Smith v. State
| Decision Date | 08 May 1928 |
| Parties | SMITH v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Error to the Circuit Court for Fond du Lac County; Oscar M. Fritz, Circuit Judge Presiding. Judgment affirmed.
Writ of error October 17, 1927, to review a conviction on October 7, 1927, after trial September 22, 1927, of Royal A. Smith for a violation March 12, 1927, of the prohibition act.Reilly & O'Brien and F. W. Cosgrove, all of Fond du Lac, for plaintiff in error.
John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and L. E. Gooding, Dist. Atty., of Fond du Lac, for the State.
In June, 1927, the defendant was brought to trial upon an informationcharging in one count the unlawful possession on March 12th of privately distilled manufactured intoxicating liquor, and, by the second count, the unlawful selling on March 9th of intoxicating liquor. His then plea in abatement to the second count was sustained. Motions at the close of the testimony to direct a verdict of not guilty and that the defendant be discharged were each denied, and a verdict of guilty on the first count was returned. Thereafter certain written motions on defendant's behalf were interposed, and disposition of the case continued to June 20th.
On June 20th the court, for the stated reason that the evidence was insufficient as to proof of the illicit character of the liquor, granted a new trial, and fixed the time for September 22d.
On September 22d, when the case was called, defendant interposed a plea in bar of former jeopardy to the then prosecution on the same information upon which he had been tried in June, in that thereby he became immune from such further prosecution by article 1, § 8, Const.
[1] The sole question here presented is whether or not there was interposed on defendant's behalf in June a motion for a new trial, or whether defendant's then procedure was limited to a request for a directed verdict of not guilty and a discharge of the defendant. No question is raised but that, if the trial court did, at defendant's request, after the first trial, grant a new trial, the plea of former jeopardy is of no avail because of the established law that such granting of a new trial is a waiver of possible former jeopardy In re Keenan, 7 Wis. 695;Benedict v. State, 14 Wis. 423, 429;State v. Parish, 43 Wis. 395, p. 401;Jackson v. State, 55 Wis. 589, 593, 13 N. W. 448;Von Rueden et al. v. State, 96 Wis. 671, 676, 71 N. W. 1048;Montgomery v. State, 136 Wis. 119, 128, 116 N. W. 876, 18 L....
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