56 Kan. 126 | Kan. | 1895
The opinion of the court was delivered by
: Osso Terreso was prosecuted upon an information which charged that at a certain time and place he
“did unlawfully, feloniously, purposely, and with his deliberate and premeditated malice, make an assault in and upon Fannie Nesbit, with a deadly and dangerous weapon, to wit, a certain revolving pistol, loaded with powder and leaden balls, which the said Osso Terreso then and there in his right hand did hold, with the intent him, the said Osso Terreso, then*127 and there and thereby her, the said Fannie Nesbit, to unlawfully, feloniously, purposely, and with his deliberate and premeditated malice to kill and murder,” etc.
At the trial the jury found the defendant guilty of wounding and endangering the life of Fannie Nesbit, under circumstances which would have constituted manslaughter in the fourth degree if her death had ensued therefrom. The defendant moved for a new trial, and among the grounds alleged was that the verdict found him guilty of an offense other than that charged in the information, which motion was by the court allowed. Before the defendant was put upon trial the second time he filed a plea alleging that the' proceedings first had were a bar to any further prosecution upon the charge made against him. The plea was overruled, and upon the second trial he was found guilty of an assault with a deadly weapon with intent to kill and murder, as charged in the information. He insists upon this appeal that he had already been once in jeopardy, and that the plea in bar should have been sustained. This contention cannot be maintained. The criminal code provides that ‘ ‘ the granting of a new trial places the parties in the same position as if no trial had been had.” (§ 274.)
"Upon the defendant’s motion for a new trial the court granted just what he asked, and of course he waived all right to object to the legal consequences necessarily resulting from such grant. He waived his right to plead former jeopardy or to again being tried for the same offense.” (The State v. Hart, 33 Kan. 218.)
See, also, The State v. McCord, 8 Kan. 232 ; The State v. Rust, 31 id. 509 ; The State v. Miller, 35 id. 328.
It is urged, however, that the verdict first returned was absolutely void, and that, although he asked for
It is clear that the defendant derived some advantage and a legal benefit by the setting aside of the verdict, and as the new trial was granted at his request, he waived his right to plead former jeopardy, and no error was committed in putting him on trial a second time on the same information.
The judgment of the district court will be affirmed.