Charles A. McNAIR, Plaintiff and Appellant, v. N.D. “Pete” HAYWARD, Sheriff, Salt Lake County, Defendant and Respondent.
No. 18650
Supreme Court of Utah
June 9, 1983
666 P.2d 321
The record in the present matter shows that plaintiffs (bailees) were unable to return a total of 24 of the 216 head of cattle originally entrusted to their care under thе agistment agreement. Twelve of the missing 24 head were reported as having died of various causes, while the remaining 12 were completely unaccounted for.
The record also shows that defendant‘s cattle were delivered to Baker‘s ranch in good condition. Only hours before their delivery, the cattle had been examined by Dr. Stanley Hull, who reported their condition to be “very good.” Upon delivery, it was reported that their condition was still good, despite the long hаul by truck from Idaho.
By reason of the foregoing evidence, a presumption of plaintiffs’ negligence arose and the burden of going forward with evidence to overcome the presumption was cast upon plaintiffs.
Plaintiffs failed to present any evidence as would account for the loss of 12 of the 24 missing head of cattle. The presumption of negligence for the loss of those 12 head therefore prevails. Accordingly, as negligent bailees, plaintiffs are liable to defendant for the reasonable value of those 12 head.13
With respect to the remaining 12 head of cattle that are missing, the record does contain evidence of an accounting by plaintiffs for their loss.14 There are, however, no findings indicating whether the trial court considered this evidence sufficient to overcome the presumption of negligence. In fact, there are no findings at all regarding the issue of plaintiffs’ negligence or their liability for the missing cаttle.
We therefore remand this case to the trial court with instructions to make appropriate findings on: (1) the value of the 12 mature cows that were not accounted for, and (2) the sufficiency of plaintiffs’ accounting as to the 12 head that died. Should the trial court find that plaintiffs’ accounting as to any or all of the latter 12 head is insufficient to overcome the presumption of negligence, the value of such animal or animals shall be determined also. This value, together with the value determined for the 12 head unaccounted for, shall be applied as an offset against the $32,140 award to plaintiffs.
We have reviewed the other issues raised by defendant and deem them without merit. In all other respects, the judgment is affirmed. No costs awarded.
STEWART, OAKS, HOWE and DURHAM, JJ., concur.
Charles A. McNair, pro se.
David L. Wilkinson, Atty. Gen., Ted Cannon, County Atty., Salt Lake City, for defendant and respondent.
After a jury convicted appellant of retail theft, the trial court granted him a new trial. Another judge denied his petition for writ of habeas corpus, and he has filed this appeal of that denial. In the midst of a plethora of unmeritorious collateral attacks on his conviction, appellant‘s pro se brief argues that it would be double jeopardy to subject him to a second trial on the facts of this case. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), which appellant does not cite, conclusively establishes that proposition if the issue is properly before us. But the tangled procedural circumstances require a detailed review of the facts and proceedings, as well as a summary of the law of double jeopardy.
I. DOUBLE JEOPARDY
There is a double jeopardy clause in the
The immunity guaranteed by the various double jeopardy provisions is simple in theory but technical in implementation. The United States Supreme Court recently explained the theory as follows:
The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibitiоn against successive trials. The Clause does not allow “the State . . . to make repeated attempts to convict an individual for an alleged offense,” since “[t]he constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.”
Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978).
The implementation of this simple principle is complicated when it must be applied to a second trial following a conviction that was vacated on appeal or on motion for new trial. Thus, it was established early in Utah law that double jeopardy was no barrier to a second trial when the defendant had moved for a new trial on the basis of errors in the first. State v. Kessler, 15 Utah 142, 49 P. 293 (1897). The best statement of the rationale for that position is State v. Jaramillo, 25 Utah 2d 328, 329, 481 P.2d 394, 395 (1971), where the Court said:
Where the defendant has complained of errors that vitiate the prior proceedings and judgment and they are nullified at his request, he cannot then take the inconsistent position that there was a valid proceeding and judgment against him which constitute a former jeopardy.
In contrast, where the evidence has been presented to the jury and the court aborts the trial without the consent of the defendant and without some special necessity, double jeopardy prevents a second trial. State v. Ambrose, Utah, 598 P.2d 354 (1979); State v. Thompson, 58 Utah 291, 199 P. 161, 38 A.L.R. 697 (1921); State v. Hows, 31 Utah 168, 87 P. 163 (1906). Of course, double jeopardy is no bar to retrial if the jury is unable to agree on a verdict. State v. Gardner, 62 Utah 62, 217 P. 976 (1923).
II. FACTS AND PROCEEDINGS
The record facts pertinent to this appeal are undisputed. Appellant was charged with retail theft,
Appellant‘s trial was held on May 17, 1982. Two women‘s suits were admitted into evidence and two witnesses, both employees of Nordstrom, testified for the prosecution. In formulating questions to these two witnesses, the deputy county attorney referred to March 22 rather than March 5 (the date charged in the information), and all of the witnesses’ testimony about the theft and appellant‘s involvement related to March 22. It is undisputed that on March 22 appellant was in jail awaiting trial on this charge. Appellant claims in his brief in this Court that he had witnesses in court to testify to the events of March 5, but did not use them because all of the prosecution‘s testimony rеlated to March 22. All that the record shows on this subject is that the defendant called no witnesses and introduced no evidence.4
In closing argument, defense counsel referred to the discrepancy in dates and contended that the jury could not convict defendant of a charge of theft on March 5 on the basis of testimony of events on March 22. This argument gave the prosecution its first inkling of the mistake in its questions and in the witnesses’ testimony. The prosecutor admitted the mistake in rebuttаl to the jury, but did not move to reopen the case and recall the witnesses. After being instructed in the same terms as the information (an offense committed on March 5), the jury found appellant guilty as charged.
On May 21, 1982, before sentencing, appellant‘s counsel filed a written motion for a judgment of acquittal notwithstanding the verdict, and, in the alternative, for either an arrest of judgment or a new trial. The motion was based on insufficiency of the evidence and contained no mention of double jeopardy. On June 29, 1982, the trial court denied the first two motions but granted a new trial. The minute entry reads: “In lieu of motion for acquittal, defendant is granted a new trial.”
On July 12, 1982, appellant filed a pro se petition for a writ of habeas corpus, which sought release on the claim that he was held in violation of his state and federal constitutional rights. The principal basis cited for that claim was the fact that appellant had been convicted of a crime that thе witnesses testified took place on March 22, when, appellant states, he was incarcerated in the Salt Lake County jail on that date. The petition made no mention of double jeopardy if he was retried. After a hearing on July 22 (before a different judge than had presided at the trial), the petition was denied. The order makes no mention of double jeopardy and merely finds that appellant had been granted the only relief
We think the issue of double jeopardy is appropriately before us notwithstanding the lack of specific focus on double jeopardy in the pro se petition or in the order in the district court. Both parties argue the double jeopardy issue in their briefs on this appeal.5 The right to release from confinement on charges for which a petitioner could not be tried without a violation of dоuble jeopardy can be raised by habeas corpus under
For all these reasons, we conclude that the question of double jeopardy is properly before us on this appeal from the denial of habeas corpus.
III. RULING ON MERITS
We think it would clearly be double jeopardy to bring appellant to trial a second time on these chargеs.7 Hudson v. Louisiana, supra, is squarely in point on its facts. There a defendant was put through an entire trial, found guilty, and then granted a new trial on the basis of insufficient evidence to support the verdict. The Court held that the prohibition of double jeopardy bars retrial in that circumstance.
It is hard to imagine a clearer violation of the policy served by the constitutional and statutory prohibitions against double jeopardy than the facts of this case. As the Supreme Court said in the passage quoted еarlier from Burks v. United States (same facts as Hudson except new trial granted on appeal instead of by trial court), a new trial in this circumstance would amount to “affording the prosecution another opportu-
The State cites
Here, the new trial did come in response to appellant‘s own motion (in the alternative), and the State relies on that fact to contеnd that appellant has no double jeopardy defense against a retrial in this case. We reaffirm the general rule that a defendant who obtains a new trial on the basis of errors in the trial or guilty plea that lead to his conviction can be retried without double jeopardy. State v. Jaramillo, supra; Cobb v. Snow, 14 Utah 2d 170, 380 P.2d 457 (1963); State v. Lawrence, 120 Utah 323, 331-32, 234 P.2d 600, 604 (1951); State v. Kessler, supra. But that principle does not apply to the “error” of convicting a defendant on insufficient evidence. If the defendant could not challenge that error without forfeiting his right to assert the bar of double jeopardy on a retrial, the protection of that clause would be rendered nugatory. As the Supreme Court held in Burks v. United States, “it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy. It cannot be meaningfully said that a person ‘waives’ his right to a judgment of acquittal by moving for a new trial.” 437 U.S. at 17, 98 S.Ct. at 2150.
The State further argues that the variance between the March 5 date in the information and the March 22 date in the witnesses’ testimony was (1) minor and (2) unimportant because time was not an element of the crime. We disagree with both points. First, the seventeen-day disparity between charge and evidence in this case was not minor and surely exceeds the one- to three-day tolerance we have recognized in the approximation of “on or about.”8
Second, on the facts of this case, the disparity in dates was important. The statement in the cases relied on by the State that “time is not an essential element of the crime,” State v. Wilson, Utah, 642 P.2d 394, 395 (1982); United States v. Davis, 436 F.2d 679, 682 (10th Cir.1971), means no more than that the charged offense would be criminal on either date in question. That is, on the facts of those cases there was no defense such as a period of limitations or a change in the age of defendant or victim that would keep the act from being criminal or punishable on one date but not on the other. In contrast, time is always an essential element of a crime in the sense that duе process requires that an accused be given sufficiently precise notification of the date of the alleged crime that he can prepare his defense. Neither the Wilson nor the Davis case involved any deficiency in notice. There, the prosecutors recognized typographical errors in the charging documents prior to the trials and gave defendants prompt notice of the true dates of the alleged offenses. When each case went to trial, both prosecution and defense knew the date of the alleged offense, and there was no suggestion on either appeal that the evidence had deviated from that date.
This case is distinguishable. Here, the error was in the evidence (a material difference between the trial testimony and the date charged in the information), the error occurred during the trial, and the error took the defendant entirely by surprise. Because the error was in the evidencе, this case presents the spectacle of a prosecutor‘s allowing a jury to commence its deliberations on the basis of sworn testimony the prosecutor knows to be false. Cf. Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942). True, the prosecutor admitted in rebuttal that the testimony about the date of the offense was in error and should have been March 5, but what was the jury supposed to do with that admission? The prosecutor‘s attempt to change the witnesses’ testimony from March 22 to March 5 was not undеr oath. On the record, the jury had no evidence tying the defendant to a theft committed “on or about March 5,” as charged in the information and the judge‘s instructions.
And what about the defense? It had no need to introduce evidence as to a March 5 theft, since no such theft was proved at trial. On the other hand, if the prosecutor‘s rebuttal could be taken as changing the witnesses’ sworn testimony from March 22 to March 5, the defense was denied an opportunity to respond to the amended evidence.
For all these reasons, we have no doubt that a judgment of conviction on this evidence would have been reversed for insufficient evidence if it had been appealed. In that event, we would have ordered that the charges be dismissed and that the defendant be discharged from custody under them. State v. Petree, Utah, 659 P.2d 443, 447 (1983); State v. Lakey, Utah, 659 P.2d 1061, 1064 (1983). Cf.
After the jury found him guilty but before he was sentenced, appellant filed a motion seeking a judgment of acquittal or, in the alternative, arrest of judgment or a new trial. The district court‘s granting of a new trial and appellant‘s failure to appeal the denial of his motion for a judgment of acquittal set the stage for the procedural complications that have bedeviled this case. The correct result could still have been achieved by granting this petition for a writ of habeas corpus or by granting one of appellant‘s subsequent mоtions to dismiss. The motions to dismiss are not before us on this appeal, but the habeas corpus petition is. We can assure that appellant will not be placed in double jeopardy by reversing the order denying the writ of habeas corpus and by remanding the case with instructions to discharge appellant from custody under these or substitute charges. That will be the order of this Court.
IV. MOOTNESS BY GUILTY PLEA
After this appeal was submitted, the State filed a motion to dismiss the appeal. The State showed that on March 30, 1983, in lieu of retrial on the pending charge of retail theft, appellant pleaded guilty to a charge of theft by receiving (the same merchandise), and the prosecution recommended that his sentence give credit for the time he had already served in jail. Sentence has not yet been imposed. Citing Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (composition of grand jury), the State now argues that appellant‘s guilty plea had the effect of waiving all nonjurisdictional errors in thе prior proceedings and requires dismissal of this appeal.
The short answer to the State is that this identical argument was made and expressly rejected in Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). That case reversed a state decision that a double jeopardy claim was waived by a guilty plea. The Court held:
Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set asidе even if the conviction was entered pursuant to a counseled plea of guilty.
Id. at 62, 96 S.Ct. at 242. For the reasons stated in Menna v. New York, we consider its holding just as binding for this plea to the substituted charge of theft by receiving as it would have been to a plea to the original charge of retail theft. The motion to dismiss for mootness is therefore denied.
The order denying the writ of habeas corpus is reversed, and the case is remanded
HALL, C.J., and STEWART and DURHAM, JJ., concur.
HOWE, Justice, concurring:
I concur, except I reserve any expression of opinion on the importancе and effect of the variance between the March 5 date in the information and the March 22 date in the witnesses’ testimony which is discussed in Part III. In my opinion that question is not before us, and I would prefer to wait for another day when it has been fully briefed and is squarely presented. At that time the seemingly various points of view found in the cases may be analyzed and perhaps reconciled. See State v. Wilson, Utah, 642 P.2d 394 (1982); United States v. Davis, 436 F.2d 679 (10th C.C.A. 1971).
The State contends that the variance between the dates was minor and unimportant because time was not an element of the crime. There is no doubt that such an argument would have been plausible for the State to have made before the trial judge when he was considering the defendant‘s post-trial motion for either a judgment of acquittal, or in the alternative, a new trial. However, the court granted a new trial, rightly or wrongly, because of the discrepancy in the dates. It is important that the State does not complain about the granting of the new triаl. Rather, the thrust of the State‘s brief on appeal is that the defendant was not entitled to a judgment of acquittal because the discrepancy in dates was insignificant and not prejudicial.
Since the State is content with the order for a new trial, the only dispute before us on appeal is whether subjecting the defendant to a new trial violates his right against being placed in double jeopardy. On that question the parties sharply divide. The State claims that the defendant waivеd that right when he moved for a new trial. The majority opinion has correctly analyzed and decided that question concluding that the ground for granting a new trial was because the evidence was insufficient and there was no waiver. Consequently, the State‘s argument that the discrepancy in the dates does not warrant acquittal but only goes to the weight to be given to the testimony of the witnesses at trial is really beside the point at this time. A new trial was given and we must view the double jeopаrdy question against that backdrop.