Opinion of the Court--Earll, J. rectness of the interpretation which, anxious to secure a citizen against the injustice of a second conviction, requires him to suffer under the injustice of a first. Certainly I would not subject the prisoner to the hazards of a new trial without his consent. If, being capitally convicted, he elects to undergo the sentence, it may be his right, as it was to have pleaded guilty to the indictment. When, however, he asks a second trial, it is to relieve himself from the jeopardy in which he is already; and it is no new jeopardy that he encounters when his prayer is granted, but the same divested of the imminent certainty of its fatal issue." So, also, in the case of The United States v. Keen (1 McLean, 429), Mr. Justice McLean, of the Supreme Court of the United States, emphatically repudiated the constitutional construction for which Mr. Justice Story contended. "In favor of life," he says, "presumptions arise which seem to relax, and in fact sometimes do relax, the rigor of the law. But in the construction of the Constitution contended for, this maxim is reversed. The prisoner is found guilty by the jury, and, whether right or wrong, he must stand convicted. He claims, under the Constitution, a fair and impartial trial, and he shows gross prejudices against him by the jury who have convicted him on testimony wholly insufficient; but he is answered that the Constitution protects him from being put in jeopardy a second time for the same offense, and that a new trial would violate this provision. In other words, the Constitution guarantees to him the right of being hung, to protect him from the danger of a second trial. Whatever may be said theoretically of this constitutional protection, practically the subject of it can have no very strong reason to appreciate it." It will be observed that in each of the cases above cited, the opinion of Justice Story was urged as an authority against the prisoner's right to set aside the verdict, as well as against his right to a new trial. And, indeed, it is difficult to perceive how, in a case of a conviction of a capital offense, it could ever be applied to the prisoner's advantage, Opinion of the Court-Earll, J. because the whole theory of the argument is, that where the trial has been regularly had before a court of competent jurisdiction, upon a good indictment, and a verdict has been regularly rendered by a competent jury, the verdict is final, notwithstanding the court may have committed errors in the progress of the trial, and notwithstanding, also, that the evidence may have been insufficient to justify it. We do not deem it necessary to refer, in detail, to the other cases cited by counsel, because the facts upon which the decisions rest do not exist in the case under consideration; and, in our opinion, they required an entirely different application of the constitutional provision involved. With the exception of The People v. Webb, the cases cited relate to causes in which the defendant had been put upon his trial, and, without his consent, the jury were discharged before they had rendered a verdict. For the purposes of this case it may be conceded that, as a general rule, when the jury has been sworn, and the prisoner has been put upon his trial, and the jury are discharged without his consent, before rendering a verdict, that he cannot be tried again; though there are exceptions to the rule based upon urgent necessity. In the case of The People v. Webb, the defendant was tried and acquitted by the jury, and also discharged by the judgment of the court. The People having appealed, the court, following the almost universal current of authority both in England and in the United States, decided that the defendant having been once acquitted by the jury, he could not be held to answer again for the same offense, no matter by what mistakes or errors of the court, jury or prosecution the acquittal was obtained; and the court also decided that the statute giving the right of appeal to the people, in criminal cases, must be confined to such cases in which errors in the proceedings may occur before legal jeopardy has attached to the accused. We see no analogy between the cases cited by counsel and the one at bar. No case is cited where the verdict of guilty having been set aside, at the instance of the defendant, it has been held to bar another trial. Opinion of the Court--Earll, J. Whatever may have been the opinion of some of the earlier judges of both the United States and some of the State courts, in respect to the correct interpretation and effect of the constitutional provision, which declares that "no person shall be subject to be twice put in jeopardy for the same offense," we think the rule is now well settled that, when the verdict is so defective that no judgment can be entered upon it, the defendant, who might have had it perfected when rendered, is considered as consenting to it, and as waiving any objections to being put to answer before another jury. Bishop, in treating of the doctrine of consent under this constitutional provision, states, as the result of the decisions on the subject, as follows: "Thus, if, during the trial, the jury is discharged with the prisoner's concurrence, his privilege to object is waived, and he may be tried anew. And when a verdict is so incomplete that no judgment can be entered upon it, the law infers the consent of both parties to it; because either party might have had it perfected when rendered; and, therefore, the prisoner may be put to answer before another jury. * And finally, whenever a verdict, whether valid in form or not, has been rendered on an indictment either good or bad, and the defendant moves in arrest of judgment, or applies to the court to vacate a judgment already entered, for any cause, as for many causes he may, he will be presumed to waive any objection to being put a second time in jeopardy; and so he may ordinarily be tried anew." (1 Bish. Crim. Law, 3d ed., Sec. 844; State v. Sutton, 4 Gill. 494; Sargent v. State, 11 Ohio, 472; Wilson v. The State, 20 Ohio, 26; Monroe v. State, 5 Ga. 85; State v. Hughs, 2 Ala. 102; Cabia v. State, 16 Ala. 781; Gerard v. People, 3 Scam. 363; People v. Olcott, 2 Johns. Cas. 301; People v. Casborus, 13 Johns. 350; Commonwealth v. Green, 17 Mass. 515; People v. Stone, 5 Wend. 39; Allen v. State, 24 Ark. 333; Gibson v. Commonwealth, 2 Va. Cas. 111; Commonwealth v. Smith, Id. 327; People v. Olwell, 28 Cal. 456; United States v. Keen, 1 McLean, 429.) * * It was, however, suggested at the argument, that even if Opinion of the Court-Earll, J. no constitutional inhibition exists, the court has no authority to order the defendant to be tried again, because he did not apply for a new trial in the court below, but applied to be discharged from custody. The statute provides "that the appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial." (1 Compiled Laws, 529, Sec. 488.) It is thus apparent that whether a new trial is necessary or proper is a question for the court, and not for the defendant, to determine. In the language of Currey, J., in the case of The People v. Olwell, supra: "If it be necessary or proper in the judgment of the court to make such order, its power is nowise abridged because the defendant may fail or intentionally refuse to ask in terms for a new trial upon the reversal of the judgment. The court is to determine the question of necessity or propriety of ordering a new trial, and may exercise the power of making the order in such cases unless inhibited by the provision of the Constitution to which we have referred. The taking of an appeal from the judgment of conviction was a matter of the defendant's option. He had his choice to let the judgment stand and abide the consequences of it, or to move for its reversal in order to relieve himself from the jeopardy in which he was by reason of it. The appeal was taken on his behalf and for his benefit. The verdict and judgment by which his life was in peril being annulled at his request, the same are as though they never had been, and he is not in a position to set up the former trial and conviction in bar of another trial. The reversal of the judgment at the defendant's instance on appeal, takes from him the right of setting up the former trial and conviction in bar of another trial, as effectually as if he had secured the same end by a motion for a new trial." The judgment is reversed, the verdict set aside, and a new trial ordered. Statement of Facts. [No. 748.] THE STATE OF NEVADA EX REL. SAMUEL WATKINS, RELATOR, v. W. S. BONNIFIELD, DISTRICT JUDGE OF THE FOURTH JUDICIAL DISTRICT, RESPONDENT. MANDAMUS--COSTS, HOW TAXED.-Where in an application for mandamus the circumstances were such as to induce a reasonable belief that respondent intended an evasion of duty, and where from respondent's return it appears that no evasion was intended, and it further appearing that respondent, after the service of the alternative writ, had performed his duty: Held, that the writ should be dismissed without costs to respondent, and as the proceeding was ancillary to relator's right of appeal in a criminal case, the costs must be taxed against the county. THIS was an original application before the Supreme Court for a writ of mandamus to compel the respondent to settle and sign a bill of exceptions in the case of The State of Nevada v. Samuel Watkins. Among other things it appears from the petition of relator and the return thereto made by respondent, that a bill of exceptions in said case was prepared by C. S. Varian, Esq., counsel for said Watkins, and by him presented to respondent for settlement on the first day of August, 1875; that at that time and for several days thereafter, respondent was engaged in preparing a statement of the evidence in the case of The State of Nevada v. J. W. Rover, wherein the defendant had been convicted of murder and sentenced to death, to be forwarded to the governor as the law required (Criminal Practice Act, Sec. 455); that the counsel for said Watkins left Winnemucca, the county seat of Humboldt County, before the fifth day of August, 1875, and took up his residence in Virginia City, Nevada; that about August 6, 1875, the respondent received a letter from said counsel and inferred therefrom that it was the desire of said counsel to be present when said bill of exceptions was examined by respondent; that respondent did not settle said bill of exceptions because he desired to afford counsel an opportunity to be present; that on the 14th day of August, A. D. 1875, the said C. S. Varian, counsel for said Watkins, addressed a letter from Virginia City, Nevada, to the respondent at VOL. X.-26 |