State v. Creechley

• Decision Date: 22 January 1904
• Docket Number: 1502
• Citation: 75 P. 384,27 Utah 142
• Court: Utah Supreme Court
• Parties: THE STATE OF UTAH, Respondent, v. MOSES CREECHLEY, Appellant

75 P. 384

27 Utah 142

THE STATE OF UTAH, Respondent, v. MOSES CREECHLEY, Appellant

No. 1502

Supreme Court of Utah

January 22, 1904

Appeal from the Second District Court, Morgan County.--Hon. T Marioneaux, Judge.

REVERSED.

The defendant was convicted of perjury and appealed.

L. R Rogers, Esq., and John A. Street, Esq., for appellant. S Francis, of Counsel.

Hon. M. A. Breeden, Attorney-General, and Hon. W. R. White, Deputy Attorney-General, for the State.

BARTCH, J. BASKIN, C. J., concurs. McCARTY, J., dissenting.

OPINION

BARTCH, J.

--The defendant was charged by information with having committed the crime of perjury. He entered the pleas of "Not guilty" and "Former acquittal." At the trial the jury returned a verdict of "Guilty as charged in the information," but made no finding upon the plea of autrefois acquit, and was discharged. The court afterwards entered judgment of conviction, overruled a motion for a new trial, and passed sentence of imprisonment in the penitentiary. Thereupon the defendant appealed.

It is contended for the prisoner that, the jury having failed to make a finding upon the plea of former acquittal, the court erred in pronouncing judgment upon the verdict of guilty. This contention appears to be sound. Our statute in relation to verdicts (section 4891, Rev. St. 1898), so far as material here, provides: "A verdict upon a plea of not guilty shall be either 'Guilty,' or 'Not Guilty,' which imports a conviction or acquittal of the offense charged in the information or indictment. Upon a plea of a former conviction or acquittal of the same offense, it shall be either 'For the State' or 'For the defendant.'"

Under these provisions, whenever a defendant in a criminal action enters the plea of autrefois acquit it becomes the plain duty of the court to require the jury, before discharging it, to find upon the issue thus raised. This is so notwithstanding the fact, as insisted by the respondent, that the burden of proving his former acquittal of the same offense is upon the accused. Whether or not there was proof showing a former acquittal of the identical offense, the plea raised a question of fact for the determination of the jury, as much so as the plea of not guilty. This court held likewise in People v. Kerm, 8 Utah 268, 271, 30 P. 988, where it was said: "It was the duty of the court at the former trial to require the jury to find on the issue raised by the plea of former acquittal, and the jury should not have been discharged until they had by their verdict found as to both the issues presented, and if judgment had been entered on the verdict without such finding, it would have been, on appeal, ground for a new trial." So, in this case, the court having discharged the jury without a finding upon that plea, it was ground for a new trial, and the motion therefor ought to have been granted.

The Attorney-General, however, appears to insist, on behalf of the State, that since the evidence introduced at the trial of the cause is not before us, we must presume, the burden of proof being upon the defendant to establish his plea, that there was no evidence introduced in support of the plea of autrefois acquit, and that therefore we cannot interfere with the judgment. This, under the circumstances of this case, where it appears a trial was regularly had upon both pleas, and that no disposition was made of the one, either by the court or jury, would be carrying the doctrine of presumptions to a greater length than justice would warrant. As well might we indulge a presumption that there was no evidence offered as to the plea of not guilty. Both pleas raised questions of fact to be determined by the court and jury.

In People v. Fuqua, 61 Cal. 377, a case similar to the one at bar, the Supreme Court of California said: "In this case the defendant, in addition to the plea of not guilty, pleaded a former acquittal. The jury returned a verdict of manslaughter, and omitted to find upon the plea of former acquittal. The record does not disclose that the defendant withdrew or waived the defense of a former acquittal; but the attorney-general contends that in the absence of anything appearing to the contrary, the appellate court must presume, in support of the correctness of the judgment of the court below, that that defense was withdrawn or waived. But we are not aware that the doctrine of presumptions has ever been carried to that length. To presume that a party had withdrawn or waived a defense which he had pleaded, simply because a jury had failed to find upon it, might lead to very serious consequences. The evidence in the case is not before us, and we can not know whether any attempt was made to establish that defense. But as we view the matter it is immaterial whether there was or not. If the jury had found in favor of the people upon the plea of a former acquittal, and had failed to find upon the plea of not guilty, it does not seem probable that we would have been asked to presume, in support of a judgment of conviction, that the defendant had withdrawn or waived his plea of not guilty."

So, in Solliday v. Com., 28 Pa. 13, Mr. Justice Black, speaking for the court as to a plea of autrefois convict, said: "If the representative of the commonwealth traverses the plea by denying that the former conviction was for the same offense, and thus forms an issue in fact, it must go to a jury, and no judgment can be given in the case until that question is disposed of. No matter how clear the opinion of the court may be against the defendant, nobody but the jury can decide an issue like that. The judge may influence the verdict-in some cases he may and ought to control it--but he cannot pronounce it. A defendant has a right to complain of mistrial if a question of fact in his cause has not been answered by that tribunal which the law has made his only judge, and to whom he and his accuser have mutually agreed to refer it. When the two pleas of former conviction and not guilty are both in the issue one is just as important as the other. Both may be false or both true, or one may be false and the other true; but the necessity of response to both is palpable, since the verdict for the defendant on either would equally entitle him to his free discharge." 22 Ency. Pl. & Pr., 875; People v. Kinsey, 51 Cal. 278; People v. Helbing, 59 Cal. 567; People v. Hamberg, 84 Cal. 468, 24 P. 298; Com. v. Demuth, 12 Serg. & R. 389; Burks v. State (Tex. App.), 6 S.W. 300; Moody v. State, 60 Ala. 78; Wright v. State, 27 Tex. Ct. App. 447, 11 S.W. 458; Dominick v. State, 91 Am. Dec. 496.

The judgment must be reversed, and the cause remanded with directions to the court below to grant a new trial. It is so ordered.

BASKIN, C. J., concurs.

DISSENT BY: McCARTY

McCARTY J. (dissenting).--

I am unable to concur with my Brethren in the foregoing opinion. The appeal in this case is taken solely on the judgment roll. There being no bill of exceptions, the evidence is not before us.

The information, in part, charges that "the said Moses Creechley, on the second day of July, A. D. 1902, at the county of Morgan, State of Utah, . . . did then and there take an oath before the said Honorable H. H. Rolapp, judge as aforesaid, that certain testimony then and there given by him, the said Moses Creechley, in behalf of the defendant Moses Creechley in an action then and there on trial before the said Honorable Henry H. Rolapp, judge as aforesaid, entitled 'In the district court of the Second Judicial District of the State of Utah, in and for the county of Morgan. The State of Utah v. Moses Creechley and Wm. L. Smith, defendants. Information'--in which action the said defendant Moses Creechley was then and there on trial, should be the truth, which said testimony, touching the matter in issue in said action and on said trial, so given by the said Moses Creechley, was in part and in substance and effect as follows, to-wit." A part of the testimony set out in the information is, in substance: "That some time in the month of August or September, A. D. 1901, he, the said Moses Creechley, was requested by one Bird to take a certain steer belonging to Bird to one Crouch, a butcher doing business at Morgan City, Utah, which defendant promised to do, or to get one Carpenter to take the steer to Crouch; that Carpenter took the steer to Crouch; that on the sixteenth day of September, A. D. 1901, at the request of Bird, the said Moses Creechley, together with one Alma Bertosch, drove the said steer from the corral or slaughterhouse of said Crouch right along the road west from the said Morgan City to the creamery (meaning thereby a certain building called the creamery, about a mile west of said Morgan City),' and after they, said Creechley and Bertosch, left the creamery (meaning thereby while they were then and there driving said steer), they turned south and west towards Porterville, and stayed there all night." Then follows a long list of specifications of other parts of the testimony wherein it is alleged the defendant committed perjury.

To the information the defendant entered a plea of not guilty, and the record contains the following plea of autrefois acquit: "The defendant also pleads that he has already been acquitted of the offense charged by the judgment of the district court of the Second Judicial District, rendered at Morgan City, Morgan county, Utah, on the second day of July, 1902."

The record shows that the case mentioned in the information wherein it is alleged defendant committed perjury is one in which he was acquitted of the crime of grand larceny, and the judgment rendered in that case is the judgment referred to and pleaded in bar by the defendant in this action.

The record also contains the following stipulation,...