State v. Ramirez

• Citation: 203 P. 279,34 Idaho 623
• Parties: STATE, Respondent, v. VICENTE RAMIREZ, Appellant
• Decision Date: 20 December 1921
• Court: United States State Supreme Court of Idaho

203 P. 279

34 Idaho 623

STATE, Respondent, v. VICENTE RAMIREZ, Appellant

Supreme Court of Idaho

December 20, 1921

JUDGMENT IN SUPREME COURT IN CRIMINAL CASE-REMITTITUR-RETENTION OF JURISDICTION-MODIFICATION OF JUDGMENT AFTER REMITTITUR-ALTERNATIVE PENALTY UNDER C. S., SEC 8212-JUDICIAL ACT OF JURY.

1. When a judgment has been rendered by the appellate court in a criminal case under a mistake of fact or in consequence of not being properly presented by counsel on appeal, the court may in furtherance of justice modify such judgment at any time during the term at which it was rendered.

2. When it is clearly made to appear to the appellate court after the going down of the remittitur in a criminal case and before the sentence of conviction has been carried into effect, that considerations of justice warrant a modification of its judgment, it may order the remittitur recalled and thereupon modify the judgment of the lower court under the provisions of C. S., sec. 6446.

3. The action of a jury in imposing the death penalty under the provisions of C. S., sec. 8212, becomes merged in the judgment of the lower court, which under the provisions of C S., sec. 6446, the appellate court has power to modify.

4. The decision of the jury as to which alternative penalty shall be imposed for the crime of murder in the first degree, under the provisions of C. S., sec. 8212, is a judicial act requiring the exercise of judicial power, and the legislature is without authority to clothe the jury with the exclusive power to fix the extent of the punishment under this section regardless of the jurisdiction of the appellate court to review any decision of the district court under art. 5, sec. 9, of the constitution.

5. In all cases triable by a jury the court is made up of the judge and jury, and the two combined constitute the court. The final decision resulting in such cases is the decision of the court, and as such is subject to review by the appellate court under the constitution and laws of the state.

6. Where in the trial of a criminal case error has been committed which, though not distinctly prejudicial to the defendant or such as would warrant a reversal of the case, has nevertheless, in connection with other facts and circumstances, been instrumental in excessive punishment being inflicted upon the defendant, such judgment may properly be modified by the appellate court under the provisions of C. S., sec. 9086.

7. Held, that the evidence in this case as shown by the record on appeal is not sufficient to warrant the imposition of the extreme penalty of the law.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. James G. Gwinn, Judge.

Judgment of conviction of murder in the first degree, and sentence to death. Modified to sentence of imprisonment for life.

Barber & Barber and J. B. Eldridge, for Appellant.

The right is inherent in the judiciary to decide upon its rules and procedure, in order to the furtherance of justice, and pursuant thereto it is competent for it to decide whether it will resume jurisdiction, if need be. (United States v. Aakervik, 180 F. 137, 146; Franklin Bank Note Co. v. Mackey, 158 N.Y. 683, 51 N.E. 178.)

"The supreme court has power during the term, when it discovers an error, to inquire whether its mandate has been acted upon, and if it has not, to resume jurisdiction." (McBride v. Coleman (Ind.), 125 N.E. 449; Miocene Ditch Co. v. Campion Mining etc. Co., 197 F. 497, 177 C. C. A. 61; Waskey v. Hammer, 179 F. 273, 102 C. C. A. 629; Reynolds v. Manhattan Trust Co., 109 F. 97, 48 C. C. A. 249; Bank of United States v. Moss, 6 How. (U.S.) 31, 12 L.Ed. 331.)

The remittitur, having been based upon a false legal premise, will be recalled and the judgment modified. (Port Angeles P. R. Co. v. Cooke, 38 Wash. 184, 80 P. 305; Grimes v. Barndollar, 58 Colo. 421, 148 P. 256; Ehrig v. Adams (Okl.), 169 P. 645; Ex parte Gallagher, 101 Cal. 113, 35 P. 449; People v. Coronado, 144 Cal. 207, 79 P. 418.)

"Even after the jury say that the defendant should suffer death, this court, in furtherance of justice, has the power to modify the judgment to imprisonment for life." (Fritz v. State, 8 Okla. Cr. 342, 128 P. 170; Chambers v. State, 16 Okla. Cr. 238, 182 P. 714; Williams v. State, 10 Okla. Cr. 336, 136 P. 599; United States v. Wynn, 11 F. 57; Jones v. State, 10 Okla. Cr. 216, 136 P. 182, 137 P. 121; Kilgore v. State, 10 Okla. Cr. 446, 137 P. 364; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Robinson v. State, 13 Okla. Cr. 466, 165 P. 616; Brewer v. State, 13 Okla. Cr. 514, 165 P. 634; McConnell v. State (Okla. Cr.), 197 P. 521.)

Where the errors complained of, though not so material as to necessitate a reversal and new trial, were obviously prejudicial and might have aggravated the punishment, it is incumbent upon the court, in order to the administration of justice, to modify the sentence. (Fletcher v. State, 13 Okla. Cr. 563, 165 P. 907; Reed v. State (Okla. Cr.), 191 P. 1041; Pittman v. State, 84 Ark. 292, 105 S.W. 874; Brown v. State, 34 Ark. 232; Jones v. State, 88 Ark. 579, 115 S.W. 166; Warren v. State, 88 Ark. 322, 114 S.W. 705; State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318; State v. Harness, 11 Idaho 122, 80 P. 1129; State v. O'Callaghan, 2 Idaho 156, 9 P. 414.)

"There exists in every court . . . an inherent power to see that a man's fundamental rights are protected in every case." (State v. Blank, 33 Idaho 730, 197 P. 821.)

Roy L. Black, Attorney General, Dean Driscoll and James L. Boone, Assistants, for Respondent.

The appellate jurisdiction of the supreme court in criminal actions ends when the remittitur is sent down to the clerk of the court from which the appeal is taken. (Secs. 9089-9091, C. S.; People v. Walters, 1 Idaho 274; State v. Neil (on rehearing), 13 Idaho 554, 90 P. 860, 91 P. 318; Rule 59, Rules of Supreme Court; People v. Dick, 39 Cal. 102; People v. McDermott, 97 Cal. 247, 32 P. 7; People v. Sprague, 57 Cal. 147; State v. Sund, 25 N.D. 59, 140 N.W. 716.)

When the jury exercises statutory discretion and fixes the punishment in a case of murder in the first degree, its decision is conclusive upon the trial court. (Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Wilson v. State (Okla. Cr.), 183 P. 613; People v. Bawden, 90 Cal. 195, 27 P. 204; People v. Kamaunu, 110 Cal. 609, 42 P. 1090.)

The decision is conclusive upon the appellate court. (People v. Leary, 105 Cal. 486, 39 P. 24.)

Where power is lacking in the trial court to modify the judgment, then such power or jurisdiction is lacking in the court to which the appeal is taken. (3 C. J. 123, p. 366.)

Should the court have power to modify the punishment assessed by a jury, this power will be exercised only when error is made to appear. (State v. Ricks and Levine, ante, p. 122, 201 P. 827, State v. Williams and Arnold, ante, p. 144, 201 P. 834.)

BUDGE, J. McCarthy, Dunn and Lee, JJ., concur. Rice, C. J., dissents.

OPINION

BUDGE, J.

Appellant was convicted of murder in the first degree, and his punishment was fixed by the jury at death. The judgment was affirmed by this court on May 25, 1921, and a petition for rehearing denied. (State v. Ramirez, 33 Idaho 803, 199 P. 376.) The remittitur was forwarded to the clerk of the trial court on July 28, 1921, and filed in said court on July 29, 1921.

A motion was filed in this court by appellant's counsel on October 11, 1921, for an order recalling the remittitur, the restoration of the cause to the calendar, and permission to amend the petition for rehearing or file a supplemental petition. In support of the motion, it is alleged that counsel failed to fully brief and argue the question of the power of this court to modify the judgment by reducing the penalty to life imprisonment, and that this court was led into error by reason of a suggestion that it was without such power.

Two questions are presented by the motion: First, the power of this court to recall its remittitur; and, second, the power of the court to modify the judgment in this case.

(1) With respect to the power of an appellate court to recall its remittitur the general rule is that the jurisdiction of such court over a case ceases when the case has been determined and remanded to the lower court.

"After a case has been fairly submitted to an appellate court, and the court has regularly determined the issues involved and caused its judgment in conformity with such determination to be entered, . . . and the case is remanded to the lower court for such action as may be necessary, the jurisdiction of the appellate court terminates." (11 Ann. Cas. 865, note.)

This general rule of law is incorporated in our penal statutes as C. S., sec. 9091, in the following language: "After the certificate of the judgment has been remitted to the court below, the appellate court has no further jurisdiction of the appeal or of the proceedings thereon. . . ."

The preponderance of judicial authority, while recognizing the rule of law above stated, concedes the power of an appellate court, at any time during the term at which a judgment is rendered, to set it aside when it was improvidently given, in consequence of a false suggestion or under a mistake of facts. (Livesley v. Johnston, 47 Ore. 193, 82 P. 854.)

In Marshall Field & Co. v. Nyman, 285 Ill. 306, 120 N.E. 756, the supreme court of Illinois held: "There can be no question of the power to vacate judgments during term time in any court of record, and that this power is inherent in all courts of record, including not only nisi prius courts, but courts of appellate jurisdiction. (1 Black on Judgments, 2d ed., sec. 297; 23 Cyc. 890; 15 Ency. of Pl. & Pr. 205; 1 Freeman on Judgments, 4th ed., sec. 90.)"

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