State v. Kieffer
| Decision Date | 03 June 1903 |
| Citation | 95 N.W. 289,17 S.D. 67 |
| Parties | STATE v. KIEFFER. |
| Court | South Dakota Supreme Court |
Error to Circuit Court, Meade County.
Matthias Kieffer was convicted of grand larceny, and he brings error. Reversed.
Ivan W Goodner, M. McMahon, and Jas. McNenny, for plaintiff in error. Philo Hall, Atty. Gen., and J. F. McClung, State's Atty., for the State.
Upon an information duly filed, the plaintiff in error was tried and convicted of the crime of grand larceny, and sentenced to the penitentiary for a term of three years. A motion for a new trial was made and denied, and the case comes before us on writ of error to the circuit court of Meade county. The accused, when called upon to plead, entered the plea of not guilty, and also a plea that he had been formerly tried and acquitted upon the same charge. A general verdict was found by the jury of guilty as charged in the information, but there was no verdict of the jury upon the plea of former jeopardy.
It is contended by the counsel for the accused that a verdict upon the plea of not guilty alone was insufficient, in the absence of any verdict upon the plea of former jeopardy. It is insisted on the part of the state that there was no evidence upon which the jury could find a verdict upon the plea of former jeopardy, for the reason that all of the evidence upon that subject was excluded by the court. There is, however, an assignment of error that it was error to sustain the state's objection to the introduction of the record of the trial of the case of the state against Kieffer, had on the 26th day of June, 1900 and that the court erred in passing judgment against the defendant in the absence of any verdict upon the plea of former jeopardy. These two assignments of error clearly present the question as to the ruling of the court in excluding the evidence of former acquittal, and the failure of the jury to find a verdict on that issue.
Section 7301, Comp. Laws Dak. 1887, provides: Section 7319, Comp Laws Dak. 1887, provides: "An issue of fact arises: (1) Upon a plea of not guilty; or (2) upon a plea of former conviction or acquittal of the same offense." And section 7320, Comp. Laws Dak. 1887, provides: "Issues of fact must be tried by a jury." The law has thus distinctly provided a method by which the two pleas may be tried. Our Code upon this subject is substantially the same as that of California, and in that state the Supreme Court holds that, when the plea of former jeopardy is interposed with the plea of not guilty, there must be a verdict upon both pleas before a judgment can be entered. In the case of People v. Kinsey, 51 Cal. 278, the Supreme Court, in speaking of this question, says: People v. Helbing, 59 Cal. 567; People v. Fuqua, 61 Cal. 377; People v. O'Leary (Cal.) 16 P. 884. The court was not authorized to enter judgment, therefore, against the accused, upon the plea of not guilty, until the plea of former jeopardy had been disposed of by the jury. Possibly the court, after excluding all the evidence on the part of the accused tending to sustain his plea of former jeopardy, might have directed the jury to find a verdict upon that plea against the accused. But in any event it should have been disposed of by the court before passing sentence upon the accused.
It is also quite clear that the court erred on the trial in excluding the evidence offered in support of...
To continue reading
Request your trial