State v. Cook
| Citation | 72 A.2d 778,96 N.H. 212 |
| Parties | STATE v. COOK. |
| Decision Date | 04 April 1950 |
| Court | Supreme Court of New Hampshire |
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.
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. 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 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 court (lower court) * * *.' Commonwealth v. Downing, 150 Mass. 197, 22 N.E. 912, 913. The appeal, in fact, is more than a stay of the judgment of conviction before the Municipal Court. It vacates that judgment and transfers that whole proceeding to the Superior Court, there to be tried de novo on the original complaint, unless amended, R.L., c. 425, § 2, or on a new information. Malone v. State, 179 Ind. 184, 100 N.E. 567; 22 C.J.S., Criminal Law, § 256, p. 393. The parties stand as though there had been no trial. Jacoby v. State, 210 Ind. 49, 199 N.E. 563.
Standing thus as though he had never been tried for this offense, a nolle prosequi of the original complaint by the prosecutor, State v. Dover, 46 N.H. 452, and the filing by him of an information for the same offense, does not give the defendant the right to plead former jeopardy thereto for by his appeal he has given up that right. Jacoby v. State, supra; Commonwealth v. McLaughlin, 293 Pa. 218, 142...
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Ward v. State
...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......
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State v. Deane
...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 ...
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Koski v. Samaha
...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......
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State v. Reenstierna
...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......