State v. McCord. 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 was 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 Tex. 184; Lithon v. The Commonwealth, 2 Va. Cases, 311; Slaughter v. The State, 6 Humph. 410; Campbell v. The State, 9 Yerg. 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 contrary doctrine is maintained in The State v. Commissioners, 2 Hill (S. C.), 273; The State v. Morris, 1 Blackf. 37; United States v. Harding, 1 Wall. 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, etc., 2 Barb. 282, and United States v. Gilbert, 2 Sumn. 19. This power to grant new trials is in some States conferred by express legislation. In 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. State v. McCord. Munson, 1 Parker's Cr. 625. In every case where we have seen the question discussed, it is assumed as a power conferred by legislation or by long usage. And in no case is it held to be a constitutional grant. It is a privilege 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 of "not 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 re-examined. 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 trial 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, State v. McCord. as can easily be shown. Three propositions are asserted. 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. 2. That a party may waive this constitutional safeguard, and that he does so when on his own motion he obtains a new trial. 3. 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. For, 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 right so as to bring himself within the power of the court to grant him a new trial. His 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 from 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 convinc State v. McCord. The law is admitted to be con ing, they must show them to be so. stitutional 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 Ly We believe the law to be constitutional. By its terms it The judgment is therefore affirmed. the case. All the justices concurring. NOTE.-In State v. Martin, 11 Am. Rep. 567 (30 Wis. 216), the defendant was tried upon an indictment for murder and was found "not guilty of murder,but guilty of manslaughter in the second degree." Upon a new trial upon the same indictment, granted upon his own motion, held, that he could not be convicted of murder. The case of People v. Gilmore, 4 Cal. 376, seems to be more in accordance with the authorities and with the correct principles of construction, as we understand them, than is the principal case, notwithstanding the strictures made upon it therein. The constitutional provision and the statute of California were similar to those of Kansas. The opinion of the court was as follows: Ch. J. MURRAY delivered the opinion of the court; Mr. Justice HEYDENFELDT concurred. The appellant was indicted for murder. On the trial, the jury rendered a verdict of guilty of manslaughter, which was afterward 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 manBlaughter, 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 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 arraigned and tried again for murder, notwithstanding he had been compelled to answer this charge upon 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 the indictment before proceeding to inquire whether he is guilty of an inferior crime. The verdict of manslaughter is as much of an acquitta! 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. State of Miss., 25 Miss. 378. It is contended, however, in opposition to this position, that the new trial is in 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 rromilarity 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. There is no authority to be found which enables a party or the court, in a case where the prisoner has been acquitted of an alleged crime, to arrest the judgment and re-try the cause. VOL. XII. CO State v. McCord. The acquittal would operate as a bar to all further proceedings, and the party, if Insane enough to ask again to be put upon trial, would be met by the answer, that the court had no longer any jurisdiction over him. I shall assume, that the court below possessed the inherent power of awarding a new trial in this case, and that the statute Is only a limitation on the power of said court, as to the cases in whichlit may be exer cised. The 439th section of the Criminal Code reads as follows: "A new trial is a re-examination of the issue in the same court, before another jury, after verdict has been given. It places the parties in the same position as if no trial had been had," etc., etc. It is contended that this section is conclusive of the whole case. It is, however, susceptible of another reading; and one more in consonance with the humane and enlightened spirit of the age, as well as of our jurisprudence. I understand it to mean the issue in controversy, not the one that has been settled by the jury and found in favor of the defendant; and I understand the words, "placing the parties in the same position that they occupied before the trial," as simply applying in reference to the issues undisposed of. The section, at best, is a crude definition of a new trial and by reference to the act, it will be seen that the legislature does not purport to give to the courts the power of granting new trials, as a new and distinct power not belonging to them by virtue of their original jurisdiction, but only to limit the exercise of an acknowledged authority. That I am correct in my construction of this section, to my mind is evident, from the fact that the legislature could not have intended, where a man had been improperly convicted of a minor offense, to subject him to the risk of being convicted of a greater one. If such a rule be established, no man will subject himself to the risk of being hung for murder, when convicted of manslaughter, and will prefer, in many instances, although innocent, to rest under the conviction than to encounter the danger of a second trial. In every case where the timid and unfriended are involved, this will be found to be the result; and in times of high popular excitement, those who may be bold in the consciousness of their innocence, will hesitate before they voluntarily assume so great a risk and pay so fearful a premium for the privilege of assertng that innocence. Again: The prisoner is either absolved from the charge of murder, and entitled to a new trial on the charge of manslaughter, or he is not entitled to a new trial at all. The constitution of this State has provided that "no person shall be subject to be twice put in jeopardy for the same offense." Now, if I am right, that a conviction for manslaughter is an acquittal for murder, it must follow that any law that would compel a party to be retried for murder, in order to escape the minor offense, thereby putting the party in jeopardy, is in conflict with this provision of the constitution. It has been urged that the party voluntarily put himself in this jeopardy. Such is not the case. The act, if we are to give it the construction contended for on the part of the State, takes from the party a right which he before possessed, and necessarily snbjects him to a second jeopardy, if he wishes to maintain that right, or assert his Innocence. This is a subjection by operation of law, and not act of the party; and If it were otherwise, I have shown that no party can voluntarily subject himself to, a second trial after an acquittal, and the courts have no jurisdiction over him. These principles have been fully settled by the supreme courts of Mississippi and Tennessee, in the cases of Hurt v. State, 25 Miss. and Slaughter v. The State, 6 Humph. 411. I know of but one case in which a different rule has been held, viz., by Mr. Justice GRIER, in a case before the United States circuit court, in Philadelphia, in 1848. The address of the learned judge to the prisoners in that case seems to have been prompted more by the feelings natural to the occasion than from a correct opinion of the law, and as it is unsupported by any authority or argument, may be considered as mere dictum. The only difference between the cases cited from Mississippi and Tennessee, if any exist (and it does not appear from the report of those cases), is, that there were distinct and separate counts in the indictment both for murder and manslaughter while, in the present case there is but one count, and that for murder. This consideration has been urged upon the court, and it has been ably argued that, if the prisones |