The opinion of the court was delivered by
Valentine, J.:This case was originally submitted to this court on the written briefs of counsel, without any oral argument being made. The brief for the state is immaterial. The briefs for the defendant are as follows (court and title-omitted ):
“Defendant was sentenced as for murder in the first degree,, on a verdict of ‘guilty as charged.’ We cite 8 Kas. 447, but more especially 7 Kas. 143, as conclusive. The defendant has already had a valid trial, and the verdict is not a nullity. It will support a sentence. Otherwise, habeas eorpus would lie.
“We ask that he be remanded to receive the highest sentence necessarily intended by the jury, viz.: manslaughter in the fourth degree. The jury must have intended this much; ■they may have intended more, and they may not.
Cates & Keplinger.”
*649[Court and title omitted.) “The indictment in this case charged the defendant with murder in the first degree, and therefore charged him with all the different degrees of felonious homicide, including murder in the first and second degrees. The verdict of the jury found him guilty in manner and form as charged. The court sentenced him to suffer the penalty affixed to murder in the first degree, and rendered judgment for murder in the first degree against him. We contend that the judgment of the court below was erroneous, and cite, The State v. Reddick, 7 Kas., and authorities therein cited; Crim. Code, §239; 17 Kas. 402; 7 Iowa, 236; 58 Me. 564; 3 Ohio St. 89, 101; 16 Ala. 781; 17 Ala. 618; 9 Yerg. 279; 7 Yerg. 279.
Murray & Smith,
Attorneys for Defendant.”
Upon the record and the briefs of counsel, the court decided the case, affirming the judgment of the court below, and the following opinion of the court, and dissenting opinion of the Chief Justice, were filed in the case, to wit:
'“ The opinion of the court was delivered by
“ Valentine,-J.: The defendant was prosecuted on an information for murder in the first degree. The jury found the defendant guilty, by a verdict in the following form (omitting title), to wit:
!‘We, the jury, find the defendant guilty in manner and form as charged in the information.’
“The defendant was sentenced by the court as for murder in the first degree. No motion was made for a new trial, or in arrest of judgment, but the defendant duly excepted to the sentence imposed upon him, on the ground that the verdict was not sufficient to sustain such a sentence. And whether the verdict is sufficient or not, is the only question now presented to this court. That such a verdict is insufficient and voidable when attacked by a motion for a new trial,' has long ago been held by this court. [The State v. Reddick, 7 Kas. 143, 154; The State v. Huber, 8 Kas. 447.) But whether it is insufficient if not attacked by motion for a new trial, or whether it is absolutely void or not, and if not void, what sentence should be pronounced upon it, has never before been presented to this court. • In prior cases this court may have spoken -of such a verdict as though it were void; but the language was of course used with reference to. the circumstances of the particular case then under consideration; and *650the judgment of this court in the case or cases formerly before it was rendered as though the verdict were not void. The judgment of this court in such case or cases was, that the defendant should have a new trial. But if the verdict in such case or cases was void (absolutely and in fact), then the defendant was virtually acquitted ; for as he had already been once in jeopardy, he could not again be put in jeopardy. If he had been once acquitted of the offense in any form, either by the direct or unmistakable avowal of the verdict, of by its indirect and implied legal effect, he could not afterward waive such acquittal, nor could the court set it aside, so that he might again be tried or might again be put in jeopardy. A defendant can never be twice put in jeopardy for the same offense, except with his own consent, and he cannot consent, except where he is to gain some legal benefit or advantage by such consent. He can consent to a new trial or to being again put in jeopardy for the purpose of having a valid verdict against him set aside, for by such a thing he gains a legal advantage. But he cannot consent to a new trial or to being again put in jeopardy in order to procure the setting aside of a void verdict, for by such a thing he derives no legal benefit whatever.
“We must, then, not consider said verdict as void, but as valid; and then comes the question, What does it mean? What sentence, if any, should be pronounced upon it? We cannot, of course, grant a new trial, for the defendant does not ask for such a thing, and we cannot again place him in jeopardy against his consent. We must therefore construe the verdict as best we can, and determine what sentence, if any, it will require.
“Now as the information clearly charged the defendant with being guilty of murder in the first degree, and.as the jury in their verdict “find the defendant guilty in manner and form as charged in the information,” there can be but little doubt as to what the jury intended, or as to what the verdict means. But the court also charged the jury, previously to their finding their verdict, that if they found the defendant guilty of murder in the first degree, the form of their verdict should be j ust such as the j ury afterward in fact used. And the court also gave the jury a written form of verdict for murder in the second degree, and also for each degree of manslaughter. This makes it clear beyond all doubt what the jury intended to find, and what they did in fact find. They in fact found the defendant guilty of murder in the first degree. • As the *651defendant did not ask for a new trial, the court did not err in sentencing him as for murder in the first degree. The defendant waived the irregularity in the form of the verdict, by not asking for a new trial.
“Before closing this opinion, we might say that we adhere strictly to the former decisions of this court with reference to verdicts in murder cases, but we do not think that such decisions control this case.
“The judgment of the court below will be affirmed.
“Brewer, J., concurring.