Appellant engaged in a fight with, and subsequently fatal to, one Allie Peasley July 26, 27, 1939. The prosecuting attorney of Bonneville county filed a criminal complaint August 3, 1939, before the probate court of that county charging appellant with assault and battery. Appellant pleaded guilty to this charge on the same day. The record of the probate court discloses the following events:
“Now on this fifth day of August, 1939, George W. Edging-ton, Prosecuting Attorney of Bonneville County, State of Idaho moved this court that the plea of Guilty entered by the above named defendant in this cause be set aside, and that the cause be dismissed. Defendant, by and through his attorney of record resisted the motion to dismiss, and asked that the defendant be sentenced. The defendant being held upon another charge, the court took the matter under advisement.
“Now on this 1st day of September, 1939, George W. Edgington, Prosecuting Attorney of Bonneville County withdrew his motion made on the fifth day of August, 1939, as aforesaid, and the Court pronounced sentence as follows:
“Defendant, James Randolph the defendant herein was sentenced to serve four months in the Bonneville County Jail on the conviction of Assault and Battery, and sentence to run from the third day of August, 1939.”
September 1, 1939, the prosecuting attorney filed in the district court an information charging appellant with murder in the second degree because of Peasley’s death August 6, *459 1939. It is thus apparent from the above record that appellant had been held to answer to the district court on the charge of murder in the second degree prior to September 1st.
Appellant pleaded former jeopardy to the information charging murder in the second degree and waived trial by jury thereon
(State v. Crawford,
As to the charge of assault and battery jeopardy attached probably before, or at least on, appellant’s plea of guilty.
(Ex parte Harron,
State v. Gutke, 25
Ida. 737,
As against a plea of former jeopardy the state had no more free choice after plea of guilty than after sentence, and it elected before sentence on the misdemeanor, by instituting the charge of murder in the second degree, information thereon being filed September 1, 1939, the day sentence was pronounced on the misdemeanor charge. In other words
*460
the state exercised choice as soon as death ensued by then instituting the homicide charge. It could not have done so before plea of guilty, because Peasley was not then dead. Jeopardy on the acts and omissions resulting in death had not attached and could not attach before death.
(Diaz v. United States,
Conceding the prosecution should not have withdrawn its motion for a dismissal of the misdemeanor charge and that such dismissal would not have been a bar under sec. 19-3406, I. C. A., to the subsequent prosecution for a felony
(State v. McKeehan,
In this connection Instruction No. 19, 1 complained of by appellant, was correct as applied to the situation herein.
*461
The decisive point therefore is whether the action herein is barred by see. 17-301, I. C. A.
2
It will be noted the Constitution, article 1, section 13, is less restrictive.
3
The courts under statutes similar to sec. 17-301, I. C. A.,
supra,
have held that ensuing death is a sufficient additional act and/or omission to prevent a plea of previous jeopardy on a prosecution of a lesser offense prior to death, from barring a subsequent prosecution for a homicide charge.
(People v. Herbert,
(Cal. App.)
The judgment is therefore affirmed.
Notes
Instruction number 19:
“You are instructed that in addition to the charge of murder of the second degree, the Information in this ease also charges the included offenses of voluntary manslaughter, involuntary manslaughter, battery and simple assault. If you do not find the defendant guilty of murder of the second degree, you may then consider the evidence for the *461 purpose of determining whether or not the defendant is guilty of voluntary or involuntary manslaughter, as charged in the Information; and in that event, if you find from the evidence, beyond a reasonable doubt, that the defendant is guilty of voluntary or involuntary manslaughter, as charged, then you will return your verdict accordingly. But, if after considering all the evidence you have a reasonable doubt of the defendant’s guilt of either murder of the second degree, or manslaughter, then you will find the defendant not guilty.
“As to the included offenses of battery and simple assault, you are instructed that you cannot consider the question of the defendant’s guilt of either one of these included offenses in this case, because the defendant has heretofore been put in jeopardy on these charges in the Probate Court of this County. So that if you do not find the defendant guilty of either murder of the second degree, or voluntary or involuntary manslaughter, then you must acquit him.”
17-301, I. C. A.: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no ease can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”
Constitution, article 1, section 13: “ .... No person shall be twice put in jeopardy for the same offense; . . . . ”