State v. B

• Decision Date: 05 April 1921
• Citation: 173 Wis. 608,182 N.W. 474
• Parties: STATE v. B___.
• Court: Wisconsin Supreme Court

173 Wis. 608

182 N.W. 474

STATE

v.B___.

Supreme Court of Wisconsin.

April 5, 1921.

Error to Circuit Court, Eau Claire County; James Wickham, Judge.

Criminal prosecution by the State against B____. A plea in bar was sustained, and defendant discharged, and the State brings error. Affirmed.

Former jeopardy. Defendant was tried in the circuit court of Dunn county upon an information containing three counts. One charged the defendant with having, on the 3d day of September, 1916, committed the crime of rape upon one Edna Mann. The second count charged him with having committed the crime of adultery with one Edna Mann. There was a third count for rape which was abandoned upon the trial and will not again be referred to. All offenses charged were predicated upon the same circumstances and the same act. Upon the trial the jury returned a verdict finding the defendant guilty of rape, and under the instructions of the trial court the jury did not consider the charge of adultery. Judgment of conviction was entered upon the verdict. The defendant sued out a writ of error from this court, and, upon hearing, the judgment of the circuit court was reversed, and a new trial ordered. In reversing the judgment of the trial court this court said:

“Applying these principles to the testimony in the present case, we are obliged to say, after a diligent examination of the evidence, that in our judgment the crime of rape is not proven, on account of the grave doubt that remains as to whether the prosecutrix made that resistance which the law requires in view of all the surrounding circumstances. Justices Siebecker and Eschweiler are of the opinion that the question whether intercourse was had at all is so gravely in doubt that the judgment should be reversed on that ground also, but the court does not so hold.” B____ v. State, 166 Wis. 525, 166 N. W. 32.

The record was duly remitted to the circuit court of Dunn county. Thereafter the venue of the action was changed to Eau Claire county, and the case came on for trial at Eau Claire on the 18th day of March, 1918. The defendant appeared in person and by counsel. When the case was called, the district attorney announced that he wished to have time to procure the presence of Mr. Baker, Assistant Attorney General. The court thereupon said that he thought it better to call a jury, and not wait until the next day. Thereupon a jury was drawn. After the jury had been impaneled, but before it was sworn, counsel for the defendant announced that they wished to renew the plea in bar. The district attorney having stated that there was no substantial change in the evidence to be adduced in reference to the offense of rape charged in the first count in the indictment, the trial court announced that as to that count the plea of the defendant was sustained. As to the second count, relating to the charge of adultery, the court announced that the plea was overruled; the court reserving the right to consider it further if he should be further advised. The jury was then sworn to try the issues in the case, and thereupon a recess was taken until 9 o'clock the next day. At the opening of court on the next morning the court announced that he had further examined the questions of law that were argued and had examined the record, and that there was nothing in the record to indicate that the defendant had pleaded to the information. Finally it was made to appear that the defendant had pleaded to the information. The court then announced that, in his opinion, the proper practice had not been followed with reference to the plea in bar, and that, in his opinion, the state should either demur to or answer the plea in bar, and that any issue of fact raised should be tried by the jury. After some colloquy between the court and counsel, the state entered a general denial to the matter set forth in the plea in bar. The defendant by his counsel then objected to the sufficiency of the answer to raise an issue, and further that the answer of the state was not under oath. The court held the answer sufficient and announced that the sufficiency of the plea would be determined as a question of fact; there being no challenge by the state to the sufficiency in law of the plea in bar. The court then announced that the ruling made upon the plea as to the first count relating to rape would stand, and said:

“I presume that the proper practice or better practice is to first try that issue (the issue raised by the plea in bar) before taking up the question of the guilt or innocence of the defendant on that charge.”

Counsel for the defendant then suggested that it should be tried before the court. The court ruled that it should be tried before the jury. The defendant then introduced evidence in support of the plea in bar to the second count relating to the charge of adultery. After the evidence had been received there were arguments by counsel. The facts being undisputed, the trial court held that the defendant might have been convicted upon the first trial of both offenses, but, not having been convicted of adultery upon the first trial, he was, in effect, acquitted of that charge, and for reasons set out at length directed the jury to return a verdict sustaining the plea in bar upon the ground that the defendant had been once acquitted of the charge of adultery. Upon the verdict being received, the defendant moved that he be discharged. The motion was granted, the defendant was discharged, and the state has sued out this writ of error to review the proceedings had.

William J. Morgan, Atty. Gen., and John F. Baker and Jos. E. Messerschmidt, Asst. Attys. Gen., for the State.

P. H. Martin, of Green Bay, and J. R. Mathews, of Menomonie, for defendant in error.

ROSENBERRY, J. (after stating the facts as above).

It is the contention of the defendant here that he cannot be further proceeded against because: First, he was upon the first trial acquitted of the charge of adultery; second, that upon the second trial the jury was sworn, and charged with his deliverance, and he was therefore placed in jeopardy, and cannot again be placed in jeopardy for the same offense; and, third, that the state is not entitled to sue out a writ of error to review the proceedings of the trial court because no statutory authority therefor exists.

We shall consider the second and third objections first, for if upon the second trial jeopardy attached the state has no right of appeal, and the appeal should therefore be dismissed. Section 4724a provides:

“A writ of error may be taken by and on behalf of the state in criminal cases:

(1) * * *

(2) From an order or judgment sustaining a plea in abatement or a special plea in bar made or rendered, before jeopardy has attached.

(3) From any final order or judgment, adverse to the state, made or rendered before jeopardy has attached.”

[1] Under either of these provisions, if jeopardy has attached, there is on the part of the state no authority for taking an appeal. The general rule is that, when a person has been placed on trial on a valid indictment or information before a court of competent jurisdiction, has been arraigned, and has pleaded, and a jury has been impaneled and sworn, jeopardy has attached. Schultz v. State, 135 Wis. 644, 114 N. W. 505, 116 N. W. 259, 571;McDonald v. State, 79 Wis. 651, 48 N. W. 863, 24 Am. St. Rep. 740;State v. Parish, 43 Wis. 395.

“Sec. 4645a. Any objection to a prosecution or the sufficiency of an indictment or information that may be raised by motion to quash, demurrer, plea in abatement, or special plea in bar, shall be so raised before a jury is impaneled or testimony taken, and unless so raised, shall be deemed waived: * * * Provided that the court may, in its discretion, on the application of the defendant, entertain any such objection at a later stage of the trial, but in every such case the application shall constitute a waiver, by the defendant, of any jeopardy that has theretofore attached.”

[2] If it be admitted for the purposes of this case that, when the jury was sworn the defendant was thereby placed in jeopardy, it must be held, under the provisions of this statute, that when the defendant thereafter proceeded to a trial of the issue raised by the answer to the plea in bar, it constituted a waiver of such jeopardy, and the case then stood for all purposes as if jeopardy had not attached. Apparently the proceedings were not conducted either on the part of the court or the parties with reference to the provisions of section 4645a. We think, however, that it appears that the defendant entered upon the trial of the issue raised by the answer to the plea in bar under such circumstances as amounted to a waiver, although there was no express appeal made for the exercise of the court's discretion. The filing of the plea, the answer thereto, the offer of evidence by the defendant upon the issue raised by the plea, its reception by the court, and the demand of the defendant for trial by the court amounted to the making of an application which constituted waiver on his part of any jeopardy that had theretofore attached, if any had attached.

[3] The jeopardy referred to in section 4724a is a jeopardy which has not been waived by the defendant and one which would protect him under the Constitution. Manifestly the section cannot refer to a jeopardy which had attached, but which has been waived; otherwise the provision of section 4645a requiring the defendant, as a condition of having his motion to quash, demurrer, plea in abatement or special plea in bar heard after jeopardy has attached, and as a condition of such hearing, to waive such jeopardy, would be ineffectual.

[4] The requirement that the defendant waive such jeopardy as has attached as a condition precedent to the exercise by the court of its discretion was manifestly made for the purpose of reserving to the state its right to a writ of error under section 4724a. Sections 4645a and 4724a were chapter...