State v. Schoel

Ott, J.

(dissenting) — “. . . nor shall any person be subject for the same offense to be twice put in jeopardy . . • . ”• Amendment 5, United States constitution.

Webster’s • New International Dictionary (2d ed.), 1956, defines the word “jeopardy” as “Exposure to death, loss, or injury; hazard; danger.” The dictionary states that the word is' synonymous with peril or risk. Former jeopardy presupposes a former trial or risk. Hence, any second trial places the accused in peril or risk or jeopardy for a second time, whether it is occasioned by a jury’s failing to agree upon a verdict or by reversible error in the first proceeding. The courts in this country, without exception, have determined that a jury disagreement is not a completed trial or completed risk, because there is no final determination of the jeopardy and, hence, the original jeopardy continues until it is terminated, either by a verdict of acquittal or one of guilty.

In most jurisdictions, when a retrial is granted at the request of the accused, because of error in his former conviction, the retrial is not considered a violation of the constitutional provision relating to former jeopardy for one of two reasons, either (1) the plea of former jeopardy was waived by the accused when he himself requested a second trial, or (2), since the former jeopardy was not legally concluded, the retrial is a continuation of the original risk.

For forty-seven years, it has been the law of this state that, when one is charged with murder in the first degree (which includes the offenses of second-degree murder and, under certain circumstances, manslaughter), and is- convicted of the included offense, and the judgment has been annulled: at the request of the accused, the .entire proceed *399 ing is nullified and the retrial opens the whole Controversy as though the original trial was never had. State v. Ash, 68 Wash. 194 , 122 Pac. 995 (1912).

This interpretation of the meaning of a new trial is fair, both to the accused and to society. True, the accused may be convicted, upon the new trial, of the homicide having the greater penalty, but he likewise has an opportunity to gain an acquittal. Society, on the other hand, has the protection afforded it by any verdict resulting from a fair and impartial trial.

The protection offered both the accused and society is aptly demonstrated by the facts of State v. Ash, supra. In this case, the accused waited in ambush for two days to kill his victim. He was charged with first-degree murder. He entered a plea of not guilty, and a special plea of not guilty because of mental irresponsibility at the time of the killing. The court instructed the jury on murder in the first and second degrees and manslaughter, and on the defense of not guilty, as well as on the special plea of mental irresponsibility. The jury found Ash guilty of manslaughter. On appeal, this court reversed the conviction and held that there was no evidence to support the instruction on manslaughter, and that Ash was guilty of either first-degree or second-degree murder, or was not guilty, or was excused from his act by reason of mental irresponsibility.

Appellant Ash contended, as the majority now determine, that the verdict of the jury was an implied “not guilty” as to first-degree and second-degree murder, and that society had had its day in court on those issues. The plea of double jeopardy was fully considered by this court and rejected. The reasoning was that the error permeated the entire proceeding, and that, when one who stands convicted of an offense requests a new trial, the words “new trial” mean that the constitutional prohibition is waived by the accused’s request for a second trial, and that the accused is granted precisely that which he requested — a new trial as though the first was never had. This court, in the Ash decision, was fully aware that some jurisdictions supported *400 the opposite view, but concluded that the majority view1 “appeals-to Us as básed.upon the best reasoning and soundest judgment.” ...

At the new trial in the’ Ash case, the jury found that the accused had committed the act alleged, but found him not accountable for his misdeed because of mental irresponsibility existing at the time of the homicide. He was found to be sane at the time of trial and safe to be at large, which was tantamount to acquittal.

If we apply the present reasoning of the majority to the Ash case, society had had its day in court on the charge of first-degree murder, and it should follow that Ash had had his day in court on his special defense of insanity. The issue • of Ash’s competency was fully determined' in the original trial, and he was found to be sane, “by implication,” as to all degrees of the homicide charged. No error was assigned by appellant Ash to any part of the trial that involved the issue of his alleged incompetency. Ash was permitted to have another jury pass upon his competency only because the entire -first proceeding was nullified, and a new trial granted as though the first was never had.

Why should we now abandon the rule of stare decisis and adopt a new court-made law? The majority opinion leans heavily upon a recent five-to-four decision of the supreme court of the United States (Green v. United States, 355 U. S. 184 , 2 L. Ed. (2d) 199, 78 S. Ct. 221 (1957)), and holds that, since that court has recently overruled its Trono case (the decision which was followed by this court in the Ash case), we should now conform to the United States supreme court’s new decision on the subject.

In my opinion, the reasoning of the dissent in the Green case, -written by Justice Frankfurter and concurred in by Justices Burton, Clark, and Harlan, is “based upon the best reasoning and soundest judgment,” rather than that expressed in the majority opinion. It is stated in the dissent that

“ ‘the constitutional provision was really never intended to, and, properly construed, does not cover, the cas.e- of a judgment under these circumstances, which has been an *401 nulled by the court at the request of the accused . . . ’ 199 U. S., at 534.” (Italics mine.)

This reasoning is buttressed by historical references to the debates at the time the former jeopardy provision was written into the constitution by amendment, and by strong arguments for the preservation of the rule of stare decisis.

Homicide is the unlawful killing of a human being. When the framers of the constitution wrote into it the amendment forbidding double jeopardy, they were concerned solely with jeopardy as it related to the offense (homicide). They were not concerned with the statutory penalties or degrees of homicide, which relate only to the manner in which the unlawful killing was accomplished. In my opinion, this amendment to the constitution was never intended to forbid a retrial, when the retrial is requested by the accused. In the absence of good reasons for changing our established decisional law, we are not justified in overruling the Ash case simply to conform to the recent thinking of the supreme court of the United States.

I agree that there is room for an opposite view on the subject. As stated in Green v. United States supra, of the thirty-six states in the Union that have decided this issue, nineteen permit retrial for the homicide including the greater penalty. We have been aligned with these nineteen states for forty-seven years, and this is not a case of first impression in this state. California has had the opposite view since 1854. People v. Gilmore, 4 Cal. 376 . The majority’s citation of a recent California decision does not indicate an abandonment of California’s former decisions, but a reaffirmance of them.

Since the majority opinion expresses no new reasons why the rule announced in the Ash decision should be abandoned, that were not discussed in that case and rejected by this court, I am opposed to the abandonment of the rule of stare decisis simply because the court is now composed of other men. We should cling firmly to a policy of judgment by law, not by men.

Mallery, Hill and Donworth, JJ., concur with Ott, J.