People of Territory of Utah v. Kerm

• Decision Date: 01 September 1892
• Court: Utah Supreme Court
• Parties: PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. ALBERT KERM, APPELLANT

30 P. 988

8 Utah 268

PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. ALBERT KERM, APPELLANT

Supreme Court of Utah

September 1, 1892

APPEAL from an order refusing a new trial and from a judgment of the district court of the third district.

The defendant requested the following instruction which was not given except as covered by the portion of the charge upon reasonable doubt which is quoted in the opinion:

A reasonable doubt is an actual substantial doubt; such a doubt as would dispel an abiding conviction of guilt, and which arises out of the evidence. It is not merely a conjecture but must be such as would cause a reasonable, prudent and considerate man to hesitate and pause before acting in the graver and more important affairs of life. You must be able to say, after an impartial consideration of all the evidence that you feel an abiding conviction of the guilt of defendant.

Affirmed.

Mr. S P. Armstrong and Mr. J. M. Hamilton, for the appellant.

Mr. Charles S. Varian, U. S. Attorney, for the respondent.

ANDERSON, J. MINER, J., and BLACKBURN, J., concurred.

OPINION

ANDERSON, J.:

The defendant was indicted for robbery, alleged to have been committed on the 20th day of September, 1890, by putting in fear and forcibly taking from the immediate presence of one William Wood, Jr., a bag of gold and silver, of the value of $ 160, the property of the said Wood. To the indictment the defendant pleaded not guilty and a former acquittal for the same offense. There was a trial to a jury, and a verdict against the defendant on his plea of former acquittal, and that he was guilty of the offense charged. The defendant filed a motion in arrest of judgment and for a new trial, which was overruled by the court, and he was sentenced to a term of years in the penitentiary, and he now brings this appeal. At the trial the defendant introduced evidence tending to show that he had been tried under the same indictment and plea on the 5th day of October, 1891, and that the jury returned a verdict of guilty, but made no finding as to the plea of former acquittal. At the close of the testimony at the last trial, counsel for the defendant moved the court to find that the defendant had been once placed in jeopardy under the indictment by the trial had on October 5, 1891, which motion was overruled, to which ruling the defendant excepted, and this ruling is assigned as error. 2 Comp. Laws, § 4981, provides that there may be four kinds of pleas to an indictment, as follows, to-wit: (1) Guilty; (2) not guilty; (3) a former judgment of conviction or acquittal of the offense charged, which may be pleaded either with or without the plea of not guilty; (4) once in jeopardy. 2 Comp. Laws, § 4985, provides that all matters of fact tending to establish a defense, other than that specified in the third subdivision of § 4981, may be given in evidence under the plea of not guilty. 2 Comp. Laws, § 4996, prescribing the mode of trial in criminal cases, provides that "an issue of fact arises (1) upon a plea of not guilty; or (2) upon a plea of a former conviction or acquittal of the same offense; (3) upon a plea of once in jeopardy." While the provisions of § 4985 are inconsistent with those of §§ 4981 and 4996, above referred to, it is unnecessary to determine in this case whether or not evidence of once in jeopardy can be introduced without being specially pleaded, as the evidence was admitted by the court without objection, and the defendant got all the benefit from it which he could have received if he had pleaded it specially. By the provisions of the statute referred to the defense of once in jeopardy raises an issue of fact to be determined by the jury, and the court committed no error in refusing to rule as a matter of law upon the evidence that the defendant had been placed in jeopardy by the former trial. It was the duty of the court at the former trial. It was the duty of the court at the former trial to require the jury to find on the issue raised by the plea of former acquittal, and the jury should not have been discharged until they had by their verdict found as to both the issues presented, and, if judgment had been entered on the verdict without such finding, it would have been, on appeal, ground for a new trial. People v. Kinsey, 51 Cal. 278; People v. Helbing, 59 Cal. 567; Deaton v. State, 44 Tex. 446.

But the record discloses that no judgment was rendered on the former conviction, and that a new trial was granted by the court on motion of the defendant, one of the grounds of which was that the jury had failed to find as to the question of a former acquittal. Where the record shows the defendant consented to the discharge of the jury after a void or defective verdict, the defense, on a second trial, of once in jeopardy, is unavailing. People v. Curtis , 76 Cal. 57, 17 P. 941; 1 Bish. Crim. Law, § 998, and cases cited; U. S. v. Perez, 22 U.S. 579, 9 Wheat. 579, 6 L.Ed. 165; People v. Kinsey, 51 Cal. 278; People v. Helbing, 59 Cal. 567. And the rule is the same where the record is silent as to the consent of the defendant. Error of the trial court must be made to appear, and, if the record is silent as to the consent of the defendant, his consent will be presumed. People v. Curtis, 76 Cal. 57, 17 P. 941.

One of the grounds of the motion in arrest of judgment was that the facts stated in the indictment do not constitute a public offense, under the laws of Utah, because it fails to state that the money was taken from the possession of the prosecuting witness. "Robbery" is defined to be "the felonious taking of personal property, in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." 2 Comp. Laws, § 4468. Subdivision 2, § 4930, 2 Comp. Laws, provides that an indictment must contain "a clear and concise statement of the acts or omissions constituting the offense, with such particulars of the time, place, person, and property as will enable the defendant to understand distinctly the character of the offense complained of, and answer the indictment." The indictment charged that "the said Albert Kerm, on the 20th day of September, A. D. 1890, * * * in the nighttime of said day, upon the body of one William Wood, Jr., did make an assault, and him, the said William Wood, Jr., did put in fear, and forcibly and feloniously, by means of the fear aforesaid, from the immediate presence of him, the said William Wood, Jr., and against the will of him, the said William Wood, Jr., one bag of gold and silver coins of the United States, of the value of one hundred and sixty dollars, of the goods and chattels of the said William Wood, Jr., unlawfully and feloniously did steal, take, and carry away, against the peace," etc. Comp. Laws, §...