Smith v. United States, 6132.

• Decision Date: 02 February 1931
• Docket Number: No. 6132.,6132.
• Parties: SMITH v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

47 F.2d 518 (1931)

SMITH v. UNITED STATES.

No. 6132.

Circuit Court of Appeals, Ninth Circuit.

February 2, 1931.

Vanderveer, Beardslee & Bassett, George F. Vanderveer, Will G. Beardslee, and Samuel B. Bassett, all of Seattle, Wash., for appellant.

Anthony Savage, U. S. Atty., and Tom De Wolfe and Cameron Sherwood, Asst. U. S. Attys., all of Seattle, Wash.

Before RUDKIN and WILBUR, Circuit Judges, and NORCROSS, District Judge.

RUDKIN, Circuit Judge.

This is an appeal from a judgment of conviction for the crime of rape. It appears from the record that, some time after the submission of the case, the jury returned into court for further instructions as to their duty in fixing the penalty. In response to this request, the court correctly informed them that they, in effect, fixed the punishment, that, if they returned a verdict without the qualifying words, "without capital punishment," the court was bound to sentence the defendant to death, and that, if they qualified their verdict by adding the qualifying words, the court was bound to sentence him to life imprisonment. One of the jurors then inquired what the result would be if they were unable to agree upon the qualifying words, and the court instructed them that, if they agreed upon on a verdict of guilty, but could not agree upon the qualifying words, the verdict would stand as guilty without the qualifying words. The jury thereafter returned a verdict of guilty without qualification, and the appellant was sentenced to death. The last-mentioned instruction was apparently given in the absence of counsel for the accused, and was not excepted to before the retirement of the jury; but, in view of the gravity of the case, we think it is our plain duty to review the instruction without an exception and without an assignment of error. Wiborg v. United States, 163 U. S. 632, 659, 16 S. Ct. 1197, 41 L. Ed. 289; Crawford v. United States, 212 U. S. 183, 29 S. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392; Gazzera v. United States (C. C. A.) 7 F.(2d) 467.

The correctness of the instruction complained of depends on the construction of section 330 of the Criminal Code (18 USCA § 567), which provides:

"In all cases where the accused is found guilty of the crime of murder in the first degree, or rape, the jury may qualify their verdict by adding thereto `without capital punishment'; and whenever the jury shall return a verdict qualified as aforesaid, the person convicted shall be sentenced to imprisonment for life."

The general purpose and effect of the statute was thus declared in Winston v. United States, 172 U. S. 303, 312, 19 S. Ct. 212, 215, 43 L. Ed. 456:

"The right to qualify a verdict of guilty by adding the words `without capital punishment' is thus conferred upon the jury in all cases of murder. The act does not itself prescribe, nor authorize the court to prescribe, any rule defining or circumscribing the exercise of this right, but commits the whole matter of its exercise to the judgment and the consciences of the jury. The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court or the jury is of opinion that there are palliating or mitigating circumstances. But it extends to every case in which, upon a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment. How far considerations of age, sex, ignorance, illness * * * or clemency, or the irrevocableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight in deciding the question whether the accused should or should not be capitally punished, is committed by the act of congress to the sound discretion of the jury, and of the jury alone."

The question now presented for consideration is this: If in the judgment and consciences of, say, eleven jurors, they are of opinion that it would not be just or wise to impose capital punishment in a given case, must they yield their convictions and submit to an unqualified verdict because one recalcitrant juror insists upon the death penalty? This may appear to be an extreme case, but such a contingency is neither impossible nor improbable, if the charge of the court below was correct. We cannot believe that such is the law, or that Congress so intended. Unanimity in a verdict, unless otherwise provided by statute, is one of the incidents and essentials of a jury trial. In a criminal case, this unanimity extends to the question of guilt or innocence, to the degree of the crime, where the offense is divided into different degrees, and to the kind or character of punishment, where that question is left to the determination of the jury. The discretion of the jury is unlimited and unrestricted, and if, in the opinion of one or more of the jurors, it would not be just or wise to impose capital punishment, he, or they, are under no legal obligation to join in a verdict without qualification so long as that opinion remains, and an instruction from the court that such is their duty is erroneous, and, of course, prejudicial.

While the above section was first enacted in 1897, an instruction such as the one now under consideration has never been the subject of review in any of the federal courts, so far as we are advised, and the few adjudications to be found in the state courts are conflicting. In Green v. State, 55 Miss. 454, a similar instruction, given under a somewhat similar statute, was upheld by the Supreme Court of that state, and the decision was reaffirmed by the same court in Fleming v. State, 60 Miss. 434. On the other hand, in People v. Hall, 199 Cal. 451, 249 P. 859, it was held by the Supreme Court, in construing a similar statute, that a verdict finding the defendant guilty of murder in the first degree, but disagreeing as to the punishment, would not support a judgment of death. No doubt, language may be found in earlier California decisions contrary to the views there expressed, but in its latest decision the court declared that the question was not involved in the earlier cases and that the language of the court was obiter. A reference to the earlier cases, such as People v. Welch, 49 Cal. 174; People v. French (Cal. Sup.) 7 P. 822, and People v. French, 69 Cal. 169, 10 P. 378, would seem to bear out this criticism; but it is not for us to attempt a reconciliation. Suffice it to say, we are of opinion that the latest expression of the Supreme Court is the sounder and more humane, and, if there be any doubt about the construction of the statute, that doubt should be resolved in favor of life, and not in favor of death. The instruction was therefore erroneous, and for this error the judgment must be reversed.

In view of a retrial, we deem it proper to refer to an assignment based on the admission of testimony. The offense was committed between 9 and 10 o'clock in the morning, and as soon thereafter as she could the prosecuting witness repaired to the home of a neighbor, about 100 yards distant, and complained of the assault. She again complained to her husband about 2:30 in the afternoon, nearly five hours after the assault. The woman to whom complaint was first made was called as a witness by the government, and was asked to state the substance of the complaint made to her, without naming any one, and without the details. In answer to this question, the witness replied that the prosecuting witness complained that she had been assaulted by an Indian. No objection was made to this answer, presumably because it had no tendency to identify the appellant as the party accused, there being other Indians on the reservation in the immediate vicinity. Later, the husband was called and interrogated as to the complaint made to him, and the attorney representing the government then insisted for the first time that he had a right to go into the details of the complaint, even to the extent of naming the accused party, under the doctrine of res gestc. An objection to the question was overruled, and the witness answered that his wife complained that she had been assaulted by an Indian, the boy who worked on the mail boat. Other testimony in the case tended to identify the accused as...