State v. Fredlund
| Decision Date | 21 May 1937 |
| Docket Number | 31252. |
| Citation | 273 N.W. 353,200 Minn. 44 |
| Parties | STATE v. FREDLUND. |
| Court | Minnesota Supreme Court |
Case Certified from District Court, Hennepin County; Levi M. Hall Judge.
Carl H Fredlund was indicted for third degree murder, and on arraignment pleaded not guilty. The defendant's motion to be permitted to withdraw his plea of not guilty and to enter a formal plea of former jeopardy was denied, defendant entered a special plea of former jeopardy, and the trial court certified questions to the Supreme Court pursuant to Mason's Minnesota Statutes 1927, § 10756.
Certified question answered, and cause remanded.
Where facts constitute but one offense, although it may be susceptible of division into parts, prosecution to final judgment for one part of such offense will bar subsequent prosecution for any other part of same offense under constitutional and statutory guaranties against double jeopardy. Mason's Minn.St.1927, § 10699 (M.S.A. § 630.33); Const. art. 1, § 7 (M.S.A.).
Syllabus by the Court .
1. The plea of former jeopardy, i. e. that a man shall not be brought into danger of his life or limb for the same offense more than once, is an established maxim of the common law and has been included in the National Constitution as well as our own as a fundamental right of and a safeguard to the accused. The protection afforded is not against the peril of second punishment, but against being again tried for the same offense.
2. Before a defendant may avail himself of the plea of former jeopardy it is necessary for him to show that the present prosecution is for the identical act and that the crime both in law and in fact were settled by the first prosecution.
3. Where the facts constitute but one offense, though it may be susceptible of division into parts, as in larceny for stealing several articles of property at the same time, a prosecution to final judgment for stealing some of the articles will bar a subsequent prosecution for stealing any of the articles taken at the same time. And the same rule applies where the acquittal or conviction of a greater offense necessarily includes a lesser one.
4. A plea of former jeopardy will not be sustained where it appears that in one transaction two distinct crimes were committed.
5. It is the identity of the offense, and not of the act, which is referred to in the constitutional guarantee against putting a person twice in jeopardy. Where two or more persons are injured in their persons, though it be by a single act, yet, since the consequences affect, separately, each person injured, there is a corresponding number of distinct offenses.
William S. Ervin, Atty. Gen., Roy C. Frank, Asst. Atty. Gen., and Edward J. Goff, Co. Atty., and William G. Compton, Asst. Co. Atty., both of Minneapolis, for the State.
Eugene A. Rerat and Neil Hughes, both of Minneapolis (Walter J. Welch, of Minneapolis, on the brief), for defendant.
In an automobile collision occurring upon a highway in rural Hennepin county August 11, 1935, one car being driven by a Mr. Busch the other by defendant, Mrs. Busch lost her life as did also their minor child, Walter. On August 22 the grand jury returned two indictments against defendant charging him with murder in the third degree under the provisions of Mason's Minn.St.1927, § 10070, which reads: ‘ Such killing of a human being, when perpetrated by act eminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual, or without a design to effect death, by a person engaged in the commission of, or in an attempt to commit, a felony either upon or affecting the person killed or otherwise, is murder in the third degree, and shall be punished,’ etc.
Indictment No. 32900 involved the death of the boy, the other, No. 32901, involved the death of Mrs. Busch. Both indictments are the same in substance except as to the person killed; the same witnesses were produced before the grand jury, and their names were identical as indorsed upon each indictment. Defendant entered a plea of ‘ not guilty’ to each indictment. On September 16 next following he was placed on trial on indictment No. 32901, the one charging him with the death of Mrs. Busch. On October 6 the jury returned a verdict of ‘ not guilty,’ whereupon the court, pursuant to the verdict, pronounced and caused to be entered a judgment of acquittal, thereby exonerating him from liability respecting that indictment.
On December 5, before the same court, defendant appeared, requesting that he be permitted to withdraw his plea of ‘ not guilty’ to the indictment referred to as No. 32900 and that he be permitted to enter a formal plea of former jeopardy by reason of the jury's verdict on the trial of the indictment involving the death of Mrs. Busch. The court denied defendant's plea in that behalf and ordered him to file his plea of former jeopardy and acquittal in conjunction with his plea of ‘ not guilty.’ Defendant duly excepted. He then entered his special plea in writing and therein adequately set forth the former adjudication.
There is no issue as to the facts, counsel having stipulated same and the court having adopted them as so stipulated. It is conceded that the only additional testimony to be adduced on the trial, if one is had on the remaining indictment, is to show the death and cause thereof of the boy, Walter Perry Busch. The court, in conformity with section 10756, being of opinion that certain questions of law had arisen which were so important and doubtful as to require a decision by this court, has duly certified them for our determination, defendant consenting thereto. The first, and we think the vital, question reads as follows: ‘ In a case where two automobiles collided on a public highway resulting in the death of two persons who were passengers in one of said automobiles, and the driver of the other automobile is charged in each of two indictments with murder in the third degree, one of said indictments being based on the death of one of said passengers and the other indictment on the death of the other passenger, does acquittal of the charge contained in one of said indictments operate as a bar to further prosecution for the offense charged in the other indictment?’
Defendant relies upon State v. Moore, 86 Minn. 422, 90 N.W. 787,61 L.R.A. 819; State v. Klugherz, 91 Minn. 406, 98 N.W. 99,1 Ann.Cas. 307; State v. Healy, 136 Minn. 264, 161 N.W. 590, L.R.A.1917D, 726; State v. Wheelock, 216 Iowa, 1428, 250 N.W. 617; State v. Cosgrove, 103 N.J.Law, 412, 135 A. 871; People ex rel. Flinn v. Barr, 259 N.Y. 104, 181 N.E. 64, and other cases as determinative of his position. His claim is thus stated: ‘ Where the transaction or alleged criminal act for which the defendant has once been prosecuted is the same as that for which he is proceeded against on the second prosecution, the second will be barred.’ He also cites and relies upon article 1, section 7, of our Constitution, that part here material reading as follows: ‘ No person * * * for the same offence shall be put twice in jeopardy of punishment.’ Likewise our attention is directed to Mason's Minn.St.1927, § 10699, which reads: ‘ If the defendant shall have been convicted or acquitted upon an indictment for an offence consisting of different degrees, such conviction or acquittal shall be a bar to another indictment for the offence charged in the former, or for any inferior degree of that offence, or for an attempt to commit the same, or for an offence necessarily included therein of which he might have been convicted under that indictment.’
1. The defense of former jeopardy ‘ is an established maxim of the common law, in the administration of criminal justice.’ As such it is universally ‘ recognized by elementary writers, and courts of judicature from a very early period down to the present time, that a man shall not be brought into danger of his life or limb for one and the same offense, more than once.’ 8 R.C.L. p. 134, § 114, and cases cited under note 16. For this reason, constitutional provision safeguarding this right is found in the Federal Constitution as well as in the Constitutions of most, if not all, of the states. It is accordingly generally held that a plea of former conviction is good under either the Constitution or the common law.‘ The protection thus afforded is not against the peril of second punishment, but against being again tried for the same offense.’ Id. p. 135, § 115, and cases under note 1. And the nature or kind of trial, as long as it is legal, does not affect defendant's right to this defense on a subsequent trial. However, ‘ In order that a conviction, under a statute providing for summary trials, may be a bar to a prosecution in a higher court, it must appear that the case was properly within the authority and jurisdiction conferred by the statute, that the proceedings were fairly and legally conducted, and that all the material requirements of the statute were complied with, not colorably or collusively, but substantially and in good faith.’ Id. p. 137, § 117, and cases cited under notes 11 and 12.
2. That defendant was tried under a valid indictment and that the court had plenary jurisdiction of the cause as well as the parties may be conceded. The question requiring solution is whether defendant's conduct, causing two deaths by virtue of the same act, may be said to give rise to two different and distinct legal wrongs punishable under the statute under which these indictments were brought. Before defendant may avail himself of the plea of former jeopardy it is of course necessary that he show that the present prosecution is for the identical act and that the crime both...
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