People v. Dye

California Court of Appeal Mar 23, 1933 No. Docket No. 2258.Published

Before: Conrey

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Holding. The court held that a reversal of a judgment and an order denying a new trial effectively orders a new trial, that a prior conviction of second-degree murder does not bar a subsequent conviction of first-degree murder, and that a trial court may properly refuse instructions on lesser degrees of murder when the evidence warrants only a verdict of first-degree murder.

Issues

Whether a reversal of a judgment without an explicit order for a new trial constitutes a final determination of the action.
Whether a prior conviction of second-degree murder bars a subsequent conviction of first-degree murder upon retrial.
Whether the trial court erred in refusing to instruct the jury on lesser degrees of murder when the evidence supported only first-degree murder.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The former appeal in this case not only reversed the judgment, but also reversed an order denying motion for new trial and thereby, in effect, ordered a new trial.”

“A person charged with murder is not acquitted of a higher degree until a valid conviction obtained in the law’s form has become final.”

CONREY, P. J.

Upon conviction of murder in the first degree the defendant was sentenced to imprisonment for the term of his natural life. He appeals from the judgment and from the order denying his motion for a new trial.

As a result of a former trial this defendant was convicted of murder in the second degree. On appeal to this court from the judgment and from an order denying motion for a new trial the judgment and order were reversed.

(People

Dye,

119 Cal. App. 262 [6 Pac. (2d) 313].)

[524]

At the opening of the second trial defendant moved to dismiss the action, and that he be discharged from custody, on the ground that the District Court of Appeal had reversed the judgment without ordering a new trial. Appellant now contends that the court erred in denying the motion, and relies upon

In re Hampton,

98 Cal. App. 480 [277 Pac. 170], and the provisions of the Penal Code mentioned in that decision. The point is without merit. The decision in the Hampton case merely declared that where the appeal is from the judgment alone, and where the court reverses the judgment without making any order concerning the subject of new trial, such reversal operates as a final determination of the action. The former appeal in this case not only reversed the judgment, but also reversed an order denying motion for new trial and thereby, in effect, ordered a new trial.

Next, it is contended that because the jury at the former trial found the defendant guilty of murder in the second degree, he could not now lawfully be convicted of murder in the first degree. We think that this point is without merit. In

People

Superior Court,

202 Cal. 165, 173 [259 Pac. 943, 946], the Supreme Court said: “A person charged with murder is not acquitted of a higher degree until a valid conviction obtained in the law’s form has become final. It is true that a conviction of manslaughter has been held to be an acquittal of murder. But in no case has it been held that a conviction of murder in the second degree, or in the first degree punishable with life imprisonment, upon a new trial granted, bars a conviction of murder carrying with it the death penalty.” Neither do we think that such conviction of murder in the second degree would bar a conviction of murder in the first degree with recommendation to life imprisonment.

People v. Dye

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CONREY, P. J.

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