I regret exceedingly that it becomes necessary for me to dissent from the majority opinion of this court, but, as I view this case, I do not feel that I would be justified under my oath to do otherwise.
There is no other criminal case in this state that I have been able to find similar to the one at bar. Therefore this court is called upon for the first time to determine the power, duty, and responsibility of a trial judge in passing on a motion for a new trial. The trial court in passing on the motion for a new trial (one ground of which was that the verdict was not supported by the evidence) stated, among other things, as disclosed by the record:
"But I must say there are things in this lawsuit that are so very peculiar to me that they are inexplainable. I have no way *Page 501 to explain them. One other thing — I have heard all this evidence, and I tried to give it my undivided attention, and I believe I did. I believe I understand practically what the evidence in this case discloses, and it is impossible for this court to say that he is convinced beyond a reasonable doubt that the defendant in this case was not justifiable. I must confess that, under all the evidence in this case. That this man was murdered or killed there is no doubt, not the least particle in the world, but not that this man was not justified. That means to say that this evidence in my mind convinces me beyond a reasonable doubt. But, gentlemen, that is not the function of this court. I only wish at this time it was. But it is not. I am simply an individual. If this court can say that he should grant a new trial by reason of the fact that he is not convinced beyond a reasonable doubt of this man's guilt, so far as this self-defense proposition is concerned, I would be establishing an unknown precedent in the law of this land. * * * I can't do that. That is not my function. That is not the purpose of the court. * * * And, as I stated before, there are some peculiar things about this case. The complaining witness does not come to me clothed in that cloak of honesty and uprightness that every complaining witness should present a commission of crime to a jury of his countrymen. And it was an awful thing, a horrible thing, to confine a man in the penitentiary, and take away his liberty, if it is done by evidence that is not true. And I must confess that the evidence of the complaining witness in some particulars does not come to me in the way that it should. * * * One other thing about this case, to say the least of it, and I must state, after a very careful reflection, that undoubtedly it was the main cause of this verdict: Here were guns of the latest manufacture, and of the oldest manufacture, all sorts and kinds of guns, cudgels, knives, slungshots, and I don't know as all the evidence was introduced, I don't know as I am stating the facts in the case, but the valise containing all this paraphernalia was sitting under me here, where I could see into it, and I discovered knucks and other cudgels and instruments of warfare. * * * That this evidence that this gun came from the Fitzpatrick house, there is some very strong evidence in corroboration of that fact; very strong evidence in corroboration of that fact. But I don't believe, I can't believe, that all the facts in this case have been told. That is exactly the way I feel now. * * * And, as I said before, *Page 502 it strikes me that that is what brought about, more or less, this verdict that was returned by this jury; and right here there is another thing that militated against this defendant in my opinion, and that is that from the day of the opening this has been a place and rendezvous for crime of that character. All a man had to do was to go before a jury with a plea of self-defense or insanity, or something of that kind, and he was turned loose, turned loose upon our streets to annoy and harass the public. That has something to do with this verdict. We are 14 years old and more. This country is becoming civilized, and this theory of carrying guns and pistols wherever you go, even to social functions, ready for trouble, ready for affray, I tell you, gentlemen, the juries of this country are going to do away with that; absolutely do away with it."
Plaintiff in error contends when the verdict of the jury was challenged by a motion for a new trial, upon the ground that it was contrary to the evidence, that it was the duty of the trial judge to weigh the evidence, and unless he was convinced of the guilt of defendant, and could conscientiously approve the verdict as a just one, he should have sustained the motion and awarded a new trial. And when the record discloses that the trial court was not convinced of the defendant's guilt, and did not conscientiously approve the verdict of the jury, it is the duty of this court to reverse the cause and direct the lower court to grant a new trial.
This brings squarely before us for determination: What is the duty of a trial judge in passing on a motion for a new trial when the verdict of the jury is challenged upon the ground that it is not supported by the evidence? In People v. Knutte, 111 Cal. 453,44 P. 166, the Supreme Court of California, in discussing this question, said:
"While it is the exclusive province of the jury to find the facts, it is nevertheless one of the most important requirements of the trial judge to see to it that this function of the jury is intelligently and justly exercised. In this respect, while he cannot competently interfere with or control the jury in passing upon the evidence, he nevertheless exercises a very salutary supervisory power over their verdict. In the exercise of that power, he should always satisfy himself that the evidence as a whole is *Page 503 sufficient to sustain the verdict found; and, if in his sound judgment it does not, he should unhesitatingly say so, and set the verdict aside."
In considering the question of "reasonable doubt," the court further said:
"Nor does it affect the question that the evidence in the case may have a legal tendency to prove all of the material facts. Guilt is to be established beyond a reasonable doubt; and, while there may be some evidence to support each fact, this does not signify that it is necessarily such as to satisfy the conscience of the judge that a case is made which warrants conviction."
In People v. Chew Wing Gow, 120 Cal. 298, 52 P. 657, the Supreme Court of California again, opinion by Justice Temple, in discussing the duty of the trial judge to weigh the evidence, said:
"This is one of the most important duties which the trial judge has to perform, and, when no efficient review of his action can be had, it is peculiarly incumbent upon the judge to weigh the evidence with care and conscientiously grant a new trial, when in his opinion the interest of justice requires it. In my opinion there is no more prolific cause of miscarriage of justice than the reluctance of the trial judges to grant new trials in criminal cases."
In Garton v. Sterne and Others, 121 Cal. 347, 53 P. 904, the Supreme Court of California again said:
"It is the province of the trial judge upon motion for a new trial to inquire into the sufficiency of the evidence upon which a verdict or findings was found, and it is his duty to grant a new trial when, in his judgment, the evidence was insufficient to support the decision. * * * It has been repeatedly held that upon motion for a new trial it is the duty of the trial court to examine the evidence, even though it be conflicting, and, if dissatisfied with the conclusion reached, to grant a new trial."
In Serles v. Serles and Others (Supreme Court of Orgeon)35 Or. 289, 57 P. 634, in the body of the opinion the court in passing upon this question said:
"It must be understood, of course, that a mere dissatisfaction of the judge with the verdict is not sufficient ground for disturbing *Page 504 it, but the court must exercise its judgment in each particular case, and if from all the testimony given the jury it is satisfied that the verdict is against the clear weight or preponderance of the evidence, or that the jury has acted unreasonably in returning the verdict, or has been misled or misdirected, or has acted through improper motives, it is the duty of the court to set it aside and grant a new trial. * * *"
In Kansas City W.W. N.W.R. Co. v. Ryan, 49 Kan. 1,30 P. 108, the Supreme Court of Kansas in an opinion by the late Chief Justice Horton said:
"It has been the unvarying decision of this court to permit no verdict to stand unless both the jury and the court trying the cause could within the rules prescribed approve the same. When the judgment of the trial judge tells him the verdict is wrong, whether from mistake or prejudice or other cause, no duty is more imperative than that of setting it aside and remanding the question at issue to another jury. While the case is before the jury for their consideration, the jury are the exclusive judges of all questions of fact; but, when the matter comes before the court on a motion for a new trial, it then becomes the duty of the trial judge to determine whether the verdict is erroneous. He must be controlled by his own judgment, and not by that of the jury. When a trial judge overrules a motion pro forma, and declines to look into the facts or pass upon its sufficiency, he misconceives his duty and commits fatal error."
— Atyeo v. Kelsey, 13 Kan. 212; Williams v. Townsend,15 Kan. 563; Railway Co. v. Kunkel, 17 Kan. 145; Railway Co. v. Keeler,32 Kan. 163, 4 P. 143; Railway Co. v. Dwelle, 44 Kan. 394,24 P. 500.
"Where a verdict of the jury does not meet the approval of the trial judge, it is his duty to set aside the verdict and grant a new trial." (Pierson v. Thompson, 4 Kan. App. 173,45 P. 944; Richolson, Sheriff, v. Freeman, 56 Kan. 463,43 P. 772; Myers v. Knabe et al., 4 Kan. App. 484, 46 P. 478.)
Mr. Justice Brewer has laid down what seems to us to be the proper rule for the guidance of the trial judge in RailwayCompany v. Kunkel, 17 Kan. 172, supra. He says:
"This one (the trial judge) has the same opportunity as the jury for forming a just estimate of the credence to be placed in *Page 505 the various witnesses, and, if it appears to him that the jury have found against the weight of the evidence, it is his imperative duty to set the verdict aside. We do not mean that he is to substitute his own judgment in all cases for the judgment of the jury, for it is their province to settle questions of fact, and when the evidence is nearly balanced, or is such that different minds would naturally and fairly come to different conclusions thereon, he has no right to disturb the findings of the jury, although his own judgment might incline him the other way. In other words, the finding of the jury is to be upheld by him as against any mere doubts as to its correctness, but when his judgment tells him that it is wrong, that, whether from mistake, or prejudice, or other cause, the jury have erred and found against the fair preponderance of the evidence — then no duty is more imperative than that of setting aside the verdict and remanding the question to another jury."
In State v. Bridges, 29 Kan. 138, in an opinion by the late Chief Justice Horton, in passing upon the identical question raised here, he said:
"Even in a civil case, when the judgment of a trial judge tells him that the verdict is wrong, that whether from mistake or prejudice, or other cause, the jury have erred and found against the fair preponderance of the evidence, then no duty is more imperative than that of setting the verdict aside, and remanding the question to another jury. In a criminal case this duty is still more important, and a trial judge ought never to sentence a prisoner upon a verdict which is properly challenged, unless he is willing to declare that the verdict of the jury should be accepted as just."
In City of Sedan v. Church, 29 Kan. 190, Justice Valentine, delivering the opinion of the court, said:
"Trial courts are vested with a very large and extended discretion in the granting of new trials, and new trials ought to be granted whenever in the opinion of the trial court the party asking for the new trial has not in all probability obtained or received substantial justice. * * *"
In Yarnell v. Kilgore, 15 Okla. 591, 82 P. 990, the Supreme court of the Territory of Oklahoma in an opinion by Burwell, Judge, said: *Page 506
"The jury in the first instance are the triers of all issues of fact, but when they have passed upon the facts and expressed their views by a verdict, and the sufficiency of the evidence is challenged, then it must be weighed and considered by the trial court, and, unless it is satisfied with the judgment to such an extent that its reason and judgment approve it, a new trial should be granted. The approval of a verdict does not mean merely that informal approval which is inferred from the act of rendering judgment upon it, but it means the assent and approval of the mind, after due consideration; and, when the mind of the court refuses to concur in the correctness of a verdict, and its honest convictions lead it to believe that it ought to have been for the other party, then the verdict is not supported by the evidence so as to merit its approval, for in passing upon a motion for a new trial it is the court, and not the jury, that must weigh and determine the effect of the evidence. It cannot be said that the court approves a verdict when its reason and judgment rebel against the conclusion it expresses. The rule requiring a juror to be satisfied with the verdict is no stronger than the rule which makes it the duty of the trial court to approve or disapprove, as dictated by its own conscience and judgment. It may be here suggested, however, that as one juror may yield his opinions, and accept those of the other jurors, so may the court yield his impressions or opinions, and adopt those of the jury; but such surrendering of his own views must be the result of consideration and reasoning, and can only be done where it through such process finally reaches the conclusion that the verdict is right, and by reason thereof approves it."
In Hogan et al. v. Bailey, 27 Okla. 15, 110 P. 890, the Supreme Court of Oklahoma, speaking through Chief Justice Dunn, said:
"The trial court has a higher function under our jurisprudence than to act merely as a moderator or umpire between contending adversaries before a jury. Not only is it charged with the duty of seeing that the course and conduct of the trial give to each of the litigants a fair opportunity to present his cause, and to have the facts weighed in the light of proper instructions declaring the law relative thereto, but it is the imperative, abiding duty of the court, after the jury has returned its verdict, and awarded to one of the other success in the controversy, where the *Page 507 justness of the same is challenged as in this case, to carefully weigh the entire matter, and, unless it is satisfied that the verdict is responsive to the demands of justice, to set the verdict aside and grant a new trial. Not only must the jury be satisfied of the righteousness of the conclusion to which it arrives, but, unless that conclusion meets the affirmative, considerate approval of the mind and conscience of the court, it should not, where challenged, be permitted to stand."
If the verdict of the jury be repugnant to the evidence or the law, does it, notwithstanding it is wrong, bind the trial courts and compel them to give it force and effect and approve it? I think not. To do so would be to take away from the judiciary the power that rightly belongs to it under our system of government. It is eminently proper that the people should make the law by which they are to be governed, but this does not mean that they should interpret, or that they are competent to interpret, it in such a way that justice may prevail. They have realized their inability to do this, and established for that purpose a judicial system. Upon the judiciary depends the destiny of this republic. Therefore its power should not be curtailed so as to prevent it from properly administering the law. The duties and responsibility of a judge should be placed above all others. He is to pass final judgment between the government and the prisoner at the bar, whom that government is prosecuting. The President of the United States, the Governor of a state, may, by virtue of the pardoning power vested in them, remove the punishment inflicted upon an innocent man, but the trial judge, if he be a just judge, holding the scales of justice in his hands, may go further and prevent the sting of conviction and disgrace being placed upon an innocent man and his posterity by seeing that the law is properly administered, and that no verdict be permitted to stand which in his judgment does not meet the ends of justice. It is not the mere suspicion of guilt that justifies a jury in return a verdict of guilty, or that justifies the court in approving the verdict, but it must be competent and legal evidence, adduced in a legal way, sufficient to satisfy the minds of the jury beyond a *Page 508 reasonable doubt of the defendant's guilt, and, unless this is done and the trial court conscientiously approves the verdict as a just one, no proper judgment can be entered.
Section 6, art. 2, of the Constitution of this state, provides:
"The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong, and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay or prejudice."
Section 20, art. 2. provides:
"In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed. * * *"
Construing sections 6 and 20 of article 2, supra, of our Constitution, together, it must be taken as established by virtue thereof that a party charged with crime has a constitutional right to be tried by a fair and impartial jury of his county, presided over by a competent court, who shall see to it that justice is administered, without sale, denial, delay, or prejudice; that a trial by jury means a right to be tried by a fair and impartial jury upon the charge preferred, or the issues joined in the cause, in the presence and under the superintendence of a judge empowered to instruct them on the law, relative to the issues of fact involved in the case, and to set aside their verdict when, in his opinion, it is contrary to the law or the evidence. Trial by jury does not mean simply a trial before 12 men, duly impaneled and sworn to render a true verdict according to the law and the evidence given them, but means a fair and impartial jury, duly impaneled and sworn according to law, presided over by a competent court, with power and superintending control over them. In a capital case it requires the concurrence of 12 jurors to return a verdict of guilty, but, before judgment can be entered upon the verdict, it requires the concurrence of the thirteenth man, the trial judge, and unless the trial judge can, and does, approve the verdict as a just one, right and justice has not been administered as guaranteed by our Constitution. It is therefore the imperative duty of a trial judge, where the verdict of the jury is challenged by a motion for *Page 509 a new trial, which contends as one of the grounds therefor that the verdict is contrary to the evidence, to carefully weigh the evidence, and unless he is satisfied in his own mind, and his conscience tells him that the evidence is sufficient to sustain the verdict as a just one, to set it aside and grant a new trial.
The learned judge who wrote the majority opinion holds that the language of the trial judge in acting upon the motion for a new trial constitutes no part of the record, and will not be considered by this court. To this part of the opinion I cannot agree. The language of the trial judge appears in the case-made, which was signed and approved by him, and we must therefore accept this portion of the case-made as absolutely true, and as speaking the exact language of the trial judge in passing upon the motion for a new trial. In Yarnell v. Kilgore, supra, which has been specifically approved in recent decisions of our Supreme Court, the language of the trial judge in acting upon the motion for a new trial was incorporated into the case-made and the language of the trial judge was the very point, and only point, upon which the Supreme Court of Oklahoma Territory predicated its judgment of reversal. If the court in a civil case, involving merely rights of property, make the language of the trial judge, acting upon a motion for a new trial, not only a part of the record, but the basis of a judgment of reversal, how can this court, sitting in judgment upon the life and liberty of a citizen, refuse to consider the language of the trial judge, as shown in this case? The learned judge who wrote the majority opinion in passing upon this point says:
"There was no order of the trial judge directing that the remarks made in this case should be incorporated into the record. The entire remarks indicated that the judge was only expressing his private opinion with reference to the case. These remarks were evidently inserted in the record by counsel for appellant, and as the record contains nearly 800 pages, and the trial judge would not have time to read it all over, and see that each statement was correct, and as the case-made was approved by the county attorney, the trial judge was justified in signing and approving it as presented. We do not for one moment believe that the distinguished *Page 510 judge who presided at this trial ever intended to send these remarks up for review."
What right has this court to presume that the learned trial judge did not intend his remarks to become a part of the record and be considered by this court, when he has certified them to this court? The learned trial judge evidently knew that inYarnell v. Kilgore, supra, the Supreme Court of the territory of Oklahoma had considered the language of the trial judge in passing upon the motion for a new trial as a part of the record, and had predicated its judgment of reversal upon the remarks of the trial judge. I think, instead of assuming that the trial judge did not intend for this court to consider his remarks, we should assume at the time he made the remarks, and at the time he certified them to this court, that he was familiar with the decision of the Supreme Court of the territory of Oklahoma inYarnell v. Kilgore, supra, and the decisions of our Supreme Court in approving the same; that he then intended such remarks to become a part of the record, and that they should be so considered by this court. Section 6951, Snyder's Comp. Laws 1909, in part is as follows:
"A party desiring to have any judgment or order of the district court (superior county court), or county court or a judge thereof, reversed by the Supreme Court (Criminal Court of Appeals), may make a case containing a statement of so much of the proceedings and evidence of other matters in the action as maybe necessary to present the errors complained of to the Supreme Court (Criminal Court of Appeals). The case so made, or a copy thereof, shall within thirty days after the judgment or order is entered, be served upon the opposite party, or his attorney, who may, within three days thereafter, suggest amendments thereto in writing, and present the same to the party making the case, or his attorney. The case and amendments shall be submitted to the judge, who shall settle and sign the same and cause it to be attested by the clerk or county judge, and the seal of the court to be thereto attached. It shall then be filed with the papers in the case. Such original case-made shall be filed with the petition in error. The exceptions stated in the case shall have the same effect as if they had been reduce to writing, allowed and signed by the judge at the time they were taken." *Page 511
It will be seen from this section of our statutes that the party appealing has the right to make the case-made, and incorporate into it so much of the proceedings and evidence, and other matters as may be necessary to present the errors complained of, to this court. The trial court has no right or authority to prevent the party appealing from incorporating anything into the record which actually transpired during the progress of the trial, and which he desires this court to review. Passing upon a motion for a new trial is a part of the proceedings of the trial, and, if the trial judge makes any statement in passing upon the motion for a new trial, and before entering final judgment, which the appellant deems necessary for this court to review, it is right and proper that he should have the same incorporated into the record, and certified to this court.
It is true there is some evidence in this case to justify the verdict. It is also equally true that there is overwhelming evidence to justify the plea of self-defense, and if the writer was to take the cold record as he sees it, and were permitted to pass upon it, he would unhesitatingly say that the defendant was justified. I do not believe, however, that it is the duty of this court, in a case like the one at bar, to search the record to ascertain whether or not it can find sufficient evidence to warrant the verdict, or sustain the theory of the defendant that he was justifiable. In my judgment there is only one question for this court to determine in this case, and that is whether or not the trial judge approved the verdict, and, if he did not approve the verdict, has the defendant had a trial as guaranteed him by the laws and Constitution of this state?
We believe it is apparent to any fair and impartial mind from the statement of the trial judge in this case that he did not approve the verdict. It is also equally apparent that he was conscious of the fact that he was permitting a verdict to stand, which in his judgment was not sustained by sufficient evidence, but was based upon public sentiment and prejudice against a plea of self-defense in homicide cases.
This record clearly discloses to my mind that the judgment *Page 512 of the lower court has nothing upon which to stand, except the misconception of duty of the trial judge, and to permit it to stand would be a miscarriage of justice, and contrary to the letter and spirit of our Constitution, declaring that right and justice shall be administered without sale, denial, or prejudice.