In re Application of Cole

• Decision Date: 18 October 1919
• Docket Number: 21206
• Parties: IN RE APPLICATION OF ALSON B. COLE. v. WILLIAM T. FENTON, WARDEN, APPELLEE ALSON B. COLE, APPELLANT,
• Court: Nebraska Supreme Court

174 N.W. 509

103 Neb. 802

IN RE APPLICATION OF ALSON B. COLE.

ALSON B. COLE, APPELLANT, v. WILLIAM T. FENTON, WARDEN, APPELLEE

No. 21206

Supreme Court of Nebraska

October 18, 1919

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.

AFFIRMED.

J. M Priest, for appellant.

Clarence A. Davis, Attorney General, and George W. Ayres, contra.

OPINION

SEDGWICK, J.

This appellant was convicted of murder in the first degree in the district court for Howard county and sentenced to death, and afterwards brought this petition in the district court for Lancaster county for a writ of habeas corpus. The application for the writ was overruled, and he has appealed to this court.

The petitioner first entered a plea of not guilty to the information against him, and after the jury had been impaneled and the trial had begun, he withdrew his plea of not guilty and entered a plea of guilty. The information charged both himself and one Grammer with the crime of murder, the petitioner as the principal and Grammer as accessory before the fact. The trial began as against them both jointly, and after the petitioner had changed his plea to guilty, the trial continued as against them both jointly, without objection on the part of either defendant. When the evidence was introduced as tending to show the degree of the petitioner's guilt, the court informed the jury that they must not consider such evidence as evidence against the defendant Grammer, and so the trial proceeded. The court submitted the question to the jury as to the punishment to be inflicted. The jury found that his punishment should be death, and the court entered judgment against him accordingly.

The General Statutes of 1873, p. 720, defined the crime of murder in the first degree, as follows: "If any person shall purposely, and of deliberate and premeditated malice, or in the perpetration, or attempt to perpetrate any rape, arson, robbery, or burglary, or by administering poison or causing the same to be done, kill another; or, if any person, by wilful and corrupt perjury, or by subornation of the same, shall purposely procure the conviction and execution of any innocent person; every person so offending shall be deemed guilty of murder in the first degree, and, upon conviction thereof, shall suffer death." This was amended in 1893 (Laws 1893, ch. 44, Rev. St. 1913, sec. 8581) by adding the words, "or shall be imprisoned in the penitentiary during life, in the discretion of the jury." But section 489 of the Criminal Code (Gen. St. 1873, p. 830), as follows: "That in all trials for murder, the jury, before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict, whether it be murder in the first or second degree, or manslaughter; and if such person be convicted by confession, in open court, the court shall proceed by examination of witnesses, in open court, to determine the degree of the crime, and shall pronounce sentence accordingly"--was not changed, and is now section 9130, Rev. St. 1913. The words added to the section defining the crime of murder, "or shall be imprisoned in the penitentiary during life, in the discretion of the jury," assume that, even in murder of the first degree, the circumstances may be such that the death penalty should not be inflicted, and this is the only authority in our law for substituting imprisonment for life for the death penalty. The duty of the court to determine the degree of the crime if the conviction is "by confession, in open court," has not been changed, and it is argued that the lawmakers intended that the court should also in such case determine whether the convict "shall suffer death or shall be imprisoned in the penitentiary during life," by the words, "and shall pronounce sentence accordingly," which were left unchanged when the new provision as to punishment for first degree murder was introduced into our law in 1893; that is, that the court should have determined, not only the degree of the crime, but also the penalty, instead of submitting that question to the jury, and that the judgment of conviction against the petitioner was therefore void. The provisions of the statute are not as clear as they might be in such case. When a defendant pleads guilty to an information charging murder in the first degree, he is not required, nor even allowed, himself, to determine the degree of the crime, since under such an information he might be convicted of murder of either degree or of manslaughter. The provision, then, that the court upon conviction by confession should determine from the evidence the degree of the crime was appropriate and necessary. It seems to be contended that to determine the degree of the crime involved the determination of the punishment for the crime when the degree has been determined, but this is a mistake. The two matters are entirely distinct; and, while one might expect that when upon a plea of guilty the court determines the degree of the crime, the court might also be required to determine the punishment, still the degree of the crime might be fixed by the court, and the question of the punishment, whether by death or life imprisonment, be submitted to the jury.

If the attention of the legislature is called to the inconsistencies of these statutes, undoubtedly the law...