People v. Berlin ( 1894 )

MebRitt, Cl J.:

In this cause, an opinion affirming the judgment of the district court was rendered by the late Chief Justice Zane, concurred in by Mr. Justice Bartch, on January 23d of the present year. On January 29th, a dissenting opinion was filed by Mr. Justice Smith. A petition for a rehearing was filed by the appellant, Berlin, which, by the court, was referred to me, who had succeeded Chief Justice Zane. The cause was originally submitted without oral argument, and the district attorney has asked that the matter be finally disposed of on the petition for rehearing. Owing to the peculiar character of the case, and the fact that conflicting opinions have already been filed, I have carefully examined the question presented by the appeal. The whole controversy arises upon the instructions given to the jury. I am fully convinced that the instructions may have misled the jury. The charge was certainly conflicting, as shown in the opinion of Mr. Justice Smith. The great weight of authority is to the effect that, where the charge is conflicting and is erroneous in a material part, the judgment must be reversed. In addition to.the authorities to sustain this in the dissenting opinion of Mr. Justice Smith, I find that no court has gone further than our own. In the case of People v. Hancock, 7 Utah, 180, 25 Pac. 1093, this court, speaking by Justice Miner, jsays: st Where conflicting charges are given, one of which is erroneous, it is to be presumed that the jury may have followed that which is erroneous.” An examination of that case will show that the conflict there under consideration was in the charge relative to the character of the defendant, and not in relation to the circumstances of the charge against'the defendant at all; and yet that case was reversed on account of this conflict. I am of the opinion that a rehearing should be granted, and the decision should be reversed, and the case remanded for a new trial. It is therefore ordered that the former judgment of this court be set aside, and that the judgment of the district court be reversed, and the cause remanded to the court below for a new trial.

SMITH, J. I concur in opinion and order.