10 Nev. 388 | Nev. | 1875
By the Court,
The defendant was indicted and tried in the district court of the fourth judicial district, Humboldt County, for the murder of one Isaac N. Sharp.
The jury returned a general verdict as follows: “We, the undersigned jurors in the case of the State of Nevada against J. W. Eover, defendant, indicted for the murder of I. N. Sharp, do find the said defendant guilty as charged.”
The defendant moved in arrest of judgment upon the ,• ground that the verdict was insufficient, because it did not specify the- degree of murder of which the jury found him guilty, and for his discharge from custody, because he had been once placed upon his trial on a valid indictment, before a competent court, and with a jury duly impaneled, sworn and charged with the case. The motion was overruled, and thereupon the court pronounced judgment of death against the defendant.
This appeal is from the judgment and also from the order denying the motion in arrest of judgment and to discharge the defendant from custody.
By section 17 of the act relating to crimes and punishments (Comp. L., Sec. 2323), it is provided as follows: “All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, de
In the case of Cobia v. The State (16 Ala. 781), the court say: “We think it very clear that the verdict of the jury does not warrant the sentence pronounced by the court. The verdict finds the accused guilty in manner and form as charged in the indictment. So, if the defendant had plead guilty, or confessed his guilt, the record would only have
So in the case of The State v. Moran (7 Iowa, 236), the Supreme Court of that State say: “It is said, however, that the indictment charges the crime of murder in the first degree, and that when the jury by their verdict found the defendant guilty as charged in the indictment, they did, in legal effect, ascertain that he was guilty in the degree charged. This argument, however, leaves it to the court to deduce the intention of the jury from a verdict, general in its language, whereas the law requires that the jury shall find 'specifically the fact, whether guilt is of the first or second degree. When jurors find by their verdict that a prisoner is guilty, or guilty as charged in the indictment, it is not assuming too much to say, that as a general thing they have simply found him guilty of a criminal homicide, without reference to the degrees of his guilt. And to say that upon such a verdict the court might properly conclude that they intended the highest offense, would be to presume against, instead of in favor, of human life.” To the same effect are also the following decisions, rendered upon statutes nearly identical with the one under consideration: People v. Marquis, 15 Cal. 38; People v. Dolan, 9 Cal. 576; People v. Campbell, 40 Cal. 129; State v. Dowd, 19 Conn. 388; 3 Ohio
We might cite many other concurring decisions from the same and other States, but the ,above sufficiently manifest the uniformity of interpretation of the statute whenever its provisions have come under review. Indeed, the only decisions opposed to those above cited, which we have been able to find, are those of the Supreme Court of the State of Pennsylvania. In that State the court holds, that when the indictment charges the specific facts which, under the statute, constitute the crime of the first degree, that a verdict of “guilty in manner and form, as the prisoner stands indicted,” does “ascertain” the murder to be of the first degree. The reason assigned is, “that the indictment is thus referred to as forming a part of the verdict, and the latter thus ‘ascertains’ the facts which in judgment of law amount to murder of the first degree.” (Johnson v. Commonwealth, 12 Harris, 389; White v. The Commonwealth, 6 Binn. 179; Commonwealth v. Earle, 1 Whart. 525.) But if we apply the rule of these latter decisions to the case under consideration, and take into view both the verdict and indictment in order to determine the degree of which the jury intended to find the defendant guilty, we do not perceive how the court arrived at the conclusion that the jury intended to find the defendant guilty of the first degree, because the indictment contains none of the essential facts and circumstances which distinguish the first from the second degree, and is just as applicable to the one degree as it is to the other.
These Pennsylvania decisions, however, are not only opposed by the decisions of the courts of every other State having similar statutes, but seem to us to be contrary to the plain language and spirit of the act; and, in our opinion, the court is not authorized, in any case, to refer to the indictment in order to determine the degree of murder of
Tbe defendant, however, does not ask this Court to reverse tbe judgment and remand tbe cause for a new trial, but to reverse tbe judgment and order bis discharge from custody.
If we understand tbe position of counsel for tbe defendant, it is, that while tbe Court may reverse tbe judgment on account of tbe defective verdict, it lias no power to order a new trial of tbe cause; because, it is claimed, by another trial the defendant would be put in jeopardy twice for tbe same offense; and in support of their position they rely mainly on tbe opinion of Mr. Justice Story, 2 Sumner, 37, and tbe cases of Commonwealth v. Cook et al., 6 Serg. & Rawle, 577; Matter of Spier, 12 N. C. 491; Klock v. The People, 2 Parker C. R. 676, and The People v. Webb, 38 Cal. 476.
In tbe case of The United States v. Gibert, Mr. Justice Story argued at great length to show that, when a trial has been regularly had, before a court of competent jurisdiction, upon a good indictment, and a verdict has been regularly rendered by a competent jury, the party cannot be tried a second time. -It was the opinion of the learned justice that the provision of tbe Constitution of tbe United States which adopts the maxim of the common law that a man shall not be twice put in jeopardy of life or limb for the same offense, presented an insurmountable barrier to a second trial, even upon the application of the defendant himself. But in the same case, Judge Davis, though he concurred in denying a new trial upon the merits, dissented from that part of the opinion which denied tbe power of tbe court to grant a new trial on the merits, upon tbe applica
It will be observed that, in tbe opinion of Mr. Justice Story, invoked in behalf of tbe ’defendant, be does not distinguish between tbe power of tbe court to grant a new trial, from tbe power to set aside tbe verdict, or to reverse tbe judgment, but denies, that in capital cases, the court has power to do either. On page forty-three of bis opinion be says: “As soon as a capital case is fully committed to a jury, tbe life of tbe prisoner is in their bands, and be stands in jeopardy of bis life upon tbe verdict of tbe jury. He is, in tbe truest sense, put upon bis deliverance from peril. When once tbe verdict is pronounced tbe case is fixed. If there is a verdict of acquittal, it is generally agreed that be cannot be put upon bis trial again for tbe same offense. And why ? Because it contradicts tbe direct language of this maxim of the common law. He would again be put in jeopardy of bis life. And bow does tbe case at all differ in principle in tbe case of conviction? Tbe fact is tbe same. He is again put in jeopardy of his life. He is again to be tried and acquitted or convicted. If it be
Thus, it will be perceived, that the conclusion to which the learned justice arrived was, that the court possessed neither power to set aside the verdict nor to grant a new trial; that the verdict of the jury was final; but if errors should intervene in the progress of the trial, he was of opinion that the prisoner would not be without redress, because he could apply to the executive for a pardon or mitigation of the sentence. But this opinion of Mr. Justice Story has come under review on frequent occasions in both the Federal and State courts, and we have been unable to find a single concurring opinion; but, on the contrary, find many opposed thereto. In the case of The People v. Morrison (1 Parker’s Or. R. 626), in which Mr. Justice Harris ably discusses the question of the power of the court to set aside a verdict and to grant a new trial, and referring to the opinion of Mr. Justice Story, he says: “Indeed, upon constitutional construction, Mr. Justice Story stands alone. Not a judge of any court in the United States has been found to concur in his views.”
In the case of The United States v. Harding (Wallace, Jr., 127), where three defendants had been jointly indicted for murder, and one had been convicted of murder and the other two of manslaughter, they all joined in an application for a new trial, which was granted, although the effect was again to expose them all to a conviction for murder. Kane, district judge, delivered the opinion of the court, in which Mr. Justice Grier, of the Supreme Court of the United States, concurred. In referring to the opinion of Mr. Justice Story on the question involved, he said: “I am aware that one of the most eminent of our jurists has found an inhibition in the Constitution against the grant of new trials in cases involving jeopardy. But I cannot realize the cor
So, also, in tbe case of The United States v. Keen (1 McLean, 429), Mr. Justice McLean, of tbe Supreme Court of tbe United States, emphatically repudiated tbe constitutional construction for wbicb Mr. Justice Story contended. “In favor of life,”be says, “presumptions arise wbicb seem to relax, and in fact sometimes do relax, tbe rigor of tbe law. But in tbe construction of tbe Constitution contended for, this maxim is reversed. Tbe prisoner is found guilty by tbe jury, and, whether right or wrong, be must stand convicted. He claims, under tbe Constitution, a fair and impartial trial, and be shows gross prejudices against bim by tbe jury who have convicted bim on testimony wholly insufficient; but be is answered that tbe Constitution protects bim from being put in jeopardy a second time for tbe same offense, and that a new trial would violate this provision. In other words, tbe Constitution guarantees to bim tbe right of being bung, to protect bim from tbe danger of a second trial. Whatever may be said theoretically of this constitutional protection, practically tbe subject of it can have no very strong reason to appreciate it.”
It will be observed that in each of tbe cases above cited, tbe opinion of Justice Story was urged as an authority against tbe prisoner’s right to set aside tbe verdict, as well as against bis right to a new trial. And, indeed, it is difficult to perceive bow, in a case of a conviction of a capital offense, it could ever be applied to tbe prisoner’s advantage,
We do not deem it necessary to refer, in detail, to the other cases cited by counsel, because the facts upon which the decisions rest do not exist in the case under consideration; and, in our opinion, they required an entirely different application of the constitutional provision involved. With the exception of The People v. Webb, the cases cited relate to causes in which the defendant had been put upon his trial, and, without his consent, the jury were discharged before they had rendered a verdict. For the purposes of this cáse it may be conceded that, as a general rule, when the jury has been sworn, and the prisoner has been put upon his trial, and the jury are discharged without his consent, before rendering a verdict, that he cannot be tried again; though there are exceptions to the rule based upon urgent necessity. In the case of The People v. Webb, the defendant was tried and acquitted by the jury, and also discharged by the judgment of the court. The People having appealed, the court, following the almost universal current of authority 'both in England and in the United States, decided that the defendant having been once acquitted by the jury, he could not be held to answer again for the same offense, no matter by what mistakes or errors of the court, jury or prosecution the acquittal was obtained; and the court also decided that the statute giving the right of appeal to the people, in criminal cases, must be confined to such cases in which errors in the proceedings may occur before legal jeopardy has attached to the accused. We see no analogy between the cases cited by counsel and the one at bar. No case is cited where the verdict of guilty having been set aside, at tbe instance of the defendant, it has been .held to bar another trial.
It was, however, suggested at the argument, that even if
The judgment is reversed, the verdict set aside, and a new trial ordered.