McGinnis v. State

• Decision Date: 15 July 1908
• Citation: 17 Wyo. 106,96 P. 525
• Parties: McGINNIS v. STATE
• Court: Wyoming Supreme Court

96 P. 525

17 Wyo. 106

McGINNIS v. STATE

Supreme Court of Wyoming

July 15, 1908

ERROR to the District Court, Converse County, HON. CHARLES E CARPENTER, Judge.

The facts are stated in the opinion.

Affirmed.

Allen G. Fisher, for plaintiff in error.

The court was without jurisdiction to try the amended information, four terms having elapsed without trial from the time of the former imprisonment. (R. S. 1899, Sec. 5382.) This section is a statutory interpretation of Article VI Constitution of the United States, and a similar provision of the State Constitution. The point was properly pleaded by plea to the jurisdiction, and by plea in bar. (11 Neb. 221; Leony v. State, 62 Neb. 626; Whitman v State, 46 Neb. 144; State v. Crook, 16 Utah 212; 17 Ency. L. (2nd Ed.) 594; McGuin v. Wallace, 109 Ind. 284; Johnson v. State, 42 O. St. 207; 9 Cyc. 265; State v. Fields, 106 Ia. 406.) The information was bad because it did not allege in apt language that the defendant and the alleged victim were "then and there" in Converse County at the time of the assault, or that the money stolen was lawful money of the United States. It is universal that "then and there" or a full description of the crime and venue shall be charged. (Bartley v. State, 53 Neb. 320.) Although the statute permits money to be described as money, yet in the Edelhoff and Garbonati cases, the description which was held sufficient was "lawful money of the United States" and this was held to avoid the necessity of describing the several coins or bills. The plea in bar was good because it alleged a former conviction and sentence and performance of the sentence for an identical crime or misdemeanor included in the crime described in the information, and it cannot be claimed there was a waiver by the granting of a new trial because none was granted. (9 Cyc. p. 283; 55 Kan. 326; State v. Hatcher, 36 Mo. 641; People v. McDaniels, 137 Cal. 192; State v. Bruffy, 11 Mo.App. 79.) And this will be so although no judgment was pronounced. (State v. Elden, 41 Me. 165; Hartung v. People, 26 N.Y. 167; State v. Fields, 106 Ia. 406.) There was no judgment upon any of these pleas respondeat ouster and accordingly the court was without jurisdiction to further proceed. No plea to the general issue waived these defects nor restored the jurisdiction of the court. The information was bad because it charges no crime or offense, because the county attorney did not conclude with a declaration upon oath that such crime had been committed.

W. E. Mullen, Attorney General, for the State.

The record presented on appeal consists of what purports to be the original papers and journal entries, no bill of exceptions having been filed. Appellant's plea to the jurisdiction of the court below alleged that although four terms of court had intervened in Converse County, between the time of his former imprisonment, and the filing of said plea, without information filed, or trial had therefor, the court was without jurisdiction, Sec. 5382, R. S., being cited. That section, by its own terms has no application where the delay shall happen on the application of the prisoner. The alleged delay in the case at bar being an incident to the appeal taken by appellant from the verdict and judgment of conviction, was caused by the application of the prisoner for a new trial. The section has no application whatever under such circumstances. (In re Murphy, 34 P. 834, (Wash.); People v. Lundin, (Cal.) 52 P. 807.) The ruling made by the trial court on the plea of abatement is not discussed in the brief. The plea in bar contains a sworn statement of facts in direct conflict with the allegations of the plea to the jurisdiction. The plea in bar alleges that a trial was, in fact, had at the April, 1906, term of the court, in which a verdict of guilty was returned and a judgment entered thereunder. Former conviction and satisfaction of sentence is apparently here relied upon as a defense, and by a strange process of reasoning it is argued by counsel that appellant has satisfied the judgment imposing sentence in the first trial, by spending several months in the county jail during the pendency of his appeal. A judgment directing imprisonment in the penitentiary requires service to discharge it, unless it be vacated by judicial proceedings (Hollan v. Hopkins, 21 Kan. 632.) If the alleged defects in the information really existed, they were defects apparent on the face of the record, and should have been excepted to by motion to quash. (Koppala v. State, 89 P. 576.)

The demurrer annexed to the original papers appears to have been directed against some information filed in that court on the 28th day of March, 1908. No information of that date appears among the original papers, and in so far as the record discloses, no exception was taken to the information filed April 10, 1908. The description of the property taken, as "money" was sufficient. (Sec. 5311, R. S., 1899; Edelhoff v. State, 5 Wyo. 19.) The new information follows the general form prescribed by Sec. 5271, R. S. 1899, and concludes in the manner prescribed by Sec. 5788.

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

The plaintiff in error (defendant below) was charged with robbery and upon trial was convicted of petit larceny and brings error.

1. The defendant assigns as error the overruling of his demurrer to the amended information. The specific ground of the demurrer is "that the facts stated in the information do not constitute any offense against the laws of the State of Wyoming." In support of this contention it is urged that the information fails to allege that the defendant and his victim were "then and there in Converse County at the time of the assault," and, further, that "it fails to allege that the money stolen was lawful money of the United States."

The amended information, omitting the official signature and the verification, is as follows, viz:

"The State of Wyoming, County of Converse.

In the District Court of the First Judicial District, sitting within and for the said County of Converse.

The State of Wyoming, Plaintiff, vs. William McGinnis, Defendant.

AMENDED INFORMATION.

Comes now Henry C. Miller, County and Prosecuting Attorney of the County of Converse, in the State of Wyoming, and in the name and by the authority of the State of Wyoming, informs the court and gives the court to understand that William McGinnis, late of the county aforesaid, on the 12th day of December, A. D. 1905, at and in the county aforesaid, in and upon one Norvil C. Lawrence did feloniously, violently, forcibly and by intimidation, make an assault, and him, he said Norvil C. Lawrence, did then and there feloniously, violently, forcibly and by intimidation, put in bodily fear, and fifty dollars in money of the value of fifty dollars, of the goods, chattels and personal property of the said Norvil C. Lawrence, from the person and against the will of the said Norvil C. Lawrence, then and there forcibly, feloniously, violently and by intimidation, did steal, take and carry away; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming."

The county within which and the time of the commission of the alleged offense are each alleged with certainty. The objection to the information in this respect is without merit, frivolous, and needs no further consideration.

The use of the word "money" in the information without other description is permissible under Sec. 5311, R. S., 1899, and was so held by this court in Edelhoff v. State, 5 Wyo. 19, 36 P. 627. The information was good as against demurrer and the court properly so held.

2. The defendant interposed a plea to the jurisdiction of the trial court. We fail to understand how or upon what grounds that court had not acquired jurisdiction of the case. The district court has original jurisdiction in all criminal cases and the defendant was charged with the commission of a felony within the county over which that court had jurisdiction. It was at the bar of that court that he was called upon to answer the charge. The amended information described the offense and charged the defendant with having committed it in the County of Converse and State of Wyoming. The subject matter was within the jurisdiction of the court and the defendant was present at the trial. (Territory v. Pierce, 1 Wyo. 168.)

The authority to permit the filing of an amended information arose from the jurisdiction over the subject matter and the person of the accused. Such jurisdiction having attached, the court had jurisdiction for all purposes. That such amended information was filed without leave first had and obtained neither affected the defendant's guilt or innocence nor prejudiced his rights upon the merits. The question did not go to the jurisdiction and was improperly made a ground of the plea to such jurisdiction and the court properly...