State v. WernethState v. Werneth
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Defendant-appellant, Stephen Werneth, appeals from a jury verdict finding him guilty of embezzlement by corporate officer under
In April, 1976, Werneth was placed on trial for the crime of embezzlement by
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bailee under
The State then moved to dismiss the suit. Dеfense counsel objected and was questioned by the trial judge regarding his reasons for objecting. After a recess, defense counsel withdrew his objection. The trial judge then granted the motion to dismiss.
Four days later, the State charged Werneth with the crime оf embezzlement by a corporate officer under
The primary issue in this case is whether Werneth was denied his constitutional right not to be twice placed in jeopardy for thе same criminal offense. Werneth’s constitutional rights stem from two sources. The first, the
Our resolution of Werneth’s constitutional claim begins with an examination of the trial court’s ruling that Werneth consented to the dismissal of the
While something more than mere silence on the defendant’s part must be shown to establish his consent to being *243 placed in double jeopardy, the consent need not be express; rather, it may be implied from a totality of the circumstances. See, e. g., United States v. Rich, 589 F.2d 1025 (10th Cir. 1978); United States v. Goldman, 439 F.Supp. 358 (S.D.N.Y.1977) aff’d mem., 573 F.2d 1297 (1st Cir. 1977); Harris v. Justices of the Supreme Court, 44 N.Y.2d 874, 407 N.Y.S.2d 478, 378 N.E.2d 1048 (1978). Stressing the view that consent to be placed in double jeopardy will not be lightly presumed, the court in Curry v. Superior Court, 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345 (1970), stated: “It is true that affirmative сonduct by the defendant may constitute a waiver if it clearly evidences consent * * Id. 87 Cal.Rptr. at 364, 470 P.2d at 348. Idaho has consistently recognized the presumption against waiver of fundamental constitutional rights. E. g., State v. Fisk, 92 Idaho 675, 448 P.2d 768 (1968); Abercrombie v. State, 91 Idaho 586, 428 P.2d 505 (1967).
We disagree with the finding of the trial judge that the withdrawal of an objeсtion constitutes the clear and unequivocal action necessary to find that the defendant has consented to placing himself in double jeopardy. Nevertheless, we affirm the trial court’s result, albeit on a different ground. We agree with the argument рresented by the State, both here and at the trial level, that the two statutory offenses with which Werneth was charged do not constitute the same offense for double jeopardy purposes. Where the decision of the trial court is correct but entered on a different theory, it will be affirmed on the correct theory. E. g., Eimco Corp. v. Sims, 100 Idaho 390, 598 P.2d 538 (1979); Anderson & Nafziger v. G. T. Newcomb, Inc., 100 Idaho 175, 595 P.2d 709 (1979).
The core principle of the Double Jeopardy Clause is that no person may be punished or prosecuted twice for the same offense. The issue we now turn to is whether Werneth was prosecuted twice for the same offense; specifically, we must determine whether
The basic test for determining whether two statutory offenses are sufficiently distinguishable to permit the imposition of successive prosecutions was stated in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977):
“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. * * Id. at 166, 97 S.Ct. at 2225 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)).
See also State v. Hall, 86 Idaho 63, 383 P.2d 602 (1963).
Under this test,
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We stress, however, that the result here might have bеen much different if the trial on the
“The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if twо offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues аlready resolved by the first.” Brown v. Ohio, 432 U.S. 161, 167 n. 6, 97 S.Ct. 2221, 2226 n. 6, 53 L.Ed.2d 187.
It is clear, however, that no factual issues were ever resolved in the trial on the
Werneth argues that the dismissal of the
“Acts punishable in different ways.— Double jeopardy. — 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 case can it be punished under more than one; an acquittal or conviction and sentence undеr either one bars a prosecution for the same act or omission under any other.”
It is clear that
“19-1718. What is a former acquittal. — Whenever the defendant is acquitted on the merits he is acquitted of thе same offense, notwithstanding any defect in form or substance in the indictment on which the trial was had.”
The United States Supreme Court has stated that a defendant is acquitted, “only when the ruling of the judge, whatever its label, actually represents a resolution [in the dеfendant’s favor], correct or not, of some or all of the factual elements of the offense charged.”
United States v. Scott,
437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978) (quoting
United States v. Martin Linen Supply Co.,
430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977). Neither of these definitions leads to a conclusion that Werneth was acquitted of the
Werneth next argues that the case of Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), requires reversal of the trial court’s decision. Crist involved defendants charged with a crime under a single Montana statute. After a jury was empaneled and sworn, a typographical errоr, was discovered in the information which made the information invalid. The prosecution’s motion to dismiss the case was granted; the typographical error was corrected; the exact charges were refiled against the defendants; and the defendants were found guilty by a jury. The sole issue in the case was whether jeopardy had attached in the *245 initial trial, thereby precluding the second trial; it was presumed that the second trial involved the “same offense” as the first. Crist is thus distinguishable from the present case in that Crist clearly involved a reprosecution for the “same offense” while the case at hand involved prosecutions for two distinct offenses.
Werneth also claims that the ease of San abria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978), supports his claim that he was tried twice for the same offense. Sanabria, however, did not deal with the question of whether successive proseсutions are proper for a single act which violates a number of statutes:
“Because only a single violation of a single statute is at issue here, we do not analyze this case under the so-called ‘same evidence’ test, which is frequently used to dеtermine whether a single transaction may give rise to separate prosecutions, convictions, and/or punishments under separate statutes.” Id. at 70 n. 24, 98 S.Ct. at 2181 n. 24.
Thus, Sanabria, not having dealt with the issue we face here, is distinguishable from the present case.
We recognize the principle laid out in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), that
“the State with all its resоurces and’ power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Id. at 187-88, 78 S.Ct. at 223.
The second trial in the present case, however, involved none of the evils identified in
Green
: Werneth’s first trial was dismissed before any factual issues were resolved, and his sеcond trial involved a charge under a different statute. On the basis of the authorities discussed above, Werneth’s constitutional guarantee against double jeopardy was not violated in this case. The jury verdict finding Werneth guilty of a violation of
Notes
. 18-2402. Embezzlement by public and corporate officers. — Every officer of this state, or of any county, city, or other municipal corporation or subdivision thereof, and every deputy, clerk, or servant of any such officer, and every officer, director, trustee, clerk, servant, or agent of аny association, society, or corporation (public or private), who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue оf his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose is guilty of embezzlement.
. 18-2407. Embezzlement by bailee, tenant or attorney. — Every person entrusted with any property as bailee, tenant, or lodger, or with any power of attorney for the sale or transfer therеof, who fraudulently converts the same or the proceeds thereof to his own use, or secretes it or them with a fraudulent intent to convert to his own use, is guilty of embezzlement.
. Although we are urged by the State to affirm the trial court on the basis of
The State argues that
The language of