Bohanan v. State

• Decision Date: 03 September 1885
• Citation: 24 N.W. 390,18 Neb. 57
• Parties: QUIN BOHANAN, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

24 N.W. 390

18 Neb. 57

QUIN BOHANAN, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

September 3, 1885

ERROR to the district court for Otoe county, where the cause was taken on change of venue from Lancaster county. Tried below before POUND, J.

AFFIRMED.

C. E Magoon and O. P. Mason, for plaintiff in error, cited Stuart v. Commonwealth, 28 Gratt. 950. People v Gilmore, 4 Cal. 376. Barnett v. People, 54 Ill. 325. People v. Knapp, 26 Mich. 112. State v. Martin, 30 Wis. 216. Dawson v. State, 65 Ind. 422. Warnock v. State, 6 Tex. App., 450. State v. De Laney, 28 La. Ann., 484. Miller v. State, 58 Ga. 200. Guenther v. People, 24 N.Y. 100. Jones v. State, 13 Tex. 184. State v. Smith, 53 Mo. 139. Johnson v. State, 29 Ark. 31. Cooley Cons. Lim., § 328, and cases cited. 1 Bishop Crim. Law, § 676. 1 Wharton Crim. Law, § 550, and cases cited. State v. Lessing, 16 Minn. 75. State v. Belden, 33 Wis. 120. Brennan v. People, 15 Ill. 517.

William Leese, Attorney General, and J. B. Strode, District Attorney, for the State, cited: State v. Behimer, 20 Ohio St. 572. Jarvis v. State, 19 Id., 585. Leslie v. The State, 18 Id., 394. People v. Keefer, 3 Pac. Rep., 818. State v. McCord, 8 Kan. 232. State v. Tweedy, 11 Iowa 350. Sanders v. The State, 85 Ind. 318. State v. Morris, 1 Blackf., 37. Commonwealth v. Arnold, 6 Crim. Law Mag., 61. Baldwin v. The State, 12 Neb. 64. Cooley Cons. Lim., 327.

OPINION

REESE, J.

The plaintiff in error was indicted by the grand jury of the February term, 1882, of the district court of Lancaster county. There was but one count in the indictment. The crime charged was murder in the first degree. A trial was had at the following May term of court, which resulted in a conviction of murder in the second degree. Plaintiff in error then brought the cause into the supreme court, where the judgment of the district court was reversed and a new trial ordered. See Bohannan v. The State, 15 Neb. 209, 18 N.W. 129. A change of venue was then taken by which the place of trial was removed from Lancaster to Otoe county. On the second trial the jury found him guilty of murder in the first degree. A motion for a new trial was made and overruled, and the court imposed upon him the penalty of death. He now prosecutes error in this court.

Prior to the commencement of the last trial the plaintiff in error filed in the district court a plea of former acquittal of the charge of murder in the first degree. This plea contained a recital of the facts of the previous trial on the same indictment, and the conviction thereon of murder in the second degree and his sentence to the penitentiary for life. To this plea the state made answer, alleging that the plea ought not to be sustained for the reason that on defendant's own motion the verdict and judgment were set aside and a new trial granted. Plaintiff in error demurred to this answer. The demurrer was overruled. The plea was held bad and the first trial held not a bar to a prosecution for murder in the first degree, as charged in the indictment.

During the progress of the trial plaintiff in error requested the court to instruct the jury as follows:

"10. If the jury find from the evidence that at the May term, 1882, of the district court of Lancaster county, in the state of Nebraska, the defendant was tried upon the same indictment upon which he is now being prosecuted, and upon such trial was found guilty of murder in the second degree, and judgment was rendered against him upon such finding, then, as a matter of law, the jury in this case cannot find the defendant guilty of murder in the first degree."

The court refused to give this instruction, but instructed the jury as follows upon that question:

"11. You should not be influenced in the least by any thing that any other jury may have done."

To the refusal to give the first above quoted instruction, and to the giving of the second, plaintiff in error excepted.

By the foregoing it will be seen that the question here presented is, whether or not the verdict of the jury on the first trial, finding plaintiff in error guilty of murder in the second degree, is such an acquittal of the crime of murder in the first degree as would protect and shield plaintiff in error from the danger of a conviction of the higher crime on the second trial--the verdict and judgment having been set aside upon his own motion and request. The question here presented is a new one in this state, and is one of great importance. The question is not new in the sense of its never having decided in other states; but, unfortunately, the decisions of the courts of last resort in other states, upon the question here presented, have not been uniform. The doctrine contended for by plaintiff in error has, to a greater or less extent, been declared by the supreme courts of Virginia, California, Tennessee, Illinois, Michigan, Iowa, Mississippi, Wisconsin, Indiana, Alabama, Texas, Missouri, and Arkansas. It is not deemed necessary to notice the decisions of all those states, as some of them are simply dicta, and some are in cases dissimilar to the one at bar, but we will notice the reasoning in what we deem the leading cases upon the subject.

In The People v. Gilmore, 4 Cal. 376, the accused was indicted for murder. Upon trial the jury rendered a verdict of guilty of manslaughter, which was set aside on the prisoner's motion, and a new trial ordered. On the second arraignment he pleaded a former acquittal. Chief Justice Murray, in writing the opinion of the court, which at that time (1854) consisted of himself and Mr. Justice Heydenfeldt, argues the question at some length and with ability, but to the mind of the writer his deductions are not conclusive. From the opinion I quote as his first proposition as follows: "A conviction for manslaughter is an acquittal of the charge of murder, and the verdict, though general in its terms, must, by legal operation, amount to an acquittal of every higher offense charged in the indictment than the particular one of which the prisoner is found guilty. The reason is obvious; if such were not the case the party after undergoing punishment for manslaughter might be arraigned and tried again for murder, notwithstanding he had been compelled to answer this charge upon the first trial, and the jury had passed upon the same." This is undoubtedly correct so long as the verdict of the jury is allowed to stand. It must be conceded that until the accused himself procures the cancelation of the verdict the judgment must be a complete protection against another prosecution for the same crime. So also would be a verdict of not guilty. But where the prisoner upon his own motion procures a verdict to be set aside, the rule should be otherwise. In support of his conclusion the learned writer cites Hurt v. The State, 25 Miss. 378, and quotes as follows: "The jury in such a case, in contemplation of law, renders two verdicts. The one acquitting him of the higher crime, the other convicting him of the inferior." It is quite difficult for us to adopt this proposition. The verdict in such case must be an entirety. The prisoner stands charged with the unlawful killing of the deceased. He is either guilty or not guilty. If found guilty it is the next duty of the jury to ascertain the magnitude of this guilt. When that is done the verdict of guilty is returned with a finding as to the grade of that guilt. At the time this decision was made the criminal code of California contained the following section: "A new trial is a re-examination of the issue in the same court before another jury after verdict has been given. It places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict can not be used or referred to either in evidence or in argument."

This section was not deemed sufficient to justify the court in putting the prisoner upon his trial for murder but the court combats the power of the legislature to enact such a law by the following: "The constitution of this state has provided that 'no person shall be subject to be twice put in jeopardy for the same offense.' Now, if I am right, that a conviction for manslaughter is an acquittal for murder, it must follow that any law that would compel a party to be re-tried for murder in order to escape the minor offense, thereby putting the party in jeopardy, is in conflict with this provision of the constitution." Thus the learned judge in the discussion of the case goes beyond the rulings of any of the other courts. The supreme courts of Kansas, Indiana, Kentucky, North Carolina, and others, have not hesitated to follow such laws and apply the principle to capital cases. And in California, in a recent decision, the supreme court has, to the mind of the writer, fully overruled the holding in The People v. Gilmore. In The People v. Keefer, reported in 3 P. 818, it is held that "on a plea of former conviction under an indictment for murder, the fact that defendant was convicted of murder in the second degree will not be a bar to a conviction of murder in the first degree on a re-trial." It is insisted that this decision was made under a provision of the statute enacted in 1874, which is as follows: "The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict cannot be used or referred to either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the indictment." It will be observed that in essence this section does not vary materially from the one in force at the time of the decision in The People v. Gilmore. It can do little more than to place ...