State v. Comery

• Decision Date: 05 October 1915
• Citation: 95 A. 670
• Parties: STATE v. COMERY.
• Court: New Hampshire Supreme Court

95 A. 670

STATE

v. COMERY.

Supreme Court of New Hampshire. Hillsborough.

Oct. 5, 1915.

Exceptions from Superior Court, Hillsborough County.

Oscar J. Comery was convicted of murder in the first degree, and he excepts. Exceptions overruled.

Indictment for murder by poisoning. After the general panel of jurors were present in court, the defendant retracted his plea of not guilty, pleaded guilty to murder in the first degree, and moved that a sentence of life imprisonment be forthwith imposed. Thereupon the state moved that a jury be drawn to pass upon the question of punishment. Subject to exception, the defendant's motion was denied, and the state's motion was granted.

In the examination of jurors, the state was permitted to ask the following question, subject to exception:

"Are you conscious of any sentimental prejudice against the infliction of capital punishment, if you should think the evidence warranted it?"

Several jurors who expressed themselves as opposed to capital punishment were excused by the court, subject to exception, and there were also exceptions to portions of the closing argument for the state. The jury having returned a verdict that the defendant be punished by death, he was sentenced to be hanged; and a bill of exceptions was filed in his behalf.

James P. Tuttle, Atty. Gen., and John R. Spring, of Nashua, for the State. Thorp & Abbott and Oscar F. Moreau, all of Manchester, for defendant.

PEASLEE, J. 1. The defendant, having pleaded that he was guilty of murder in the first degree, now claims that this admission on his part took from the state all power to impose upon him the extreme penalty provided by law for the crime he committed. Prior to 1903 the punishment for murder in the first degree was death. Pub. St c. 278, § 5. In that year the statute was changed so as to read as follows:

"The punishment of murder in the first degree shall be death or imprisonment for life as the jury may determine. * * * If the jury shall find the respondent guilty of murder in the first degree, the punishment shall be fife imprisonment unless the jury shall add to their verdict the words 'with capital punishment.'" Laws 1903, c. 114, § 1.

It is manifest that if this claim of the defendant is sound, the act of 1903 is in conflict with the Constitution. The claim is that the defendant who pleads guilty thereby escapes all possibility of the death penalty, while he who insists upon a jury trial upon the issue of his guilt may be sentenced to death. Neither argument nor the citation of authority is necessary to support the conclusion that no such burden can be placed upon the right of the accused to a jury trial. If it were true, as the defendant contends, that such was the legislative intent, it would follow that the act of 1903 is void, and that upon his plea of guilty of murder in the first degree the court should have sentenced him to death, as provided by the statute theretofore in force. Pub. St. c. 278, § 5.

But the act of 1903 is not to be so construed. Its meaning plainly is that the assessment of the penalty for murder in the first degree has been placed in the hands of the jury. It is not contended that such a provision would be beyond the power of the Legislature, but merely that it has not been so provided. It is argued that the provision of other statutes (Laws 1901, c. 104, & 2; Laws 1909, c. 1), that upon a plea of guilty the court "may award sentence against him according to law," and, "if he do not plead guilty, the court may assign him counsel and take all other measures preparatory to a trial," precludes all idea of a trial upon a plea of guilty. But if the plea be merely guilty, without specification of degree, a trial before the court must be had upon the question of degree. Pub. St. c. 278, § 3. This involves calling witnesses, the argument of counsel, and in general all the incidents of a trial. So far as this question is concerned, the acts of 1901 and 1909 are identical with Pub. St. c. 254, § 2. When the earlier statute was in force, there was apparently no thought that it precluded a trial of the question of degree upon a plea of guilty. State v. Almy, 67 N. H, 274, 28 Atl. 372, 22 L. R. A. 744. The provision, that upon a plea of guilty the court may award sentence according to law, was evidently thought to mean that it was the duty of the court to take such steps as were necessary under the law to fix the punishment which should be imposed.

The provision, that upon a denial of guilt counsel might be assigned and steps preparatory to a trial taken, was not deemed to deprive the court of the power to proceed with a trial upon the question of degree, after a general admission of guilt. Of the soundness of this conclusion there is no substantial doubt. That such had been the procedure under the older statute must have been well known to the Legislatures of 1901 and 1909. If there had been an intent to alter the practice or abridge the power of the court, the language of the statute would have been changed so as to express such purpose.

Nor has the defendant reason to complain because there was no technical common-law issue tried or triable by the jury in this case. He could have had such a trial had he desired it. But, upon the advice of competent counsel, he chose rather to waive that right by his plea of guilty.

"It was entirely for him to say whether there should be an issue and a trial, or not. He knew there would be a trial if he pleaded the general issue, and he also knew that the prosecution would not accept a plea of guilty of murder in the second degree. He preferred to have no issue and no trial, but to have a hearing under the statute in regard to the circumstances of the admitted murder. * * * As we have already seen, the right of the accused to a jury trial was not affected, and we can therefore have no doubt that the proceeding (whether it possesses the essential attributes of a trial in the common sense of the word or not) required by the act to ascertain the degree of the crime where, in an indictment for murder, the defendant enters a plea of guilty, is constitutional and valid." State v. Almy, 67 N. H. 274, 278, 279, 28 Atl. 372, 374 (22 L. R. A. 744).

The same line of reasoning answers the contention that the defendant is put at a disadvantage when only the question of punishment is tried. Such advantage as might have lain in a trial of both guilt and punishment was his under the law; but he chose to relinquish it, and cannot now complain of the result.

It is further urged that in a case like this the proper procedure is to reject the plea of guilty and try the case as upon a plea of not guilty. This is equivalent to saying that the statute has made it impossible for the defendant to concede facts or issues in this class of cases. The law has always been otherwise (State v. Almy, supra, 67 N. H. 277, 28 Atl. 372, 22 L. R. A. 744), and it is not to be presumed that so radical and useless a change was intended by the lawmaking power. If such procedure had been undertaken, the plea of guilty, offered and rejected, would have been competent evidence, and would have effectively disposed of the feigned issue it is now said should have been tried. Such a proceeding would serve no useful purpose; yet it is claimed to be necessary because of the peculiar wording of one clause of the statute, which is, "unless the jury shall add to their verdict the words 'with capital punishment.'" The substance of this enactment is that there is now no capital punishment for murder in this state unless a jury so decrees. The form in which that decree is stated is not material. The theory that the technicality which has been eradicated from procedure in civil causes still prevails in prosecutions for crimes was long ago abandoned in this state.

"The compassion excited by the severity of English statutes is enough to account for the strictness of some of the exceptions of criminal pleading and evidence which have been allowed to outlive the cause and reason of their existence. * * * They are, in this state, at the present time, as much out of place as that British mode of conveying traitors to the gallows." Darling v. Westmoreland, 52 N. H. 401, 407, 408, 13 Am. Rep. 55.

It was the defendant's right to have a verdict of...