State v. Tweedy

Wrigiit, J.

The points relied upon by counsel to reverse this case will bo noticed in their order.

The defendant asked the court to instruct tho jury, “That inasmuch as lie has once been tried and acquitted of murder in the second degree, he can only now be tried for manslaughter, and tho jury can only consider this case as a charge of manslaughter;” which instruction was refused.

The question here made involves an inquiry into the effect of the first verdict and tho subsequent reversal of the judgment thereon. For the defendant it is claimed that the legal effect of the first verdict was a finding of “ not guilty ” as to the crime of murder in the second degree, and that he could not again be put upon his trial therefor. This is denied by the State, it being further insisted, however, that as defendant was on the second trial found guilty: of manslaughter, the refusal worked him no prejudice, and he can not therefore complain.

Our law provides that in criminal cases, the defendant may be found guilty of any offense, the commission- of which is necessarily included in that with which he is charged in the indictment. (Code, section 3039.) Under this indictment, therefore, the jury could properly find the prisoner guilty of manslaughter. This was the finding on the first trial, but the verdict was silent as to the charge made. On a second trial could he be tried for murder in the second degree ?

Upon this subject the authorities are not uniform; but we arc inclined to the opinion, and so hold, that upon principle, as well as the weight of authority, he could not be thus tried.

The language of our constitution (sections 12, Art. 1,) is, “No person shall, .after acquittal, be tried for the same offense.” If after a verdict of manslaughter, under 'an indictment for murder in the second degree, the prisoner can be again tried for the higher offense, we do not see why this would not be trying him for an offense of which he had been acquitted. To this, it is no satisfactory answer to say that the verdict was silent and did not acquit him in words of the higher offense. But what, we ask, is its meaning, its import, its effect? What did the jury mean ? Did not the court understand, and did not every reasonable mind understand when that verdict was rendered, that the prisoner was acquitted of the offense of murder in the second degree? Did not the jury so intend and so say by their verdict, just as clearly as if in words they had so expressed it? Suppose the verdict had remained undisturbed, could not the prisoner , have successfully pleaded it in bar of a second prosecution for the same offense? If so, why? Because the verdict in words found him “not guilty”? Certainly not, but because the verdict as found, necessarily and from its very terms, included an acquittal of the higher offense.

When the prisoner moved for a new trial and appealed to this court, he sought to be relieved of a judgment against him of manslaughter. We had no complaint to make that the jury had not convicted him of the offense of murder. If, however, he might properly be subjected to a second trial for murder,, then he is compelled to submit to a verdict which he may deem ever so erroneous, lest by disturbing it, when insisting on his legal rights,.he may place himself again in jeopardy. When a jury has once returned a verdict of “guilty” as to the lower offense, the prisoner should not,in our opinion, be placed in a position of additional hazard by 'attempting to be relieved of the erroneous judgment. It is settled upon authority that if he obtains a new trial he may be again tried for the offense of which he was convicted. It is a very different thing, however,. when it is sought to try him for an offense of which he was not convicted, and which was not necessarily in the verdict of guilty.

In answering the objection on the part of the prosecution,' that a new trial should not be given a prisoner, because he could not, (under the authority of United States v. Gilbert, 2 Sumner 37,)’ be again put in jeopardy, McLean, J., uses the following pointed argument r “ The prisoner is found guilty by the jury, and whether, right or wrong, must stand convicted. He claims under the constitution, a fair and impartial trial, and he shows gross prejudice against him by. the jury, who have convicted on testimony wholly insufficient ; but he is answered that the constitution protects him from being put in jeopardy a second time for the same offense and that a new trial would violate this provision. In other words, the constitution guaranties the right of being hung, to protect him from the danger of a second trial Whatever may be said theoretically of this constitutional protection, practically the subject of it can have no very strong reason to appreciate it.” (United States v. Keen, 1 McLean 489.) So in this case, the rule is not very humane, to say the least of it, which says to the prisoner, you must abide the verdict, however unjust or erroneous, or if you do not we will give you a new trial and re-try you for an offense of which the jury have acquitted you.