Markiewicz v. Black, 18790

• Decision Date: 14 October 1958
• Docket Number: No. 18790,18790
• Citation: 7 A.L.R.2d 675,330 P.2d 539,138 Colo. 128
• Parties: , 75 A.L.R.2d 678 Robert Michael MARKIEWICZ and George Hubert Pearson, Plaintiffs, v. Judge William A. BLACK and the District Court of the CITY and COUNTY OF DENVER, Defendants.
• Court: Colorado Supreme Court

Page 539

330 P.2d 539

138 Colo. 128, 75 A.L.R.2d 678

Robert Michael MARKIEWICZ and George Hubert Pearson, Plaintiffs, v. Judge William A. BLACK and the District Court of the CITY and COUNTY OF DENVER, Defendants.

No. 18790.

Supreme Court of Colorado, En Banc.

Oct. 14, 1958.

Nathan Lee Baum, Denver, for plaintiffs.

William A. Black, pro se.

HALL, Justice.

On August 7, 1958, plaintiffs Robert Michael Markiewicz and George Hubert Pearson filed their verified petition in this court, naming as defendants Judge William A. Black and the District Court of the City and County of Denver. Plaintiffs sought a writ of prohibition prohibiting the defendants from proceeding further in Criminal Cause No. 44448 pending in said district court. In this opinion we refer to plaintiffs as petitioners and to defendants as respondents.

On presentation of said petition, we entered an order directing respondents to show cause why the relief sought should not be granted.

On August 28, 1958, an answer to the rule to show cause was filed herein.

The petition alleges that petitioners were, on December 9, 1957, named as defendants in a two count information filed in Criminal Action No. 44032 in the above mentioned district court, wherein petitioners were charged in the first count with: assault and robbery of one Alma E. Price; in the second count with: conspiring to commit the offense set forth in the first count.

On December 20, 1957, each of the petitioners entered his plea of guilty to the first count of the information and at that time the district attorney withdrew the second count, and on said day the matter was continued until January 16, 1958, for taking of evidence, consideration of presentence report and consideration of application for probation, which report and application were to be filed prior to said date. On January 16, 1958, the district attorney offered proof of the fact that petitioners had robbed one Ben Cohen, an offense with which they were charged in another information; there was no evidence produced that the petitioners had robbed Alma E. Price, as alleged in the information and to which charge petitioners had pleaded guilty. The respondent Black found that the evidence did not sustain the charge of the information or the guilty plea and thereupon ordered the case dismissed and the defendants discharged.

Shortly thereafter the district attorney filed another information, No. 44448, charging the petitioners with the identical offense charged in No. 44032. Petitioners filed their motion for dismissal of No. 44448, assigning as reason therefor the fact that they had been charged with the same offense in No. 44032 and had been placed in jeopardy and discharged and, having been in jeopardy, could not be again placed in jeopardy for the same offense. This motion was denied and Case No. 44448 was set for trial on July 30, 1958, and was thereafter continued for setting until August 7, 1958. Petitioners allege that unless restrained, respondent William A. Black will set the case for trial and proceed with the trial thereof.

The answer admits the facts alleged in the petition and as set forth above, but is not in agreement with the conclusions of law drawn by counsel for petitioners.

Admittedly, the information in No. 44032 charged an offense, and No. 44448 charges the same identical offense; from which it follows that if petitioners have been in jeopardy in No. 44032 then clearly all proceedings under No. 44448 constitute an invasion of petitioners' constitutional protection against being twice put in jeopardy for the same offense. Article II, section 18, of the Constitution of the State of Colorado provides:

'No person shall be compelled to testify against himself in a criminal case nor shall any person be twice put in jeopardy for the same offense. * * *.'

The first question to be determined is whether proceedings had in Case No. 44032 served to place the petitioners in jeopardy as contemplated by the above constitutional inhibition.

The general rule as to the point of time when or the state of the prosecution at which jeopardy attaches is well stated in 22 C.J.S. Criminal Law § 241, p. 375 as follows:

'* * * The general rule established by the preponderance of judicial opinion and by the best considered cases is that, when a person has been placed on trial on a valid indictment or information before a court of competent jurisdiction, has been arraigned, and has pleaded, and a jury has been impaneled and sworn, he is in jeopardy, but that, until these things have been done, jeopardy does not attach. * * * it is not ordinarily necessary that the prior trial shall have resulted in a valid judgment either of conviction or acquittal; it is sufficient if the prisoner was actually placed in jeopardy in that he was in danger of having a valid judgment pronounced as the result of the trial; it is not the verdict or judgment which places a prisoner in jeopardy. In a case submitted to the court without a jury, jeopardy begins after accused has been indicted, arraigned, and has pleaded, and the court has begun to hear the evidence, or the trial has begun by the reading of the indictment to the court. This assumes of course, that the court has jurisdiction.'

And the rule in case of a plea of guilty is stated in 22 C.J.S. Criminal Law § 248, p. 385:

'* * * A plea of guilty to an indictment, in good faith, with its entry on the record, is jeopardy, although judgment was suspended or the prosecution was dismissed without the consent of accused; but accused is not in jeopardy if his plea of guilty is extorted by duress or by fear of mob violence.'

Tested by either of these rules, it is apparent that the petitioners were placed in jeopardy in Action No. 44032.

The record before us shows without contradiction that (1) the information is valid; (2) that the district court was a court of competent jurisdiction, having jurisdiction of both the crime and the defendants, and (3) that on December 20, 1957, petitioners had been arraigned and tendered pleas of guilty, and said pleas had been accepted and entered of record and had not been withdrawn. At this stage of the proceedings petitioners were in jeopardy.

The hearing on January 16, 1958, at which time evidence was produced by the district attorney in compliance with CRS '53, 39-7-8, for the purpose of enlightening the court prior to passing sentence and ruling on the application for probation, was another step adding to petitioners' position of jeopardy. At this hearing the respondent heard the evidence presented, found that the evidence did not sustain the pleas, and ordered the case dismissed and the petitioners discharged. We need not pass on the propriety of this order--right or wrong, petitioners were in jeopardy.

In State v. Pittsburg Paving Brick Co., 117 Kan. 192, 230 P. 1035, 1037, defendants were indicted for violation of the Antitrust Law. The defendants were arraigned, entered pleas, waived a jury, and agreed to trial on an agreed statement of facts. The court made the following notation on his minute docket:

'Oct. 11-21. Arraignment waived and plea of not guilty entered by all of the defendants. Case submitted on agreed facts; jury waived.'

Thereafter the defendants urged that the Antitrust Law was unconstitutional; whereupon the court called counsel before the court and set aside the submission and fixed a future trial date, to which defendants objected for the reason that jeopardy had attached by submission of the case on an agreed statement of facts. This objection was overruled, trial had, conviction obtained and on appeal the conviction was reversed and the defendants discharged because of their being twice placed in jeopardy. The court said:

'So far as jeopardy is concerned, the commencement of a trial without a jury must be deemed the equivalent of one begun with a jury. The peril of...