McNab v. State, 1673

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: KIMBALL, Chief Justice.
• Citation: 42 Wyo. 396,295 P. 278
• Decision Date: 14 January 1931
• Docket Number: 1673
• Parties: McNAB v. STATE

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 [295 P. 279]

[42 Wyo. 399] 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.

[42 Wyo. 400] "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...