State v. Barry

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

103 N.W. 637

14 N.D. 316

THE STATE OF NORTH DAKOTA v. WILLIAM BARRY

Supreme Court of North Dakota

May 31, 1905

Appeal from District Court, Walsh county; Cowan, J.

William Barry was convicted of murder, and appeals.

Judgment modified.

Affirmed.

Tracy R. Bangs, for appellant.

A constitutional provision must be interpreted in the light of the common law, from which it is inherited, as known to the framers. Miner v. Happersett, 21 Wall. 162, 22 L.Ed 627; Ex parte Wilson, 114 U.S. 417, 29 L.Ed. 89; Boyd v U.S. 116 U.S. 616, 29 L.Ed. 746; Smith v Alabama, 124 U.S. 465, 31 L.Ed. 508; 1 Kent's Com 336; Moore v. U.S., 91 U.S. 270, 23 L.Ed. 346; The Abbotsford v. Johnson, 98 U.S. 440, 25 L.Ed. 168.

A person is in legal jeopardy when he is put upon his trial, before a court of competent jurisdiction, upon an indictment or information sufficient in form and substance to sustain a conviction, and a jury is impaneled and sworn, charged with his deliverance. Cooley on Const. Lim. (6th Ed.) 399; McDonald v. State, 79 Wis. 651, 24 Am. St. Rep. 740; Clark's Criminal Law, 374.

No man shall be twice put in jeopardy of life or limb for the same offense. People v. Goodwin, 18 Johns. 201; Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118.

When one has been tried before a competent tribunal having jurisdiction, he has been in jeopardy as much as if tried in one where a jury alone is competent to convict or acquit. Kepner v. U. S. Advance Sheets, S.Ct. July 15, 1904, page 797; People v. Miner, 33 N.E. 40; State v. Bowen, 47 N.W. 650; State v. Layne, 36 S.W. 390.

The verdict rendered at Langdon incriminated the defendant as guilty of murder in the second degree, and acquitted him of murder in the first degree, and a second prosecution is barred thereby. Commonwealth v. Jenks, 1 Gray, 490; State v. Burke, 38 Me. 574; Commonwealth v. Cook, 9 Am. Dec. 465; State v. Roe, 12 Vt. 93; People v. Ny Sam Chung, 94 Cal. 304, 29 P. 642, 28 Am. St. Rep. 129; 1 Bishop's Crim. Law, section 660; People v. Goodwin, 18 Johns. 187, 9 Am. Dec. 203; McDonald v. State, 79 Wis. 651, 48 N.W. 863, 24 Am. St. Rep. 740; McClain's Crim. Law, section 390; Sylvester v. State, 72 Ala. 201; Johnson v. State, 29 Ark. 31; State v. Belden, 33 Wis. 120; State v. Helm, 61 N.W. 246.

To put the defendant twice in jeopardy, he must be a second time put upon his trial before a jury impaneled, sworn and charged with his deliverance. Com. v. Fitzpatrick, 121 Pa.St. 109, 6 Am. St. Rep. 757, 1 L. R. A. 451; Hilands v. Com., 56 Am. Rep. 235; State v. Parker, 24 N.W. 225; Ex parte Fenton, 19 P. 267; People v. Hinckeler, 48 Cal. 331; State v. Parish, 43 Wis. 395; Cooley on Const. Lim. 326.

Jeopardy begins as soon as the jury is sworn. Wright v. State, 5 Ind. 290, 61 Am. Dec. 95; Com. v. Cook, 6 Sargt. & R. (Pa.) 577; State v. Norvall, 2 Yerg. (Tenn.) 24; Pizano v. State, 20 Tex.App. 139; Morgan v. State, 13 Ind. 215; People v. Webb, 38 Cal. 467; Nolan v. State, 21 Am. Rep. 281.

If a jury after being sworn is discharged without a verdict, no legal ground of discharge being shown, the effect is the same as a verdict of acquittal. State v. Calendine, 8 Iowa 288; State v. Tatman, 59 Iowa 471, 13 N.W. 632; Josephine v. State, 39 Miss. 613; Teat v. State, 53 Miss. 439; King v. People, 5 Hun. 297; Com. v. Cook, supra; Com. v. Fitzpatrick, supra; Hilands v. Com., 1 Cent. Rep. 899, 56 Am. Rep. 235; McCorkle v. State, 14 Ind. 39; Adams v. State, 99 Ind. 244; Powell v. State, 17 Tex.App. 345; People v. Gardner, 29 N.W. 19; Com. v. Smith, 149 Mass. 9, 20 N.E. 161; Lee v. State, 26 Ark. 260; People v. Cage, 48 Cal. 323; Ex parte Sndyer, 29 Mo.App. 256; State v. McLee, 1 Bail. L. 651.

And so when case is determined on a motion for a discharge after the conclusion of the state's case. State v. Hubbell, 51 P. 1039; Const. U. S. Amend., Art. 5; Cooley on Const. Lim. sections 326, 327.

An arbitrary discharge of a jury without a sufficient cause, and without the consent of the defendant, operates as an aquittal. Hilands v. Com., 6 A. 267, 56 Am. Rep. 235; Haskins v. Com., 1 S.W. 730; State v. Falconer, 30 N.W. 655; State v. Ward, 2 S.W. 191; State v. Walker, 26 Ind. 346; People v. Barrett & Ward, 2 Caine's Cases, 100-304; Mount v. State, 14 Ohio 295, 45 Am. Dec. 542; O'Brien v. Com., 9 Bush. 333, 15 Am. Rep. 715; McDonald v. State, 48 N.W. 863, 24 Am. St. Rep. 740; Powell's Case, 17 Tex. Ct. App. 345.

A person is once in jeopardy whenever he has been given in charge, on a legal indictment to a regular jury, and if the jury is unnecessarily discharged, the discharge is equivalent to a verdict of acquittal. Wright v. State, 5 Ind. 290, 61 Am. Dec. 90; Weinzorplin v. State, 7 Blackf. 194; Miller v. State, 8 Ind. 325; Reese v. State, 8 Ind. 416; Morgan v. State, 13 Ind. 215; Joy v. State, 14 Ind. 139; State v. Walker, 26 Ind. 346; People v. Webb, supra.

A conviction of murder in the second degree is an acquittal of murder in the first degree. McClain's Crim. Law, section 390; Sylvester v. State, 72 Ala. 201; Johnson v. State. 29 Ark. 31; State v. Belden, 33 Wis. 120; State v. Helm, 61 N.W. 246; State v. Tweedy, 11 Iowa 350; People v. Gilmore, 4 Cal. 376, 60 Am. Dec. 620; State v. Ross, 29 Mo. 32; Brennon v. People, 15 Ill. 511; Barnett v. People, 54 Ill, 325; State v. Dunn, 41 La. An. 610.

When the offense on trial is a necessary element in, and constitutes an essential part of, another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to a prosecution for the other. State v. Cross, 101 N.C. 770, 9 Am. St. Rep. 53 and note; People v. Pearl, 42 N.W. 1109, 15 Am. St. Rep. 304; State v. Yanta, 38 N.W. 333; Roberts v. State, 58 Am. Dec. 544 and note; State v. Cooper, 13 N.J.L. 361, 25 Am. Dec. 490; Dankey v. Com., 17 Pa.St. 126, 55 Am. Dec. 542; Bull v. State, 48 Ark. 94; Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528; Fiddler v. State, 7 Humph. 508; Com. v. Curtis, Thacker Cr. Cases, 206; U. S. v. Gilbert, 2 Sumn, 42, 3 Greenleaf Ev., section 35; State v. Hornsby, 41 Am. Dec. 314; Barnett v. People, 54 Ill. 325; People v. Knapp, 26 Mich. 112; State v. Lessing, 16 Minn. 64; State v. Smith, 53 Mo. 139; Keefe v. People, 40 N.Y. 348; People v. Thompson, 41 N.Y. 1.

A conviction of murder in the second degree is an acquittal of the higher offense, and on second trial accused cannot be convicted of murder in the first degree. Lewis v. State, 51 Ala. 1; Mitchell v. State, 60 Ala. 26; Sylvester v. State, 72 Ala. 201; Johnson v. State, 29 Ark. 31, 21 Am. Rep. 154; Johnson v. State, 27 Fla. 245, 9 So. 208; Golding v. State, 31 Fla. 262, 12 So. 525; State v. Helm, 92 Iowa 540, 61 N.W. 246; State v. Ross, 29 Mo. 32; Jones v. State, 13 Tex. 168, 62 Am. Dec. 550; Parker v. State, 22 Tex.App. 105, 3 S.W. 100; Smith v. State, 22 Tex.App. 316, 3 S.W. 684; State v. Murphy, 43 P. 44; People v. McDaniels, 69 P. 1006; People v. Defoor, 34 P. 642; 1 Bish. New Crim. Law, section 1057; Reg. v. Stanton, 5 Cox Cr. Cases, 324.

The plea of autrefois convict is supported by proof of a lawful trial and verdict, though no judgment be given upon it. Shepherd v. People, 25 N.Y. 406; People v. Taylor, 3 Denio. 97; Mount v. State, supra, State v. Benham, 7 Conn. 414; State v. Norvell, 24 Am. Dec. 458; Dyer v. Com. 23 Pick. 402; People v. Goodwin, 18 John. 202; Hartung v. People, 26 N.Y. 167, 28 N.Y. 412.

If through misdirection of the judge in matter of law a verdict is improperly rendered, it can never afterwards, on application of the prosecution, in any form of proceeding be set aside. People v. Terrill, 64 P. 894; 1 Bish. Crim. Law, section 665; People v. Webb, supra; People v. Horn, 11 P. 470; People v. Roberts, 45 P. 1016.

The utmost favor is always extended to verdicts. They are not to be construed as strictly as pleadings are. Whenever the court can collect the clear meaning of the jury from the findings, it is bound to mould it into form and make it serve. Wittick v. Traun, 27 Ala. 562, 62 Am. Dec. 778; Moody v. Keener, 7 Port. (Ala.) 218; Tippin v. Patty, 7 Port. (Ala.) 44; Picket v. Richet, 2 Bivv. (Ky.) 178; Jeansch v. Lewis, 48 N.W. 128; People v. McCarty, 48 Cal. 557; People v. Welch, 49 Cal. 174; People v. Buckley, 49 Cal. 241; People v. Perdue, 49 Cal. 425; State v. Benham, 7 Conn. 414; Prennan v. People, 15 Ill. 517; People v. Cook, 10 Mich. 164; Teat v. State, 53 Miss. 439; Hartung v. People, 26 N.Y. 167; Mount v. State, supra; Nolan v. State, 21 Am. Rep. 281; Keeley v. People, 56 Am. Rep. 184; State v. Blaisdell, 59 N.H. 328; People v. Travers, 19 P. 268.

A permissive word should be construed as peremptory, when used to clothe a public officer with power to do an act which ought to be done for the sake of justice, or which concerns the public interests or the right of a third person. State v. Kent, 4 N.D. 577, 62 N.W. 631; Culter v. Howard, 9 Wis. 309; Sutherland on Statutory Construction, p. 597; Supervisors v. U.S. 4 Wall. 435, 18 L.Ed. 419; 20 Am. & Eng. Enc. Law, 242; Fowler v. Perkins, 77 Ill. 271; Low v. Dunham, 61 Me. 566; State ex rel. Jones v. Loughlin, 73 Mo. 443; Cutler v. Howard, 9 Wis. 309; Potters Dwarris on Statutes, 220.

The verdict at Langdon was a valid verdict. It is general on the merits and finds the defendant guilty of murder in the second degree, and should have been accepted and recorded. State v. Maloney, 7 N.D. 119, 72 N.W. 927; 1 Bish. New. Cr. Proc., section 1005; State v. Ryan, 13 Minn. 370 (Gil. 343); Hart v. Hate, 38 Tex. 383; State v. Arnold, 42 N.E. 1095.

The right of the trial court to discharge the jury before verdict exists only in cases of extreme and absolute necessity. State v. Callendine, 8 Iowa 288; People v Cage, 48 Cal. 323; Mount v. State, supra; 1 Bishop Crim. Law, section...