State v. Barnes

• Decision Date: 02 January 1915
• Citation: State v. Barnes, 29 N.D. 164, 150 N.W. 557 (N.D. 1915)
• Court: North Dakota Supreme Court

150 N.W. 557

29 N.D. 164

STATE OF NORTH DAKOTA v. C. E. BARNES

Supreme Court of North Dakota

January 2, 1915

Original application for habeas corpus denied.

Writ denied.

F. H Register and J. M. Hanley, for petitioner.

H. R Berndt, State's Attorney, and Theodore Koffel, Assistant State's Attorney, opposed granting of writ.

OPINION

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.

The statutes involved, directly or incidentally, are § 10934 and kindred sections, concerning what a defendant may show against judgment, upon being called for sentence; § 10921, defining and declaring when, and the grounds upon which, a motion in arrest of criminal judgment may be made; §§ 10881-9-90 as to verdicts; §§ 10746 & 7-69 as to pleas and joinder of issues of fact by plea for presentation to the jury; with §§ 10754 and 10865, declaring the effect of former jeopardy resulting from conviction or acquittal; with § 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 § 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 5th 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 devested of jurisdiction and power to pronounce any judgment whatsoever except that of acquittal because of former jeopardy.

Under § 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 § 9480 to the specific degree of crime where homicide is charged. The statute, § 10747, prescribes even the form of entry of the plea of former jeopardy upon the minutes of the court; § 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 § 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 § 10770 inhibits waiver of a jury as to issues of fact in all felony cases. Under these statutes and § 10822, as construed in State v. Barry, 11 N.D. 428, 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 Re Nielsen, 131 U.S. 176, page 190, 33 L.Ed. 118, page 122, 9 S.Ct. 672, "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 acquittal. In logical sequence now follows the question, whether the information for assault with intent to kill includes that of assault and battery as an offense charged in said information. Defendant does not question the validity of the verdict, but contends that it is not charged in the sense that it can be pleaded to as a specific offense, and contends that defendant could not, on the information charging the graver offense, a felony, interpose a plea of former jeopardy to the included offense. Section 10890 provides that "the jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the information or indictment, or of an attempt to commit the offense." Petitioner is in error. These statutes are but declaratory of the common law as to included offenses. Thereunder it was the theory that the included offenses at common law, each and all, were charged as necessary constituent ingredient offenses included in the allegations necessary to charge the gravest,--the felony specifically charged. Thus the information for assault and battery charges assault, a separate crime, the accomplishment of the assault consummating the crime of assault and battery, and merging the assault into the battery. Assault and battery with intent to do great bodily harm, though not a common-law crime, if consummated, carries with it the ingredient offenses of assault, and assault and battery, both of which are merged in the felony and found as ingredient facts, together with the felonious and specific intent constituting the felony. Carrying it one step farther, to assault and battery with intent to kill, the graver crime charged, there is found merged in said charge as necessary ingredient offenses the lesser grade of felony and the two misdemeanors upon each of which verdicts are possible according to the state of the proof made. For authority it is not necessary to go beyond our own reports. See State v. Johnson, 3 N.D. 150, 54 N.W. 547; State v. Marcks, 3 N.D. 532, 58 N.W. 25; State v. Climie, opinion by Justice Cochrane, 12 N.D. 33, 94 N.W. 574, 13 Am. Crim. Rep. 211; State v. Tough, 12 N.D. 425, 96 N.W. 1025; State v. Cruikshank, 13 N.D. 337, 100 N.W. 697; State v. Mattison, 13 N.D. 391, 100 N.W. 1091; and State v. Bednar, 18 N.D. 484, 121 N.W. 614, 20 Ann. Cas. 458. Quoting from State v. Climie: "The rule is that when the offense charged includes another or smaller constituent offense, the charge of such other offense will not render the information double. . . . The statute authorizing the conviction of one accused of any offense necessarily included in that with which he is charged in the information is a legislative recognition of this rule." It is true...