State v. Gaimos

• Decision Date: 22 December 1916
• Docket Number: 3898.
• Parties: STATE v. GAIMOS.
• Court: Montana Supreme Court

162 P. 596

53 Mont. 118

STATE v. GAIMOS.

No. 3898.

Supreme Court of Montana

December 22, 1916

Appeal from District Court, Broadwater County; John A. Matthews Judge.

Gust Gaimos was convicted of statutory rape, and he appeals. Affirmed.

E. H Goodman, of Townsend, and Wight & Pew, of Helena, for appellant.

Charles P. Cotter, of Townsend, and M. L. Rickman, of Helena, for the State.

SANNER J.

The appellant was convicted of statutory rape, and seeks a reversal of the judgment, as well as of an order denying his motion for new trial on these grounds: (1) That he was put in jeopardy upon an information previously filed and dismissed (2) that the evidence is insufficient; (3) errors of law occurring upon his trial; and (4) newly discovered evidence.

I. The information upon which this conviction is based was filed February 25, 1916; it charges the appellant with the commission of an act of sexual intercourse with Rita Smith, a female aged 13 years, on or about April 7, 1915, in the county of Broadwater; and to it the appellant interposed the pleas of former acquittal and once in jeopardy. There was no basis for the plea of former acquittal, but the plea of once in jeopardy was based upon these facts: An information had theretofore been filed, charging the appellant with the commission of an act of sexual intercourse with the same Rita Smith on or about May 26, 1915, in the county of Broadwater, upon which information he was arraigned and entered his plea of not guilty. His trial upon said charge was set for February 25, 1916, on which day both sides announced their readiness for trial. Thereupon a jury was called and sworn, the county attorney made his opening statement, and C. S. Smith took the stand as a witness for the state. The appellant objected to the examination of said Smith because his name had not been indorsed upon the information, and made like objection to any examination as witnesses of Rita Smith and Lena Cullom. These objections being sustained, the county attorney applied for leave to indorse said names upon the information, which leave was, upon appellant's objection, refused, and thereupon, on motion of the county attorney, the appellant not consenting, the court dismissed said information, and discharged the jury from further consideration of the cause.

Upon just what theory the court refused leave to indorse the names upon the first information, and thereby occasioned its dismissal, we are at a loss to conceive. Nine months before the time it was brought on for trial, this court had decided State v. McDonald, 51 Mont. 1, 149 P. 279, holding, in effect, that such leave ought not to be refused, but ought to be granted, allowing the cause to be continued or to proceed to trial, according to whether the accused does or does not show prejudice by reason of such indorsement. The defendant in all cases is entitled to know what persons will be called to testify against him, and every reasonable opportunity he might desire to investigate them, or to prepare to meet their testimony, should be accorded him. But he is not entitled to go free or to delay the course of justice merely because the public prosecutor has ignorantly or carelessly omitted to observe the rule prescribed by the statute in this respect.

The state contends there never was any jeopardy on the first information because that information was dismissed without a verdict, and by the provisions of section 9536, Revised Codes, the dismissal of an action, if a felony, is not a bar to a subsequent prosecution. This section applies to dismissals before a trial has begun and to dismissals in furtherance of justice. We do not see how it can have anything to do with a situation like the present; but, if it has, the section is by no means decisive. The right to immunity from a second prosecution is constitutional (Const. art. 3, § 18), and that right is to be measured by the meaning of the term "jeopardy" as employed in the constitutional provision. This is to be ascertained from the state of the law when the Constitution was adopted, not from subsequent legislation; and, as so ascertained, we find that the term was not intended to apply merely to those cases where a verdict has been rendered (State v. Keerl, 33 Mont. 501, 85 P. 862), but it applies as well to every case where the defendant has been brought to trial in a competent court upon a sufficient indictment or information before a jury duly impaneled and sworn (8 R. C. L. pp. 138, 139, et cit.; 12 Cyc. 261); and whenever such jeopardy has occurred for the same offense, and has, without necessity or the procurement of the accused, ended by a discharge of the jury before verdict, the plea is available. Rev. Codes, § 9317; State v. Keerl, 33 Mont. 501, 515, 85 P. 862. Now the first information against the appellant was sufficient, the failure to indorse the names of the witnesses being, at most, an irregularity correctible upon terms; the discharge of the jury called and sworn to try the appellant for the crime charged by it was not occasioned by unavoidable accident or the procurement of the accused. Hence the question here is whether the jeopardy suffered by the appellant upon the first information was for the same offense as that for which he now stands convicted.

Counsel for the appellant concede that the two informations do not, upon their face, charge the same offense, because the acts alleged as constituting the crime are separated in time by some 50 days, but they argue that since under the decision in State v. Harris, 51 Mont. 497, 154 P. 198, the act now charged could have been made the basis of a conviction upon the first information, the possibility of such conviction was jeopardy and a bar to the present charge according to the provisions of section 9216, Revised Codes. We think not. The section provides that when a person has been once placed in jeopardy upon an information, the jeopardy is a bar to another information "for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted" under that information. The term "offense necessarily included," as here used, has a well-defined significance. It means lower degrees of the crime charged, or minor offenses of the same character, predicated on the same act or acts; it has and can have no reference to other acts than the one directly presented by the charge, because such other acts, if of like character, may themselves be the bases of independent charges of equal gravity. One rape cannot be included in another any more than one forgery or one murder can be included in another. So that, if it could be possible for the accused, under a given information for rape, to be convicted of a rape other than the one charged thereby, which it is not, the danger of such a conviction is not such jeopardy as will afford a bar under section 9216, against a later prosecution for such other offense.

Again, the appellant misconceives the purport of the Harris decision, though excusably, perhaps, because there is language employed in the opinion which admits the position taken by him upon his plea of former jeopardy. It is said, for instance, that when the accused--

"has committed several acts constituting a series, upon proof of any one of which he may be convicted, of what substantial consequence is it to him that the prosecuting officer does not make his selection of the particular act until the close of the state's case?"

This language was inapt, and, literally taken, allows an inference which was not intended and is not legally permissible. In that case, a prosecution for rape, the state failed to prove the act charged at the time charged, but did prove that Harris had, within the period fixed by the statute of limitations, committed several acts of that character, and the effect of the decision was to correctly apply two rules of evidence pertinent to this class of cases. The first of these is that the state is not required to prove the date of the crime precisely as alleged in the information--this for the reason that save in those cases where time is a material ingredient of the offense, it is not necessary that the precise time be alleged. Rev. Codes, § 9152. But the rule of evidence is not wider in its scope than the rule of pleading it amounts simply to this: If the information fixes a definite date, the prosecution will not fail because the evidence discloses that a mistake occurred in the pleading, and that the identical crime charged was committed upon a date different from the one named, but before the information was filed, and within the period of the statute of limitations, though the variance may be sufficiently material to...