Ex parte Booth

• Decision Date: 09 February 1916
• Docket Number: 2215.
• Citation: 154 P. 933,39 Nev. 183
• Parties: EX PARTE BOOTH.
• Court: Nevada Supreme Court

154 P. 933

39 Nev. 183

EX PARTE BOOTH.

No. 2215.

Supreme Court of Nevada

February 9, 1916

Original application by W. W. Booth for a writ of habeas corpus. Writ denied.

Milton Detch, of Goldfield, and Platt & Sanford, of Carson City, for petitioner.

Geo. B Thatcher, Atty. Gen., and J. A. Sanders, Dist. Atty., of Tonopah, for respondent.

NORCROSS C.J.

This is an original proceeding in habeas corpus presenting but one question, to wit, the jurisdiction of the court below to render the particular judgment upon which petitioner was sentenced to be confined in the county jail of Nye county.

Petitioner was proceeded against for the crime of libel under the provisions of section 163 of the Crimes and Punishments Act (Rev. Laws, § 6428), as amended by Stats. 1915, p. 423. So much of the section as involves the question presented in this proceeding reads:

"A libel is a malicious defamation. * * * Every person, * * * convicted of the offense, shall be fined in a sum not exceeding five thousand dollars, or imprisonment in the county jail not exceeding one year, or in the state prison not exceeding five years. In all prosecutions for libel * * * the jury shall have the right to determine the law and the fact."

The trial resulted in a verdict of the jury in the following form:

"We, the jury in the above-entitled cause, find the defendant, W. W. Booth, guilty of a gross misdemeanor."

Judgment was entered upon the verdict, reciting, among other matters, that the verdict of the jury found the defendant "guilty of a gross misdemeanor, to wit, libel as charged in said information."

No attack is made upon the form of the judgment. It is the contention of counsel for petitioner that the judgment is not responsive to the verdict; that the verdict upon its face shows that defendant was not convicted of an offense embraced in the charge alleged in the information, and hence the court was without jurisdiction to enter judgment thereon.

It is the contention of counsel for respondent in this case that the section of our statute defining and punishing libel, by the provisions relating to punishments which may be imposed, subdivides libel into two grades or degrees, one of which is made a felony, and the other of which is made a gross misdemeanor; that it was within the province of the jury to determine the grade or degree of offense; and that the language of the verdict, when read in connection with the information and in the light of statutory provisions, was entirely proper.

It is a well-settled proposition of law that in a criminal case tried by jury the judgment must follow and be supported by the verdict; in other words, that if the verdict of the jury is not such as is determinative of the issues made by the plea of not guilty, it is a void verdict, and the court has no jurisdiction to enter judgment thereon. If a verdict of a jury finds a defendant guilty of an offense other than that charged in the indictment, it is clearly void, and a judgment based thereon is likewise void. The cases of Ex parte Dela, 25 Nev. 346, 60 P. 217, 83 Am. St. Rep. 603, Ex parte Harris, 8 Okl. Cr. 397, 128 P. 156, and Mai v. People, 224 Ill. 414, 79 N.E. 633, cited by counsel for petitioner, are based on this principle of law.

By section 366 of the Criminal Practice Act (Rev. Laws, § 7216) it is provided that:

"A verdict upon a plea of not guilty shall be either 'guilty' or 'not guilty,' which imports a conviction or acquittal of the offense charged in the indictment."

By section 368 (Rev. Laws, § 7218) it is provided:

"Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty."

See, also, Rev. Laws, § 7244.

By section 371 (Rev. Laws, § 7221) it is, among other things, provided:

"If the jury render an informal verdict, the court may direct them to reconsider it, and it shall not be recorded until it is rendered in some form from which it can be clearly understood what the intent of the jury is."

By section 372 (Rev. Laws, § 7222) it is, among other things, provided:

"But no judgment of conviction can be given unless the jury find expressly against the defendant upon the issue."

It will be seen from the statute above quoted that a verdict finding a defendant "guilty," without more, is sufficient, unless the crime charged is distinguished into degrees when the degree of guilt must be found also. When such a verdict is returned, the jury may be said to have found expressly against the defendant upon the issue. It is not necessary under the statute that a verdict to be sufficient should specify the crime charged, no more than it is necessary for a defendant to specify the crime charged when entering a plea of "guilty" or "not guilty." Rev. Laws, §§ 7106, 7107, 7216. A verdict of "guilty," says the statute (Rev. Laws, § 7216), "imports a conviction or acquittal of the offense charged in the indictment."

In determining the effect of the words "of a gross misdemeanor" following the word "guilty" in the verdict it will be necessary to determine the nature of the crime of libel. It is one of the few crimes to be found in our statutes which may be punished either as a felony or as a gross misdemeanor.

In the case of State v. McCormick, 14 Nev. 347, this court dismissed an appeal from a judgment imposing a jail sentence upon the ground that this court had no jurisdiction upon an appeal in a criminal case unless the same amounted to a felony. The statute under which the defendant was convicted in the McCormick Case provided that upon conviction the defendant should "be punished by fine not exceeding one thousand dollars, or by imprisonment not exceeding two years, or by both such fine and imprisonment, as the court shall adjudge, and, if such imprisonment shall be for a period exceeding six months, the same shall be in the state's prison." St. 1879, p. 121. Referring to the provisions of this statute, this court, speaking through Hawley, J., said:

"The charge in the indictment is of a felony; but under the provisions of the statute the offense may be punished either as a felony or a misdemeanor. The Attorney General contends that the punishment inflicted by the court determines the grade of the offense. People v. Cornell, 16 Cal. 187, and People v. Apgar, 35 Cal. 389, are cited in support of this position. The principles decided and the conclusion reached in these cases authorize the dismissal of the appeal herein. * * *

If punished as a felony, that is the 'offense charged,' from which an appeal may be taken. If punished as a misdemeanor, that is the 'offense charged,' and an appeal will not lie."

The doctrine of the McCormick Case was again affirmed by this court in State v. Quinn, 16 Nev. 89. In the case of People v. Cornell, 16 Cal. 187, cited by this court in the McCormick Case, the Supreme Court of California uses this expression:

"In other words, this sort of assault is a felony or misdemeanor, according to the facts, and we must take the judgment of the court affixing the punishment as determining the class to which the particular offense charged belongs."

The Apgar Case, in 35 Cal. 389, cited supra, affirms the decision of the court in People v. Cornell, supra.

In the case of Gandy v. State, 10 Neb. 243, 4 N.W. 1019, the Supreme Court of Nebraska also adopted the rule in the Cornell Case. The court in the Gandy Case, among other things, said:

"Besides, if it were intended by section 5441 to enable the court, in affixing the punishment for a given offense, in its discretion to consider it either as a felony or as a mere misdemeanor, then we think the rule adopted by the Supreme Court * * * in the case of People v. Cornell, 16 Cal. 187, should be applied, viz.: That the punishment actually inflicted must determine the grade of that offense. This rule certainly has the merit of being both just and humane."

In the Gandy Case the Nebraska court was considering the question whether a defendant convicted of an offense punishable both as a felony and as a misdemeanor, the judgment entered being as for a misdemeanor, could be said to have lost his civil rights which follows upon conviction for a felony. The court held in the Gandy Case that such civil rights were not forfeited.

It is contended by counsel for petitioner that the McCormick and Quinn Cases have no bearing upon the question of the jurisdiction of the court to pass sentence upon the verdict rendered in the case at bar. It is true that those cases were determining the ultimate question of the jurisdiction of this court under the constitutional provisions limiting the right of appeal to this court to cases of felony. But, in order to hold this court to be without such jurisdiction, it was necessary to hold as a preliminary proposition that the respective statutes "charged" two grades of offenses. The language of the California court in the Cornell Case was also quoted with approval to the effect that the respective crime charged was "according to the facts." We think there is no other construction to be placed upon these decisions than a holding that in a crime providing for punishments of the character prescribed in our libel statute an indictment or information charges two grades of the same offense, one a felony, and one a gross misdemeanor.

Relative to the contention of counsel for the state that libel is distinguished into degrees, little authority can be found. Cyc. says:

"In criminal law the term [degree] denotes a particular grade of crime more or less culpable than another grade of the same offense." 13 Cyc. 766, citing Rapalje & L. L. Dict.

The courts seem never to have had occasion to consider whether a statute like the one in question...