State v. Huber , 8 Kan. 447 ( 1871 )

The opinion of the court was delivered by

Yauentine, J.:

The defendant Frank C. Iiuber was charged with murder in the first degree. He was tried, found guilty, and a warrant was entered upon the journal ordering that he should suffer death by being hanged. He now appeals to this court.

l. verdict must o? guutflesiee Murder in the first degree is the highest degree of the offense of felonious homicide and includes within itself every other degree of that offense. Upon an information or indictment charging murder in the first degree the defendant may be found guilty of any degree of felonious homicide — of murder in the first degree, or murder in the second degree, or of any one of the four different degrees of manslaughter. Our statute requires that “ upon the trial of any indictment or information for any offense whereby by law there may be conviction of different degrees of such offense,the jury, if they convict the defendant, shall specify in their verdict of what degree of the offense they find the defendant guilty.” (Grim. Code, § 239.) The verdict of the jury in this case was as follows: “We the jury find the defendant guilty in manner and form as he is charged in the information.” The verdict does not specify of what degree of the offense of felonious homicide the jury found the defendant guilty. The court of course erred in receiving such a verdict. It should have required the jury to so amend their verdict as to show of what degree of the offense they found the defendant guilty.

a. objections to v¿Mictf°y ° Afterward the defendant moved for a new trial but the court overruled the motion. Here again the court erred. It should have sustained the motion and granted the new trial. The defendant cannot be executed under a sentence founded upon such a defective verdict. This has already been settled in this court in the case of The State v. Reddick, 7 Kas., 143, 154. That decision was founded not only upon the statutes of this state but also upon the almost if not entirely the unbroken current of decisions in this country. For the authorities we refer to that ease. The defendant did not except to the ruling of the court overruling the motion for a new trial; nor did he object to the sufficiency of said verdict in any manner except by his motion for a new trial. This court however decides that notwithstanding the want of said exception or other objection as aforementioned, the defendant is not deprived of his right to appeal to this court and to now raise the question of the sufficiency of said verdict. The case of Cobia v. The State, 16 Ala., 781, is directly in point.

3. charge to be m wntmg. 4. Formal juagonteréa. The defendant raises two other questions: First, he claims that the court below did not charge the jury in writing. If this is true, and it seems to be true from the record, 0£ courge the eom.t erred in this respect. (Grim. Code, § 236.) Second, the defendant also claims that no judgment was ever rendered in the case. This seems also to be true. In that part of the record where we would expect to find the judgment, there is a warrant or order to the sheriff; signed by the judge of the court below, reciting that the defendant “had been sentenced by the court to be hanged,” and then ordering the sheriff to hang the defendant. A formal judgment should have been rendered. But whether we consider said order to the sheriff a judgment, or a warrant, or an order, still the same must be reversed.

The cause will be remanded with the order that a new trial be granted, and such further proceedings taken thereon as required by law.

All the Justices concurring.