The opinion of the court was delivered by
Kingman, C. J.:
The appellant McCord was tried on an information charging him with murder in the first degree. He was found guilty of murder in the second degree, and sentenced to ten years imprisonment in the penitentiary. He brings the case to this court by appeal, and assigns three errors — first, that the information is defective; second, that the wife of the accused was improperly permitted to testify in behalf of the state on his trial; third, the misdirection of the court in a material matter of law.
[239]*2391. information for murder * requisites. ’ [238]*238I. The information is good. See Smith v. The State, 1 Kas., 365. It contains every averment necessary to be stated [239]*239in an indictment at common law. See 3 Chitty ** Or. L., 751, 752, and authorities there cited. It contains such further averments as are necessary in an information for murder in the first degree under our statute, stated with accuracy, precision, and certainty — so that the defendant could not be misled as to the charge against him, nor the court in doubt as to ■ the judgment to be pronounced on a verdict.
g. wife of acpetent witness for the state. II. On the trial Sarah McCord, the wife of the appellant, was offered as a witness on the part of the State, and avowed her willingness to testify on the trial. The appellant objected to her as an incompetent witness. The objection was overruled, and the witness permitted to testify. The propriety of this ruling must be determined by , , J , , , ., P _ . _ . J the late statute on this subject. Laws 1871, p. 280, ch. 118, § 1. This section provides that no person shall be incompetent to testify in a criminal case “ by reason of being the husband or wife of the accused,” and contains this proviso, “That no person on trial or examination, nor wife or husband of such person, shall be required to testify, except as a witness on behalf of the person on trial or examination.”
The body of the section makes the husband or wife of the accused a competent witness in all cases. The proviso is a limitation, not on the competency of the witness, but on the power of the court to compel such witness to testify. When by the body of the section the witness was made competent, then if that stood alone ah the measures that the law gives to courts could be resorted to to enforce the witness to testify. By the proviso this power is limited; and this is all the proviso attempts to do. Had the legislature intended such a witness competent only when called by the accused they could easily have made it plain by using the word permitted or allowed, instead of the word required. This word has a definite meaning. It simply means that the State shall not demand as a right that such a witness under such circumstances shall testify. It does not profess to deal with the competency of the witness; only with the right of the prosecu[240]*240tion. to demand, that they should testify, and the power of the court to enforce that demand. Therefore it does not prevent any such testimony from being voluntarily given.
Counsel claim that the word regw/red has acquired a technical meaning in the law, and refer us to sections 325 and 326 of the code in support of their view. But in each of these sections the word is used in its common and ordinary sense, and the precise one we have given it above. The subpoena demands as a right that the witness shall attend, and of course th,e court can enforce such a demand by appropriate proceedings. The witness in this case was clearly not within the terms of the proviso, and the court correctly permitted the witness to testify. It would have been error had the court reguvred her to testify on behalf of the State.
The sanctity and inviolability of the marriage relation is appealed to, and to preserve them the court is urged to give the statute a construction which we have seen it will not bear. The argument is one ^addressed more properly to the legislature than the court. If the law is open to the objections urged it should be repealed; but this should be done by the legislature, and not by judicial construction.
III. The charge objected to is in these words: “The defendant being charged in the information with murder in the first degree, you may, if in your opinion the evidence warrants the same, find him guilty of murder in the first or second degree, or of any one of the several degrees of manslaughter, or of an assault only.”
3. New trial in casetoEffect sfflonofpa?ties' The objection to this charge arises from the peculiar status of the case, and not from any inherent impropriety in the charge itself as applied to cases generally. The accused had been before tried on the same information, and bad been found guilty of manslaughter in the third degree. On his motion a new trial was granted, and on the new trial the verdict was for murder in the second degree. It is contended that on the second trial he could not be convicted of a higher degree of the crime of which he was charged than that of which he [241]*241was found guilty by the verdict on the first trial. The argument in support of this position may be briefly stated as follows: The verdict of “guilty of manslaughter in the third degree,” on the first trial, was a verdict of not guilty as to all the higher degrees of the offense than the one of which he was found guilty; that when he moved for a new trial he only moved for a new trial of the issue as found against him, and therefore only waived the constitutional guaranty that he should not be twice put in jeopardy for the same offense, so far as was necessary to obtain a new trial, and that it was not necessary to, nor did he waive that constitutional right except as to the issue found against him, and not on those degrees of the offense of which by the verdict he was inferentially acquitted. In support of this reasoning counsel refer to Brennan v. The People, 15 Ill., 511; Hunt v. State, 25 Miss., 378; People v. Gilman, 4 Cal., 376; State v. Ross, 29 Mo., 35; Jones v. The State, 13 Texas, 184; Lithon v. The Commonwealth, 2 Va. Cases, 311; Slaughter v. The State, 6 Humph., 410; Campbell v. The State, 9 Yerger, 333, and The State v. Tweedy, 11 Iowa, 350. These cases, and some others from the same States, seem to support the doctrine for which the appellant contends. A contrai-y doctrine is maintained in The State v. Comm’rs, 2 Hill (S. C.,) 273; The State v Morris, 1 Blackf., 37; United States v. Harding, 1 Wallace, Jr., 127. And the absence of decisions in the older States upon the point may .be suggested as showing that the theory is one that has only of late years found its way into our jurisprudence.
The power to grant a new trial in criminal cases constituted no part of the jurisdiction of the court at common law. In this country the courts have assumed and exercised with great uniformity the power of granting new trials in criminal cases. It is said, and so far as our researches extend it is true, that there are but two reported cases that deny this power: The People, ex rel. Case, v. The Judges, &c., 2 Barb., 282, and United States v. Gibert, 2 Sumner, 19. This power to grant new trials is in some States conferred by express legislation.
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The opinion of the court was delivered by
Kingman, C. J.:
The appellant McCord was tried on an information charging him with murder in the first degree. He was found guilty of murder in the second degree, and sentenced to ten years imprisonment in the penitentiary. He brings the case to this court by appeal, and assigns three errors — first, that the information is defective; second, that the wife of the accused was improperly permitted to testify in behalf of the state on his trial; third, the misdirection of the court in a material matter of law.
[239]*2391. information for murder * requisites. ’ [238]*238I. The information is good. See Smith v. The State, 1 Kas., 365. It contains every averment necessary to be stated [239]*239in an indictment at common law. See 3 Chitty ** Or. L., 751, 752, and authorities there cited. It contains such further averments as are necessary in an information for murder in the first degree under our statute, stated with accuracy, precision, and certainty — so that the defendant could not be misled as to the charge against him, nor the court in doubt as to ■ the judgment to be pronounced on a verdict.
g. wife of acpetent witness for the state. II. On the trial Sarah McCord, the wife of the appellant, was offered as a witness on the part of the State, and avowed her willingness to testify on the trial. The appellant objected to her as an incompetent witness. The objection was overruled, and the witness permitted to testify. The propriety of this ruling must be determined by , , J , , , ., P _ . _ . J the late statute on this subject. Laws 1871, p. 280, ch. 118, § 1. This section provides that no person shall be incompetent to testify in a criminal case “ by reason of being the husband or wife of the accused,” and contains this proviso, “That no person on trial or examination, nor wife or husband of such person, shall be required to testify, except as a witness on behalf of the person on trial or examination.”
The body of the section makes the husband or wife of the accused a competent witness in all cases. The proviso is a limitation, not on the competency of the witness, but on the power of the court to compel such witness to testify. When by the body of the section the witness was made competent, then if that stood alone ah the measures that the law gives to courts could be resorted to to enforce the witness to testify. By the proviso this power is limited; and this is all the proviso attempts to do. Had the legislature intended such a witness competent only when called by the accused they could easily have made it plain by using the word permitted or allowed, instead of the word required. This word has a definite meaning. It simply means that the State shall not demand as a right that such a witness under such circumstances shall testify. It does not profess to deal with the competency of the witness; only with the right of the prosecu[240]*240tion. to demand, that they should testify, and the power of the court to enforce that demand. Therefore it does not prevent any such testimony from being voluntarily given.
Counsel claim that the word regw/red has acquired a technical meaning in the law, and refer us to sections 325 and 326 of the code in support of their view. But in each of these sections the word is used in its common and ordinary sense, and the precise one we have given it above. The subpoena demands as a right that the witness shall attend, and of course th,e court can enforce such a demand by appropriate proceedings. The witness in this case was clearly not within the terms of the proviso, and the court correctly permitted the witness to testify. It would have been error had the court reguvred her to testify on behalf of the State.
The sanctity and inviolability of the marriage relation is appealed to, and to preserve them the court is urged to give the statute a construction which we have seen it will not bear. The argument is one ^addressed more properly to the legislature than the court. If the law is open to the objections urged it should be repealed; but this should be done by the legislature, and not by judicial construction.
III. The charge objected to is in these words: “The defendant being charged in the information with murder in the first degree, you may, if in your opinion the evidence warrants the same, find him guilty of murder in the first or second degree, or of any one of the several degrees of manslaughter, or of an assault only.”
3. New trial in casetoEffect sfflonofpa?ties' The objection to this charge arises from the peculiar status of the case, and not from any inherent impropriety in the charge itself as applied to cases generally. The accused had been before tried on the same information, and bad been found guilty of manslaughter in the third degree. On his motion a new trial was granted, and on the new trial the verdict was for murder in the second degree. It is contended that on the second trial he could not be convicted of a higher degree of the crime of which he was charged than that of which he [241]*241was found guilty by the verdict on the first trial. The argument in support of this position may be briefly stated as follows: The verdict of “guilty of manslaughter in the third degree,” on the first trial, was a verdict of not guilty as to all the higher degrees of the offense than the one of which he was found guilty; that when he moved for a new trial he only moved for a new trial of the issue as found against him, and therefore only waived the constitutional guaranty that he should not be twice put in jeopardy for the same offense, so far as was necessary to obtain a new trial, and that it was not necessary to, nor did he waive that constitutional right except as to the issue found against him, and not on those degrees of the offense of which by the verdict he was inferentially acquitted. In support of this reasoning counsel refer to Brennan v. The People, 15 Ill., 511; Hunt v. State, 25 Miss., 378; People v. Gilman, 4 Cal., 376; State v. Ross, 29 Mo., 35; Jones v. The State, 13 Texas, 184; Lithon v. The Commonwealth, 2 Va. Cases, 311; Slaughter v. The State, 6 Humph., 410; Campbell v. The State, 9 Yerger, 333, and The State v. Tweedy, 11 Iowa, 350. These cases, and some others from the same States, seem to support the doctrine for which the appellant contends. A contrai-y doctrine is maintained in The State v. Comm’rs, 2 Hill (S. C.,) 273; The State v Morris, 1 Blackf., 37; United States v. Harding, 1 Wallace, Jr., 127. And the absence of decisions in the older States upon the point may .be suggested as showing that the theory is one that has only of late years found its way into our jurisprudence.
The power to grant a new trial in criminal cases constituted no part of the jurisdiction of the court at common law. In this country the courts have assumed and exercised with great uniformity the power of granting new trials in criminal cases. It is said, and so far as our researches extend it is true, that there are but two reported cases that deny this power: The People, ex rel. Case, v. The Judges, &c., 2 Barb., 282, and United States v. Gibert, 2 Sumner, 19. This power to grant new trials is in some States conferred by express legislation. [242]*242In others the courts have assumed the power in the interests of justice and public safety, as was done in Massachusetts in Com v. Green, 17 Mass., 532. In other States its origin is found in the law organizing the court: People v. Munson, 1 Parker’s C. R., 625. In every case where we have seen the question discussed it is assumed as a power conferred by legislation or by long usage. An(i in no case is it held to be a constitutional grant. It is a pri/oilege offered by the law to the accused, in addition to the guaranties afforded by the constitution. As the power is conferred by law, it is competent for the law-making branch of the government to extend it, or to limit and modify it, at its pleasure, or to prescribe upon what terms it may be granted, so that it does not infringe upon any constitutional guaranty. In this State the terms are prescribed by law. In the code of criminal procedure are these provisions:
' “Sec. 270. A new trial is a re-examination of the issue in the same court.
“ Sec. 274. The granting of a new trial places the parties in the same position as if no trial had been had. The former verdict cannot be used or referred to either in evidence or argument.”
The plain reading of these sections is conclusive of the whole matter under discussion. A critical examination of the sections does not change the result. A re-examination of the issue is to again examine it. The issue is the issue on the record, as it is there made up. It consists of the charge of the offense in all its degrees, as set out in the information, on the part of the State, and the plea ofnot guilty,” which is a denial of each and all the allegations of the information, on the part of the defendant. Such is the issue on the record, and the only issue in the case. It was the issue tried, and the issue to be re-tried, or, in the words of the statute, to be reexamined. The statute uses the words “ the issue,” not some part of the issue that may be ascertained by judicial construction — but the issue. Section 274 is quite as plain, and as if to guard against any misinterpretation declares that the granting of a new trial places the parties in the same position as if no [243]*243trial had been had. This is clear and conclusive. The very essence of the argument in favor of the rulings contended for by counsel for appellant is that the new trial places the party in a very different position from what he would have occupied if no trial had been had.
The statute and the decisions cited, are in direct conflict. The decisions are but evidence of what the law is, in absence of express statutory regulations, and cannot be used to overturn the law. Nor does our law conflict with any principle asserted in these decisions as can easily be shown: Three propositions are asserted: lst.-That a verdict of acquittal or conviction is a perfect bar to another prosecution for the same offense, and this is a constitutional guaranty, of the benefit of which neither courts nor legislatures can deprive a party. 2d.-That a party may waive this constitutional safeguard, and that he does so when on his own motion he obtains a new trial. 3d.-That he waives this right only so far as may be necessary to obtain the new trial; and that it is only necessary to waive this right to so much of the verdict as finds him guilty of a certain degree of the offense, and not to that part that inferentially finds him not guilty of the other degrees. The first two of these propositions are admitted by all the authorities. As to the third there is some contrariety of opinion, upon which it is not our purpose to comment. Eor, assuming all the propositions to be correct in the absence of statutory regulations, and the result is not affected in this state, where, as we have seen, the legislature had a right to make a law, and where they have made one, that measures the extent of the waiver, and fixes its necessity. The authorities all agree that the constitutional right may be waived by the party convicted, and that this waiver is commensurate with the necessities of the party, in order to obtain a new trial. Whatever may be the proper rule as to the extent of the waiver where there is no statute, it is plain that where the statute has fixed the necessity, it has also there placed the extent of the waiver. In this state the necessity is that the party should waive the entire fight so as to bring himself within the power of the court to grant him a new trial. [244]*244His waiver goes no farther than his necessities. He makes his motion with a full knowledge of the risks he takes, and of all the possible consequences. To obtain a new trial, he voluntarily waives a right that neither courts nor the legislature can take ftom him — a right that he surrenders for his own benefit, and the exact extent of which was plainly written, as the terms on which it could be done, when his motion was allowed. He is estopped from now complaining. He has been unfortunate, but such a result must sometimes follow any new trial, even on the theory contended for by appellant, though the misfortune may not be so great.
We are aware that the decision in the case of the People v. Gilman, 4 Cal., 376, was made under a law similar to our own, and such may be the fact in some of the other States. If so, they must hold the law unconstitutional; and before the decisions are convincing, they must show them to be so. The law is admitted to be constitutional in the California case, and is then construed away by reasoning that violates every well-established principle of construction, and holds that if it is to be understood as it is written it is unconstitutional, but fails to show how. We are not convinced by the case. We believe the law to be constitutional. By its terms it is decisive. The judgment is therefore affirmed.
All the Justices concurring.