19 Mont. 6 | Mont. | 1896
The defendant was originally tried before the district court of Cascade county under an information charging him with murder in the first degree. He was convicted of manslaughter and appealed to this court. The judgment against him was reversed and the cause remanded to be tried anew. (State v. O'Brien. 18 Mont. 1.)
When the cause came on again for trial in the district court, the defendant pleaded that he had already been acquitted of the charge of murder in the first and second degrees, and had also been placed in jeopardy for those offences, because on his former trial he had been found guilty of manslaughter only. In reply to the pleas of former acquittal and former jeopardy, the state admitted that an information had been filed against the defendant charging him with murder in the first degree;
The defendant by motion questions the authority for the appeal from the order of the court. Section 2273, Penal Code, provides as follows :
1 ‘ An appeal may be taken by the state :
“1. From the judgment for the defendant on a demurrer to the indictment or information.
“2. From an order granting a new trial.
“3. From an order arresting judgment.
“4-. From an order made after judgment, affecting the substantial rights of the state.
“5. From an order of the court directing the jury to find for the defendant.”
It is contended by the appellant that this case is brought within the terms of the fourth subdivision of the statute quoted, and that when the court made an order to the effect that the defendant’s plea of former acquittal was valid, it was equivalent to an order made after judgment, affecting the substantial rights of the state. But in our opinion the ruling of the court was not one made after judgment, because when the former judgment of conviction of manslaughter was set aside by this court, the effect of the decision setting aside the judgment was to put the defendant in a position as if no such judgment ever had been rendered against him. He stood be
£ £An issue of fact arises :
££1. Upon a plea of not guilty.
£2. Upon a plea of former conviction or acquittal of the same offense.
££3. Upon a plea of once-in jeopardy.”
It being clear, therefore, under the law, that the pleas of defendant raised issues of fact, the court was obliged to submit them to a jury. It may be that by- concessions of the defendant the offering of evidence becomes merely the formal introduction of the record of the previous trial with the agreement that there is no difference in the two cases between the identity of the offense charged, and the identity of the defendant, but the issues nevertheless are to go to a jury under appropriate instructions by the court. (Wharton’s Criminal Evidence, § 593.)
Section 2143 of the Criminal Code, carrying out . the law which declares that the pleas of former acquittal and jeopardy are issues of fact, specifies that the verdict shall be either £ £ for the state ” or £ £ for the defendant. ’ ’ The question therefore, if one at issue, cannot be finally determined without the finding by a jury. In People v. Kinsey, 51 Cal. 278, it was decided that the defendant is entitled to a verdict on a
As we look at it, there was no judgment in the case when this appeal was taken, and the issues remain still to be disposed of. The ruling of the district court was an interlocutory one, from which the state could not appeal. (State v. Pollard, 83 N. C. 598.)
It follows that the principal and important question which the state seeks to have decided, namely, whether or not the defendant can be tried again for murder, is not before us and cannot be considered.
The appeal is dismissed.
