People v. Briggs

| Supreme Court Of The Territory Of Dakota | Jun 15, 1876

BabNes, J.

The indictment in this cause was found and presented May 4th,A. D. 1876; May 10th, 1876, warrant of , arrest delivered to sheriff; May 11th, 1876, defendant arrested; and on May 13th, 1876, defendant pleaded a former trial, conviction, judgment, for the. same offense before one Ross-teuscher, a city justice.

In the proceedings before the city justice as appears by the. record, the complaint was sworn to May 10th, 1876. It is, however, conceded upon the hearing, and such was the evidence- in'the court below, that the complaint before the city justice was not in fact made and sworn to before said justice until May 11th, 1876, and was by mistake or design dated back one day. It further appears that before a trial was had in the city justice court the defendant was arrested on the bench-warrant, issued from the District Court, and the defendant notified of the fact that she was indicted for this offense in the District Court.

It'further appears from the record that on the day of the arrest when the defendant was brought before the city justice, that the defendant plead guilty to the charge of keeping a house of ill-fame; that she was by said justice thereupon adjudged guilty and fined the sum of fifteen dollars, which with costs taxed amounted in the aggregate to the-sum of twenty-two dollars and seventy cents which was there paid to the city justice. Upon the trial of the issue of a former trial and conviction the jury in the District Court found against the defendant. And upon this trial of the issue of former trial and conviction (in the city court), a witness (Belle Wilson) was sworn in the District Court, and among other things testified that defendant was advised by the city justice that if she would-pay a fine to him it would be a bar to a prosecution in the District Court. She thereupon, as appears of record, plead guilty and paid her fine. We forbear to express our conviction in befitting terms of this high-handed, unwarrantable conduct on the part of the city justice, as it is not important in the determination of this case. Nor is it necessary in deciding this case to pass upon the question as to whether the so-called city justice can act in any judicial capacity; but as this question has been raised, and as the city authorities desire to have tjie question considered by this court, we here insert an act of Congress that we regard, and that is, upon the argument by the city attorney, conceded to be, decisive on this question.

(U. S. Statutes at Large,-§ 1856): “Justices of the peace “ and all general officers of the militia in the several Terri- “ tories shall be elected by the people in such manner as the “ respective Legislatures may provide by law.”

We take judicial notice of the laws of the Territory, and by an examination of the law incorporating the city of Yank-ton, and as counsel upon the argument admit that the city justice was not elected by the qualified voters of city or county, and that Ms only authority to act judicially is derived from his election or appointment by the city authorities, it therefore follows that he is clothed with no judicial power or authority to act. The question as to whether the city justice, so-called, acted under color of office, and as to whether third parties are protected in their rights, we will not discuss or pass upon, but will dispose of this case upon the remaining and important question.

The issue of former trial and conviction having been determined by the jury in the. District Court adversely to the defendant, the defendant’s counsel insists as a matter of right that defendant must be permitted to interpose the plea of not guilty. This request in the court below was refused. Bid the court err in this respect? This question has been argued with marked ability on the part of the plaintiff in error by Mr. Arnold, and per contrary by District Attorney Gamble, and must turn upon the construction of sections 274 and 399, of the Code of Criminal Procedure, enacted in 1874-5.

Section 274, provides as follows: “There are three kinds “of pleas: 1st, guilty: 2d, not guilty; 3d, a former judgment of conviction or acquittal of the offense charged, “ which may be pleaded either with or without the pleas of “ not guilty.”

It should be observed that the plea of former conviction-of the offense charged is an admission of the guilt of the accused with an averment of conviction of the offense by a competent tribunal, and because of that former conviction the accused should not be subjected to another trial.

The plea of former conviction, therefore, is inconsistent with the-plea of not guilty, and hence the rule of the common law that because of this inconsistency the two pleas could not be pleaded together, and the defendant in misdemeanors was compelled at his peril to elect upon which plea he would stand.

As to rule at common law see the following cases: (Code of Criminal Procedure, § 276, (3); Code of Criminal Procedure, § 399, (2); Code of Criminal Procedure, § 428, el seq.; 2 Wharton, § 572; 2 Bishop Criminal Procedure, §§ 755, 782-83; Archibold, page 371.)

Now the statute above referred to has so far changed the common law rale as to allow these two inconsistent pleas— former conviction, and not guilty — to be pleaded together. This is giving to the defendant the benefit of two pleas, provided he pleads them together; whereas at common law he had but one. Must the defendant plead the two pleas together in order that each plea may be'made available for the defendant? We think the two pleas must be interposed together or the defendant must stand upon the plea pleaded. We see no reason why this should not be so; and this view of the case harmonizes with our present practice in criminal and civil cases, and in cases at law and equity; and it is in accordance with the progressive spirit of the age to allow the' greatest liberty in pleáding, and often to the extent of permitting inconsistent pleas, the purpose being to secure to parties all their rights, and at the same time avoid unnecessary delay. Had the defendant a desire to avail herself of the two pleas, she had only to have expressed that wish at the proper time. The evidence then would all have been taken and the court would have instructed the jury to pass upon' the first plea, or issue, first; and if that issue was found for the defendant the investigation would proceed no further. If that issue was found against the defendant, then the jury would have to pass upon the issue of guilty or not guilty.

This, in our judgment, is a fair construction of this statute; and this view harmonizes with the provisions of section 399, the 2d subdivision of which reads as follows: “If the plea is a former conviction or acquittal of the same offense, the court must give judgment of conviction or acquittal, according as the facts prove or fail to prove the former conviction or acquittal.”

Let the judgment of the District Court be affirmed, and this casé remanded to that court for further proceedings, according to this decision.

The Chief Justice concurs. Associate Justice BeNNett did not sit in the case.