People v. White

• Citation: 68 Mich. 648,37 N.W. 34
• Court: Michigan Supreme Court
• Decision Date: 02 March 1888
• Parties: PEOPLE v. WHITE.

37 N.W. 34

68 Mich. 648

PEOPLE v. WHITE.

Supreme Court of Michigan

March 2, 1888

Error in circuit court, Cheboygan county.

Defendant was brought to trial for the crime of rape. To the information he interposed the following plea: "And the said Horace White, in his own proper person, comes into court here, and, having heard the said information, says that the said people ought not to further prosecute the said information, because, he says, that heretofore, to-wit, at a circuit court holden at the village of Cheboygan, in said county, on the 28th day of September, A. D. 1887, it was presented that the said Horace White, then and there described as Horace White, with force and arms, at the township of Benton, county of Cheboygan, state of Michigan in and upon one Mary Miller, a female of the age of ten years or more, to-wit, of the age of fifteen years, then and there being, violently and feloniously did make an assault, and her, the said Mary Miller, then and there, by force and against her will, feloniously did ravish and carnally know. And the said respondent, Horace White, having been duly arraigned at the bar in open court, and the information having been read to him by Henry G. Dozer, prosecuting attorney, stood mute and refused to plead thereto, whereupon the court ordered a plea of not guilty to be entered in said cause, which was accordingly done. The respondent in said cause being present and trial ordered, thereupon came a jury to-wit, Robert Braham, James C. Bowman, Charles L Hutchinson, Henry L. Engell, John T. Crump, John Cardinall Samuel R. Tucker, Joseph Baier, William W. Bartlett, George Stevens, Eli Douglass, and R. B. Storer, who were duly impaneled, tried, and sworn, well and truly to try and true deliverance make between the people of the state and the prisoner at the bar, who they shall have in charge, according to the evidence and laws of this state; and after one witness being sworn and examined, whereupon, on motion of the defendant's attorney, the cause was dismissed, and thereupon the jury was discharged by the court without rendering a verdict in said cause, as by the record thereof more fully and at large appears, which judgment still remains in full force and effect, and not in the least reversed or made void. And the said Horace White in fact says that he, the said Horace White, so informed against and acquitted as last aforesaid, are one and the same person, and not other and different persons, and that the felony of which the said Horace White was so informed against and acquitted as aforesaid, and the felony of which he is now indicted, are one and the same felony, and not other and different felonies, and this he, the said Horace White, is ready to verify; wherefore he prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the said information specified, and as to the felony of which the said Horace White now is informed against, he, the said Horace White, says he is not guilty thereof, and of this the said Horace White puts himself upon the country." The trial court did not rule upon this plea, but directed that a plea of not guilty should be entered. Defendant was convicted and sentenced to 15 years' imprisonment, whereupon he brings error.

Moses Taggart, Atty. Gen., for the People.

SHERWOOD C.J.

The respondent was tried and convicted of the crime of rape, in the Cheboygan circuit, on the 30th day of September, 1887, and on the 3d day of October following he was sentenced to prison at Jackson for the period of 15 years, where he is now serving out the sentence. It appears from the return to the writ of error that a complaint was made by the injured female, and that both it and the warrant were taken out on the 28th day of September, 1887, and the plaintiff was arrested thereon and taken before the justice issuing the papers. Here he appeared by counsel, and in person moved the court to discharge him "on account of having been acquitted of the self-same offense as in said complaint and warrant charged, in the circuit court for said county, on September 28, 1887." This motion was overruled, and the defendant waived further examination, and the justice held him for trial at the circuit. On the 29th of September, 1887, the defendant was arraigned upon an information charging him with the offense stated in the complaint, and when asked for his plea, he filed what he claims to be a former acquittal of the same offense in bar. This plea will be found in the statement of facts. And after filing the same, the circuit court directed the plea of not guilty to be entered for the defendant, and the trial proceeded to verdict and judgment as above stated. Three errors are assigned upon the record: First. That the court erred in not compelling the prosecuting attorney to join issue on the defendant's plea, by demurring or replying to the same, and directing a trial thereof. Second. The court erred in not discharging the defendant on said plea, the same not having been replied to or held bad on demurrer. Third. The court erred in disregarding the defendant's plea, and in ordering the plea of not guilty to be entered for him and compelling him to go to trial without first trying the issue tendered by the defendant's plea.

We do not think this record discloses any error. The respondent places himself upon purely technical grounds. The record brief as it is, discloses the fact that in the former case there was no trial upon the merits, and while it appears the jury were sworn, and one witness was called and examined, it does not appear that any verdict was taken or on which side the witness was sworn and examined. It is not averred in the plea, nor does it appear elsewhere in the record, that the information in the first suit was a valid one. It is not easy to see, under the plea as it stands, how the respondent can be held to have been in jeopardy in the former prosecution. He himself asked for the action of the court taken in that case, and a verdict was not included in the proceedings. The case cannot be ruled, as claimed by the respondent's counsel, by that of People v. Jones, 48 Mich. 554, 12 N.W. 848. In that case the jury were impaneled and sworn, and the people put in their testimony and rested; in other words, they had made their case against the respondent, and he was then discharged by the court, which very properly held he had been in jeopardy, and that a verdict of the jury was not important on the question. No such action, however, is shown to...