150 N.W. 557 | N.D. | 1915
Defendant was informed against for assault with intent
The statutes involved, directly or incidentally, are § 10934 and kindred sections, concerning wbat a defendant may show against judgment, upon being called for sentence; § 10921, defining and declaring when, and the grounds upon which, a motion in arrest of criminal judgment may be made; §§ 10881-9-90 as to verdicts; §§ 10746 & 7-69 as to pleas and joinder of issues of fact by plea for presentation to the jury; with §§ 10754 and 10865, declaring the effect of former jeopardy resulting from conviction or acquittal; with § 10881, prescribing the form of verdict to be returned where a plea of former, jeopardy arising from former conviction or acquittal has been entered. Section 10889, prescribing the form of verdict on the similar question of trial on a second offense charged, might also be mentioned. Many other sections of the Code of Criminal Procedure are more or less related, but these are sufficient, from which to determine this case, taken in connection with common-law rules, of which the statutes are, in the main, if not entirely, but declaratory. The defendant invokes § 13 of our state Constitution, providing that “no person shall be twice put in jeopardy for the same offense/’ and the similar provision of the 5th Amendment to the Federal Constitution, that, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb,” and asserts that these constitutional guaranties secure to defendant the right to invoke the benefit of former jeopardy after plea and at the time urged herein, that is, in arrest of judgment; and that a suggestion of former jeopardy may be made after verdict, and when supported, as here, by record proof of former jeopardy because of former conviction for the same offense, the court is thereby devested of jurisdiction and power to pronounce any judgment whatsoever except that of acquittal because of former jeopardy.
Under § 10746 there are but four possible pleas to be.entered to an information or indictment, the third and fourth of which have relation to prior conviction or former jeopardy thereby. No reference is made to pleas required under § 9480 to the specific degree of crime where homicide is charged. The statute, § 10747, prescribes even the form of entry of the plea of former jeopardy upon the minutes of the court; § 10881 also requires an additional or different form of verdict or
The general scheme shown by the statutory requirements cited is that the question of fact of former jeopardy shall be presented to the jury upon a separate plea of not guilty because of former jeopardy arising from former acquittal or conviction. On such plea the jury determines guilt by its general verdict, which is accompanied by an additional verdict finding either “for the state” or “for the defendant” upon the specific plea of former jeopardy. Section 10881. The issues of fact usually presented under such a plea are identity of person and offense, — or, as stated in Re Neilsen, 131 U. S. 176, page 190, 33 L. ed. 118, page 122, 9 Sup. Ct. Rep. 672, “that the test is not whether the defendant has been tried for the same act, but whether he has been put in jeopardy for the same offense.” Upon identity of offense see State v. Virgo, 14 N. D. 293, 103 N. W. 610, decided on a plea of former acquittal. In logical sequence now follows the question, whether the information for assault with intent to kill includes that of assault and battery as an offense charged in said information. Defendant does not question the validity of the verdict, but contends that it is not charged in the sense that it can be pleaded to as a specific offense, and contends that defendant could not, on the information charging the graver offense, a felony, interpose a plea of former jeopardy to the included offense. Section 10890 provides that “the jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the information or indictment, or of an attempt to commit the offense.” Petitioner is in error. These statutes are but declaratory of the common law as to included offenses. Thereunder it was the theory that the
Having found, therefore, that the statutes contemplate the presentation of former jeopardy arising from former conviction to the jury by plea, upon which the jury finds the fact as to the same, and renders its finding of fact along with its general verdict; and having determined that, though the plea to the included offense is one which the state was not obliged to accept as a plea on the' merits, yet was a plea the state was powerless to reject when made specifically to such included offense, — the question next arises as to whether failure to enter such plea is a waiver of all benefits which might have been thus gained thereunder. The decision as to this must be against defendant under all authorities. “Jeopardy, to be available, must be specifically pleaded, or otherwise it is deemed to have been waived,” Wharton’s Criminal Law, 11th ed. 526, citing Gue v. Eugene, 53 Or. 282, 100 Pac. 254. To the same effect, see State v. White, 71 Kan. 356, 80 Pac. 589, 6 Ann. Cas. 132, and note, from the latter of which we quote: “It has been held in a number of cases that a person accused of crime waives his privilege of immunity from second jeopardy by failing to plead or otherwise set up the former jeopardy when he is arraigned in the second prosecution,”—citing Jordan v. State, 81 Ala. 30, 1 So. 577; Re Allison, 13 Colo. 525, 10 L.R.A. 790, 16 Am. St. Rep. 224, 22 Pac. 820; Hill v. State, 41 Ga. 484; Hall v. State, 103 Ga. 403, 29 S. E. 915; Powers v. State, 83 Miss. 691, 36 So. 6; State v. Webb, 74 Mo. 333; Davis v. State, 51 Neb. 301, 70 N. W. 984; McBean v.
But counsel has urged that the 5th Amendment to the Federal Constitution, earlier quoted, operated to devest the trial court of jurisdiction whenever, before sentence, former jeopardy is established. Sufficient is the answer that former jeopardy is not established by the record, and cannot be established by or upon a motion in arrest of judgment, where the first conviction was in a different court from that in which former jeopardy is urged as a bar to second judgment, as the court cannot, on the motion made, know the fact by means of judicial notice taken of its own record. See note in 6 Ann. Cas. 134. But a
What is said in deciding this case does not pass on whether habeas corpus is the proper remedy. It is unnecessary to pass on that question. The writ is denied.