State v. Symes
50 P. 487
Wash.
1897
Check Treatment

The opinion of the court was delivered by

Gordon, J.

The defendant was charged with the offense of murder in the first degree and upon the trial the following verdict was rendered:

“ We, the jury [in the above entitled cause], find the above named defendant [Alfred J. Symes] guilty of murder in the first degree.
“ D. Buchanan, Boreman.”

The legal sufficiency of the information is not questioned. Upon his motion for a new trial below, and in his brief ‍​​​​​​‌‌​​‌‌‌​‌‌‌​​‌‌‌​‌​‌​​​‌​‌‌​​‌‌‌​‌‌​‌​​‌‌​‍in this court, numerous errors in the proceedings of the trial court were and are assigned by the appellant. *597The disposition which we have concluded must be made of the case renders it unnecessary that many of the errors assigned should be considered, as an examinatiоn of them convinces us that they pertain to questions not likely to arise upon a new trial. Among othеr grounds in support of a motion for a new trial, it was urged that the verdict was contrary to the evidence, and upon consideration of the motion the trial court entered an order from which we quote the following:

“And it appearing to the court that said verdict is contrary to law and evidencе in so far as it finds said defendant guilty of a higher grade of crime than murder in the second degree, but ought to stаnd with the force and effect of a verdict of guilty of murder in the second, degree; now thereforе; it is considered and adjudged by the court that the said defendant upon the said verdict is guilty of the crime of murder in the second degree,” etc.

Thereupon the court proceeded to judgment and sеntence accordingly, and from such judgment, ‍​​​​​​‌‌​​‌‌‌​‌‌‌​​‌‌‌​‌​‌​​​‌​‌‌​​‌‌‌​‌‌​‌​​‌‌​‍which was rendered on the 3d day of January, 1896, the defendant' hаs appealed.

On December 15, 1896, the state also served and filed a written notice of aрpeal. We think we are without jurisdiction to entertain the appeal upon the part of the state, for the reason that notice was not given until after the time fixed by the statute in which an appeal is permitted to be taken. The last clause of section 1 of the act of March 11, 1895 (Session Lаws, p. 82), is as follows:

“In criminal causes anoappeal must be taken within ‍​​​​​​‌‌​​‌‌‌​‌‌‌​​‌‌‌​‌​‌​​​‌​‌‌​​‌‌‌​‌‌​‌​​‌‌​‍ninety days after the entry of finаl judgment.”

Coming now to the consideration of the main question urged by the defendant, we are of the oрinion that the court exceeded its authority in entering judgment finding the defendant guilty of murder in the second degree upon *598the verdict rendered by the jury. The case here is not one where the court below hаs rendered an erroneous judgment upon a verdict which it has permitted to stand. If it were such a one we doubt not that it would be proper to direct that court to proceed to judgment upon thе verdict in accordance with the requirements of law, but in the present case it was the province of the lower court to determine, upon the motion for a new trial, whether the evidence was legally sufficient to sustain the verdict, and this determination involved the exercise of a discretion which will not be disturbed here when the record shows a substantial conflict in the testimony. Rotting v. Cleman, 12 Wash. 615 (41 Pac. 907); Rinehart v. Watson, 11 Wash. 526 (40 Pac. 127); Corbitt v. Harrington, 14 Wash. 197 (44 Pac. 132).

The fact that the triаl court found that the verdict of murder in the first degree was contrary to the evidence precludes us from remanding the cause with directions to render judgment in conformity with the verdict, notwithstanding our opinion thаt the evidence was legally sufficient to sustain the verdict, because its legal sufficiency ‍​​​​​​‌‌​​‌‌‌​‌‌‌​​‌‌‌​‌​‌​​​‌​‌‌​​‌‌‌​‌‌​‌​​‌‌​‍becаme a question which the law committed to the discretion of the trial judge and that discretion is not reviewable here in the present case in which the state does not appear as a party appealing. The learned trial judge was of the opinion that the judgment herein was in accоrd with the decisions of this court in Blanton v. State, 1 Wash. 265 (24 Pac. 439); State v. So Ho Ge, 1 Wash. 275 (24 Pac. 442), and State v. Freidrich, 4 Wash. 204 (29 Pac. 1055). The question involved in Blanton v. State, supra, and State v. So Ho Ge, supra, was one of pleading, and the disposition made of those casеs rested upon an entirely different principle from that involved in this case. The case of State v. Freidrich, supra, in*599volvеd a construction of § 1429, vol. 2, Hill’s Code, which section relates solely to the power and authority of this court in disposing of cases upon appeal. We are unanimously of the opinion that thе present judgment cannot be sustained upon the authority of that case. Under § 1319, 2 Hill’s Code, it is the provinсe of the jury to determine from the evidence the degree of a defendant’s guilt, and for the trial court to ignore such verdict and substitute its own finding therefor constitutes an invasion of the province of thе jury not warranted by any provision of our law. Whether, upon principle or under the statute, the power resides in the appellate court to direct judgment to be entered for a lesser degree of the offense than that found by the jury is not a question necessary to be determined in this case. In State v. Freidrich, supra, thе court as then constituted concluded that ‍​​​​​​‌‌​​‌‌‌​‌‌‌​​‌‌‌​‌​‌​​​‌​‌‌​​‌‌‌​‌‌​‌​​‌‌​‍the power was vested by virtue of § 1429, supra. Thé present contrоversy does not present any question involved in State v. Freidrich, and our conclusion is that, having found the evidence insufficient to support the verdict as rendered, it was the duty of the lower court to have awarded a new trial, and for that purpose the judgment will be reversed and the cause remanded.

Scott, O. J., and Anders, Dunbar and Heavis, JJ., concur.