State v. Hall

Decision Date25 June 1963
Docket NumberNo. 9151,9151
Citation383 P.2d 602,86 Idaho 63
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Rodger HALL, Defendant-Appellant, and Emmett M. Spencer, Defendant.
CourtIdaho Supreme Court

Frank M. Rettig, Jerome, George R. Kneeland, Ketchum, for appellant.

Frank L. Benson, Atty. Gen., William E. Swope, Asst. Atty. Gen., Boise, Cecil D. Hobdey, Sp. Pros. Atty., Gooding, for respondent.

TAYLOR, Justice.

Defendant (appellant) Rodger Hall was acquitted of a charge of murder of the first degree by a verdict of the jury in Gooding county dated December 8, 1960. By the information the murder was charged as follows:

'* * * that the said Rodger Hall, one Emmett M. Spencer and the said Mary Katherine Hampton on or about the 24th day of August, 1959 at a point near Tuttle in the County of Gooding, State of Idaho then and there being did then and there willfully, unlawfully, knowingly, feloniously and with malice aforethought, while jointly and conspiratoriously engaged in the perpetration of the robbery of one John Hunt Jr. did murder and kill the said John Hunt Jr. with a .455 caliber revolver and the said defendants, then and there willfully, unlawfully, knowingly, feloniously and with their own deliberate premeditated malice did by shooting said revolver with intent to kill as aforesaid mortally wound him, the said John Hunt, Jr., a human being, from which mortal wound the said John Hunt Jr. on or about the 24th day of August, 1959, and did die; * * *'

Neither of the other defendants named in the foregoing information was brought to trial.

September 15, 1961, an information was filed in the district court in Gooding county charging Hall with robbery arising out of his participation in the transaction resulting in the death of John Hunt, Jr. To this information the defendant entered a plea of 'Not guilty.'

When the cause came on for trial on November 28, 1961, the defendant through his counsel interposed a plea of 'Once in jeopardy.' Defendant and his counsel consented that the trial proceed on both the plea of not guilty and the plea of once in jeopardy. At the close of the trial the jury returned a verdict against the defendant on his plea of once in jeopardy, and another verdict finding him guilty of the crime of robbery. Thereafter, defendant's motion for acquittal notwithstanding the verdict, and for a new trial was denied and judgment of conviction and imposition of penalty for the crime of robbery was entered.

This appeal is from the order denying defendant's motion and from the judgment.

The action of the court in trying both pleas before the same jury, and not affording defendant a separate trial on his plea of former jeopardy, is assigned as error. It is not necessary to determine whether the procedure followed by the court was erroneous. Any right defendant may have had to a prior and separate trial on his plea of former jeopardy was waived by defendant and his counsel. State v. Davis, 72 Idaho 115, 238 P.2d 450; Earle v. State, 194 Ind. 165, 142 N.E. 405.

Idaho Code, § 19-1712, provides:

'There are four kinds of pleas to an indictment. A plea of:

'1. Guilty.

'2. Not guilty.

'3. A former judgment of conviction or acquittal of the offense charged, which may be pleaded either with or without the plea of not guilty.

'4. Once in jeopardy.'

While defendant's plea was 'once in jeopardy,' the proof he presented to support the plea was a purported 'former judgment of acquittal.' Since a 'former judgment of acquittal' may be pleaded with the plea of not guilty, defendant was not prejudiced by the joint trial of both issues. State ex rel. Kritnich v. Superior Court for Spokane County, (Wash.) 153 Wash. 612, 280 P. 1; State v. Elliott, 62 Wash. 62, 124 P. 212; State v. Dills, 210 N.C. 178, 185 S.E. 677.

By other assignments of error the defendant challenges the action of the court in failing to instruct the jury in consonance with his theory, that the robbery was the 'same offense' as that charged in the murder information within the meaning of the constitutional prohibition against double jeopardy, Const. Art. 1, § 13; that the robbery charged in this case was an 'included offense' in the murder charge within the meaning of I.C. §§ 19-1719 and 19- 2312; that he could have been convicted of robbery under the murder charge, and therefore the present prosecution is barred by the statute; and in failing to instruct the jury that the verdict and judgment in the murder case was 'res judicata as to the facts surrounding the commission of the robbery in the instant case.'

'Murder is the unlawful killing of a human being with malice aforethought.' I.C. § 18-4001.

The degrees of murder are defined by I.C. § 18-4003 as follows:

'All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate arson, rape, robbery, burglary, kidnaping or mayhem, is murder of the first degree. All other kinds of murder are of the second degree.'

In a charge of murder of the first degree, the allegation that the homicide was committed in the perpetration of, or attempt to perpetrate, one of the named felonies, may be relied upon by the state in lieu of the otherwise necessary allegation and proof of deliberation and premeditation, in order to show that the homicide was murder of the first degree. State v. Owen, 73 Idaho 394, 353 P.2d 203; State v. Reding, 52 Idaho 260, 13 P.2d 253; State v. Moore, 326 Mo. 1199, 33 S.W.2d 905.

The allegation that the homicide occurred in the perpetration of a felony, does not charge the accused with the commission of the felony referred to, nor make it an offense included in the murder charge; it merely characterizes the murder as to degree. People v. Lytton, 257 N.Y. 310, 178 N.E. 290, 292, 79 A.L.R. 503; People ex rel. Santangelo v. Tutuska, 19 Misc.2d 308, 192 N.Y.S.2d 350, 355, affirmed 11 A.D.2d 906, 205 N.Y.S.2d 1006.

Robbery is defined by I.C. § 18-6501 as follows:

'Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.'

It is obvious from this definition that the murder information did not purport to charge defendant with the crime of robbery and it was insufficient for that purpose. I.C. § 19-1411; State v. Singh, 34 Idaho 742, 203 P. 1064; Matter of McLeod, 23 Idaho 257, 128 P. 1106, 43 L.R.A.,N.S., 813; State v. Brill, 21 Idaho 269, 121 P. 79. Issue was never joined between the state and defendant on the charge of robbery as such, and defendant could not have been convicted of robbery under that information. Application of Hess, 45 Cal.2d 171, 288 P.2d 5.

The statutes relating to included offenses are as follows:

'When the defendant is convicted or acquitted, or has once been placed in jeopardy upon an indictment, the conviction, acquittal or jeopardy is a bar to another indictment for the offense charged in the former, or for an attempt to commit the same, or for an offense included therein, of which he might have been convicted under that indictment.' I.C. § 19-1719.

'The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense.' I.C. § 19-2312.

An 'included offense' is one which is necessarily committed in the commission of another offense; or one, the essential elements of which are, charged in the information as the manner or means by which the offense was committed. State v. Anderson, 82 Idaho 293, 352 P.2d 972; State v. Petty, 73 Idaho 136, 248 P.2d 218; State v. Craner, 60 Idaho 620, 94 P.2d 1081; People v. Greer, 30 Cal.2d 589, 184 P.2d 512; Application of Hess, 45 Cal.2d 171, 288 P.2d 5.

The crime of murder may be committed without the commission of any of the felonies named in the statute, and the allegation that the homicide was committed while its perpetrators were engaged in a robbery does not charge that the robbery was the manner or means by which the murder was accomplished. The murder was charged to have been committed by means of a gun. The robbery was alleged only as a condition or circumstance characterizing the murder as first degree. The robbery was not an 'included offense' in the murder charge. It is clear from the statutory definitions, supra, that murder and robbery are separate, distinct and independent crimes. Neither is the 'same offense' as the other, within the constitutional provision against double jeopardy, and a prosecution for one does not bar a subsequent prosecution for the other on that ground. State v. McDonald (Or.) 365 P.2d 494; State v. LaPorte (Wash.) 365 P.2d 24; State v. Feinzilber (Nev.) 350 P.2d 399; People v. Candelaria, 153 Cal.App.2d 879, 315 P.2d 386; People v. Owens, 117 Cal.App.2d 121, 255 P.2d 114; Rodriguez v. Superior Court, 27 Cal.2d 500, 165 P.2d 1; Collins v. State (Okl.Cr.App.) 106 P.2d 273; People v. Warren, 16 Cal.2d 103, 104 P.2d 1024; People v. Bruno, 140 Cal.App. 460, 35 P.2d 391 (hearing denied); Orcutt v. State, 52 Okl.Cr. 217, 3 P.2d 912; State v. Ragan, 123 Kan. 399, 256 P. 169; State v. Elliott, 62 Wash. 62, 124 P. 212; State v. Garcia (Iowa) 198 Iowa 744, 200 N.W. 201; State v. Caddy, 15 S.D. 167, 87 N.W. 927; People v. Roderman (Co.Ct.) 34 Misc.2d 497, 229 N.Y.S.2d 209; People v. DeSisto (Co.Ct.) 27 Misc.2d 217, 214 N.Y.S.2d 858, see cases collected appendixes B, D, and E; State v. Orth, 106 Ohio App. 35, 153 N.E.2d 394; Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343, 37 A.L.R.2d 1058; Hunt v. Commonwealth (Ky.) 338 S.W.2d 912; Burton v. State, 226 Miss. 31, 79 So.2d 242; Hoag v. State, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913, reh. den. 357 U.S. 933, 78 S.Ct. 1366, 2 L.Ed.2d 1375, Annotation 37 A.L.R.2d 1068; Annotation 44 A.L.R. 564; 22 C.J.S. Criminal Law § 295(5); 15 Am.Jur., ...

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