McNab v. State

• Citation: 42 Wyo. 396,295 P. 278
• Decision Date: 14 January 1931
• Docket Number: 1673
• Parties: McNAB v. STATE
• Court: Wyoming Supreme Court

295 P. 278

42 Wyo. 396

McNAB v. STATE

No. 1673

Supreme Court of Wyoming

January 14, 1931

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

R. N McNab was convicted of petit larceny and he brings error.

Affirmed.

The cause was submitted for the plaintiff in error on the brief of D. W. Ogilbee, of Casper, Wyoming.

The principal authorities relied upon generally, by plaintiff in error, to authorize the Supreme Court to vacate and set aside the judgment in the case at bar, and in support of the divers questions involved in the three primary points variously challenged by these proceedings in error, are the following First, the judgment of guilty, upon the plea of nolo contendere, should have been vacated and set aside because (a) the justice had no jurisdiction to enter or act upon said plea. Wyo. Comp. Stats. 1920, Secs. 7387, 7388, 7491, 7494; Revised Codes of Montana, Secs. 11907, 11908; State v. Dow, 71 Mont. 291, 229 P. 402; Wolfe v. State, 102 Ark. 295, 144 S.W. 208; People v. Miller, 264 Ill. 148, 106 N.E. 191; Cornelison v. Com., 84 Ky. 583, 2 S.W. 235; Mahoney v. State, (Ind.) 149 N.E. 444; (b) the judgment is void on its face, (b-1) the justice exceeded his jurisdiction in rendering that "particular" judgment, (b-2) no issue was raised, and no independent adjudication of guilty was authorized; Bandy v. Hehn, 10 Wyo. 167, 67 P. 979; Boulter v. Cook, (Wyo.) 234 P. 1101; Tucker v. United States, 196 F. 260, 8 R. C. L. 117, Sec. 86, 16 R. C. L. 393, Sec. 71; Com. v. Ingersoll, (Mass.) 14 N.E. 449; Com. v. Horton, (Mass.) 9 Pick. 206; Bouvier's Law Dictionary, Rawle's Third Revision, p. 2352; Ex parte Degener, 30 Tex.App. 566, 17 S.W. 1113; Doughty v. DeAmcreel, 22 R. I. 158, 46 A. 838; Freeman on Judgments, (5th Ed.) Vol. 1, p. 735; Hudson v. U.S. 272 U.S. 451; People v. Liscomb, 60 N.Y. 559, 19 A. R. 211, 16 C. J. 1270, Sec. 3012; Reynolds v. Stockton, 43 N. J. Eq. 211, 3 A. S. R. 305; Seamster v. Blackstock, 83 Va. 232, 5 A. S. R. 262; U. S. v. Walter, 109 U.S. 258, W. C. S. 1920, Sec. 5875; State v. Alderman, (N. J.) 79 A. 283; (b-3) the questions involved are not "moot"; that the judgment is void, could not be executed, vitalized, amended, or modified, is a question that can be inquired into at any time, and when vacated the remedy of the State against defendant, exists as in the first instance; City of Salina v. Cooper, (Kan.) 25 P. 233; Ex parte Lange, 95 U.S. 163, 21 L.Ed. 872; Sterling v. State, 25 Tex.App. 716, 9 S.W. 45; Miskimmins v. Shaver, 8 Wyo. 392, 58 P. 411, citing Ex parte Hollis, 59 Cal. 407; Freeman on Judgments, (5th Ed.) Vol. 1, pp. 310, 311, 645; Freeman on Judgments, (5th Ed.) Vol. 3, p. 3622, 15 R. C. L. 690, Sec. 144; Bergdoll v. U.S. 279 F. 404; State ex rel. v. Justice Court, (Nev.) 233 P. 40; Barnett v. Will, Sheriff, (N. D.) 166 N.W. 511; Tracy v. State, (Okla.) 216 P. 941; Ex parte Graham, 43 Tex.Crim. 463, 66 S.W. 840; People v. Warden, 202 N.Y. 138, 95 N.E. 729. Second, the judgment could not be legally modified because: (a) it is not severable; State v. Sorrentino, 31 Wyo. 129, 224 P. 420; State v. Sorrentino, 253 P. 14, C. J. Vol. 17, p. 370; (b) by striking from said judgment the words mentioned, no basis remained for sentence, and the sentence was rendered void; Freeman on Judgments, (5th Ed.) Vol. 1, p. 5, Sec. 2; (c) the District Court had power only to affirm, reverse, or vacate the judgment; State v. Sorrentino, 224 P. 420, at 426. Third, the judgment should have been vacated and set aside, the defendant permitted to withdraw his plea of nolo contendere, plead "not guilty," and have a jury pass upon the facts; Hubble v. State, 285 P. 153; City of Salina v. Cooper, (Kan.) 25 P. 233, 16 C. J. 396, Sec. 730; Polk v. State, (Okla.) 224 P. 194; State ex rel. Olson v. Stocker, (Wash.) 238 P. 923.

On behalf of the State, there was a brief by W. O. Wilson, Attorney General; James A. Greenwood, Deputy Attorney General, and Philip S. Garbutt, Assistant Attorney General, all of Cheyenne, Wyoming.

The validity of a plea of "nolo contendere" has not been presented to this court so far as appears from its reported decisions. We believe it may, under the provisions of 7494 C. S., be received as a plea of "not guilty." The following authorities apparently justify such action. Wyo. Comp. Stats. 1920, Sec. 7494; People v. Miller, 264 Ill. 148, 16 C. J. 404 (739); Colo. Stats. 1908, Sec. 1982; Young v. People, 53 Colo. 251; 222 N.W. 311 (Wis.); Williams v. State, 130 Miss. 827; Lafferty v. Houlihan, 81 N.H. 67; State v. Burnett, 174 N.C. 796; and Statutes of Wisconsin, Mississippi, New Hampshire and North Carolina. Where alleged error cannot be attributed to the court, but is primarily due to negligence of appellant, it is not prejudicial, and after execution, a judgment valid on its face, may not be questioned. 16 C. J. 1314, Sec. 3097. Where discovery for new and further evidence as ground for a new trial is urged, it must be made to appear that such new evidence could not have been discovered, and produced at the trial by the exercise of reasonable diligence. Ch. 474, W. C. S. 1920; Sec. 7582, W. C. S. 1920; Sec. 7583, W. C. S. 1920; Rule 13 of the Rules of the Supreme Court of Wyoming, as amended August 14, 1923; Kent v. Upton, 3 Wyo. 43; McLaughlin v. Upton, 3 Wyo. 48; Seibel v. Bath, 5 Wyo. 409; Bank of Chadron v. Anderson, 7 Wyo. 441; Casteel v. State, 9 Wyo. 267; Boswell, Admr. v. Bliler, 9 Wyo. 277; Conradt v. Lepper, 13 Wyo. 99; Todd, et al. v. Peterson, 13 Wyo. 513; Blonde v. Merriam, et al., 21 Wyo. 513; Mitter v. Black Diamond Coal Co., 27 Wyo. 72; State v. Morgan, 34 Wyo. 153; Jacobson v. Wickam, 36 Wyo. 522.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

The defendant (plaintiff in error) on November 12, 1929, was charged with petit larceny by complaint filed with a justice of the peace. On the same day the case was disposed of in the manner shown by the following entry in the docket of the justice:

"Defendant forthwith appeared before me, and introduced a plea of nolo contendere. No witnesses were sworn nor was any evidence introduced by the prosecution.

"Court thereupon upon the plea aforesaid, found the defendant guilty of the offense charged.

"Therefore it is by the court ordered and adjudged that the defendant be and is hereby sentenced to pay a fine of $ 50.00 and the costs of this procedure taxed at $ 6.95. Said fine and costs were thereupon forthwith paid by the defendant and the said fine was remitted."

The docket entry in all material matters is a true recital of the proceedings at that time in the case.

February 5, 1930, defendant filed in the justice court a motion to vacate and set aside the judgment and sentence, and for an order permitting him to withdraw his plea of nolo contendere and to enter a plea of not guilty. The motion was on three grounds: (1) That the justice exceeded his jurisdiction and acted without authority of law in finding defendant guilty and in imposing the fine upon defendant's plea of nolo contendere; (2) defendant, at the time of entering the plea, was not aware of its full legal effect, and (3) since the plea and sentence defendant had discovered "evidence, and further and new evidence" to establish his innocence of the offense charged. This motion, after a hearing at which testimony was taken, was denied by the justice. Thereupon, defendant commenced and prosecuted in the District Court a proceeding in error in which he alleged error in the acceptance of his plea of nolo contendere, in the finding of guilt, in the imposition of the sentence, and in denying the motion to vacate the judgment. He brought to the District Court not only the docket and files of justice but also, in a bill of exceptions, the evidence taken on the hearing of the motion to vacate the judgment.

In the District Court the case was heard on the petition in error and the record of the proceedings in the justice court, and the findings and judgment of the justice were modified by striking therefrom the words: "Court thereupon upon the plea aforesaid, found the defendant guilty of the offense charged." Defendant now brings the case by proceeding in error to this court, contending that the District Court did not give him all the relief to which he was entitled.

There may be a doubt as to the right of the District Court to review by proceeding in error a judgment and sentence of a justice of the peace in a prosecution for misdemeanor. The question, however, is not raised nor argued by either party, and we need not decide it. The District Court did not disturb the judgment, except by a modification not complained of by the state and not harmful to defendant. For reasons presently to be stated we are of opinion the District Court, if it had the right to entertain the proceeding in error, did not err in refusing to do more than modify the judgment. In the circumstances, therefore, we shall assume that the District Court acted within its jurisdiction in entertaining the proceeding, although we should want carefully to consider that point before giving or approving a decision that would vacate or materially affect the judgment in the justice court.

Because the plea of nolo contendere is not recognized by the statutes prescribing the procedure in criminal cases, the defendant contends that the judgment on the plea is void, or at least erroneous.

The so-called plea of nolo contendere was known to the common law (Hudson v. United States, 272 U.S. 451 47 S.Ct. 127, 71 L.Ed. 347) which is applicable unless inconsistent with the laws of the state. C. S. 1920, 4547; Hovey v. Sheffner, 16 Wyo. 254, 263, 93 P. 305, 15 L. R. A. (N. S.) 227, 125 A. S. R. 1037, 15 Ann. Cas. 318. The statutes in regard to prosecutions of...