
    STATE v. MEWHINNEY.
    No. 2548.
    Decided March 6, 1914
    (139 Pac. 862).
    1. CRIMINAL Law — Appeal—Law oe the Case. The decision of an appellate court on all questions necessarily involved in the case is not only binding on the lower court but is the law of the case on a subsequent appeal. (Page 233.)
    2. Criminal Law — Arrest oe Judgment — Grounds oe Motion. A motion in arrest of judgment may not be based on defects in instructions; Comp. Laws 1907, section 4901, prpviding merely that it may be founded on defects in the information or indictment. (Page 233.)
    Appeal from District Court, Third District; Hon. F. G. Loofbourow, Judge. - •
    Harley Mewhinuey, convicted of murder, moved in arrest of judgment, which was denied. He appeals.
    ApPIRMED.
    
      8. P. Armstrong, and H. J. Brothers for appellant.
    
      A. B. Barnes, Attorney-General, and E. V. Higgins, and G. A. Iverson, Assistant Attórneys-General, for the State.
    
      
       State v. Mortensen, 27 Utah, 44, 74 Pac. 120, 350.
    
   McCAKTY, C. J.

The defendant was tried and convicted in the district court of Salt Lake County for the crime of murder in the first' degree. Erom a judgment imposing the death penalty defendant appealed to this court. A hearing on the appeal was had, and the questions presented were duly considered by this court, and the judgment affirmed.. (43 Utah, 185, 134 Pac. 632.) A remittitur was sent from this court to the district court from which the appeal was taken. While the cause was pending on appeal in tbis court tbe date set for carrying into effect tbe judgment passed. On July 16, 1913, tbe district court designated and fixed tbe time and place at wbicb tbe defendant, under tbe sentence of death theretofore imposed, should be executed. Tbe defendant made a motion for an arrest of judgment on tbe ground that under one of tbe court’s instructions to tbe jury “be was not granted, and did not have a trial by jury.” It is also alleged in tbe motion that “while in form tbe defendant enjoyed a trial by jury, in substance (because of tbe instruction), be was denied that right,” and that “bis privileges and immunities as a citizen of tbe United States” were abridged thereby, contrary to article 6 and in violation of section 1 of article 14 of the amendments to tbe Constitution of tbe United States. Tbe motion was overruled. From tbe order overruling tbe motion, tbe defendant has appealed to tbis court.

The instruction complained of and assigned as error was as follows:

“Tour verdict in tbis case must be: Guilty of murder in tbe first degree, as charged in tbe information; or, Guilty of murder in tbe first degree as charged in tbe information, and we recommend that tbe defendant be imprisoned at bard labor in tbe state prison for life; or, Not guilty by reason of insanity; or, Not guilty, as your deliberations may result.”

Tbis instruction was assigned as error on tbe former ap- • peal of tbis case, and much space was devoted to tbe consideration and discussion of tbis alleged error in each of tbe separate opinions filed in tbe cause; tbe majority of tbe court holding that tbe giving of tbe instruction did not constitute error. Tbe questions presented by tbe former appeal, including tbe questions here sought to be reviewed, were again presented to tbis court by a petition for a rehearing, and they were again considered and decided adversely to tbe defendant’s contentions. No question is presented by tbis appeal that was not involved, considered, and adjudicated on tbe former appeal.

It is a familiar rule of la.w tbat the decision of an appellate court on all questions necessarily involved in a ease is not only binding on the lower court, but is the law of the ease in the appellate court on a subsequent appeal. State v. Mortensen, 27 Utah, 44, 74 Pac. 120, 350. In Elliott, App. Pro. section 578, it is said:

“It is a firmly settled principle that the decisions of the appellate tribunal constitute the law of the case upon all the points in judgment, no matter in what stage of the proceedings they arise, or in what mode they are presented. . . . The law as declared cannot he changed upon a second or subsequent appeal. This general doctrine is affirmed by many cases, and, so far as we can discover, denied by none. It is plainly evident that the rule is a sound and salutary one, since, without such a rule, litigation might be endless and a controversy remain unsettled.”

In 2 Spelling, New Trial & App. Proc. section 691, the rule is stated as follows:

“A decision of an appellate court must be adhered to at all future stages of the same ease, unless overruled by a higher appellate court. This rule applies both to the trial court and the appellate court, and is not affected by any error which may be imputed to or found in the decision. In other words, it is the law of that case.”

Furthermore, under our statute (Comp. Laws 1907, section 4901) a motion in arrest of judgment can be made upon “defects in the information or indictment” only. Defendant’s motion for an arrest of judgment-was not based upon any defect in the information, but was based wholly upon the giving of the instruction herein set forth. The court could not, on a motion of this kind, which must, under the statute, be grounded upon defects in the information or indictment, review alleged errors occurring at the trial, not based upon or in any way relating to such defects. The court, therefore, did not err in overruling the motion.

The judgment is affirmed.

STRAUP and ERICK, JJ., concur.  