ is not exhausted by an indictment followed by a nolle, nor in this State by a nolle after the trial has commenced when the prisoner does not claim a verdict, 2 Swift’s Digest, 402, State v. Garvey, 42 Conn., 233; nor by the discharge of a jury in case of the sickness of a judge, Nugent v. The State, 4 Stew. & Port., 72; the sickness of a juror, Rex v. Scalbert, 2 Leach, 620, Rex v. Edwards, 3 Camp., 207, Com. v. Merrill, Thacher’s Crim. C. 1; the sickness of the prisoner, Rex v. Stevenson, 2 Leach, 546, Rex v. Streek, 2 Car. & P., 413, State v. McKee, 1 Bailey, 651; nor in case of the expiration of the term of court during the progress of the trial, Regina v. Newton, 3 Cox C. C., 489, State v. M'Lemore, 2 Hill (S. C.), 680; nor in case of the inability of the jury to agree, State v. Woodruff, 2 Day, 504, Regina v.
The great significance of these cases lies in their illustration of the inherent power and duty of the court to see that the trial is conducted according to 'law, even if the impaneling of new juries and new trials are involved. The same underlying principle of justice which demands a retrial because a juror is legally disqualified, calls for a re-trial, when illegal evidence has been admitted, or legal evidence excluded; in either case the trial is tainted and should not support a valid final judgment. Before the verdict is returned the trial court of its own motion can award a re-trial; after the verdict is returned, a re-trial is awarded only on further proceedings in the cause, which may or may not be authorized by the law regulating procedure. If such further proceedings are not authorized by law, the cause is ended, and the one jeopardy of the accused is exhausted; but this results not from any special sanctity attributable to a verdict tainted with illegality, but solely to the fact that the State, influenced by considerations of public policy, has decided to make such verdict; whether just or unjust, the end of that controversy. But when the State sees fit to pro
The rule as formulated by this court in State v. Garvey, supra, rests upon solid foundations : “ The principle which protects an individual from the jeopardy involved in a second trial for the same offense is well established and fully recognized. The question however as to what constitutes^ a trial depends upon the course of procedure of the particu-1 lar jurisdiction in which it is had, and the construction o: the courts there with respect to it."
The power and duty of the State to extend to criminal trials those methods of procedure which are found essential to that pure and impartial administration of justice, — to which every one both as an individual and as a member of the body politic, when the State itself appears as a party to the trial, is entitled by virtue of a principle which lies at the root of our jurisprudence, — would never have been questioned were it not that the dicta of judges as to matters of practice became confused with statements of the legal principle that insists on the conclusiveness of a valid and final judgment.
The rule that a criminal cause once submitted to a jury j cannot be submitted to another jury may be traced to a die-j turn of Coke; an able and interesting discussion of its au-\ thority will be found in an opinion of Judge Kent, given in full in a note to State v. Woodruff, 2 Day, 507. That dictum was at most a statement of existing procedure, and as such has been repeatedly discredited in a large number of cases; and a rule of procedure in criminal law advanced during the seventeenth century cannot be held to dominate the settled principles of jurisprudence in the nineteenth. The administration of criminal law, as it formerly prevailecl| in England, has justly been regarded, in some respects, as an object lesson of barbaric codes. Its continuance, theoretically unchanged during the wonderful evolution of a
The defendant lays great stress upon the claim that at English common law the procedure did not permit a writ of error after acquittal. We incline to think that it cannot be fairly7 assumed from a comparison of all the early authorities that such writ of error was forbidden. A difficulty in reaching a certain conclusion arises from the fact that originally a writ of error in criminal causes was a writ of grace and not of right, and that bills of exceptions were not allowed in criminal trials; so that neither the prosecutor nor the accused could place on record the grounds on which a writ of error would ordinarily be sought. But the common practice of reserving questions of law arising in the trial of a cause for the advice of the Court of King’s Bench, demonstrates the recognition of the principle that the final judgment
The United States Supreme Court, in an opinion delivered by Justice Gray, has collated the authorities, English and American, on the common law practice, and reached conclusions which will doubtless be generally accepted, i. e., the right of the crown at common law to a writ of error, after acquittal, is not wholly free from doubt; the practice in a few of our States recognizes the right of the prosecutor to proceedings in error; in a great majority of the States the courts hold “ that the State has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment is rendered upon a verdict of acquittal, or upon the determination by the court of a question of law.” U. S. v. Sanges, 144 U. S., 310.
It is however immaterial to the defendant what the practice at common law may have been. The gist of his contention is that, assuming the practice to have been as he claims, such failure of the ancient common law procedure to provide for the correction of errors in a criminal trial, was based on a settled and universal principle of jurisprudence incorporated into our own common law, and binding upon our courts, if not upon our legislature. For reasons already stated we deem such contention to be utterly unsound. Regulations — -— for enforcing the correct application of law in all criminal trials are essential to the administration of justice, and a statute prescribing procedure for that purpose and requiring the verdict of the jury to be reached in accordance with the settled principles of law and justice before it can support a valid judgment, is notin derogation of any fundamental doctrine of our common law, nor inconsistent with the principle
In this State there was at common law no practice authorizing a motion for new trial after acquittal. State v. Brown, 16 Conn., 54. There was no practice authorizing such motion after the verdict of a jury in any case, civil or criminal. Statutes enacted in 1702 and 1762 were construed as preventing courts from setting aside, on motion, any verdict either as against law or evidence. In 1807, acting under authority of a statute authorizing the establishment of rules of practice, this construction was modified and provision made for granting new trials, on motion, for errors in law, (8 Day, 28, 29,) and in 1816 this court substantially overruled the old construction, and held that the Superior Court might grant motions for new trial and reserve the questions raised by such motions for advice of this court. Bartholomew v. Clark, 1 Conn., 472. This decision was confirmed and its effect somewhat modified by the Revision of 1821, p. 54. Such motion and review, however, was not a matter of right. In 1830 the right to a motion for a new trial, reviewable by this court, was given by statute to parties in. all civil actions aggrieved by the decisions of the court on questions of law arising in the trial. Public Acts, 1822-1835, 288; and the same year another statute authorized a motion for new trial by the defendant in criminal causes, in the same manner as in civil actions. Public Acts, 1822-1835, 283. And in 1886 the legislature wisely extended this authority, with the permission of the trial judge, to the State.
Second: The defendant urges that the Act of 1886, incorporated into the General Statutes as § 1637, only authorizes an appeal by the State after judgment by the court, without the intervention of a jury, and does not authorize an appeal in the nature of a motion for a new trial after acquittal.
There is no ground for such a construction. The language of the statute is as explicit as its meaning is plain. In the Revision of 1875 the title relating to civil actions provided that “upon the trial of all matters of fact * * *
The fifth assignment of error is as follows: “ The court erred in excluding the following question asked by Mr. Doolittle of the same witness (Moses C. White): ‘You examined the uterus in this case under the condition you testified to. You made the post-mortem and examined the uterus in this case ; and have described its condition. Now I wish to ask you whether from your examination of the body and the
The finding details in full the facts in the case claimed to have been proved by the State and by the defense. The victim of the crime charged was a woman, whose death was caused by a lacerated wound in the uterus, made by some instrument used in the production of an abortion shortly prior to her death. The defendant was a practicing physician whom the deceased consulted for the first time when she decided on suffering an abortion. The testimony introduced in chief by the State was sufficient to justify the jury, if they believed the witnesses, in drawing an inference of the defendant’s guilt. The testimony introduced by the defendant consisted mainly in contradictions of the State’s witnesses ; the most important contradiction being that of the accused himself, who denied having performed any operation upon the deceased, and stated that in attending the deceased during her last illness caused by the abortion and superintending her delivery of a dead foetus and after-birth, he acted only as an honest medical practitioner would act when called to attend a woman suffering from such injuries. He said the injuries were inflicted by the deceased herself, and offered testimony claimed as tending to show that she was familiar with the mode of producing abortion by mechanical means, and also testimony that the deceased stated she had inflicted the injury herself and had made this statement subsequent to her dying declaration testified to by the State’s witnesses in which she charged the defendant with having produced the abortion. Upon rebuttal the State called the witness Moses C. White, a practicing physician and medical examiner for the county, who had, as such public officer, performed an autopsy on the body of the deceased. Dr. White had been previously examined by the State and cross-examined by the defense, as a medical expert. It is patent that under these circumstances the opinion of Dr. White as a medical and surgical expert, upon the question whether the wound he had examined and described to the jury was so situated and of such a nature as to render its self-infliction
It is not necessary to comment in detail upon the other errors assigned. Whether such as are well taken might, if standing by themselves, furnish sufficient ground for a new trial in this case, is immaterial; there is no need for strengthening the conclusion that the course of trial and verdict of the jury was not in accordance with law.
The record in this case is faulty in some respects, to which attention should be called.
The appeal contains four or five pages of printed matter called “ State’s claim as to errors in the charge of the court,
The permission of the presiding judge allowing the State to take this appeal, does not appear in the record. It did not appear in the record in State v. Clerkin, supra ; although in that case the fact that the permission was granted at the time of the judgment appealed from, was known to this court. We think the authority of Reboul v. Chalker, 27 Conn., 128, requires us to treat the finding of facts by the presiding judge, for the purpose of appeal, as sufficient evidence that the necessary permission was granted; but we do not think the formal permission is properly omitted from the record. Without passing on questions suggested in argument, but which cannot be decided on this appeal, we think as a matter of practice certainly, that in all appeals under § 1637, the permission of the presiding judge should be asked and granted, and a formal record thereof made at the time of the judgment; and that the accused, if in custody, should then be admitted to bail.
There is error in the judgment of the Superior Court, and a new trial is granted.
In this opinion the other judges concurred.
