Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 28 Cal. 266 at 273.
Original Opinion of April 1865, Reported at: 28 Cal. 266.
JUDGES: Shafter, J., on petition for rehearing.
OPINION
SHAFTER, Judge
By the Court, Shafter, J., on petition for rehearing:
Petition for rehearing. The counsel for the defendant admits the constitutionality of the two hundred and ninety-sixth section of the Criminal Practice Act; and further admits that the conviction would be well supported by the provisions of that section were the section now on foot. But it is claimed, in effect, that section two hundred and ninety-six is repealed by the Act of 1863.
It is provided by that Act as follows: " No person can be convicted of a public offense unless by the verdict of a jury, accepted and recorded by the Court; or upon a plea of guilty; or upon judgment against him upon a demurrer to the indictment in the case mentioned in section two hundred and ninety-three."
It is insisted by counsel that this amendment to the Criminal Practice Act purports, on its face, to be a statement of the instances, and all of the instances, in which a person accused of crime can be said to have been " convicted; " and it must be admitted that the point is well taken. It is further urged that it follows from the views maintained in the opinion, that the judgment below is not supported upon the first ground named in the amendment, for the opinion holds the verdict to be null and void. It is further urged that the judgment cannot be supported on the second ground, for it appears that there was no plea of guilty entered in fact; and it is claimed, finally, that the judgment cannot be maintained upon the third and last ground named in the amendment, for the reason that section two hundred and ninety-three, to which the amendment refers, states a case where a judgment is to be entered for the accused, and not against him. Section two hundred and ninety-three is as follows: " If the demurrer be allowed, the judgment shall be final upon the indictment demurred to, and shall be a bar to another prosecution of the same offense," etc. All the grounds of judgment named in the amendment failing, it is claimed that the judgment entered below must be held to be erroneous. We do not, however, consider the third ground named in the amendment to have failed.
The reference to section two hundred and ninety-three does not express the legislative intent. That intent finds expression only in section two hundred and ninety-six; and the amendment must be read as though the reference were to the latter section instead of the former. But it is urged that to strike out the word " three" and insert the word " six," would be to amend the amendment, and not to construe it; and the point, considered abstractly, must be admitted to be well taken; but when considered on what may be called the facts of the question, and in view of the settled rules of construction, it is manifest to us that the objection is fallacious.
First. It must be assumed that the Legislature, in under-taking to state a third method, or instance of conviction, intended to do it; but if it used the number two hundred and ninety-three advisedly, it neither accomplished, nor intended to accomplish the object stated, nor any other, and the last clause of the amendment is not only a nullity, but was intended to be a nullity. But we are forbidden so to hold. (Smith's Com. Secs. 488, 527.)
Second. We have a voluminous Act upon the subject of Crimes and Punishments, and we have also Courts of criminal jurisdiction. From the constitutional and legislative provisions upon the subject of crimes and criminal Courts, there can be no doubt that it is and always has been the policy of the State that the guilty should not go unpunished. But if it should be held that the reference to section two hundred and ninety-three expresses the true intent of the Legislature, then the whole of our criminal system is virtually overthrown, and every grade of crime may be committed with impunity; so that, persons accused, shall have the art to put in demurrers to valid indictments, to begin with. The fallacious demurrer being overruled, the accused would refuse to plead. The Court could not direct a plea of not guilty to be entered, for the reasons stated in the opinion, nor could the Court, under the views of counsel, order judgment upon the demurrer, as provided in section two hundred and ninety-six; that is to say, judgment would be forever impossible. But all this is " absurd; " and, therefore, the views that lead to such result must be unsound, and must be discarded. (Smith's Com. Secs. 517, 575, 725, 726.)
Assuming, then, that the Legislature, by the last clause of the amendment, meant something, and something sensible--that is, something in harmony with the general purpose with a view to which our criminal system was got up, and is now kept on foot, we are satisfied that it was intended to enact the third ground, or instance, of conviction set forth in section two hundred and ninety-six, but the Legislature applied to the section, in which it is contained, a wrong number. This view does not lie in assumption. It was the purpose of the amendment to state the cases in which a person, accused of crime, could be considered as " convicted" to a legal intent, and to limit them to three. The amendment states two, and, so far as expression goes, it states a third. We must presume, to start with, that a third has been efficiently enacted, and we cannot conclude to the contrary, until the whole of the written law upon the subject of crimes and punishments, and criminal practice, has been examined and exhausted. We look to section two hundred and ninety-three, directly referred to in the amendment, but that section does not state a case of " conviction," but of " acquittal" instead; but on looking through the whole body of the statutes we find one section, and but one, that is responsive to what may be called the governing call of the last clause of the amendment, to wit, a third instance in which a person accused shall be considered as convicted for the purposes of judgment; and we must, therefore, consider that to be the provision which the Legislature had in mind. Both the question and the reasoning are familiar. The question is one of " false demonstration," and the solution is the one commonly used in such cases. We have treated the question in the same manner, that we should have dealt with it, if the third clause of the amendment had set forth the third alternative conviction, in the language used in section two hundred and ninety-six, and then added: " As set forth in section two hundred and ninety-three." The questions are substantially the same.
Petition denied.