
    * THE PEOPLE, Respondent, v. SAMUEL GILMORE, Appellant.
    
      Cbiminal Law — Plea of Eobmeb Conviction — The defendant was convicted of manslaughter, upon an indictment charging the crime of murder. The verdict was, on his motion, set aside. Meld, that to a second trial for murder, upon the same or a different indictment, defendant can plead the former conviction of manslaughter aB an acquittal of the crime of murder. Meld, also, that under the same indictment the defendant may be again tried, and convicted for manslaughter.
    Appeal from the Fourth Judicial District.
    
      
       Commented on in People v. Backus, 5 Cal. 278; People v. Apgar, 35 Cal. 391. Cited, in People v. Webb, 38 Cal. 478; State v. •Tweedy, 11 Iowa, 357: People v Schmidt, 64 Cal. 264. See 48 Ala. 695; 17 Am. Rep. 49; 29 Ark. 46; 33 Wis. 124; 14 Am. Rep. 750; 28 Gratt. 957 960; 8 Kan. 241, 244; 12 Am. Rep. 470 ; 48 Ind. 553.
    
   Mr. Oh. J. Murray

delivered the opinion of the Court.

Mr. J. Heydeneeldt concurred.

The appellant was indicted for murder.

On the trial, the jury rendered a verdict of guilty of manslaughter, which was afterwards set aside on the prisoner’s motion, and a new trial ordered.

On the second arraignment of the prisoner upon the indictment, he pleaded a former acquittal.

The questions presented are:

1st. The prisoner having been convicted of manslaughter, can he, on a second trial, be compelled to answer to the charge of murder? And,

2d. Admitting that he cannot, whether the prisoner can be again tried for manslaughter, inasmuch as the indictment against him is for the crime of murder ?

A conviction for manslaughter is an acquittal of the charge of murder, and the verdict, though general in in its terms, must, by legal operation, amount to an acquittal of every higher offense charged in the indictment than the particular one of which the prisoner is found guilty.

The reason is obvious: if such were not the case, the party, after undergoing punishment for manslaughter, might be arraigned and tried again for murder, notwithstanding hp had * been compelled to answer this charge upon the first trial, and the jury had passed upon the same.

“The jury, in such a case, in contemplation of law, render two verdicts: the one acquitting him of the higher crime; the other convicting him of the inferior. They must first determine his guilt or innocence upon the charge made by tbe indictment, before proceeding to inquire whether he is guilty of an inferior crime. The verdict of manslaughter is as much an acquittal of the charge of murder, as a verdict pronouncing his entire innocence would be, for the effect of both is to exempt him from the penalty of the law for such crime,” (Hurt v. The State of Miss., 25 Miss. 378.)

It is contended, however, in opposition to this position, that the new trial is the consequence of the prisoner’s own act, and that he voluntarily subjects himself to the risk of a conviction for murder, by applying for such new trial.

The case has been likened to one where the judgment is arrested for some irregularity or informality on the application of the prisoner. There is a wide difference between the two cases: in the latter the verdict is against the prisoner, while in this case it is in his favor.

There is no authority to be found, which enables a party or the Court, in a case where the prisoner has been acquitted of an alleged crime, to arrest the judgment, and re-try the cause.

The acquittal would operate as a bar to all further proceedings, and the party, if insane enough to ask again to be put upon trial, would be met' by the answer, that the Court had no longer any jurisdiction over him.

I shall assume, that the Court below possessed the inherent power of awarding a new trial in this case, and that the statute is only a limitation on the power of said Court, as to the cases in which it may be exercised.

The 439th section of the Criminal Code reads as follows: “A new trial is a re-examination of the issue in the same Court, before another jury, after verdict has been given. It places the parties in the same position as if no trial had been had,” etc., etc.

It is contended that this section is conclusive of the whole * case. It is, however, susceptible of another reading; and one more in consonance with the humane and enlightened spirit of the age, as well as of our jurisprudence.

I understand it to mean the issue in controversy, not the one that has been settled by the jury, and found in favor of the defendant; and I understand the words, “placing the parties in the same position that they occupied before the trial,” ■as simply applying in reference to the issues undisposed of. The section, at best, is but a crude definition of a new trial, and by reference to the Act, it will be seen that the Legislature does not purport to give to the Courts the power of granting new trials, as a new and distinct power, not belonging to them by virtue of their original jurisdiction, but only to limit the exercise of an acknowledged authority.

That I am correct in my construction of this section, to my mind is evident, from the fact that the Legislature could not have intended, where a man had been improperly convicted of a minor offense, to subject him to the risk of being convicted of a greater one. If such a rule be established, no man will subject himself to the risk of being hung for murder, when convicted of manslaughter, and will prefer in many instances, although innocent, to rest under the conviction than to encounter the danger of a second trial. In every case where the timid and unfriended are involved, this will be found to be the result, and in times of high popular excitement, those who may be bold in the consciousness of their innocence, will hesitate before they voluntarily assume so great a risk, and pay so fearful a premium for the privilege of asserting that innocence.

Again: The prisoner is either absolved from the charge of murder,- and entitled to a new trial on the charge of manslaughter, or he is not entitled to a new trial at all.

The Constitution of this State has provided that “no person shall be subject to be twice put in jeopardy for the same offense.”

Now, if I am right, that a convictioh for manslaughter is an acquittal for murder, it must follow, that any law that would compel a party to be re-tried for murder, in order to escape *the minor offense, thereby putting the party in jeopardy, is in conflict with this provision of the Constitution.

It has been urged that the party voluntarily put himself in this jeopardy. Such is not the case. The Act, if we are to give it the construction contended for on the part of the State, takes from the party a right which he before possessed, and necessarily subjects him to a second jeopardy, if he wishes to maintain that right, or assert his innocence. This is a subjection by operation of law, and not by act of the party; and if it were otherwise, I have shown that no party can voluntarily subject himself to a second trial after an acquittal, and that the Courts have no jurisdiction over him.

These principles have been fully settled by the Supreme Courts of Mississippi and Tennessee, in the cases of Hurt v. The State, 25 Miss., and The State v. Slaughter, 6 Humph. 410.

I know of but one case in which a different rule has been held, viz: by Mr. Justice Grier, in a case before the U, S. Circuit Court in Philadelphia, in 1848. '•

The address of the learned Judge to the prisoners in that case, seems to have been prompted more by the feelings natural to the occasion than from a correct opinion of the law, and as it is unsupported by any authority or argument, may be considered as mere dictum. ■

The only difference between the cases cited from Mississippi and Tennessee, if any exist (and it does not appear from the report of those cases), is, that there were distinct and separate counts in the indictment both for murder and manslaughter, while in the present case there is but one count, and that for murder. This consideration has been urged upon the Court, and it has been ably argued, that if the prisoner cannot be retried for murder, there is no indictment on which he can be arraigned and tried for manslaughter, and therefore he must be discharged.

In the case of Campbell v. The State, 9 Yerg. 333, it was held to be error, after conviction on one count of an indictment, and an acquittal on another, to re-try the party on both counts, upon the grounds which we have already alluded to. In Indiana, in tlie case of The State v. Morris, 1 Blackf. 37, it was * held, that where one count includes a greater and a less charge (e, g.~), burglary and larceny, and after acquittal of the greater offense, but conviction of the lesser, a new trial is ordered, that the whole case is re-opened, and the defendant subjected on the second trial to the double charge,

I have been unable to obtain the latter case, and am, therefore, ignorant of the reasons on which the decision was based. Whatever they may have been, I do not see how such a decision could be maintained on principle.

If, however, there be any well settled ground of distinction between a case where the indictment contains several counts and where it contains only one, that difference is obviated by our statute, which specially provides that “the indictment shall charge but one offense,” and further, the defendant may be convicted of any offense, the commission of which is necessarily included in that with which he is charged in the indictment,” etc. An indictment, by operation of law for murder, is also an indictment for manslaughter, and every less offense that may be included under the charge of murder, just as much as though it were charged in distinct and separate counts.

We are of opinion that the appellant is now liable and should be tried for manslaughter, on the indictment already found against him.

In regard to the last point raised by the appellant, viz': that the District Court has no jurisdiction over the case of the prisoner, we do not consider it worthy of serious consideration, as the Legislature possessed the undoubted right to transfer the criminal business of the Court of Sessions to the District Court; and the 439th section of the Criminal Code cannot be regarded as a guarantee of any right to the prisoner to be again tried before the Court of Sessions, or as a limitation on the power of the Legislature to change the forum.

The judgment of the Court below is reversed and the cause remanded, with instructions to the District Court to try the prisoner for manslaughter, in conformity with this opinion.  