State v. Labbitt , 117 Mont. 26 ( 1945 )

I dissent from that part of the majority opinion which holds that the trial court may direct the jury to acquit the defendant in a criminal case. Sec. 11995, Revised Codes, deprives the trial court of the power to direct a verdict in such cases. There are opinions to the contrary but the preponderance of authority in this jurisdiction holds that the court may advise the jury but not direct it. In the instant case, however, I think the trial court, if it believed the evidence insufficient to sustain a conviction for the offense charged, should have, of its own motion, advised the jury to return a verdict in favor of the defendant and I think that is all that the statute authorized the trial court to do in the premises.

The Thierfelder case which was approved by all five members of the court a little over two years ago contains a resume of all the decisions of this court pertinent to the construction of Sec. 11995. The last opinion of this court that sustains the majority opinion was rendered more than 22 years ago, State v. Gomez cited by the majority. Since that time the court has determined on appeal four cases: State v. Moe, 68 Mont. 552, 219 P. 830; State v. Wong Hip Chung, 74 Mont. 523, 241 P. 620; State v. Collins, 88 Mont. 514, 294 P. 957, 959, 73 A.L.R. 861; and the Thierfelder case. All these cases hold contrary to the conclusions of the majority in the case at bar. In the Collins case, Chief Justice Callaway, commenting on the arguments of counsel to the effect that the trial court should have directed a verdict in favor of the defendant, said: "Incidentally, the court could have done no more than to advise the jury to acquit," citing Sec. 11995, Revised Codes.

As to subdivision 5 of Sec. 12108, Revised Codes, that section is in pari materia with Sec. 11995. The two sections taken together comprise the only safeguard against the release of a criminal due to error of the trial court, which error might arise from duress, undue influence or partiality toward the defendant. Sec. 12108, as a whole, reads as follows:

"An appeal may be taken by the state —

"1. From a judgment for the defendant on a demurrer to the indictment or information;

"2. From and order granting a new trial;

"3. From an order arresting judgment;

"4. From an order made after judgment, affecting the substantial rights of the state;

"5. From an order of the court directing the jury to find for the defendant."

All five of these subsections were obviously designed as a sort of catch-basin to prevent a corrupt, prejudiced or incompetent trial court from allowing a guilty person to escape. The notion that subsection 5 is a recognition of a right of the trial court to direct the acquittal of the defendant in a criminal case is the purest sort of fiction. It seems perfectly clear that that subdivision was intended to allow the state the right to override the illegal and erroneous act of a trial court. It seems to me that any unprejudiced mind that would carefully review the Moe case to which I have referred could not evade the conviction that the trial judge in that case, a member of the judiciary of the State of Montana who has in my judgment no superior on the bench today, followed the provisions of Sec. 11995. He advised the jury that there was no evidence worthy of submission to it and advised them to acquit the defendant but added that they were not obliged to follow his advice. On that statement he was standing squarely on the statute. The jury did not take his advice and he authorized a new trial and the defendant appealed from his order directing such new trial and his decision ordering the new trial was readily affirmed here. True a new trial may sometimes be a hardship on an innocent defendant but the remedy has never heretofore failed to be sufficient on appeal to this court. I am convinced that Sec. 11995 was enacted for the specific purpose of prohibiting a trial judge from encroaching upon the functions of the jury.

In our remanding the cause and directing that the action against the defendant be dismissed, we are exercising a power that is not vested in the trial court but is vested in this court and I am in full accord with the majority in directing that the action be dismissed, but not on the grounds advanced by the majority.