People v. Taylor

• Decision Date: 12 July 1898
• Citation: 117 Mich. 583,76 N.W. 158
• Court: Michigan Supreme Court
• Parties: PEOPLE v. TAYLOR.

76 N.W. 158

117 Mich. 583

PEOPLE v. TAYLOR.

Supreme Court of Michigan

July 12, 1898

Error to circuit court, Saginaw county; Byron A. Snow, Judge.

Orson D. Taylor was convicted of obtaining a signature to promissory notes by means of false pretenses, and brings error. Reversed.

James Van Kleeck, Nathan S. Wood, and Albert Trask, for appellant.

E. L Beach, for the People.

HOOKER J.

The defendant was convicted of the offense of obtaining the signature of the complainant to three promissory notes, by means of false pretenses, and has brought the case to this court by writ of error. The record shows that upon a former trial a jury was impaneled and sworn, and testimony taken when the judge ordered all proceedings to be quashed and the prisoner discharged. The journal entry, after reciting that the jury was impaneled and sworn, proceeded as follows "After hearing counsel for the respective parties, and the court being fully advised in the matter, it is ordered that all proceedings in this cause be quashed, and the prisoner discharged, for the reason that the circuit court has no jurisdiction in the matter." Subsequently an order was made vacating the order to quash the proceedings and discharge the prisoner, and reinstating the case. The trial followed, resulting in conviction; and it is now contended that the defendant was in jeopardy upon the first trial, and that the subsequent conviction was erroneous for that reason. The record does not show the ground of the court's action in quashing the proceedings, and it does not expressly appear that it was made upon the motion of defendant's counsel, though that is inferable from the statement that the order was made "after hearing counsel." It seems to be conceded by counsel, however, that it was claimed upon behalf of the defendant that the statute upon which the charge was brought had been repealed, and the court so held. Subsequently, this court passed upon the question in another case, and held otherwise, and the motion to reinstate followed.

It is urged upon the part of the prosecution that this question should have been, but was not, raised by plea, and that the alleged former acquittal was not proved upon the trial. But we are of the opinion that the contention should not prevail. While the record returned contains no plea, a reference to it appears. Furthermore this is not a new proceeding, but it is a second trial in the first and only prosecution instituted. All that has occurred is before the court, upon its own record in the case, and therefore need not be pleaded, nor is formal proof of the record required. This was held in the case of People v. Harding, 53 Mich. 48, 481, 18 N.W. 555, and 19 N.W. 155, where it was said that special pleas had no office to perform where the facts alleged in them were already in the case. There can be no doubt, under the weight of authority, that the defendant was in jeopardy upon the first trial. There are authorities that hold that legal jeopardy does not attach until a verdict is rendered, but that has never been the rule in Michigan.

It is urged by the prosecution that the defendant cannot avail himself of his former jeopardy, having waived it by his motion, which upon its face shows that he was willing that the merits of the case should not be disposed of. We are cited to 1 Bish. New Cr. Law, � 1027, which states the rule to be that "where, at any stage of the proceedings, the defendant procures the indictment to be quashed, he cannot in bar to a new one, assert that the first was good, and he was in jeopardy under it." Three cases are cited in support of this statement of the law. One of these goes no further than to hold that where a conviction is set aside by the trial court on the defendant's motion, and upon the ground that the information is bad, such proceedings are not a bar to a subsequent prosecution for the same offense, upon a new information. State v. Hart, 33 Kan. 222, 6 P. 288. That is the rule in this state, to the extent at least that it would not bar another trial on the same information. But the setting aside a conviction upon a defendant's motion is a radically different thing from acquitting him upon the trial, though upon an erroneous legal proposition urged by his counsel. See, also, State v. Norvell, 2 Yerg. 24; People v. Casborus, 13 Johns. 351; Gerard v. People, 3 Scan. 362; the case of State v. Priebnow, 16 Neb. 133, 19 N.W. 628, held a plea of former acquittal bad where it failed to show that there had been no judgment of acquittal. In that case the record showed that an objection was made to the introduction of testimony, on the ground that the indictment did not charge the commission of a crime. The case turned upon a statute which the court construed to require a judgment of acquittal, to justify the plea. Thus, it would seem that Nebraska might be added to the list of states which hold that jeopardy does not begin until after the verdict is declared. See 1 Bish. New Cr. Law, � 1018, and note. It can hardly be considered an authority in support of the rule stated by Mr. Bishop in those states which do not adopt the view that jeopardy begins only after verdict. The third and last case cited by the author is Joy v. State, 14 Ind. 149. In that case an information contained two counts. During the trial, on...