State v. Le Duc , 89 Mont. 545 ( 1931 )

As stated in the majority opinion, on motion for rehearing, I do not subscribe to the views therein stated on the point considered. Let it be assumed that the real question is, did the defendant have a fair trial?

It must be conceded that if the record presents no reversible error, then the defendant did have a fair trial. If he did not have a fair trial it must be because of error. The province of this court is to consider assignments of error. If prejudicial error appears the judgment must be reversed. If not, it must be affirmed. The fallacy of the majority opinion on rehearing is in assuming that it is the function of this court to take a vote on the question whether defendant had a fair trial or whether he should be granted a new trial as a distinct issue separate and apart from other considerations. A new trial is not warranted unless error is found. That this is so is made clear by our statute. So far as applicable here, the command of the statute is that the court may grant a new trial in the following casesonly: "When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial." (Subd. 5, sec. 12048, Rev. Codes 1921.) Obviously, unless one of these grounds is established here — none others being involved — a new trial is not warranted.

It is my view that the court erred to the prejudice of defendant in instructing the jury on murder in the second degree. But the other four Justices say that the court properly instructed the jury on that point. Hence, the judgment of this court is that the jury was properly instructed. Chief Justice Callaway and Mr. Justice Galen are of the view that the court erred in the decision of questions of law arising during the course of the trial. But the other three Justices say there was no error in this respect. Hence, a majority of the court is of the view that neither one of the conditions specified in subdivision 5, section 12048, as ground for a new trial, exists here. The majority which is necessary to pronounce a decision (Const., Art. VIII, sec. 5) has held that no error was committed by the trial court. This being so, how can it be said that the defendant did not have a fair trial, or on what logical basis is he entitled to a new trial?

In principle, I see no difference between the question as presented here and a case involving the constitutionality of a statute on, let us say, three distinct grounds. Let us assume that one Justice thinks it violates a certain section of the Constitution. Another Justice thinks it violates another section, and a third Justice thinks it conflicts with still another section. Four of the Justices determine that the statute is not in conflict with any constitutional provision. Yet, if the majority opinion here is sound, then the statute must be condemned because a majority of the Justices of the court, each relying on a separate section of the Constitution, think it is bad. Such a conclusion would be unwarranted and indefensible, whether it involved property rights or the rights of one accused of crime. As a legal question I see no difference between the two classes of cases. The fact that defendant was given a severe sentence is no cause for granting a new trial unless error was committed from which that sentence followed.

The majority opinion lays much stress upon the fact that the opinion of the Wisconsin supreme court in the case of In reMcNaughton's Will, 138 Wis. 179, 118 N.W. 997, followed a dissenting opinion in the Mississippi case and apparently attaches but little importance to the reasoning upon which it is based. The question was given careful consideration by the supreme court of Wisconsin, not alone in its first opinion, but again on rehearing (In re McNaughton's Will, 138 Wis. 179,120 N.W. 288), where the authorities were thoroughly canvassed. The conclusion was adhered to in the later cases of Grogan v.Wisconsin Sugar Co., 156 Wis. 406, 146 N.W. 491, and Harland v. Wisconsin Sugar Co., 156 Wis. 407, 146 N.W. 492. In my opinion, the soundness of the decisions of the Wisconsin court is beyond question.

I agree with the views, also, of Mr. Justice Ethridge, concurred in by Mr. Justice Cook, in the dissenting opinion in the case of Aetna Ins. Co. v. Robertson, 131 Miss. 343, 506,94 So. 7, where it was said: "If the entering of the judgment may be assigned for error and every separate and distinct reason which could be urged against the legality of the judgment can be voted separately by each judge for the purpose of procuring a reversal, it may easily follow that a trial judge would be reversed even though on every single specific proposition relied on for error five judges might agree that he was right and only one judge agree that he was wrong. Suppose there were six instructions assigned for error, each of which, if well taken, would reverse the judgment. On No. 1 I would vote to reverse, we will say, and the other five judges vote to affirm. On No. 2 Judge Cook would vote to reverse and the other five judges to affirm. On No. 3 Judge Sykes would vote to reverse and the other five judges vote to affirm. On No. 4 Judge Anderson would vote to reverse and the other five judges vote to affirm. On No. 5 Judge Holden would vote to reverse and the other five judges vote to affirm. On No. 6 Judge Smith would vote to reverse and the other five judges vote to affirm. And on a general vote as to whether the judgment should be reversed, all should vote unanimously for reversal — we would have the anomalous situation of a chancellor being reversed though five out of six judges agreed he was right on every single proposition put up to him. With due deference that is not the action of the court, but is the act of each judge placing himself without the pale of the law and voting arbitrarily his views, enforcing a reversal on the basis of adding minorities when the majority of the court thinks the judgment ought to be affirmed on each specific proposition. * * * If a minority can unite and by sheer personal force enter a judgment not sanctioned by the law previously declared, what certainty can there be in courts or legal proceedings. A judge may rightfully challenge any decision of the court which he thinks unsound in the conference room and urge his fellows to join with him in overruling it, but unless it is overruled it ought to be binding upon him and ought to control his vote. To refuse to vote in accordance with the law as previously announced by the court, when the court will not overrule its decision, is nothing more nor less than the judge placing himself in rebellion against the law. Judges are selected for the purpose of enforcing and declaring the law as it exists, with the right, whenever the court as a court decides that a decision is wrong and mischievous, to overrule it and declare that to be the law which a majority of the judges decide is the law, but they have no right to disregard the law. A judge of this court is one of the highest judicial officers of the state, at the head of one of the great departments of the state, and above all men ought to conform to and obey the law. * * * I cannot conceive of how we can properly travel under the rule that minorities may unite and control the majorities, or that the judges of this court can refuse to follow the law announced in its decisions when they are unable to overrule them."

The soundness of the Wisconsin cases and the fallacy of those taking the opposite view is emphasized by the turn that this case has taken. Mr. Justice Matthews thinks there was no error committed by the trial court in any respect. At first thought it might seem that he has as much right to stand for a reversal as the writer has to favor an affirmance, the writer being of opinion that error was committed. But upon analysis, it seems to me this assumption is erroneous. I favor affirmance of the judgment, since this court has determined that the court properly instructed the jury, and since every assignment of error has been held by the majority of the Justices to be without merit. I feel bound to yield to the judgment of the majority of the court in so far as it establishes the legal questions at issue, reserving to myself the right only, which I have exercised, of disagreeing and stating my views on the subject. Reason and authority justify my course.

But what legal principle has been established by the dissenting opinions of Justices Callaway, Galen and myself that induces Mr. Justice Matthews to vote for a reversal of the judgment and for granting a new trial? So far as I am aware, the most that any court has ever done on the point here considered is to hold that a uniting of minorities constitutes a majority. I know of no case where any Justice who thinks no error was committed has seen fit to insist upon a reversal of a judgment because three others, constituting a majority, think error was committed but where there was no concurrence upon any single ground for reversal. As this case now stands, it presents this situation: The dissenting opinions of Justices Callaway and Galen are obviously not ground for reversal, standing alone. Hence, if the cause is reversed it must be done for the additional reason that the writer of this opinion dissents from the view entertained by the other Justices, that an instruction on second degree murder was proper. Mr. Justice Matthews, though convinced that there was no error in the record, feels compelled to insist upon a reversal simply because the writer of this opinion thinks error was committed in instructing the jury on second degree murder, coupled with the dissenting opinion on other grounds by Justices Callaway and Galen. In the last analysis his final vote for reversal is based upon my state of mind regarding the propriety of giving an instruction on second degree murder, he himself not agreeing with me on that point. This is the only case that I know of where dissenting opinions have been held to affect the action of a Justice who does not agree with them and thus to control the result of the decision of the court. I think the majority opinion on rehearing attaches too much importance to dissenting opinions. On this feature of the case this case stands without precedent.

In the cases cited in the majority opinion it was a combination of the minorities, each clinging to his separate view, that was held to constitute the majority. In none of the cases cited do we find one where a Justice, who was of the view that the record presented no error, casts the deciding vote for a reversal simply because of the force of dissenting opinions. Also, it should be noted that in some of the cases cited the majority were in accord upon the single ground for reversal but assigned a different reason therefor. Such is not this case.

The conclusion of the majority leads to the absurdity of remanding a case for a new trial where the court has sustained the action of the trial court on every question presented. Upon a retrial the trial court will be justified, if not required, to proceed exactly as before. If the defendant be again convicted of murder in the second degree it must again be remanded for a further repetition of the same proceedings. It seems to me it is not sufficient in disposition of this strikingly strange procedure to suggest that if defendant has not had a fair trial he is entitled to one, where, as here, a majority of the Justices say that there is no merit in any of the several points urged in support of the claim that he has not had a fair trial, and where the court has approved as a standard of fair trial that which he has already had.

I think the conclusion announced on this point in the original opinion promulgated May 4 is correct and should stand.