McGinnis v. State

| Wyo. | Jul 15, 1908

Scott, Justice.

The plaintiff in error ('defendant below) was charged with robbery and upon trial was convicted of petit larceny and brings error.

1. The defendant assigns as error the overruling of his demurrer to the amended information. The specific ground of the demurrer is “that the facts stated in the information do not constitute any offense against the laws of the State of Wyoming.” In support of this contention it is urged that the information fails to allege that the defendant and his victim were “then and there in Converse County at the time of the assault/’ and, further, that “it fails to allege that the money stolen was lawful money of the United States.”

The amended information, omitting the official signature and the verification, is as follows, viz:

“The State of Wyoming, County of Converse.

In the District Court of the First Judicial District; sitting within and for the said County of Converse.

The State of Wyoming, Plaintiff, vs.

William McGinnis, Defendant.

AMENDED INFORMATION.

Comes now Henry C. Miller, County and Prosecuting-Attorney of the County of Converse, in the State of Wyoming, and in the name and by the authority of the State of Wyoming, informs the court and gives the court to understand that William McGinnis, late of the county aforesaid, on the 12th day of Dcember, A. D. 1905, at and in the county aforesaid, in and upon one Norvil C. Lawrence did feloniously, violently, forcibly and by intimidation, make an assault, and him, he said Norvil C. Lawrence, did then and there feloniously, violently, forcibly and by intimidation, put in bodily fear, and fifty dollars in money of the value of fifty dollars, of the goods, chattels and personal property of the said Norvil C. Lawrence, ■ from the person and against the will of the said Norvil C. Lawrence, then and there forcibly, feloniously, violently and by intimidation, did steal, take and carry away; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming.”

The county within which and the time of the commission of the alleged offense are each alleged with certainty. The objection to the information in this respect is without merit, frivolous, and needs nO' further consideration.

The use of the word “money” in the information without other description is permissible under Sec. 5311, R. S., 1899, and was so held by this court in Edelhoff v. State, 5 Wyo., 19" court="Wyo." date_filed="1894-05-07" href="https://app.midpage.ai/document/edelhoff-v-state-6587368?utm_source=webapp" opinion_id="6587368">5 Wyo., 19. The information was good as against demurrer and the'court properly so held.

2. The defendant interposed a plea to the jurisdiction of the trial court. We fail to understand how or upon what grounds that court liad not acquired jurisdiction of the case. The district court has original jurisdiction in all criminal cases and the defendant was charged with the commission of a felony within the county over which that court had jurisdiction. It was at the bar of that court that he was called upon to answer the charge. The amended information described the offense and charged the defendant with having committed it in the County of Converse and State of Wyoming. The subject matter was within the jurisdiction of the court and the defendant was present at the trial. (Territory v. Pierce, 1 Wyo., 168" court="Wyo." date_filed="1874-03-15" href="https://app.midpage.ai/document/territory-of-wyoming-v-pierce-6587094?utm_source=webapp" opinion_id="6587094">1 Wyo., 168.)

The authority to permit the filing of an amended information arose from the jurisdiction over the subject matter and the person of the accused. Such jurisdiction having attached, the court had jurisdiction for all purposes. That such amended information was filed without leave first had and obtained neither affected the defendant’s guilt or innocence nor prejudiced his rights upon the merits. The question did not go to the jurisdiction and was improperly made a .ground of the plea to such jurisdiction and the court properly overruled the plea. In the absence of permission from the court to file the amended information this ruling we think was an affirmance of the State’s right to file such amended information, though it is usual to first obtain permission to do so; and, further, that no prejudice is shown upon the record to any substantial right of the accused. He was thereafter duly arraigned on the amended information and standing mute the court directed a plea of not guilty to be recorded as provided by section 5333, R. S., 1899, and upon the issue thus joined he was tried and found guilty of petit larceny.

3. It is urged that the court erred in overruling the defendant’s motion in arrest of judgment. We have searched the record and fail to find such a motion, although there appears to be a motion so entitled and so regarded by the court and parties. The motion is in the following words, viz: “And again comes the defendant, and moves the court in arrest of judgment herein. Because this court has not jurisdiction to receive the said information. Because this court never ordered nor allowed the fifing of said information. Because the said information and judgment are barred by a former sentence herein and a former performance and satisfaction of said sentence by imprisonment.”

A motion in arrest of judgment can be made upon but two grounds under our statute as provided by Sec. 5418, R. S., 1899, which is as follows: “A motion for arrest of judgment may be granted by the court for either of the following causes:

“1. That the court had no jurisdiction to try the case.

“2. That the facts stated in the indictment or information do not constitute an offense.”

The sq-called motion of the defendant is not upon its face a motion in arrest. It does not purport to attack the sufficiency of the information, nor does it touch the question of jurisdiction to pronounce judgment, except as contended by him that the court was without jurisdiction to receive the information. Having in a former part of this, opinion decided that question adversely to the contention of the defendant it is unnecessary to discuss it further. The balance of the motion amounts to nothing more than an application to discharge the defendant from custody on the claim practically of autrefois convict. Such a plea is not a ground for a motion in arrest as defined by the statute. The time for interposing such plea is when the accused is arraigned. But even if it could be made the basis for an arrest the record fails to support it. There is no record of any former conviction for the same offense. It was necessary for the defendant under Section 5331, R. S., 1899, to produce such a record in the court below and have it properly returned in this proceeding as a part of the record in this court in order for him to be heard thereon. This he has failed to do. ' No valid objection to the jurisdiction arises upon the record, nor is such question, except as above stated, presented by the motion. The court properly denied the motion.

4. The defendant at the proper time pleaded autrefois convict in bar of the prosecution and demanded a trial by jury upon such plea. The court by order required the defendant to make such plea more specific in this:

“1. That he set forth therein a copy of the original information on which the alleged former trial and conviction, in said plea in bar stated, was had.

“2. That he set forth therein a copy of the verdict of the alleged former trial and conviction.

“3. That he set forth a copy of the judgment pronounced upon the defendant upon the alleged former conviction.

“4. That he further set forth in said plea in bar a copy of the mandate of the supreme court of Wyoming, as secured by the defendant on appeal in said supreme court from said alleged trial, conviction and judgment therein.”

A demurrer to the plea had been interposed and upon compliance with this order the court after due consideration sustained the demurrer to such plea.

It is urged that the court erred in this ruling, but the defendant through his attorney has not brought up the entire record upon this question. We find nothing attached to the written plea or in the record except the original plea-and the demurrer. It thus appears that there were matters included in the plea as finally submitted to the court below which are omitted from the record here presented. The order of the court recites: “The plea in bar of the defendant, made more specific in accordance with the requirements and order of this court, in the above entitled case, together with the demurrer to the same filed by the county and prosecuting attorney of this county, having heretofore been submitted to the court and by the court taken under consideration upon argument had, and the court being duly advised in the premises, does sustain said demurrer and does overrule said plea in bar, to which order in sustaining said demurrer and overruling said plea in bar, the defendant now and here excepts.” The plea in bar when it raises an issue of fact is triable by jury. (Section 5331, R. S., 1899.) We think, however, that the sufficiency of the plea in the first instance is for the court, and when the plea is specific, raises no issue of fact, but presents solely a question of law, then the question is one for the court and not for the jury. (Sec. 810, Bishop’s New Cr. Proc.) As to whether the plea after having been made more specific in accordance with the order of the court, raised a question of fact or one solely of law, is not before us, for such amended plea is not in the record and as error in this respect does not affirmatively appear it will be presumed, in the absence of. such showing, that the question was one of law and that the .ruling of the trial court was predicated solely on the law as applied to the facts set up in the plea. We cannot presume upon the record that the court committed prejudicial error in this respect for it does not appear from the record that there was a question of fact to be determined by the jury.

No other question is presented, and the judgment will be affirmed. Affirmed.

Potter, C. J., and Beard, J., concur.