State v. Barry

• Decision Date: 31 May 1905
• Citation: 14 N.D. 316,103 N.W. 637
• Parties: STATE v. BARRY.
• Court: North Dakota Supreme Court

14 N.D. 316

103 N.W. 637

STATE

v.BARRY.

Supreme Court of North Dakota.

May 31, 1905.

Syllabus by the Court.

1. Whether a statute is permissive or mandatory depends upon the intent of the Legislature.

2. It is a general rule of construction that statutes which confer upon public officers power to act, for the sake of justice or concerning public interests or the rights of third persons, although permissive in form, are mandatory, and impose a positive duty to act when the condition calling for the exercise of the power is present.

3. That part of section 8246, Rev. Codes 1899, which authorizes trial judges to receive verdicts in criminal cases in which the jury has fixed the punishment higher or lower than provided by law, and to pronounce judgment thereon for the highest punishment or the lowest punishment authorized by statute for the offense of which the defendant is found guilty, is mandatory. Verdicts coming within the exception contained in this section are legal and valid verdicts, and it is the duty of trial judges to receive the same and enter judgment thereon.

4. The defendant was tried and found guilty of murder in the first degree, and sentenced to imprisonment for life. At the trial he interposed the plea of former conviction under the same information, and supported his plea by offering a verdict returned by the jury at the former trial, in which they found him guilty of murder in the second degree and fixed the period of his punishment at seven years. The trial court instructed the jury to find against the defendant upon this plea. Held, that this was error; that, for reasons stated in the opinion, the verdict was legal and valid, and it was the duty of the trial judge to sentence defendant thereunder; and that the trial court exceeded its authority in sentencing the defendant for life. The judgment must therefore be modified to correspond with the lawful punishment which he was authorized to impose, and as of the date of the former verdict.

Appeal from District Court, Walsh County; John F. Cowan, Judge.

William Barry was convicted of murder, and appeals. Judgment modified.Tracy R. Bangs, for appellant. E. R. Sinkler and George M. Price, State's Attys.

YOUNG, J.

On February 11, 1901, an information was filed in the district court of Cavalier county by the state's attorney of that county, charging the defendant with the murder of one Andrew Mellem, alleged to have been committed on the 3d day of January, 1901. The defendant was tried in the following July, and the jury returned a verdict of guilty of murder in the first degree, and fixed his punishment at life imprisonment. The judgment entered in pursuance thereof was reversed for prejudicial errors occurring at the trial, and the defendant was remanded for a new trial. State v. Barry, 11 N. D. 428, 92 N. W. 809. The second trial was commenced at Langdon, Cavalier county, on the 3d day of November, 1903, before the Honorable John F. Cowan, acting at the request of Honorable W. J. Kneeshaw, judge of said district. The jury was impaneled and sworn on the 16th day of November, 1903. Evidence was submitted, arguments made, and the jury charged with the defendant's delivery on the 28th day of November, 1903, at 9 o'clock a. m., and thereafter, at 11:30 p. m. on the same day, the jury returned into court a verdict finding the defendant guilty of murder in the second degree, and fixing his punishment therefor at a period of seven years in the penitentiary. The court refused to accept this verdict, and returned it to the jury. The jury, having failed to return any other or different verdict, was discharged by the court on the 30th day of November, 1903, and the defendant was remanded to the custody of the sheriff without bail. Thereafter the state, over defendant's objection, secured a change of the place of trial to Walsh county, and the trial commenced on May 31, 1904. At the opening of the trial the defendant interposed the pleas of former jeopardy, former acquittal, and former conviction, in addition to his previous plea of not guilty, and presented proper proof in support of such pleas. These pleas were severally overruled by the trial judge, and, under his direction, the jury found against the defendant as to each of them. A verdict of murder in the first degree was returned, and the punishment of the defendant was fixed at imprisonment for life. The defendant has appealed from the judgment entered on this verdict.

Counsel for defendant relies entirely upon the pleas of former jeopardy, former acquittal, and former conviction as grounds for reversal. The proof offered in support of these pleas shows that at the previous trial the court instructed the jury that they might, under the law and evidence, return a verdict either for murder in the first degree or murder in the second degree; that the penalty for murder in the first degree was either death or life imprisonment, and for murder in the second degree imprisonment in the penitentiary not less than 10 years nor more than 30 years; and that it was their duty to designate the punishment. It also shows that on November 28, 1903, the jury, after having retired and deliberated from 9 o'clock a. m. to 11.30 p. m., returned into court, when they were asked by the presiding judge if they had agreed upon a verdict, and the foreman answered that they had, and presented the following verdict: “State of North Dakota, County of Cavalier. In District Court, Seventh Judicial District. The State of North Dakota, Plaintiff, vs. William Barry, Defendant. Verdict: We, the jury in the above-entitled action, find the defendant, William Barry, guilty of the crime of murder in the second degree as charged in the information, and we do hereby fix and determine that he shall be imprisoned in the penitentiary for the term of seven (7) years as his punishment therefor. E. E. Sherwin, Foreman.” The trial judge refused to accept this verdict, and instructed the jury as follows: “I cannot accept the verdict which you have presented to the court, as it does not conform to any one of the verdicts which you may bring in under the evidence in this case, and the law as laid down by the court to you. Carefully read the instructions which I have heretofore given to you, that you may learn the proper verdict and the several penalties laid down by the law as I have declared it to you. I return to you the proposed verdict submitted by you to this court. I also submit to you another blank verdict of the same form and substance as the one returned. When you return the verdict you may agree upon, use pen and ink in signing it.” Thereafter, in answer to requests, the following instructions were given: “In answer to your written request for further instructions as to the law in the case now before you, I charge you that the date of the information in this action has nothing whatever to do with the terms of the verdict to be returned by you. Your verdict will date from the time it is rendered.” Again: “In response to your request for further instructions in the case of State of North Dakota v. William Barry, I charge you that this case is now in your hands for your consideration, determination, and verdict, under the law as laid down by the court to you, and upon the evidence submitted to you, as though there never had been any other trial of it. You should follow the instructions of the court as to the law. Read them carefully.” On Monday, November 30, 1903, at 2:30 p. m., and 39 hours after they had returned the verdict hereinbefore set out, the jury again returned into court, and stated to the court that they could not agree upon a verdict, whereupon they were discharged, and defendant remanded to the custody of the sheriff without bail.

The question of the legality of the judgment under which the defendant is now confined, and from which this appeal is prosecuted, is raised by several assignments of error. It is perhaps most clearly presented by the refusal of the trial judge to give the following instructions which were requested by the defendant: “The defendant, William Barry, has been heretofore, at a regular term of the district court of the county of Cavalier, in this state, begun and held at Langdon, in the month of November, 1903, arraigned and pleaded under the information upon which he is now on trial. The court so held in Cavalier county was a competent court to try the defendant, and had full jurisdiction of the defendant, and of the offense for which he was arraigned, and to which he pleaded not guilty. The information upon which he was tried was sufficient in form and substance to support a verdict by the jury. The jury was duly impaneled and sworn, testimony both for the state and defendant was offered and heard, arguments were made by the counsel for the state and the defendant, the jury was instructed by the court, charged with the deliverance of the prisoner, and the entire matter submitted to the jury for its verdict. Such jury was duly impaneled and sworn, and the trial of the defendant commenced on the 16th day of November, 1903, and continued thereafter until the 28th day of November, 1903, when the jury so impaneled, sworn, and charged, returned into court with a verdict.* * * The verdict rendered by the jury found the defendant, William Barry, guilty of murder in the second degree, and sentenced him to imprisonment in the State Penitentiary for a period of seven years, and was a valid and legal verdict.” It is insisted that the refusal of the trial court to give the foregoing instructions, and to further instruct the jury to sustain the defendant's pleas of former jeopardy, former conviction, and former acquittal, was error. It is contended that the verdict returned upon the former trial was a legal and valid verdict, and sufficient in form and substance not only to authorize, but also to require, the trial judge to pronounce judgment thereon. And, as against the verdict and judgment in...