13 Wash. 229 | Wash. | 1895
Lead Opinion
The opinion of the court was delivered by
Defendant was charged with the crime of murder in the first degree. A trial was had which resulted in a verdict of guilty of murder in the second degree. From the judgment rendered upon such verdict appeal was taken to this court, where the judgment was reversed and the cause remanded. When the cause was again called for trial, defendant interposed a plea of former acquittal of murder in the first degree, and asked to be put on trial for murder in the second degree. The state answered the plea, and, upon demurrer of appellant, the superior court held that the plea of former acquittal was not sustained and allowed the defendant to be again put on trial for murder in the first degree. Upon such trial defendant was again convicted of murder in the second degree, and from the sentence imposed has prosecuted this appeal.
His first contention is that the action of the court in overruling his plea of former acquittal of the crime of murder in the first degree was erroneous, and entitles him to a reversal 'of the judgment and sentence. The question raised by this contention has been often before the courts and the decisions upon it have not been entirely uniform. By far the greater number have held in accordance with the contention of the appellant, and although some courts of high repute
The respondent seems to rest its contention upon the claim that the verdict is entire and relates to all grades of the crime, and when vacated has no longer force as to any grade; But the practice of allowing such verdicts, is better sustained upon the theory that the verdicts as to each of the grades are several. And if they are, there seems to be no ground upon which the contention of the appellant can be successfully met. The question has been so often discussed in all its bearings that it is not necessary for us to say more than that the cases which have held as contended by the appellant are so fully sustained upon reason that even if the authorities were equally divided, we should be inclined to sustain such contention. And in view of the fact that such an overwhelming weight of authority is upon that side our duty is clear.
Was the defendant injured by this ruling? Respondent contends that he was not for the reason that he was not convicted of a higher crime than that for which he was rightfully put upon trial, and with this contention we feel compelled to agree. The argument against it is founded almost entirely upon presumed misconduct on the part of the jury. Such argument is to the effect that some of the jurors might have been convinced that the defendant was guilty of murder in the first degree, and others that he was guilty of manslaughter only; and the result might have been the verdict of guilty of murder in the second degree brought about by compromise. There might be force in this argument, were it not for the fact that it is the duty of each juror to come to a conclusion for himself, and it will not be presumed that for any reason of convenience or policy a juror consented to any other verdict than that of which he believed the defendant guilty. The defendant could have been rightfully put upon trial for murder in the second degree, and under the circumstances disclosed by this record the course of the trial would have been the same that it was upon the charge of murder in the first degree, and since it must be presumed that the evidence warranted the verdict, the same evidence
The next error is founded upon the action of the court in denying defendant’s motion for a new trial. This motion was founded principally upon allegations in an affidavit made by the defendant as to the misconduct of the jury. But such affidavit did not furnish any such evidence of misconduct as to authorize the court to act upon it. The affiant did not claim any knowledge upon the subject, but only that he had been informed and believed as to the facts charged. The presumptions surrounding the verdict of a jury are necessary, and can only be overcome by the competent testimony of some one having knowledge upon the subject.
The other errors assigned grow out of the action of the court in instructing the jury and in refusing to give certain instructions asked for by the defendant. We do not deem it necessary to discuss each separate criticism made by the appellant upon the instructions. It is enough for us to say, as to the instructions given, that we have carefully examined them, and while it is true that certain isolated parts may have contained statements, which, if taken alone, would have tended to the prejudice of the rights of the defendant, these parts, taken in connection with the other instructions given correctly, state the law of the case, and all of the law which it was necessary for the jury to have that they might arrive at a correct conclusion. This being so, the fact that the court refused to instruct as
The rights of the defendant seem to have been carefully protected by able counsel and by correct action on the part of the court, and the judgment and sentence will be affirmed.
Anders, Scott and Gordon, JJ., concur.
Concurrence Opinion
(concurring)—I do not believe that the refined distinctions discovered and endorsed by the majority exist in fact, or are founded in reason, and hence they ought not to have any place in the practical operations of the law. To my mind the common sense idea is, that when a defendant convicted of murder or any other crime seeks and obtains a new trial, it is a new trial which is accorded him, and not a trial for some other crime, and that he should be compelled to enter into the new trial subject to the same penalties that confronted him on the first trial. The whole object in granting him a new trial is to insure him a trial freed from the errors which prejudiced him in the first. But, as the majority has found against the appellant on another proposition, I concur in the result.
