119 P. 346 | Or. | 1911
delivered the opinion of the court.
Our statute, making provisions for trials in criminal actions as to the verdict, is in effect, as follows:
■ “The jury may either find a general verdict, or where they are in doubt as to the legal effect of the facts proven, they may find a special verdict.” Section 1546, L. O. L. “A general verdict upon a plea of not guilty, is either ‘guilty’ or ‘not guilty’ which imports a conviction or acquittal of the crime charged in the indictment.” Section 1547, L. O. L. “A special verdict is one by which the jury finds the facts only, leaving the judgment to the court. It must present the conclusions of fact, as established by the evidence.” Section 1548-, L. O. L. “The special verdict must be reduced to writing by the jury, or in their presence, under the direction of the court, and agreed to by them, before they are discharged. It need not be in any particular form, but is sufficient if it present intelligibly the facts found by the jury.” Section 1549, L. O. L. “In all cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit such crime.” Section 1552, L. O. L. “When there is a verdict found, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict; but if after such reconsideration they find the same verdict, it must be received.” Section 1554, L. O. L.
The section of our statute which is especially applicable in determining whether or not a verdict is in legal form and should be received is as follows:
“If the jury find a verdict which is neither a general nor a special verdict, as defined in Sections 1547 and 1548, the court may, with proper instructions as to the law, direct them to reconsider it; and the verdict cannot be received until it be given in some (form) from which it can be clearly understood what is the intent of the jury, whether to render a general verdict or to find the facts specially, and to leave the judgment -to the court.” Section 155, L. O. L.
Sections 1897 to 1902, inclusive, L. O. L., define the crime of manslaughter; Section 1897, L. O. L., as follows:
“If any person shall without malice, express or implied, and without deliberation, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible, voluntarily kill another such person shall be deemed guilty of manslaughter.”
And Section 1898, L. O. L., in these words:
“If any person shall, in the commission of an unlawful act, or a lawful act without due caution or circumspection, involuntarily kill another, such person shall be deemed guilty of manslaughter.”
Section 1905, L. O. L., makes the only provision for the punishment of such crime, to-wit:
“Every person convicted of manslaughter shall be punished by imprisonment in the penitentiary not less than one nor more than fifteen years, and by a fine not exceeding $5,000.”
Mr. Bishop says:
“The language of the verdict, being that of ‘lay people,’ need not follow the strict rules of pleading, or*94 be otherwise technical. Whatever conveys the idea to the common understanding will suffice. And all fair intendments will be made to support it.” 1 Bishop’s New Criminal Procedure, § 1005.
We find in the notes to the case of People v. Sullivan, (N. Y.) 63 L. R. A. 353, on page 404, that it has been held that it is competent and proper for the jury in a prosecution for murder to negative the proposition that the defendant intended to kill the decedent; and a verdict that he did not design or intend the death of the decedent, but he unlawfully killed him while engaged in the commission of some felony, is proper, and constitutes a verdict of murder in the third degree, under Wis. Rev. Stat. c. 164, §§ 1, 2, citing State v. Hammond, 35 Wis. 315. And a conviction for involuntary manslaughter in the commission of an unlawful act may be had under an indictment charging voluntary manslaughter, citing Isham v. State, 38 Ala. 213.
Where a verdict was of manslaughter in the second degree, no such degree of manslaughter being specified by the statute, a conviction for manslaughter was sustained; the words relating to the degree being rejected as surplusage. 1 McClain, Criminal Law, § 392.
What, then, is the meaning of this verdict of the jury, finding the defendant guilty of involuntary manslaughter? Mr. Wharton defines the crime as follows:
“Involuntary manslaughter- is where one doing an unlawful act, not felonious or tending to great bodily harm, or doing a lawful act without proper caution or requisite skill, undesignedly kills another. According to the old writers, it is where death results unintentionally, so far as the defendant is concerned, from an unlawful act on his part, not amounting to felony, or from a lawful act negligently performed.” Wharton, Homicide, § 6.
The trial court instructed the jury, as to manslaughter, according to the provisions of Sections 1897 and 1902, L. O. L., and in addition thereto in part as follows: -
“A homicide is manslaughter, even though committed in doing an act lawful in itself, if the defendant was guilty of gross or culpable negligence, and such negligence was the cause of the death.”
Mr. Justice Moore, in discussing a kindred question— the description of a crime in an indictment — in the case
In Spriggs v. Commonwealth, 113 Ky. 724 (68 S. W. 1087), it is shown that the statute of that state subdivided the common-law offense of manslaughter by carving out of it the statutory crime of voluntary manslaughter, for which a different penalty was prescribed than for involuntary manslaughter; the latter being dealt with as a common-law offense. The jury, in rendering its verdict, swung the pendulum the other way from that in the case now under consideration, and found defendant guilty of manslaughter, without designating whether voluntary or involuntary, as they should have done under the law in that state. In that case, as in this, counsel for defendant asked for his discharge, and did not ask for a new trial. The court, while clearly of the opinion there was prejudicial error in the instructions, said: “Technical rules must exist, and must be applied in cases which come literally, and logically within their scope. . What we decide is that
Counsel for defendant cites the case of State v. Stephanus, 53 Or. 135, 141 (99 Pac. 428), where the jury submitted a verdict for what was assumed to be another offense, which had no legal status, differing from the case at bar, which clearly describes a crime included in the indictment, as well as in the statute. Our statute, it will be seen, defines both voluntary and involuntary manslaughter. The one is no lower degree of crime than the other. They are designated under the one name of manslaughter, and the statute provides the same penalty therefor. While it is unnecessary for the jury to specify in their verdict the particular kind of manslaughter defendant is guilty of, we do not think that such specification renders the verdict uncertain, or the judgment void. The word “involuntary” in the verdict, from a legal standpoint, adds nothing thereto, and detracts nothing from the meaning thereof. It might with propriety be claimed that this verdict verges
There was no error in overruling the motion to discharge the defendant, and the judgment of the lower court should be affirmed, and it is so ordered.
Affirmed.