State v. Almy

• Decision Date: 29 July 1892
• Parties: STATE v. ALMY.
• Court: New Hampshire Supreme Court

28 A. 372

67 N.H. 274

STATE

v. ALMY.

Supreme Court of New Hampshire. Grafton.

July 29, 1892.

Case reserved from Grafton county; before Justices Doe and Allen.

Frank C. Almy was convicted of murder in the first degree, and moves for a new trial. Denied.

The defendant pleaded guilty, and the question of degree was determined by the court in pursuance of Gen. Laws, c. 282, § 3. Murder was admitted. The only question was whether it was of the first or second degree, and it was found to be of the first degree. After judgment the defendant objected, and moved for a new trial, on the ground that the determination of the degree by the court was legal error, because his right to have the question of degree tried by jury cannot be waived, and the statute is unconstitutional.

Edwin G. Eastman, Atty. Gen., and W. H. Mitchell, for the State.

Alvin Burleigh and J. C. Story, for defendant.

BLODGETT, J. In criminal proceedings a confession of the offense by the party charged by a plea of guilty is the highest kind of conviction of which the case admits, (2 Hawk. P. C. c. 31, § 1; 2 Hale, P. C. 225; 4 Bl. Comm. 362;) and subjects him precisely to the same punishment as if he were tried and found guilty by verdict, (1 Archb. Crim. Pr. & Pl. p. *110;) and the effect of a confession being to supply the want of evidence, (Rex v. Hall, 1 Term R. 320,) it is an admission of every material fact well pleaded in the indictment, and authorizes the court having jurisdiction of the offense to proceed to judgment, (4 Bl. Comm. 329; 1 Chit. Crim. Law, 429; 1 Bish. Crim. Proc. 795.) "Of judgments* * * in criminal cases there are two kinds—First, such as are fixed and stated, and always the same for the same species of crime; secondly, such as are discretionary and variable, according to the different circumstances of each case. * * * The judgment against a man or woman for felony of death hath always been the same since the reign of Hen. I., viz. that he or she be hanged by the neck till dead. * * * As to judgments * * * which are discretionary and variable, according to different circumstances, I shall observe, in general, that for crimes of an infamous nature * * * it seems to be in great measure left to the prudence of the court to inflict such corporal punishment, and also such fine and lien to the good behavior for a certain time, etc., as shall seem most proper and adequate to the offense, from the consideration of the baseness, enormity, and dangerous tendency of it, the malice, deliberation, and willfulness, or the inconsideration, suddenness, and surprise with which it was committed, the age ** * of the offender, and all other circumstances which may any way aggravate or extenuate the guilt." 2 Hawk. P. C. c. 48, §§ 1, 7,14. Prior to 1837 degrees of murder were unknown in this state, and, upon conviction, the invariable judgment was death. In that year, by the legislative act of January 13th, which has since been in force, the crime of murder was divided into two degrees, and transferred from the first class of crimes, in which the judgment is invariable, to the second class, in which the judgment is variable. It was recognized as a crime of different grades of enormity, deserving different penalties, and so the punishment was made more or less severe, according to certain aggravating or extenuating circumstances. See note, State v. Dowd, 19 Conn. 391. But the act did not create any new offense, or change the definition of murder as it was understood at common law. It merely mitigated the punishment in certain cases not of the most aggravated nature; and hence an indictment alleging murder in the same form as at common law will support a verdict of guilty of murder in the first degree under the act Com. v. Desmarteau, 16 Gray, 1; State v. Pike, 49 N. H. 399, 405, and authorities cited; Craig v. State, (Ohio, May 10, 1892,) 30 N. B. 1120. Such an indictment "sets forth * ** the highest grade of homicide, murder in the first degree, and thereby includes the inferior grade of murder in the second degree, in like manner as an indictment for murder at common law embraces a charge of manslaughter, which is comprehended in the allegations necessary to charge the higher offense. The only difference in the two cases is that in the latter the indictment charges two distinct offenses, but in the former, as applied to degrees of murder, only one offense is charged, but in such form that it includes the higher as well as the lower grade, to which different punishments are attached." Green v. Com., 12 Allen, 155, 173. Neither did the act make any change in the effect of a plea of guilty. It still confesses everything that is duly set forth, as a plea of not guilty puts in issue every fact which is comprehended within the averments of the indictment When, therefore, this defendant pleaded guilty to the indictment charging upon him, in common-law form, killing with deliberate and premeditated malice, his plea was a confession that he was guilty of the common-law crime of murder, which the statute has not altered, and but for which a judgment of death would have been imperatively required; for, while the statute in no way detracts from the force or effect of the plea, it makes it the duty of the court to ascertain before judgment whether the extreme sentence which would otherwise follow the plea is warranted by the facts. "if any person shall plead guilty to an indictment for murder hereafter committed, the justices of the court having cognizance of the indictment shall determine the degree." For this purpose an inquiry was necessary into the circumstances of the defendant's crime, tending to show the higher or lower degree of enormity which the law recognizes, as it is necessary, when a defendant pleads guilty to an indictment for burglary, under Pub. St c. 276,§ 1. He is to be imprisoned "not exceeding twenty-five years," but the court has no means of knowing whether the penalty should be 25 or 10 years, or the lowest possible limit of a year and a day, unless some information is given on the subject at a hearing on the degree of enormity. But nobody, it is believed, ever supposed that such a defendant has a constitutional right to a jury trial of this question. It is not an issue in any legal sense, and nobody, it is believed, ever supposed that the accused has a constitutional right to a jury trial to determine whether he shall be fined or imprisoned, or ordered to recognize to keep the peace, (chapter 278, § 20,) in a case of assault, or be fined and imprisoned in the county jail, or sent to the state prison, (chapter 272, § 1,) for adultery. And certainly the generation which made and adopted the constitution did not understand that the kinds or amounts of punishment to be imposed by variable judgments are issues triable by jury, for the act of February 8, 1791, "for the punishment of certain crimes," provided that a person convicted of one crime should be fined or set on the gallows, and might be imprisoned; that for another offense the convict should be set on the gallows one hour, with a rope about his neck, and one end thereof cast over the gallows, and imprisoned, bound to good behavior, and fined, and the court should order the person convicted to suffer all or part of the foregoing punishments, according to the circumstances and aggravations of the offense; for another offense the convict was to be set in the pillory, whipped, imprisoned, bound to good behavior, or fined, or suffer any or all the foregoing punishments, according to the nature and aggravation of the offense; for another the penalty was fine, imprisonment, or whipping, as the court, considering the nature and aggravation of the offense, may order; for another, sitting in the pillory, imprisonment, and fine, or any or all of these punishments, according to the nature and aggravation of the offense. See, also, Prov. Laws, (Ed. 1761,) pp. 11-14. "We regard it as a well-settled and unquestioned rule of construction that the language used by the legislature in the statutes enacted by them, and that used by the people in the great paramount law, which controls the legislature, as well as the people, is to be always understood and explained in that sense in which it was used at the time the constitution and laws were adopted." Opinion of the Justices, 41 N. H. 551. If a recorded confession of every material averment of an indictment puts the confessor upon the country, the institution of jury trial and the legal nature and effect of a plea of guilty have been very imperfectly understood, not only by the authors of the constitution and their successors down to the present time, but also by all the generations of men who have lived under the common law.

The necessary statutory inquiry into the circumstances of the defendant's crime has been made. His plea has been found to be warranted by the facts, and judgment has followed accordingly. In ascertaining the degree of his crime, he has been fully heard by himself, his witnesses, and counsel. Every facility has been provided him at the public expense to present before an impartial tribunal all the facts or circumstances tending in any way to mitigate or extenuate his guilt. No want of competent intelligence to make the plea is averred, and no mistake or misapprehension as to its effect is alleged. No evidence against him is claimed to have been Improperly admitted, and no evidence in his favor is claimed to have been improperly rejected. His sole complaint is that he has had no trial, in the constitutional sense of the word. But his plea precluded such a trial. "The proceeding * * * to determine the degree of the crime of murder after a plea of guilty is not a trial, nor has the defendant any right to have that question determined by a jury." People v. Noll, 20 Cal. 164. The only question remaining was whether there were extenuating circumstances affecting his punishment, and mitigation of punishment on a plea of...