By the Court,
Currey, J.
The defendant was indicted for the murder of James Irwin. He pleaded not guilty. On the trial it was proposed, on the part of the defendant, to prove that he was insane when he committed the homicide. The counsel for the people objected to the testimony offered, and the Court sustained the objection, on the ground that upon the trial upon the plea of not guilty the defendant could not introduce evidence to show he was insane at the time the offense was alleged to have been committed, assigning as a reason for such. decision that it was provided by the Third Chapter of Title XII of the Act to regulate proceedings in criminal cases (Laws 1851, p. 277) that the question of the insanity of the defendant must be tried upon a special issue. To this ruling of the Court the defendant’s counsel excepted. The defendant was found guilty of murder in the first degree. At the time appointed for pronouncing judgment, the Court, in the presence and hearing of the defendant, inquired of his counsel if he desired, on behalf of the prisoner, to move for a new trial, stating, at the same time, that if such motion was made the inclination of the Court was to grant it, and also stating that such inclination arose from a conviction that there was error committed by the Court on the trial in making the decision above noticed. The defendant’s counsel declined to ask or move for a new trial. The Court then pronounced judgment that on a particular day the defendant be hanged by the neck until he should suffer death.
A bill of exceptions on behalf of the defendant was settled and signed by the Judge of the Court, and then filed, which [461]*461is brought before this Court by the defendant on appeal from the judgment.
The defendant’s counsel does not ask this Court to reverse the judgment 'and order a new trial of the cause, but to reverse the judgment and order the defendant discharged.
That the Court below erred in rejecting evidence of the defendant’s insanity at the time he killed Irwin, the learned Judge of that Court admitted when the suggestion was made that if a new trial was applied for on behalf of the defendant it would be granted; and in this Court the Attorney-General has confessed the error. We deem it unnecessary to say more than that we also are satisfied that the ruling of the Court below was erroneous and that on account of it the judgment should be reversed ; but whether it is competent for this Court to order a new trial, upon a reversal of the judgment, involves the consideration of a constitutional provision of grave importance.
The defendant was tried upon a sufficien b indictment. The verdict of the jury was that he was guilty of murder in the first degree, as charged in the indictment. Upon this verdict the judgment of the law was pronounced. By his appeal the defendant asks this Court to reverse this judgment for error of law which occurred prior to the verdict in the progress of the trial, to his injury. For the error, assigned the judgment must be reversed, and we are of the opinion it is proper to order a new trial of the case, if it can be done. But on the part of the defendant the power of the Court to do so is denied on the ground that thereby the defendant would be put in jeopardy the second time, when the Constitution declares that “ no person shall be subject to be twice put in jeopardy for the same offense.”
This question was passed upon and decided in this State in the case of The People v. March, 6 Cal. 546. In that case the defendant was indicted for murder, and was convicted of the crime. The judgment was reversed by the Supreme Court for an error committed on the trial, and a new trial was ordered. After the remittitur had been filed in the Court in which the [462]*462defendant was tried, the indictment was set aside on application of the Prosecuting Attorney, and a new indictment was found against the defendant for the same offense, to which he pleaded not guilty; and he also pleaded specially autrefois convict and the reversal of that conviction by the Supreme Court. He was tried, found guilty and sentenced to death. On appeal from this judgment, March, the defendant, claimed that he was entitled to be discharged on the dismissal of the first indictment against him, and that the trial and the subsequent jn'oceedings under the second indictment were in violation of the constitutional provision before cited. To this the Court in its opinion answered: “ This provision was never intended to apply to cases in which a judgment of conviction was reversed in the appellate Court, and a new trial ordered. In such cases it being apparent, from the judgment of the reversal, that such trial was erroneous, the defendant, in fact, was not in jeopardy. The order for a new trial places the party in the same position as though no trial had been had.”
It has been a maxim of the common law for centuries, that no person shall be subject for the same offense, to be twice put in jeopardy of life or limb. (4 Black. Com. 335.) This maxim is incorporated in the Constitution of the United States and also in the Constitutions of many of the States of the Union. That “ no person shall be subject to be twice put in jeopardy for the same offense,” is a' part of the Constitution of this State. This constitutional maxim is intended for the protection of the citizen from oppression, and not as a shield to the guilty. If one accused of crime has once been tried and convicted of it, and judgment has passed against him, the law is satisfied. If he has been tried and acquitted, he is in the eye of the law innocent of the offense of which he was accused. But to constitute a former conviction a bar to a second trial for the same offense, it must appear that the judgment or verdict of conviction was final; otherwise the accused cannot say he was in jeopardy. At common law upon a second indictment for the same offense, the prisoner could not avail himself of a former conviction, under the plea [463]*463of not guilty, but he was required to plead it specially. Then to ascertain what constitutes a complete defense under the clause of the Constitution cited, we need only to ascertain what, in substance, is necessary to constitute at common law a good plea of autrefois acquit' or autrefois convict. (Corn v. Olds, 5 Littell, 139, 140 ; State v. Ainsworth, 11 Verm. 92.) Now by reference to the precedents of pleas of the kind mentioned, to be found in the early editions of Archibold’s Criminal Pleading, it appears that the defendant must aver that the judgment, on which he relies as a bar to the further prosecution of the indictment against him, “remains in full force and effect, and not in the least reversed or made void.” .
By taking and prosecuting his appeal, the defendant seeks a reversal of the judgment. The reversal of a judgment in such a case, for error in the proceedings prior to the verdict, operates to vacate the verdict. The judgment and verdict being reversed and held for naught, there is nothing left to support the plea of autrefois convict.
As we understand the learned counsel for the appellant, his position is that, while this Court may reverse the judgment of the Court below for error which occurred on the trial, we have no power to order a trial de nova, because by another trial the defendant would be put in jeopardy more than once for the same offense, and in support of his position he cites the case of the United States v. Gilbert, 2 Sumner, 37, in which Mr.
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By the Court,
Currey, J.
The defendant was indicted for the murder of James Irwin. He pleaded not guilty. On the trial it was proposed, on the part of the defendant, to prove that he was insane when he committed the homicide. The counsel for the people objected to the testimony offered, and the Court sustained the objection, on the ground that upon the trial upon the plea of not guilty the defendant could not introduce evidence to show he was insane at the time the offense was alleged to have been committed, assigning as a reason for such. decision that it was provided by the Third Chapter of Title XII of the Act to regulate proceedings in criminal cases (Laws 1851, p. 277) that the question of the insanity of the defendant must be tried upon a special issue. To this ruling of the Court the defendant’s counsel excepted. The defendant was found guilty of murder in the first degree. At the time appointed for pronouncing judgment, the Court, in the presence and hearing of the defendant, inquired of his counsel if he desired, on behalf of the prisoner, to move for a new trial, stating, at the same time, that if such motion was made the inclination of the Court was to grant it, and also stating that such inclination arose from a conviction that there was error committed by the Court on the trial in making the decision above noticed. The defendant’s counsel declined to ask or move for a new trial. The Court then pronounced judgment that on a particular day the defendant be hanged by the neck until he should suffer death.
A bill of exceptions on behalf of the defendant was settled and signed by the Judge of the Court, and then filed, which [461]*461is brought before this Court by the defendant on appeal from the judgment.
The defendant’s counsel does not ask this Court to reverse the judgment 'and order a new trial of the cause, but to reverse the judgment and order the defendant discharged.
That the Court below erred in rejecting evidence of the defendant’s insanity at the time he killed Irwin, the learned Judge of that Court admitted when the suggestion was made that if a new trial was applied for on behalf of the defendant it would be granted; and in this Court the Attorney-General has confessed the error. We deem it unnecessary to say more than that we also are satisfied that the ruling of the Court below was erroneous and that on account of it the judgment should be reversed ; but whether it is competent for this Court to order a new trial, upon a reversal of the judgment, involves the consideration of a constitutional provision of grave importance.
The defendant was tried upon a sufficien b indictment. The verdict of the jury was that he was guilty of murder in the first degree, as charged in the indictment. Upon this verdict the judgment of the law was pronounced. By his appeal the defendant asks this Court to reverse this judgment for error of law which occurred prior to the verdict in the progress of the trial, to his injury. For the error, assigned the judgment must be reversed, and we are of the opinion it is proper to order a new trial of the case, if it can be done. But on the part of the defendant the power of the Court to do so is denied on the ground that thereby the defendant would be put in jeopardy the second time, when the Constitution declares that “ no person shall be subject to be twice put in jeopardy for the same offense.”
This question was passed upon and decided in this State in the case of The People v. March, 6 Cal. 546. In that case the defendant was indicted for murder, and was convicted of the crime. The judgment was reversed by the Supreme Court for an error committed on the trial, and a new trial was ordered. After the remittitur had been filed in the Court in which the [462]*462defendant was tried, the indictment was set aside on application of the Prosecuting Attorney, and a new indictment was found against the defendant for the same offense, to which he pleaded not guilty; and he also pleaded specially autrefois convict and the reversal of that conviction by the Supreme Court. He was tried, found guilty and sentenced to death. On appeal from this judgment, March, the defendant, claimed that he was entitled to be discharged on the dismissal of the first indictment against him, and that the trial and the subsequent jn'oceedings under the second indictment were in violation of the constitutional provision before cited. To this the Court in its opinion answered: “ This provision was never intended to apply to cases in which a judgment of conviction was reversed in the appellate Court, and a new trial ordered. In such cases it being apparent, from the judgment of the reversal, that such trial was erroneous, the defendant, in fact, was not in jeopardy. The order for a new trial places the party in the same position as though no trial had been had.”
It has been a maxim of the common law for centuries, that no person shall be subject for the same offense, to be twice put in jeopardy of life or limb. (4 Black. Com. 335.) This maxim is incorporated in the Constitution of the United States and also in the Constitutions of many of the States of the Union. That “ no person shall be subject to be twice put in jeopardy for the same offense,” is a' part of the Constitution of this State. This constitutional maxim is intended for the protection of the citizen from oppression, and not as a shield to the guilty. If one accused of crime has once been tried and convicted of it, and judgment has passed against him, the law is satisfied. If he has been tried and acquitted, he is in the eye of the law innocent of the offense of which he was accused. But to constitute a former conviction a bar to a second trial for the same offense, it must appear that the judgment or verdict of conviction was final; otherwise the accused cannot say he was in jeopardy. At common law upon a second indictment for the same offense, the prisoner could not avail himself of a former conviction, under the plea [463]*463of not guilty, but he was required to plead it specially. Then to ascertain what constitutes a complete defense under the clause of the Constitution cited, we need only to ascertain what, in substance, is necessary to constitute at common law a good plea of autrefois acquit' or autrefois convict. (Corn v. Olds, 5 Littell, 139, 140 ; State v. Ainsworth, 11 Verm. 92.) Now by reference to the precedents of pleas of the kind mentioned, to be found in the early editions of Archibold’s Criminal Pleading, it appears that the defendant must aver that the judgment, on which he relies as a bar to the further prosecution of the indictment against him, “remains in full force and effect, and not in the least reversed or made void.” .
By taking and prosecuting his appeal, the defendant seeks a reversal of the judgment. The reversal of a judgment in such a case, for error in the proceedings prior to the verdict, operates to vacate the verdict. The judgment and verdict being reversed and held for naught, there is nothing left to support the plea of autrefois convict.
As we understand the learned counsel for the appellant, his position is that, while this Court may reverse the judgment of the Court below for error which occurred on the trial, we have no power to order a trial de nova, because by another trial the defendant would be put in jeopardy more than once for the same offense, and in support of his position he cites the case of the United States v. Gilbert, 2 Sumner, 37, in which Mr. Justice Story, in an elaborate opinion, endeavored to show that when a trial had been regularly had before a Court of competent jurisdiction, upon a good indictment, and a verdict has been rendered by a competent jury, the party accused cannot be tried a second time for the same offence. He was of the opinion that the provision of the Constitution which adopts the maxim of-the common law that a man shall not be twice put. in jeopardy for life or limb for the same offense, presented an insurmountable barrier to a second trial, even if applied for by the defendant himself. "But Judge Davis, in the same case, dissented from that part of the opinion of the learned Justice which denied the power to grant a new trial [464]*464on the merits, upon the application of the prisoner to reverse a verdict of conviction. Referring to the English authorities on the subject, he said: “It is true, that, according to approved authorities, the plea of autrefois convict depends on the same principle as the plea of autrefois acquit—that no man ought to be twice brought in danger of his life for one and the same cause. The doctrine establishes a right in the prisoner. to resort to that defense, if it be attempted or moved against his will to subject him to a second trial. The case of a verdict of conviction set aside at the request of the prisoner is not suggested in those authorities, and would stand, in my opinion, on very different ground. The previous question would not, I apprehend, under such circumstances, be considered as a sufficient bar to a second trial.” Opposed to the doctrine of Mr. Justice Story is a strong current of decisions to be found in the volumes of reported cases of the Federal Courts, as well as of the highest Courts of many of the States of the Union. Many of these authorities are referred to by Mr. Justice Harris, in his opinion in The People v. Morrison, 1 Parker’s Cr. R. 626, in which he says Justice Story stands alone in his construction of the constitutional provision under consideration; “that not a Judge of any Court in the United States has been found to concur in his views.” (See also, Com. v. Green, 17 Mass. 515.)
It is insisted, however, that if it be assumed that this Court 0 has the authority in certain cases to order a new trial, notwithstanding the Constitution provides that “ no person shall be subject to be twice put in jeopardy for the same offense,” such authority cannot be exercised unless it appears that the defendant moved in the Court below for a new trial. The statute provides that on the trial of a person indicted for a felony, exceptions may be taken by the defendant to a decision of the Court upon a matter of law in certain specified cases. Exceptions may be taken for rejecting testimony which ought to be admitted, or for erroneously deciding any,question of law, not a matter of discretion. (Laws 1851, p. 259, Sec. 433.) • On appeal, this Court is to .“ give judgment without [465]*465regard to technical error or defect which does not affect the substantial rights of the parties,” and “may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial. (Laws 1851, p. 267, Secs. 499, 500.) If it be necessary or proper in the judgment of the Court to make such order, its power is in nowise abridged because the defendant may fail or intentionally refuse to ask in terms for a new trial upon a reversal of the judgment. The Court is to determine the question of the 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 consequence 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. (United States v. Kean, 1 McLean, 436; United States v. Harding, 1 Wallace, Jr., 142 ; Gerard v. The People, 3 Scam. 363.) The reversal of thejudgment 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 vacated, and a new trial ordered.