People v. Gilmore

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 ar[377]raigned and tried again for murder, notwithstanding hp had * been compelled to answer this charge upon [377] 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.