People v. Bennett

50 P. 703, 5 Cal. Unrep. 824, 1897 Cal. LEXIS 995

• Court: California Supreme Court
• Decided: October 8, 1897
• Docket: Cr. No. 261
• Status: Published

Opinions

PER CURIAM.

This is an appeal from the judgment rendered upon the verdict of a jury finding defendant guilty of assault with intent to commit murder. In January, 1895, the appellant, Bennett, was placed on trial before the superior court of Alameda county under an information charging him with an assault with intent to commit murder. The jury found the defendant guilty of the lesser offense of assault with a deadly weapon. He moved for a new trial upon the ground that the verdict was not supported by the evidence, and his motion was granted. In May, 1895, he was again put on trial, under the same information, before the same court and the same judge. A jury was impaneled and sworn to try the ease, and without any other or further arraignment of appellant, or any new or other plea, the trial proceeded to its close, and the jury found Bennett guilty of assault with intent to commit murder. He again moved for a new trial, which was granted upon the sole ground that he had been twice put in jeopardy for the same offense. From this order the people appealed. The opinion and judgment of this court reversing the order granting defendant a new trial will be found reported in the one hundred and fourteenth volume of our reports, at page 56 (45 Pac. 1013.) By this decision it was declared that in a criminal ease, tried, as this one was, under the same information and before the same court, the fact that the defendant had been acquitted of the graver charge of assault with intent to commit murder by the verdict of the jury upon the first trial, finding him guilty of assault with a deadly weapon, could not be availed of by defendant after trial, except under an express plea of once in jeopardy, interposed by him before the trial. For this reason the order of the trial court was reversed. Upon the return of the remittitur the trial court, as was its duty to do, pronounced judgment upon defendant under the verdict of guilty of assault with intent to commit murder, and sentenced him to imprisonment in the state prison. From that judgment he prosecutes this appeal, and his counsel insists that this court erred in its former determination, in reversing the order granting him a new trial, and asks us to reconsider the question upon this appeal. But this we cannot do. All of the considerations which govern the application of the doctrine . of the law of the case are present here with peculiar and exceptional force. The precise point in controversy was, in a former appeal in this same cause, decided by the court, and its decision has become final. The action of the trial judge in pronouncing sentence upon the defendant for the crime of assault with intent to commit murder was an action in which he had no discretion, but which he was commanded to perform by the judgment of the court. He could have done no other than he did without disregard of his oath. The former decision thus became the rule of law governing the rights of the parties, and the conduct of the trial judge in the determination of this question, and we have no lawful power to review our own judgments which have become final at the expiration of the constitutional period of thirty days. The subversion of the wise and long-settled rule that a previous decision of this court is conclusive in the same case upon the rights of the parties, and is not the subject of revision, would lead to such disastrous results that it may not for a moment be contemplated: Dewey v. Gray, 2 Cal. 374; Clary v. Hoagland, 6 Cal. 688; Cordier v. Schloss, 18 Cal. 576; Leese v. Clark, 20 Cal. 387; Jaffe v. Skae, 48 Cal. 543; Wilkinson v. Merrill, 56 Cal. 560. Appellant’s further contention that the court erred in instructing the jury in regard to the crime of assault to murder is disposed of by what has already been said. Upon the last proposition, that the evidence is insufficient to justify the verdict, we can but repeat that it is not the province of this court to substitute its own views of the evidence for those of the jurors, and the record discloses sufficient testimony to uphold the verdict. The judgment appealed from is therefore affirmed.