State v. Empey

• Decision Date: 20 August 1925
• Docket Number: 4219
• Citation: 65 Utah 609,239 P. 25
• Court: Utah Supreme Court
• Parties: STATE v. EMPEY

239 P. 25

65 Utah 609

STATE v. EMPEY

No. 4219

Supreme Court of Utah

August 20, 1925

Appeal from District Court, Second District. Weber County; J. N Kimball, Judge.

James Empey was convicted of involuntary manslaughter, and he appeals.

AFFIRMED.

Allen T. Sanford, of Salt Lake City, for appellant.

Harvey H. Cluff, Atty. Gen., and L. A. Miner, Asst. Atty. Gen., for the State.

FRICK J. GIDEON, C. J., and THURMAN, CHERRY, and STRAUP, JJ concur.

OPINION

FRICK, J.

The defendant was charged with, and found guilty of, involuntary manslaughter in the district court of Davis county, Utah. He was duly sentenced to the county jail of said county for a term "not exceeding one year." He appeals and has assigned a number of errors. We shall consider such assignments as are deemed material in their order.

When the defendant was arraigned in the district court on the charge of involuntary manslaughter, he interposed a plea of former conviction. The court at the trial instructed the jury that there was no evidence in support of defendant's said plea and withdrew that issue from the jury. The defendant insists that the court committed prejudicial error in not submitting the plea of former conviction to the jury, and in not ruling as a matter of law that he had been once in jeopardy.

The record shows that on the 4th day of July, 1923, the defendant was driving an automobile on a public highway in Davis county aforesaid, and that on the 5th day of July a complaint was filed in the justice's court of said county charging the defendant as follows:

"That said James Empey then and there did unlawfully and willfully operate a motor car in violation of section 3992, Laws of Utah 1921, and that the said James Empey did then and there operate a motor vehicle, to wit, an automobile, on the public highway, in a careless and reckless manner, and when under the influence of liquor contrary to the provisions of the statutes of the state aforesaid in such cases made and provided, and against the peace and dignity of the state of Utah."

The defendant was accordingly arrested and brought before the justice and there entered a plea of not guilty to the foregoing complaint. Thereafter, upon a trial duly had in said justice's court on the 19th day of July, 1923, he was found guilty and fined the sum of $ 100, which he paid. The payment of the fine ended that proceeding. Immediately after the conviction and the payment of the fine, defendant was charged with involuntary manslaughter in the justice's court of Davis county. He, by that court, was held to answer to the district court, and in the latter court an information was filed charging him with involuntary manslaughter. In view of defendant's contentions, we also here insert in full the information filed against his in the district court, which is as follows:

"The said defendant, on July 4, 1923, at the county of Davis, state of Utah, willfully, unlawfully, and feloniously killed a human being, to wit, Nettie Baker, without malice, in the manner following, to wit:

"The said defendant, while engaged in the performance of a lawful act, which might produce death, to wit, while operating an automobile on the main public highway between Ogden and Salt Lake City in said Davis county, did then and there operate said automobile in an unlawful manner and without due caution and circumspection, in this:

"That the said defendant operated said automobile while he was under the influence of intoxicating liquor, and without looking ahead of him in the highway to observe the condition of traffic, and without in any manner or at all observing or keeping a lookout for automobiles using said highway; and said automobile at said time and place was driven by said defendant at an excessive rate of speed, to wit, at a rate of speed of 30 miles an hour, and was not under the control of the defendant; and that while thus operating said automobile at said time and place and in said unlawful manner and without due caution and circumspection, as aforesaid, the defendant struck and collided with another automobile in which Nettie Baker was riding, thereby inflicting upon her injuries and wounds from which she shortly thereafter died; contrary," etc.

Before proceeding to the consideration of the principal legal question raised by the defendant, it is convenient to dispose of a minor one, to wit, that the information filed in the district court "does not follow the complaint filed before the committing magistrate." It is true that the complaint filed before the justice of the peace, who acted as a committing magistrate, is not as complete as the information filed in the district court. The complaint was, however, not assailed in the justice's court. Quite apart from that fact, however, there is no substantial variance between the complaint and the information and hence defendant's contention in that regard cannot prevail.

We now proceed to consider defendant's principal contention, namely, that the district court erred in not submitting his plea of former conviction to the jury, and in not holding as a matter of law that the defendant had been once in jeopardy. It appeared from the evidence that the collision of defendant's automobile with the automobile in which Miss Baker was riding, and which caused her injury and subsequent death, occurred at the same time and at the same place that the defendant was charged with driving his automobile "in a careless and reckless manner, and when under the influence of liquor, contrary to the provisions of the statute, Comp. Laws 1917, § 3992, as amended by Laws of Utah 1921, c. 82." The defendant insists that the charge of manslaughter was for the same act and no other than the one for which he was convicted and fined in the justice's court, and therefore his plea of former conviction should have been sustained. In this connection it should be stated that the district court held that defendant's plea of former conviction was not availing for two reasons: (1) Because the complaint filed in the justice's court upon which he was convicted did not state a public offense, and (2) because the offense with which the defendant was charged in the information filed in the district court did not constitute the same offense that he was charged with, and of which he was convicted, in the justice's court, nor was it included therein.

It is elementary that where one is convicted upon a complaint, information, or indictment, which is so defective in substance that it fails to state a public offense in contemplation of law, he has not been in jeopardy and hence a plea of former conviction or acquittal is no defense. Defendant's counsel, however, vigorously assails the district court's ruling that the complaint filed in the justice's court, and on which the defendant was convicted, was so defective that it can be assailed in a collateral proceeding. In that regard counsel contends that although a complaint may be defective, yet, after judgment of conviction, if the complaint is not entirely devoid of facts constituting an offense, the conviction when collaterally assailed will be sustained. In support of the contention, counsel cites and relies upon Bruce v. East, 43 Utah 327, 134 P. 1175. He also cites the following authorities, which we here insert without comment and for the sole benefit of the reader: Commonwealth v. Lecky, 26 Am. Dec. 47, note; State v. Gachenheimer, 30 Ind. 63; McLaughleis v. Etchison, 127 Ind. 474, 27 N.E. 152, 22 Am. St. Rep. 658; Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717; Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; In re Gregory, 219 U.S. 210, 31 S.Ct. 143, 55 L.Ed. 184; Ex parte McNulty, 77 Cal. 164, 19 P. 237, 11 Am. St. Rep. 257; Hauser v. State, 33 Wis. 678; 34 C. J. 517, 560; 29 C. J. 34, 41.

While we entertain some doubt as to whether the complaint filed before the justice of the peace and upon which defendant was convicted and fined stated a public offense, we, in view that the court denied the plea on both grounds, and that the case has been fully presented by both parties upon defendant's general assignment hereinbefore stated, shall waive the question respecting the sufficiency of the justice court complaint and proceed to dispose of the case upon defendant's general assignment, namely, that the acts and offense charged in the information filed in the district court were the same as those charged in the complaint upon which he was tried and convicted in the justice court, and that for that reason his plea of former conviction should have been sustained. In support of his contention, counsel refers to and specially relies on Comp. Laws Utah 1917, § 8520, which reads:

"An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other."

Indeed, counsel insists that if it were not for the provisions of that section his plea, under practically all of the authorities, would be unavailing. Was it the intention of the Legislature in adopting section 8520 to depart, and does the language of that section necessarily require a departure, from the general rule governing former jeopardy? Section 8520 is a verbatim copy of section 654 of the Penal Code of California, and, as indicated in the note to section 8520, that section was copied from the California Penal Code. There is, however, another section of our Criminal Code, namely, section 8905, which must be considered in connection with section 8520, supra. Section 8905 provides:

"When the defendant shall have been convicted...