State v. Grady

• Decision Date: 09 January 1918
• Parties: STATE, Appellant, v. JOSEPH D. GRADY, Respondent
• Court: Idaho Supreme Court

170 P. 85

31 Idaho 272

STATE, Appellant, v. JOSEPH D. GRADY, Respondent

Supreme Court of Idaho

January 9, 1918

CRIMINAL LAW-ONCE IN JEOPARDY-APPEAL BY STATE.

1. The right to appeal in this state is conferred by legislative authority, and if it exists it must be found in the constitution or statutes.

2. The state has no appeal from a judgment in favor of defendant whether upon a verdict of acquittal or upon the determination by the court of a question of law, unless it be expressly conferred by statute in the plainest and most unequivocal terms.

[As to whether the state may appeal or be granted a new trial in a criminal case, see notes in 27 Am.Dec. 471; 48 Am.St. 213]

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. James R. Bothwell, Presiding Judge.

From an order sustaining defendant's plea of once in jeopardy the state appeals. Dismissed.

Appeal dismissed.

T. A Walters, Attorney General, Joseph H. Peterson, Former Attorney General, John E. Rees, E. W. Whitcomb and W. H O'Brien, for Appellant.

Jesse B. Roote, James E. Stevens and C. R. Clute, for Respondent.

Counsel cite no authorities on points decided.

MORGAN, J. Budge, C. J., concurs in the conclusion, Rice, J., concurs.

OPINION

MORGAN, J.

Respondent was charged, by information, with grand larceny, to which he entered a plea of not guilty. The cause was submitted to a jury, which, after deliberating for some time, advised the court of its inability to reach an agreement and it was thereupon discharged. When the cause was again brought on for trial respondent entered a plea of once in jeopardy, wherein he alleged that he was not present in court when the jury was discharged and had not waived his statutory right to be present. The state demurred to the plea and moved that it be disallowed and dismissed. The demurrer and motion were overruled, whereupon the state filed an answer in which it alleged that at the time the jury was discharged respondent was on bail and at liberty, and that if he was absent from the courtroom he was voluntarily so and had, thereby, waived his statutory right to be present. A jury was impaneled to which the trial judge, after the introduction of testimony, submitted the following interrogatory:

"Was the defendant, Joseph D. Grady, present in the court room, on the 4th day of April, 1914, at the time when the jury returned into court, announced that they were unable to reach a verdict, and were by the court dismissed?"

The jury answered the interrogatory in the negative, whereupon the court entered an order that the plea of once in jeopardy was sustained and respondent was discharged and his bail exonerated. Thereafter appellant filed a motion that the court correct its record so as to show that respondent had not been adjudged to have been in former jeopardy and was not entitled to his acquittal, and that he be remanded to the custody of the sheriff to abide the further order of the court. Counsel for appellant also orally moved that the court vacate and set aside the order discharging respondent and exonerating his bail. These motions were overruled, and appellant served and filed a notice of appeal, as follows:

"You will please take notice that the state, in the above-entitled action, hereby appeals to the supreme court of the state of Idaho, from the judgment of once in jeopardy, herein entered, in the said district court, on the 18th day of June, A. D. 1915, in favor of the defendant in said action, and the whole thereof, and from the order of said court, rendered on the said 18th day of June, A. D. 1915, discharging the said defendant and exonerating his bail; and from the further order of said court, made on June 24th, A. D. 1915, denying and overruling the plaintiff's motion to vacate and set aside the order discharging the defendant and exonerating his bail; and from the further order of said court made on the said 24th day of June, A. D. 1915, denying and overruling the plaintiff's written motion to correct its record so as to show that the defendant had not been adjudged to have been in former jeopardy and not entitled to his acquittal, and that he be remanded to the care and custody of the sheriff of the said county of Lemhi, to abide the further order of this court."

In support of the attempted appeal the state has assigned as error: 1. The action of the trial court in overruling its demurrer to the plea of former jeopardy; 2. In overruling its oral motion to vacate and set aside the order discharging respondent and exonerating his bail; 3. In overruling its written motion to correct the records to show that respondent had not been adjudged to have been in former jeopardy and that he be remanded to the custody of the sheriff.

"The right to appeal in this state is conferred by legislative authority and if it exists it must be found in the constitution or statutes." (Evans State Bank v. Skeen, 30 Idaho 703, 167 P. 1165.)

"As a general rule, the state has no right to a writ of error or to an appeal from a judgment in favor of defendant, whether upon a verdict of acquittal or upon the determination by the court of a question of law, unless it be expressly conferred by statute in the...