State v. Berger

• Decision Date: 04 November 1975
• Docket Number: Nos. 506--508,s. 506--508
• Citation: 235 N.W.2d 254
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Frank BERGER, Defendant-Appellant. STATE of North Dakota, Plaintiff-Appellee, v. Robert BERGER, Defendant-Appellant. STATE of North Dakota. Plaintiff-Appellee, v. Donald BERGER, Defendant-Appellant. Crim.
• Court: North Dakota Supreme Court

Page 254

235 N.W.2d 254

STATE of North Dakota, Plaintiff-Appellee, v. Frank BERGER, Defendant-Appellant.

STATE of North Dakota, Plaintiff-Appellee, v. Robert BERGER, Defendant-Appellant.

STATE of North Dakota. Plaintiff-Appellee, v. Donald BERGER, Defendant-Appellant.

Crim. Nos. 506--508.

Supreme Court of North Dakota.

Nov. 4, 1975.

Rehearing Denied Nov. 21, 1975.

Syllabus by the Court

1. The double jeopardy provision of the Fifth Amendment to the United States Constitution is applicable to the States through the Fourteenth Amendment to the United States Constitution.

2. Each case in which a double jeopardy violation is asserted must turn on its own facts.

3. Where a mistrial has been declared prior to verdict the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the double-jeopardy clause bars retrial.

4. The double jeopardy clause does not prohibit retrial in every instance when the first trial has terminated prior to a verdict or decision.

5. Where the trial judge discovered after the trial was in progress that the defendants had not been arraigned, and upon informing defendants' counsel of this fact the defendants refused to waive arraignment or to plead, but implied that the court had to make disposition of the trial in progress, whereupon the court declared a mistrial, arraigned the defendants and proceeded to retry the defendants, the constitutional rights of the defendants were not violated.

6. To constitute a battery there must be an actual touching, however slight, of the person assaulted.

7. A person aiding and abetting in the commission of an act which constitutes an offense as provided for in Section 12--02--04, N.D.C.C., is a principal in any crime committed.

8. In a criminal case, on review we do not substitute our judgment for that of the trial court where the evidence is conflicting if one of the conflicting inferences reasonably tends to prove guilt and fairly warrants a conviction.

9. In a criminal case where the court is the trier of facts, its findings in this respect are treated the same as a jury verdict upon review in the appellate court.

C. J. Schauss, Mandan, for defendants-appellants.

Donald L. Jorgensen, Asst. State's Atty., Dickinson, for plaintiff-appellee.

SAND, Judge.

Defendants Frank Berger, Robert Berger, and Donald Berger appeal from convictions of assault and battery by the Court of Increased Jurisdiction, Stark County, on February 20, 1975, claiming they were subjected to double jeopardy and that there was insufficient evidence against them.

On the morning of November 30, 1974, at approximately three o'clock, the defendants proceeded to the house of Gail Burton, allegedly to attend a party. Upon arrival and after they were informed that Mrs. Burton was not at home, fighting broke out involving the intruders and two of Mrs. Burton's sons, Anthony McKeown and Patrick McKeown.

As a result of this incident, each of the defendants, Frank Berger, Robert Berger, Donald Berger, Kenny Berger and James Berger, on December 5, 1974, were separately charged with the offense of assault and battery.

Subsequently, the attorney for the defendants Frank, Donald and Robert, by telephone arranged with the court to have the three appealing defendants arraigned immediately prior to the call of the calendar on January 7, 1975. But, prior to January 7, the trial court, pursuant to defendants' attorney's request, set a date certain for trial at which time the defendants would be arraigned, rather than at the call of the calendar.

The trial court, on its own, conolidated the cases and set the trial date for January 31, 1975.

On January 31, 1975, the appealing defendants appeared in person and with counsel. Also appearing were the two other parties charged with assault and battery under identical criminal complaints. No arraignment was held at this time. The case against James Berger, one of the parties involved, was dismissed.

Trial commenced, witnesses were sequestered at the request of counsel, and three witnesses were examined by the State and cross-examined by counsel for the defendants.

During the noon recess the court realized or discovered that the three defendants (Frank, Robert and Donald) had not been arraigned and that no pleas had been entered for them.

The trial court then informed counsel of the failure to have procured record pleas and gave counsel approximately forty minutes to research the matter.

The trial court reconvened and inquired of defendants' attorney if defendants were prepared to waive the arraignment and enter pleas to the criminal complaints and proceed with the trial. Defendants' attorney informed the trial court that the defendants would neither waive arraignment nor enter any plea at this time.

The trial court then severed the trial of these three defendants from Kenny Berger, who had been arraigned, and proceeded to arraign the three defendants. The defendants' attorney informed the trial court that he and his clients stood mute and that the court had made no final determination with respect to the proceedings had.

The trial court thereupon declared a mistrial as to these three defendants. The defendants continued to stand mute, whereupon the trial court entered pleas of not guilty for each of them. The court then set February 20, 1975, as the day for the new trial and the defendants waived jury trial with the proviso that such waiver would not prejudice any right to file motions with the court concerning the proceedings had up to that time.

Subsequently, the defendants filed a written motion for dismissal of the action on the grouds that each of them had once been in jeopardy for the offense of assault and battery charged against them.

On February 20, appellants renewed their motion to dismiss, again premised upon their alleged jeopardy in the first trial, and again the court denied defendants' motion.

The court then heard the evidence in the cases against the defendants found them guilty, and pronounced sentence.

Defendants now appeal this conviction, claiming they were twice put in jeopardy and also that the evidence against them was not sufficient to establish a finding of guilty beyond a reasonable doubt.

Section 13 of the North Dakota Constitution provides, in part, 'No person shall be twice put in jeopardy for the same offense.'

The North Dakota Century Code, Section 29--01--07, provides as follows:

'No person can be twice put in jeopardy for the same offense, nor can any person be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted, or acquitted, or put in jeopardy, except as is provided by law for new trials.'

The Fifth Amendment to the United States Constitution provides, in part, 'Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.'

The double-jeopardy prohibition of the Fifth Amendment is applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

The general rule is that a person is put in jeopardy when his trial commences, which in a jury case occurs when the jury is empaneled and sworn, and in a non-jury trial when the court begins to hear evidence.

This rule was recognized in State v. Allesi, 216 N.W.2d 805 (N.D.1974), in which the court quoted from the Supreme Court of the United States, at page 813, as follows:

"* * * These considerations have led this Court to conclude that a defendant is placed in jeopardy in a criminal proceeding once the defendant is put to trial before the trier of the facts, whether the trier be a jury or a judge. See Green v. United States, supra, 355 U.S. 184 at 188, 78 S.Ct. (221) at 223, 2 L.Ed.2d 199; Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 836, 93 L.Ed. 974 (1949).

"Thus the conclusion that 'Jeopardy attaches' when the trial commences expresses a judgment that the constitutional policies underpinning the Fifth Amendment's guarantee are implicated at that point in the proceedings. * * * ' United States v .jorn, 400 U.S. 470, 479, 480, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971).'

In the case at hand, the trial of the defendants had commenced. Three witnesses had been called and had testified for the State. Generally this would be sufficient to support a finding of initial jeopardy if the rule were rigidly followed without regard for other facts.

In Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), the United States Supreme Court said, 'It is true that we have disparaged 'rigid, mechanical rules in the interpretation of the Double Jeopardy Clause.'

The double jeopardy clause does not prohibit retrial in every instance when the first trial has terminated prior to a verdict. State v. Allesi, supra, at 814.

The United States Supreme Court, in Wade v. Hunter, 336 U.S. 684 at 688, 69 S.Ct. 834 at 837, 9o L.Ed. 974 (1949), stated:

'The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed.'

Each case in which a double jeopardy violation is asserted must turn upon its own facts. Downum v. United States, 372 U.S. 734, 737, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).

The Supreme Court of the United States, in Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425 (1973), with reference to attachment of jeopardy, said:

'But in cases in which a mistrial has been declared prior to verdict, the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.'

In Somerville, supra, 93 S.Ct. at...