State v. Hutter
| Decision Date | 30 March 1945 |
| Docket Number | 31916. |
| Citation | 18 N.W.2d 203,145 Neb. 798 |
| Parties | STATE v. HUTTER. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Criminal homicide constitutes one offense only and the sections of our statutes defining first degree murder, second degree murder and manslaughter are gradations of the same crime devised for the purpose of adjusting the punishment to the atrocity of the offense.
2. In a criminal trial where the jury is discharged in accordance with section 29-2023, R.S.1943, such discharge is without prejudice to the prosecution.
3. A ruling of a trial court withdrawing from the consideration of the jury one or more of the degrees of criminal homicide for the reason that they lack support in the evidence does not afford a basis for a plea of previous acquittal or former jeopardy where the jury disagrees and fails to reach a verdict on the question of whether defendant was guilty of any degree of criminal homicide.
4. Under such circumstances the second trial should proceed under the original charge as if no previous trial had been had and the defendant may properly be convicted, if the evidence warrants it, on any of the degrees of criminal homicide contained in such original charge.
5. A defendant in a criminal case cannot successfully plead former jeopardy when the jury before whom he was first on trial was discharged with his consent.
6. A dismissal of one or more degrees of criminal homicide by a trial court because of a want of adequate evidence to support them will ordinarily be construed as a withdrawal of such degrees from consideration by the jury.
7. Where a jury in a criminal case disagrees and is properly discharged, a second trial upon the original charge, even though one or more degrees of the offense may have been withdrawn from the consideration of the jury in the first trial because of a want of support in the evidence, does not violate section 12, art. I, Constitution of Nebraska protecting against double jeopardy.
8. Neither does such a trial offend section 3, art. I Constitution of Nebraska, guaranteeing due process of law nor of section 1 of the Fourteenth Amendment to the Constitution of the United States, guaranteeing due process of law and the equal protection of the laws.
9. A plea in bar to a first degree murder charge, grounded on the fact that first and second degree murder was withdrawn from the consideration of the jury at the former trial because of the insufficiency of the evidence to sustain them, is demurrable. The sustaining of such a plea by the trial court constitutes error.
10. The attorney general has the same authority to bring exceptions to this court in a criminal case as does the county attorney by virtue of section 84-204, R.S.1943.
Walter R. Johnson, Atty. Gen., Rush C. Clarke, Asst. Atty. Gen., H. Emerson Kokjer, Deputy Atty. Gen., and John H. Comstock, Asst. Atty. Gen., for plaintiff in error.
George B. Hastings, of Grant, for defendant in error.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This is a proceeding under sections 29-2314 and 29-2315, R.S.1943, by the attorney general to secure a review of the proceedings had upon a plea in bar filed by the defendant in a murder case. This court previously sustained the attorney general's application and allowed the bill of exceptions to be filed. The case is now before us for review on the attorney general's exceptions. A brief history of the case is necessary to a proper understanding of the questions herein involved.
On March 24, 1944, the county attorney for Douglas county filed an information charging that on or about the 5th day of December, 1943, Charles Hutter, unlawfully, feloniously, purposely and of his deliberate and premeditated malice shot Grant Fallon with a pistol, and as a result thereof he died December 5, 1943, and that defendant thus committed murder in the first degree. The case came on for trial and at the conclusion of the state's evidence in chief the defendant moved the court to either dismiss the action or to reduce the charge stated in the information for the reason that the evidence was insufficient to sustain a conviction of murder in the first degree, murder in the second degree, or manslaughter, or either of them. The ruling on this motion was reserved until the evidence was all in and both parties had rested, at which time it was renewed. The trial court then sustained the motion as to murder in the first degree and murder in the second degree, and overruled it as to manslaughter. The trial court's order states: 'Thereupon defendant moving the court to dismiss the charge herein as to murder in the first degree, as to murder in the second degree and also as to manslaughter, upon consideration whereof and being fully advised in the premises it is ordered by the court that said motion be and hereby is sustained as to the charge of murder in the first degree and as to the charge of murder in the second degree and overruled as to the charge of manslaughter.' The trial court, in submitting the question whether defendant had committed the crime of manslaughter, instructed the jury that the court had dismissed the charges of murder in the first degree and murder in the second degree. The jury was unable to agree upon a verdict and was discharged on or about May 21, 1944.
The matter came on again to be heard on July 11, 1944, at which time the defendant filed a plea in bar in which he urged that he could not be again tried for murder in the first degree, murder in the second degree and manslaughter, or either of them, for the reason that it would be violative of section 12 of art. I, Nebraska Constitution, protecting against double jeopardy; that it would be violative of section 3 of art. I, Nebraska Constitution, guaranteeing due process; and that it would violate section 1 of the Fourteenth Amendment to the Constitution of the United States, insuring due process of law and the equal protection of the laws. Previous acquittal and former jeopardy were also pleaded as a bar to a second trial. The trial court sustained the plea in bar in so far as the information included charges of first and second degree murder and overruled the plea as to the charge of manslaughter and ordered the defendant tried on that charge. It is the rulings of the trial court on the plea in bar which are before us for review.
It might be well to state that the defendant was subsequently tried on the charge of manslaughter and acquitted. The ruling on the attorney general's exceptions present important questions of law which should be decided for guidance in future cases, but can in no way effect the judgment of acquittal rendered in the action. R.S.1943, sec. 29-2316. Nevertheless, the statute is a beneficent one. This court is the final adjudicator of questions of criminal law and procedure, yet trial courts are continually deciding such questions from which the defendant does not appeal. The result is that such rulings lack uniformity throughout the various judicial districts of the state. And ofttimes criminal escape conviction through incorrect rulings of the trial court. All this can but tend to demoralize our criminal law system. The statute in question affords the means of securing uniformly correct rulings on similar propositions in future cases and in so doing adds stability and confidence to our criminal procedure.
The precise questions raised have never previously been decided by this court. The defendant in error poses the questions to be decided as follows: 1. Was the order entered during the first trial sustaining the motion for a directed verdict and dismissing the charges of murder in the first degree and murder in the second degree, a final judgment operating as an acquittal or discharge of the defendant as to those charges? 2. Did the trial and trial proceedings place the defendant in jeopardy as to murder in the first and second degrees, although the jury disagreed on the issue of manslaughter and was discharged with the consent of the defendant? 3. Did the trial judge in the second trial rule correctly in sustaining the plea in bar as to murder in the first degree and murder in the second degree? We propose to dispose of the case by answering the foregoing questions.
An historical approach seems necessary to secure an adequate discussion of the subject. There were no degrees of murder or manslaughter at common law. All criminal homicide was either murder or manslaughter, but the latter was included in the former as a constituent element thereof, or it might exist as a distinct offense where there was no malice aforethought. At common law, murder is the unlawful killing of a person with malice aforethought, either express or implied, and manslaughter is the unlawful killing of another without malice express or implied. Manslaughter differs from murder in the want of malice, a condition of the blood or mind at the time of the act. This distinction is the only one that the accumulated wisdom of the common law deemed it advisable to make. ...
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