State v. Parish & Nichols

| Wis. | Aug 15, 1877

Lyon, J.

If the defendants were put in jeopardy of punishment by their trial and conviction in the circuit court for "Vernon county, on the first information, they cannot lawfully be tried on the last information for the same offense. Const., art. I, sec. 8.

For the purposes of the case, it will be assumed that had the defendants been tried on the first information without arraignment or pleas, they were not thereby put in jeopardy of punishment, and such conviction would be no bar to another information for the same offense. It thus becomes unnecessary to refer to the numerous cases bearing upon that proposition which were cited by counsel.

But the defendants had been duly arraigned upon the first information, and had pleaded thereto, before they were put upon their trial in Vernon county. Those facts appeared in the record of the case, although not in that portion which was transmitted to Yernon county. The judge of the trial court looked into that portion of the record which was accessible to him, and finding there no evidence that the defendants had been arraigned or had pleaded to the information, he arrested judgment. Inasmuch as the judge determined that the information was sufficient, had the whole record been before him, doubtless he would have pronounced judgment pursuant to the verdict.

"What is the legal effect of the failure of the proper officer in Crawford county to transmit the whole record to the circuit court of Vernon county? How does such failure affect the question of jeopardy? Had the whole record been so transmitted, it could not be doubted that the trial and conviction of the defendants upon the first information was a putting in jeopardy of the defendants, within the constitutional signification of that term. Is the jeopardy removed because a public officer (innocently no doubt) failed to do his duty, and transmitted to the trial court only a part of the record? We think not. The question of jeopardy must be determined from the whole record, whether the record be in the trial court or in the court in which the information was first filed, or whether a portion of. it is in one court and the residue in the other. The record is an entirety, and ho unauthorized severance of it can operate to deprive the defendants of any right which, otherwise, they would have.

The omitted portion of the record might have been supplied by an order of the circuit court for Crawford county, and such an order would have been made on application of the district attorney. How, suppose the trial court had overruled the motion in arrest, and had rendered judgment pursuant to the verdict, and the omitted portion of the record had afterwards been thus supplied. On writ of error, this court, with the whole record before.it, would necessarily affirm the judgment. This is a fair test to apply in solving this question of jeopardy; for it must be that the defendants were in jeopardy of punishment on the first trial when this court would thus sustain the judgment upon the verdict. Again, suppose the Vernon county jury had returned a verdict of not guilty. Can it be doubted for a moment that a plea of autrefois acquit to the last information, setting out all the proceedings in the case, would be a good plea in bar? If that would be a good plea, the plea of autrefois convict is also a good plea, for it rests on the same principles.

But it is claimed by the learned attorney general, that the defendants were not in jeopardy because the judgment was arrested, and that it is quite immaterial whether it was properly or improperly arrested. If this position is well taken, it is so because either, 1. The motion in arrest operates as a waiver of the jeopardy; or, 2. The order arresting judgment is conclusive of the proposition that the record was insufficient to support the verdict.

We think the motion is not a waiver of the right to plead the former jeopardy. The order arresting judgment does not set aside the verdict. That remains a part of the record, and we see no good reason why the defendants may not be heard to allege at all times that such record shows they were in jeopardy of punishment for the offense charged in the information. If any case holds the contrary, we are not willing to follow it. Had the verdict been set aside on motion of the defendants, there is no doubt of the power of the court to order another trial on the same information; but the distinction between setting aside a verdict, and arresting a judgment leaving the verdict intact, is obvious. "When a verdict ofguilty in a criminal case is set aside, all the proceedings on the trial are necessarily set aside and vacated with the verdict.. So when the verdict is set aside on motion of the accused, and he afterwards alleges that the trial and verdict put him in jeopardy of punishment, it may well be replied that the portions of the record by which alone the jeopardy can be proved, have been set aside and vacated at his request, and that he has thereby deprived himself of the means of proving his allegation of jeopardy. But here no such reply can be made, for, as already observed, the record of the trial and verdict remains intact.

To the proposition that the order arresting judgment for the alleged insufficiency of the record is conclusive that the-record is fatally defective, some cases are cited which seem.so-to hold. But the contrary has been held in other cases, and we think the latter are supported by the better reasons* If. seems to us inevitable that the court which is called upon to decide upon the sufficiency o£ such a plea must determine for itself whether the jeopardy has existed; and, to do so, it must necessarily pass upon the sufficiency of the record on which the plea is founded, independently of the rulings of the court in which the former trial was had. For a very satisfactory discussion of this subject, see State v. Norvell, 2 Yerg., 24.

It should be observed, however, that' the judge before whom the defendants were first tried could not determine that the defendants had- not been arraigned, and that they had not pleaded to the information, but only that the fragment of a record on file in his court did not show any such proceedings. Whatever may be the form of the order arresting judgment, lie could determine nothing beyond that.

The district attorney, who argued this case with the attorney general, maintains that there must be a judgment on the verdict before the defendant can successfully plead autrefois convict. There may be some old cases which so hold, but we understand the rule to be well settled in this country to the contrary. A plea which shows that the defendant has once been in jeopardy for the same offense must necessarily be a good plea, and, by all of the authorities, if the indictment or information is sufficient and the proceedings regular, the jeopardy commences when the jury are impaneled and sworn and charged with the deliverance of the accused. This general rule is subject to certain exceptions, none of which are mentioned here. For the rule and exceptions, see Cooley’s Con. Lim., 326-8, and cases cited in the notes.

It is conceded that the first information was sufficient. The record shows that all of the proceedings which resulted in the conviction of the defendants on that information were regular. Had judgment been rendered pursuant to the verdict, it would have been a valid judgment. It must be held, therefore, that the defendants were put in jeopardy of punishment by their trial on the first information, and hence, that their special plea to the second information was sufficient, and should have been sustained as a good plea in bar thereto. The truth of the plea being admitted, it follows that the question whether the defendants can lawfully be tried on the last information must be answered in the negative.

By the Gourt. — It will be so certified to the circuit court.