State v. Barnes

• Decision Date: 02 January 1915
• Citation: 150 N.W. 557,29 N.D. 164
• Parties: STATE v. BARNES.
• Court: North Dakota Supreme Court

29 N.D. 164

150 N.W. 557

STATE

v.BARNES.

Supreme Court of North Dakota.

Jan. 2, 1915.

Syllabus by the Court.

A criminal complaint was laid in justice court against defendant Barnes, charging him with assault and battery, a misdemeanor. He pleaded guilty and paid a fine and costs imposed on judgment. Subsequently he was prosecuted for felony, assault and battery with intent to kill. On trial thereon the jury found him guilty of the included offense charged of assault and battery, a misdemeanor. The prosecution for felony was based upon the same acts committed upon the same person as was the first prosecution for misdemeanor in justice court, to which the plea of guilty was entered. When defendant was called for judgment on the verdict of guilty of assault and battery, he moved an arrest of judgment, asserting for the first time that he had been once before convicted and punished for that same offense, and that, under the statutes and the state and federal Constitutions, the court was without jurisdiction to render a judgment of conviction. The motion was denied, and a sentence of fine and imprisonment was imposed. He applies to the Supreme Court, asking for a writ of habeas corpus directing his discharge from custody, claiming he is being illegally restrained of his liberty under a void sentence. It is held, that under the statutes defendant, in pleading to the information for felony, should also have interposed a plea of former jeopardy, arising from prior conviction for the same offense, to the included misdemeanor charged in the information, as the statutes contemplate that the jury shall determine as a fact whether prior conviction has been had, and find either for the defendant or for the state on that question, in addition to their general verdict of guilty or not guilty.

That the failure to interpose the plea of prior jeopardy prior to verdict was a waiver of the defense of former jeopardy arising from such former conviction.

That the statutes defining and providing for motion in arrest of judgment prevent former jeopardy being interposed in arrest of judgment.

That section 13 of the state Constitution that “no person shall be twice put in jeopardy for the same offense” merely prescribes immunity from a second prosecution, and is not a bar thereto, unless the immunity given is claimed by a plea of former jeopardy and prior to verdict.

That the fifth amendment to the federal Constitution that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb” applies only to proceedings in federal tribunals, and in no way restricts or prescribes the limits of the constitutional provisions and statutory enactments of the several states.

Habeas corpus is assumed to be the proper remedy without that question being decided; the court preferring to place its decision upon the merits.

C. E. Barnes was convicted of assault and battery and files an original application for writ of habeas corpus. Writ denied.

F. H. Register, of Bismarck, and J. M. Hanley, of Mandan, for petitioner. H. R. Berndt, State's Atty., and Theodore Koffel, Asst. State's Atty., both of Bismarck, for the State.

GOSS, J.

Defendant was informed against for assault with intent to kill. By verdict he was found guilty of the included offense of assault and battery. His plea was not guilty. When called for judgment upon the verdict, he interposed a motion in arrest of judgment. It was based upon the alleged ground that he had been once before in jeopardy for the same criminal offense because of a judgment of conviction and sentence thereunder rendered in a magistrate's court, finding him guilty of assault and battery upon the same person, and because of the same acts as charged in said information. Certified copies of the record and judgment of the magistrate's court were filed in support of this motion to arrest judgment. It is thus disclosed that a written criminal complaint charging defendant with assault and battery was taken and filed by said magistrate, who thereon issued a warrant of arrest; that defendant was brought or appeared before the court, entered his plea of guilty of assault and battery, and upon said plea was sentenced to pay a fine of $5 and costs as the judgment of said court, and which defendant paid. Subsequently defendant was complained against for felonious assault, held for trial, and tried thereon, as heretofore stated, upon his plea of not guilty. In opposition to the motion in arrest of judgment, the state filed affidavits charging that the purported judgment rendered in the magistrate's court was collusive and void as procured by arrangement of the defendant and the prosecuting witness with plea taken and entered and sentence imposed, without any examination into the facts by the magistrate, as alleged to be required by law. The state also contends here, as it did before the district court on argument of the motion in arrest of judgment: (1) That habeas corpus is the wrong remedy, being used as a substitute for appeal; and (2) regardless of the propriety of the writ as a remedy when so invoked, the writ should not issue to discharge defendant because there is no record of which the court can take notice, there being no valid grounds shown upon which to base the motion made in arrest of judgment, for the reason that the defense of former jeopardy to be such and available at all must be raised on the record prior to verdict and be presented by plea, putting in issue the question of former jeopardy, upon which the jury must find as a fact by their verdict, and that, unless so interposed by plea, it is waived for all purposes. The questions raised are important and should be determined, and the propriety of the remedy will therefore be at first assumed, and former jeopardy attempted to be raised on arrest of judgment passed upon.

[1][2][3][4] The statutes involved, directly or incidentally, are section 10934 and kindred sections concerning what a defendant may show against judgment upon being called for sentence, section 10921 defining and declaring when, and the grounds upon which, a motion in arrest of criminal judgment may be made, sections 10881-10890 as to verdicts, sections 10746, 10747, 10769, as to pleas and joinder of issues of fact by plea for presentation to the jury, with sections 10754 and 10865 declaring the effect of former jeopardy resulting from conviction or acquittal, with section 10881 prescribing the form of verdict to be returned, where a plea of former jeopardy arising from former conviction or acquittal has been entered. Section 10889, prescribing the form of verdict on the similar question of trial on a second offense charged, might also be mentioned. Many other sections of the Code of Criminal Procedure are more or less related but these are sufficient from which to determine this case, taken in connection with common-law rules of which the statutes are in the main, if not entirely, but declaratory. The defendant invokes section 13 of our state Constitution, providing that “no person shall be twice put in jeopardy for the same offense,” and the similar provision of the fifth amendment to the federal Constitution that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb,” and asserts that these constitutional guaranties secure to defendant the right to invoke the benefit of former jeopardy after plea and at the time urged herein (that is, in arrest of judgment), and that a suggestion of former jeopardy may be made after verdict, and when supported, as here, by record proof of former jeopardy because of former conviction for the same offense, the court is thereby divested of jurisdiction and power to pronounce any judgment whatsoever, except that of acquittal because of former jeopardy.

Under section 10746 there are but four possible pleas to be entered to an information or indictment, the third and fourth of which have relation to prior conviction or former jeopardy thereby. No reference is made to pleas required under section 9480 to the specific degree of crime where homicide is charged. The statute (section 10747) prescribes even the form of entry of the plea of former jeopardy upon the minutes of the court; section 10881 also requires an additional or different form of verdict or finding, where the plea of former jeopardy is interposed, as it does likewise under a plea of insanity. The statutes contemplate the presentation of the issue to the jury as one of fact under the section cited and also section 10769, declaring that:

“An issue of fact arises: (1) Upon a plea of not guilty; (2) Upon a plea of former conviction or acquittal of the same offense; or (3) Upon a plea of once in jeopardy.”

And section 10770 inhibits waiver of a jury as to issues of fact in all felony cases. Under these statutes and section 10822, as construed in State v. Barry, 11 N. D. 428, 447, 92 N. W. 809, defendant could require the submission of such issue of fact to the jury, the sole arbiter of fact whenever a plea of not guilty is entered.

The general scheme shown by the statutory requirements cited is that the question of fact of former jeopardy shall be presented to the jury upon a separate plea of not guilty because of former jeopardy arising from former acquittal or conviction. On such plea the jury determines guilt by its general verdict, which is accompanied by an additional verdict finding either “for the state” or “for the defendant” upon the specific plea of former jeopardy. Section 10881. The issues of fact usually presented under such a plea are identity of person and offense. Or as stated in Ex parte Nielsen, 131 U. S. 176, 188, 9 Sup. Ct. 672, 676, 33 L. Ed. 118, 122, that “the test is, not whether the defendant has been tried for the same act, but whether he has been put in jeopardy for the same offense.” Upon identity of offense, see State v. Virgo, 14 N. D. 293, 103 N. W. 610, decided on a plea of former...