People v. Fochtman

• Decision Date: 01 February 1924
• Docket Number: No. 118.,118.
• Citation: 197 N.W. 166,226 Mich. 53
• Parties: PEOPLE v. FOCHTMAN.
• Court: Michigan Supreme Court

226 Mich. 53

197 N.W. 166

PEOPLE

v.FOCHTMAN.

No. 118.

Supreme Court of Michigan.

Feb. 1, 1924.

Exceptions from Circuit Court, Emmet County; Frank Shepherd, Judge.

Frank Fochtman was convicted of selling intoxicating liquor, and he brings exceptions before sentence. Conviction reversed, and new trial granted.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Homer H. Quay, of Cheboygan (Sprague & Shepherd, of Cheboygan, of counsel), for appellant.

C. J. Pailthorp, Sp. Pros. Atty., of Petoskey, for the People.

WIEST, J.

Defendant was convicted of selling intoxicating liquor to one Benjamin Pine on June 12, 1922. At the trial he claimed former jeopardy.

It appears that the examining magistrate made return to the circuit of the proceedings before him and the recognizance given by defendant, but omitted to sign the return, and defendant, when put on trial in the circuit, and after a jury was impaneled and sworn, moved to quash the information on the ground that this omission deprived the court of jurisdiction. This motion was granted, and the jury excused. The examining magistrate then signed the return and a new information was filed, and trial had before another jury, resulting in conviction, which is here reviewed on exceptions before sentence.

Defendant's plea of former jeopardy is without merit. The recognizance gave the court jurisdiction. People v. Ten Elshof, 92 Mich. 167, 52 N. W. 297.

The circuit court had jurisdiction, and the trial judge was in error in quashing the first information. This error, however, was committed on defendant's motion. Defendant, while now confessing the error, invokes it as an avenue of escape. Does the law require the court to open the door and bow defendant out? He says he was in jeopardy when the first jury was impaneled and sworn, because the court had jurisdiction and the information was valid. It is therefore pertinent to inquire what arrested the trial and prevented the jury from making true deliverance between the people of the state and defendant.

Defendant's motion to quash the information, on the ground that the court had no jurisdiction, arrested the trial and prevented verdict. Defendant arrested the trial, therefore, without right, and the only ground urged for his discharge now is that he asked for and obtained an adjudication he was not entitled to.

The provisions of the federal and state Constitutions with reference to former jeopardy spring from the common law and afford protection against a second trial for the same offence, but do not, as at the common law, prevent a new trial invoked by and granted to a defendant. Stroud v. U. S., 251 U. S. 15, 40 Sup. Ct. 50, 64 L. Ed. 103.

The power to grant a new trial to one convicted of felony was denied at common law, as it was considered placing an accused twice in jeopardy, and the practice of recommending a pardon in case of manifest error was pursued. But such rule never has prevailed in this jurisdiction, because of the American idea that an accused, in asking for a reversal of his conviction, thereby waives any and all claim of former jeopardy. When modern law struck from an accused the barbarous shackles of the common law, which barred him from giving testimony and having the benefit of counsel, and opened the way for him to contest his prosecution with the aid of counsel and by his own testimony at every step, it left with the old impedimenta the rule that one on trial for a felony could make no waiver. This American departure from the common law is not limited to new trials invoked by a defendant, but extends as well to waiver of claim of jeopardy in a case like this and of estoppel to urge the same.

At the first trial defendant moved to quash the information. The motion was granted. Defendant also asked to be discharged. His request was denied. The prosecutor asked leave to have the return of the justice signed. This was granted. When defendant, by motion, obtained the adjudication that the first information was void he estopped himself from ever after asserting it was valid. That adjudication still stands and bars any plea by him inconsistent therewith.

As was said in Von Rueden v. State, 96 Wis. 671, 71 N. W. 1048:

‘The defendants cannot now be allowed to say, when the former proceeding comes in question in this collateral way, there being no method of reviewing or reversing it, that the complaint in that case was valid and sufficient. From the judgment thereon as pleaded we must take it as a settled point that the complaint was insufficient, however the fact may be, and that the defendants were not in jeopardy under it.’

See, also, Carroll v. State, 50 Tex. Cr. R. 485, 98 S. W. 859,123 Am. St. Rep. 851,14 Ann. Cas. 426, and cases there cited.

The rule to be applied here, supported by the great weight of authority, is stated in People v. White, 68 Mich. 648, 37 N. W. 34:

‘When the discharge is procured by the consent, express or implied, of the respondent, the plea must set forth the cause of such discharge, in order that the court may be advised whether it was by the consent of the defendant or not, and for such reasons and under such circumstances as will amount to an acquittal. We have held that, if the jury were discharged by the consent of the accused, it will not operate as an acquittal. People v. Gardner, 62 Mich. 307, 29 N. W. Rep. 19.’

I am aware that the White Case is not in accord with the case of the People v. Taylor, 117 Mich. 583, 76 N. W. 158. I am convinced that the Taylor Case is not in line with the great weight of authority, and cannot be harmonized with the White Case, and ought not to be followed

In 16 C. J. 246, 247, it is said:

‘So where accused has secured a decision that the indictment is void (31 Fed. 725), or has been granted an instruction based on its defective character directing the jury to acquit (41 La. Ann. 543), he is estopped when subsequently indicted to assert that the former indictment was valid (33 Ind. App. 509). In such case there may be a new prosecution, whether the indictment in the former prosecution was good or bad.’

In Brown v. State, 109 Ga. 570, 34 S. E. 1031, it was held:

‘[Syllabus] An accused person cannot set up former jeopardy upon an accusation which was quashed on a demurrer filed by himself, and this is true though the judge at the time the demurrer was submitted overruled it and allowed the case to proceed to the extent of introducing testimony, but afterwards recalled his original ruling and adjudged that the demurrer was good and the accusation insufficient in law.’

The court said:

‘When he was again placed on trial upon another accusation charging him with the same offense, he entered a plea of former jeopardy, averring that the first accusation should not have been quashed, and that when arraigned thereon he was put in jeopardy. The plea was overruled, and this is one of the errors assigned. Although the demurrer filed by the accused was at first overruled by the judge, the subsequent ruling sustaining the same was the one that the accused himself invoked, and it does not distinctly appear that he objected at the time to the judge sustaining the demurrer at that stage of the case and ordering the accusation to be quashed. It therefore does not lie in his mouth on a subsequent trial to say that the accusation was good, and that for that reason he was in jeopardy on the former trial. Whether the first accusation was good or bad is immaterial. The accused obtained a ruling, * * * and he will not be allowed to bring in question the property of a ruling which he himself invoked.’

In Miller v. State, 33 Ind. App. 509, 71 N. E. 248, it was said:

‘The right to rely upon a former jeopardy...