State v. Sorrentino

Decision Date15 February 1927
Docket Number1289
Citation36 Wyo. 111,253 P. 14
PartiesSTATE v. SORRENTINO [*]
CourtWyoming Supreme Court

APPEAL from District Court, Laramie County; WILLIAM A. RINER, Judge.

Mike Sorrentino was convicted of murder in the second degree, and he appealed. 31 Wyo. 129, 224 P. 420, 34 A. L. R. 1477. He was ordered sentenced for manslaughter, and he appeals.

Affirmed.

William C. Mentzer, for appellant.

Upon indictment for an offense consisting of different degrees the jury may find the defendant not guilty of the degrees charged, and guilty of any degree inferior thereto; 5550 C S.; Cook v. Territory, 3 Wyo. 110. This court acquired jurisdiction on appeal to discharge defendant, grant a new trial or affirm the judgment below; Mahoney v State, 5 Wyo. 520. Similar statutes exist in other states; People v. Lee Yung Chong, (Cal.) 29 P. 777; People v. Travers, (Cal.) 15 P. 293; Territory v. Griego, (N. M.) 42 P. 81. Error in the verdict and degree of punishment should be corrected by a new trial; Ex Parte Friedrich, 149 U.S. 70; State v. Symes, (Wash.) 50 P. 487; Spain v. State, 59 Miss. 19; Fletcher v. State, (Miss.) 92 So. 556; Wood v. State, (Okla.) 112 P. 11. An appellate court could not change the verdict; State v. Child; (Kan.) 22 P. 721; Henwood v. People, (Colo.) 129 P. 1010; In re Burns, 113 F. 987; Ex Parte Slinger, 284 F. 60; In re Bonner, 151 U.S. 242; Allen v. State, (Wis.) 54 N.W. 999; Slocum v. Ins. Co., 228 U.S. 364, and cases cited. An appellate court has no jurisdiction to reduce the amount of a verdict found by a jury, on the ground that the verdict is against the weight of the evidence; the cause must be remanded for new trial; Beckley v. Miller, (Ark.) 131 S.W. 876; Langdon v. Court, (Cal.) 223 P. 72; Perkins v. McDowell, (Wyo.) 23 P. 71. Section 7591 C. S. is in conflict with Sections 6 and 9, Article I of the Constitution and of the Fourteenth Amendment of the Federal Constitution, since it removes the right of trial by jury and due process of law; it is error to submit a cause on a lesser degree, when unsupported by evidence; State v. Ash, (Wash.) 122 P. 995; State v. McPhail, (Wash.) 81 P. 683; State v. Kruger, (Wash.) 111 P. 769; Dresback v. State, 38 O. S. 365; State v. Lindsey, (Nev.) 5 P. 822. While some courts hold that a question once decided, though erroneous, will not be modified on a second appeal, we believe the better rule to be as stated by the Kansas Court, that an erroneous decision should be corrected; Co. v. Merrill, (Kan.) 70 P. 358; and in Cluff v. Day, (N. Y.) 36 N.E. 182; Johnson v. Motor Car Co., 261 F. 878; Wells on Res. Adjudicata, 624; Bomar v. Parker, (Texas) 4 S.W. 599; Bird v. Sellers, (Mo.) 26 S.W. 668; Barton v. Thompson, (Ia.) 9 N.W. 899. Punishment should be sufficient only to protect the public safety; State v. Wolfer, (Minn.) 138 N.W. 315; State v. Ringdahl, (Ia.) 183 N.W. 332; State v. Ross, (Ore.) 104 P. 596; 106 P. 1022; Lyon v. State, (Okla.) 146 P. 1084; State v. Ramirez, (Idaho) 203 P. 279. We are unable to reconcile the holding of the court in this case with the rule laid down in State v. Palmer, 9 Wyo. 40, which was to the effect that a person assaulted has the right to defend himself.

David J. Howell, Attorney General, for respondent.

This case was fully briefed and argued upon the merits and original hearing, and upon rehearing; the question as to the power of this court to reduce the judgment, from murder in the second degree to manslaughter, was exhaustively briefed and fully argued upon rehearing; respondent's former briefs are respectfully submitted for consideration on this second appeal; the regularity and procedure in the sentence is not questioned, nor is it denied that the lower court failed to comply with the mandate of this court; the judgment should be affirmed.

BLUME, Chief Justice. POTTER, J., and KIMBALL, J., concur.

OPINION

BLUME, Chief Justice.

The appellant, Mike Sorrentino, was convicted of murder in the second degree in the District Court of Laramie County, and from the sentence in accordance with the verdict he took an appeal to this court. On that appeal we held that the verdict was not justified as to murder in the second degree but only as to manslaughter, and we permitted the verdict to stand to that extent only and directed the court, unless the state should elect otherwise, to resentence the defendant for the crime of manslaughter. 31 Wyo. 129, 224 P. 420; rehearing denied in 31 Wyo. 499, 228 P. 283. The state not electing otherwise, appellant was sentenced, in accordance with the order of this court, for the crime of manslaughter on September 2, 1924, the sentence directing appellant's confinement in the state penitentiary for a minimum period of sixteen years and a maximum period of seventeen years. The present appeal was taken from that judgment. Without determining as to whether or not an appeal from a sentence entered in conformity with the order of this court is proper and should be considered by us, we have deemed it best, on account of the importance of the questions involved, and the persistence of counsel for appellant in claiming that we erred in the former appeal, to fully reexamine the main points in the case.

1. Counsel for appellant claims as he did in the petition for rehearing on the former appeal, that while sections 7589 and 7591, W. C. S. 1920, authorize this court to modify a judgment of the District Court, it does not authorize this court to modify the verdict of the jury; that we had, accordingly, no power to reverse the judgment for murder in the second degree, and at the same time let the verdict stand as to manslaughter and direct the appellant to be resentenced for that crime, but that we could do nothing more than to remand the case back for a new trial. There is ample authority, however, for the order which we made. In substantially all the cases which we cited as precedents for that order in the opinions on the former appeal, the verdict itself was directly affected, modified and partially set aside. That, for instance, was true in Vance v. State, 70 Ark. 272, 68 S.W. 37; Darden v. State, 73 Ark. 315, 84 S.W. 507; Jones v. State, 88 Ark. 579, 115 S.W. 166; Harris v. State, 119 Ark. 85, 177 S.W. 421; State v. Friedrich, 4 Wash. 205, 29 P. 1055, 30 P. 328, 31 P. 332; State v. Lillie, 60 Wash. 200, 110 P. 801; Fouts v. State, 4 G. Greene (Iowa) 500; State v. McCormick, 27 Iowa 402; People v. Farrell, 146 Mich. 264, 109 N.W. 440; People v. O'Callaghan, 2 Idaho 156, 9 P. 414; Commonwealth v. Lawless, 103 Mass. 425; State v. Bugbee, 25 Vt. 32; State v. Kennedy, 88 Mo. 341; Ballew v. United States, 160 U.S. 187, 160 U.S. 187, 16 S.Ct. 263, 40 L.Ed. 388. In the Arkansas, Iowa, Michigan, Idaho and one of the Washington cases cited, the verdict rendered by the jury was reduced either from murder in the first degree to murder in the second degree, or from murder in the second degree to manslaughter, and the defendant was directed to be resentenced for the crime of lower degree or character. In Ballew v. United States, supra, a case almost exactly like that of State v. Bugbee, supra, the defendant was indicted upon two counts. The jury rendered a general verdict of guilty. The Supreme Court held that the verdict was justified as to one count but not as to the other, and, therefore, reversed the case as to the one, but permitted the verdict to stand as to the other. The verdict being a general one, the court necessarily affected and modified the verdict itself. The case is, accordingly, directly in point. That is the view taken of the case by the Supreme Court of Arkansas in Darden v. State, supra, and, we think, rightly. Counsel for appellant have cited us to State v. Symes, 17 Wash. 596, 50 P. 487, where it was held that the trial court, because of its limited power, had no right to modify the verdict of the jury, but could only grant or refuse a new trial. The case in no way affected State v. Friedrich, supra, and the rule of the latter case was distinctly reaffirmed in State v. Lillie, supra. After careful investigation, we have been unable to find a single case decided by an appellate court in the United States which holds against the rule announced by us in this case on the former appeal, and the only decision contrary to it seems to be that of District Judge Hanford in the case of In re Friedrich, (C. C.) 51 F. 747. The cases cited by counsel for appellant do not appear to be in point, although a statement here and there might be construed as favorable to his contention.

2. Bearing in mind what we have said, we shall proceed to the consideration of the claim that our former holding and the action of the trial court in conformity therewith was in violation of section 6, article 1, of the constitution of this state, which provides that no person shall be deprived of life, liberty or property without due process of law, and in violation of section 9, article 1, of the constitution of this state, which provides that the right of trial by jury shall remain inviolate in criminal cases. The contention in short is, that no jury has ever found the appellant guilty of manslaughter, and that his sentence to imprisonment is accordingly illegal. But this contention can not be sustained. We stated in our opinion on the former appeal that the crime of manslaughter is included in the crime of murder. Manslaughter is, in short, an unlawful homicide without malice. Sec. 7070, W. C. S. 1920; Pigg v. State, 145 Ind. 560, 43 N.E. 309. Our law upon that subject was taken from Indiana, and the Supreme Court of that state has held that the definition of manslaughter, as contained in our statute, is the same as it was under the common law; that an indictment for murder in the first degree, as was the indictment in the case at bar, is...

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  • Jahnke v. State
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    ...562 P.2d 679 (1977); Cavanagh v. State, Wyo., 505 P.2d 311 (1973); Bird v. State, 36 Wyo. 532, 257 P. 2 (1927); and State v. Sorrentino, 36 Wyo. 111, 253 P. 14 (1927). In his argument the appellant recognizes the historic rule of this court pursuant to which sentencing is left to the sound ......
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