People Territory of Utah v. Reggel

• Decision Date: 25 January 1892
• Court: Utah Supreme Court
• Parties: PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. SAMUEL REGGEL, APPELLANT

28 P. 955

8 Utah 21

PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. SAMUEL REGGEL, APPELLANT

Supreme Court of Utah

January 25, 1892

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts, except the following:

Section 5253 of compiled laws, 1888, applies only to corporations but section 5258 (for which 5253 is probably a mistake and hence in this report the change is made) provides as follows "In all cases of criminal prosecution * * * * all persons found guilty of crime upon trial shall pay the costs except where the party is insolvent, in which case the county court may authorize the payment of said costs, out of county treasury."

In this case there was no testimony to show that appellant was insolvent. There is another section, however, 5259, 2 Comp Laws, 1888, passed on the same day as the last section February 19, 1869, which provides: "In all cases where, by law, the courts are authorized to assess a fine for any public offense and on due trial a fine shall be assessed, the court is hereby authorized to order the person convicted to be imprisoned until such fine and costs are paid or secured to be paid," etc.

There are other sections of the statute applying to testimony given before the grand jury, which are as follows: Section 4291, 2 Comp. Laws, 1888: "Every member of the grand jury must keep secret whatever he himself or any other grand juror may have said, or in what manner he or any other grand juror may have voted on a matter before them; but may, however, be required by any court to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining, whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any person upon a charge against such person for perjury in giving his testimony or upon trial therefor."

Section 4446, 2 Comp. Laws, 1888: "Every grand juror, who, except when required by a court, wilfully discloses any evidence adduced before the grand jury * * * is guilty of a misdemeanor."

And see United States v. Kirkwood, 5 Utah, 123.

Affirmed.

Mr. Arthur Brown, for the appellant.

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

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

OPINION

MINER, J.

An indictment was found against the appellant in this case, under section 4541, Comp. Laws 1888, charging him with the offense of gambling. A verdict of guilty was found by the jury, and the court imposed a fine of $ 300, and costs of suit, taxed at $ 68. The appellant alleges that the imposition of this fine and costs was excessive and contrary to law, and therefore void. The statute (section 4541) makes the offense of gaming a misdemeanor. Section 4382, Comp. Laws 1888, as it reads in this compilation, fixes the punishment for this offense at "not exceeding six months' imprisonment, or by a fine in any sum not less than three hundred dollars, or by both." There is clearly a mistake in the compilation of these laws of 1888, in this respect, as well as in many other respects, and courts have come to look with uncertainty upon the authenticity of many provisions included within it. By reference to section 1847, p. 568, Comp. Laws 1876, it will be seen that the punishment for misdemeanor, where no other provision is prescribed, is by imprisonment in the county jail not exceeding six months, or by a fine not exceeding $ 300, or by both. This section was amended in 1878 (see chapter 4, p. 5, Laws 1878), so that the imprisonment may be in the county jail not exceeding six months, or by a fine in any sum less than $ 300, or by both. In order to remedy and correct the many errors occurring in the compilation of 1888, the legislature of this Territory passed an act, to be found on page 137, Sess. Laws 1890, which provides, among other things, "that this approval [of Compiled Laws of 1888] shall not be held or construed to be a repeal of any of the original acts or laws included in these Compiled Laws, but such original laws and acts shall control wherever there is a difference between said acts or laws and said Compiled Laws;" so that chapter 4, p. 5, Laws 1878, so far as it refers to the punishment for misdemeanor, should be construed as continuing in force, and as not affected or repealed by section 4382, Comp. Laws 1888.

The punishment imposed by the court of $ 300 fine was in excess of the punishment by fine allowed by law, and, being excessive, avoids the judgment, unless the court has power to modify it under section 5154, Comp. Laws 1888, which reads as follows: "The court may reverse, affirm, or modify the judgment or order appealed from, and may set aside, affirm or modify any or all proceedings subsequent to or dependent upon such judgment or order and may, if proper, order a new trial." So, also, by section 5152: "After hearing an appeal, the court must give judgment without regard to technical errors or defects which do not affect the substantial rights of the parties." Under a statute in Michigan somewhat similar, the court holds that an excessive fine or imprisonment only avoids the judgment to the extent of the excess of the judgment imposed. People v. Town, 53 Mich. 488, 19 N.W. 158, 19 N.W. 158; People v. Seller, 58 Mich. 327, 25 N.W. 304; Brown v. People, 39 Mich. 57; People v. Parkhurst, 50 Mich. 389, 15 N.W. 522. See also, People v. Brotherton, 47 Cal. 388, 404; People v. Sprague, 53 Cal. 491; People v. Turley, 50 Cal. 469; Reynolds v. U. S., 98 U.S. 145, 25 L.Ed. 244, note; Ex parte Lange, 85 U.S. 163, 18 Wall. 163, 21 L.Ed. 872; Basset v. U. S., 76 U.S. 38, 9 Wall. 38, 19 L.Ed. 548; Comp. Laws 1888, §§ 5113, 5259, 5260. In this last case the judgment was ordered amended by the Supreme Court of the United States. We think this court has the power and should modify the judgment and sentence so that the fine imposed should be the sum of $ 299 instead of $ 300. Reynolds v. U. S., 98 U.S. 145, note., 25 L.Ed. 244 Under section 5253, Comp. Laws 1888, the court has authority to impose costs in addition to the fine. This has long been the practice in this Territory, and the judgment would not be excessive for that reason.

The record also disclosed the fact that one F. M. Bishop, foreman of the grand jury which indicted the defendant, was called as a witness for the prosecution on the trial of the defendant. It appears from his testimony that the defendant had instituted proceedings on his own complaint against one John Scott, charging him with the offense of robbery, as having been committed upon the person of the defendant, October 2 1890; and that, while a hearing upon this complaint was being had before the grand jury, the defendant was called as a witness, and voluntarily gave testimony concerning such robbery, and also testified that at the time of its alleged occurrence he was running a gambling house and faro game. Those statements were called out by the district attorney, the appellant making no objection thereto, and at no time claiming his privilege. No indictment was found against Scott on the charge of robbery, but after this, and after hearing the testimony of other witnesses, the defendant, Reggel, was indicted for gaming. This testimony was admitted under objection as to the competency of Bishop to...