State v. Cook

Citation72 A.2d 778,96 N.H. 212
PartiesSTATE v. COOK.
Decision Date04 April 1950
CourtSupreme Court of New Hampshire

Page 778

72 A.2d 778
96 N.H. 212

Supreme Court of New Hampshire.
April 4, 1950.

[96 N.H. 213] William L. Phinney, Attorney General, and Harry C. Lichman, County Solicitor, Keene, (Harry C. Lichman orally), for the State.

William H. Watson (by brief and orally) for the defendant.

LAMPRON, Justice.

The defendant was put in jeopardy by his trial in the Municipal Court. The complaint in charging the defendant with a second conviction stated that he had been previously convicted 'in the Cheshire County Superior Court, at the September term, 1945 * * *.' The information described it more fully as having taken place 'in the Cheshire County Superior Court on October 16, 1945 * * *.' This failure to recite the prior conviction more precisely in the complaint did not make it so defective in form or substance that it would not support a conviction, State v. Adams, 64 N.H. 440, 13 A. 785; State v. Small, 64 N.H. 491, 14 A. 727, and prevent the defendant from being placed in jeopardy by a trial thereon. State v. Sherburne, 58 N.H. 535; State v. Liptzer, 90 N.H. 395, 10 A.2d 232; State v. Moore, 93 N.H. 169, 37 A.2d 15; State v. Belmestieri, 93 N.H. 262, 40 A.2d 836. The Municipal Court of Keene had jurisdiction of the offense with which he was charged. R.L. c. 377, § 15. He was arraigned, tried, convicted and sentenced.

In the absence of an appeal, the defendant having been tried and convicted on a sufficient complaint by a court having jurisdiction thereof, he could never have been tried again for this same offense.

Page 779

State v. Hodgkins, 42 N.H. 474; State v. Shannon, 136 Me. 127, 3 A.2d 899, 120 A.L.R. 1168; Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240; 22 C.J.S., Criminal Law, § 238, p. 368; 15 Am.Jur., §§ 359, 360, pp. 38, 39; Wharton's Criminal Law, 12th Ed., § 395.

This brings us to the consideration of the effect of defendant's appeal to the Superior Court from his conviction in the Municipal Court. 'The appeal is a continuation of the original proceeding; its object is to carry the cause to a higher tribunal, to be tried anew, and a new judgment entered * * *.' 'The effect of the appeal is to vacate [96 N.H. 214] for most purposes the judgment rendered in the court below; and the judgment rendered in the court above is a distinct and original judgment.' Wallace v. Brown, 25 N.H. 216, 220; Bickford v. Town of Franconia, 73 N.H. 194, 60 A. 98. 'The defendant by his appeal vacated the decision and sentence of that...

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17 cases
  • Ward v. State
    • United States
    • Court of Appeals of Maryland
    • April 7, 1981
    ...involving a situation similar to that in Friend, but arriving at a contrary result under double jeopardy principles, is State v. Cook, 96 N.H. 212, 72 A.2d 778 (1950). The New Hampshire court in Cook was of the view that, because of the nature of a de novo appeal under the law of that state......
  • State v. Deane
    • United States
    • Supreme Court of New Hampshire
    • November 5, 1957
    ...from municipal courts to the Supreme Court in criminal cases where appeal has been taken to the Superior Court. RSA ch. 599; State v. Cook, 96 N.H. 212, 72 A.2d 778; Petition of Turner, 97 N.H. 449, 91 A.2d ...
  • Koski v. Samaha
    • United States
    • U.S. District Court — District of New Hampshire
    • June 23, 1980
    ...exercise of her right to a de novo trial effectively vacated her district court sentence. State v. Green, supra; State v. Cook, 96 N.H. 212, 214, 72 A.2d 778, 779 (1950). Because retrial or resentencing at the superior court level would have no purging effect upon the prosecutorial vindicti......
  • State v. Reenstierna
    • United States
    • Supreme Court of New Hampshire
    • April 24, 1958
    ...merits may properly be expressed. The respondent's appeal to the Superior Court vacated the judgment of the municipal court (State v. Cook, 96 N.H. 212, 72 A.2d 778), at least until the respondent should fail to prosecute his appeal, which is not shown to be this case. RSA 599:3, 4. The app......
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