99 P. 275 | Ariz. | 1909
The urgency with which appellant contends that the effect of our decision {ante, p. 26, 94 Pac. 1099) is to deprive him of a constitutional right impels us, in denying his motion for rehearing, to add to the statement of our view as to the question of the necessity of a verdict upon the issue of former jeopardy. It must not be overlooked that the issue raised by a plea of former jeopardy is different in its
It is true there are decisions to the contrary. We have not failed to examine them. The constitution compels the submission to the jury of the issue upon the merits, even though the evidence .incontestably demonstrates the defendant’s guilt. The jury can repudiate all the evidence with or without reason, and find the defendant not guilty. The constitution does not compel submission to the uncontrolled judgment of the jury of an issue made by the plea of former jeopardy, unsupported by facts. No constitutional privilege of the defendant is invaded when the court in its instruction directs the jury that it cannot in defiance of the facts decide the issue of former jeopardy in favor of the defendant, nor is any privilege invaded which was recognized at common law. When courts have held that
The law throws ample safeguards around the. defendant in his trial upon the merits of his ease — so ample, indeed, as to leave room for question whether the extreme technical nicety with which all defendants are safeguarded does not to an unreasonable degree pave the way for acquittals of the guilty. It would be unfortunate, indeed, if the appellant must be given another trial six years after his offense has been committed, when the evidence against him is becoming, by sheer lapse of time, more difficult to marshal. There has been disclosed in this case no foundation for even a formal attack upon the fairness of appellant’s trial upon the merits or upon the soundness of the verdict of guilty. No suggestion is made by appellant either that the trial was unfair or that the verdict of guilty is unjust. The record shows his guilt beyond even a captious doubt. This practical consideration could not weigh as as against the want of some step which by law is made essential to a valid judgment, even though, viewed apart from the requirement of the law, it were evident that no substantial injury has been wrought the one convicted. Appellant lays great stress upon certain cases illustrating this. They are Grain v. United States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097, Territory v. Blevins, 4 Ariz. 68, 77 Pac. 616, and Territory v. Brash, 3 Ariz. 141, 32 Pac. 260, in which judgments of conviction were reversed because the accused had entered no pleas, wherefore there had been no
While several decisions are cited to us as adverse to ours, it is significant that in tbe latest decision upon tbe subject to which our attention has been directed tbe supreme court of Washington unanimously reaches tbe same conclusion which we bave reaebed (State v. Williams, 43 Wash. 505, 86 Pac. 847), and1 that tbe latest decision cited as opposed was a decision wherein tbe supreme court of Utah divided by two to one, Mr. Justice McCarty dissenting upon the same line of reasoning which we bave adopted and supporting bis dissent by a strong marshaling of authorities. State v. Creechley, 27 Utah, 142, 75 Pac. 385. Furthermore, an examination of tbe majority opinion reveals stress laid upon an important distinction between that case and this, in that “no disposition was made of” tbe plea of former acquittal “either by tbe court or jury.” Tbe fact that in this case tbe court actually adjudicated tbe issue and instructed tbe jury that the pleas of former acquittal and former jeopardy are not sustained distinguishes this ease from all of tbe California cases, and from nearly all of tbe other eases cited to us in opposition to this feature of our decision.
Tbe motion for rehearing is denied.
