State v. Panchuk

• Court: North Dakota Supreme Court
• Writing for the Court: JOHNSON
• Citation: State v. Panchuk, 53 N.D. 669, 207 N.W. 991 (N.D. 1926)
• Decision Date: 17 February 1926
• Docket Number: No. 5068.,5068.
• Parties: STATE v. PANCHUK.

53 N.D. 669

207 N.W. 991

STATE

v.PANCHUK.

No. 5068.

Supreme Court of North Dakota.

Feb. 17, 1926.

Syllabus by the Court.

It is always permissible to prove facts and circumstances tending to show the bias or prejudice of a witness. The range of the cross-examination and the inquiry, for this purpose, is largely within the sound discretion of the trial court, and his conclusions in that behalf will not be disturbed unless abuse of discretion appears. Held, for reasons stated in the opinion, that the cross-examination of a witness for the state, in a prosecution under the prohibition law, was not improperly restricted.

Proof of one sale of intoxicating liquor, in violation of sections 1 and 1b, chapter 268, S. L. 1923, is sufficient to warrant a conviction of the crime of engaging in the liquor traffic; and it is not in its nature a continuing offense.

When the plea of prior acquittal is interposed, the defendant has a constitutional right, under the guaranty of trial by jury, to have that issue, in so far as it is one of fact, submitted to the jury with appropriate instructions as to the law.

The right not to be put in jeopardy the second time for the same offense is as important and should be as scrupulously regarded as the right of trial by jury.

A person is in jeopardy when he is placed on trial, upon a valid information or indictment, before a court of competent jurisdiction, including a jury who have been sworn to try him, and all preliminaries have been completed.

The prohibition of section 13 of the Bill of Rights of the state Constitution is against a second jeopardy for the same offense; the crimes must be identical in law and in fact.

The plea of former acquittal is only available in cases where the two informations or indictments are susceptible of and must be sustained by the same proof; and if the averments of either information would, if proved under the other, support a conviction under the latter, the crimes charged in the two are identical in fact and in law.

Whether the offenses are the same in legal nature is ordinarily a question of law for the court; whether they are identical in fact is a question for the jury.

Where an information is filed against P. charging him with engaging in the liquor traffic by selling intoxicating liquor between January 1, 1924, and May 11, 1925, and P., in addition to the plea of not guilty, pleads autrefois acquit and introduces in evidence in support of his plea an information which charges a crime of the same name committed on May 27, 1924, and a verdict of not guilty, thereunder, and where the state offers and relies on evidence tending to show that the crime was committed in November, 1924, and early in 1925, and there is no other evidence, except the first information, submitted to the jury upon the issue of the identity in fact of the two crimes, it is held:

(a) That the first information is prima facie evidence of the identity in legal nature of the offenses charged in the two informations.

(b) That the question of identity in fact is for the jury; and the verdict finding against the defendant on the plea of former acquittal is amply supported by competent evidence.

(c) That State v. Lesh, 145 N. W. 829, 27 N. D. 165, is not controlling because the court there held that the crime charged was a continuing offense.

Appeal from District Court, Mountrail County; Jno. C. Lowe, Judge.

Jack Panchuk was convicted of engaging in the liquor traffic by selling intoxicating liquor, and he appeals. Affirmed.

F. F. Wyckoff, of Stanley, for appellant.

Geo. F. Shafer, Atty. Gen., and C. N. Cottingham, State's Atty., of Stanley, for the State.

JOHNSON, J.

The defendant was convicted of the crime of engaging in the liquor traffic by making sales of intoxicating liquor. On June 17, 1925, he was found guilty as charged.

The defendant pleaded not guilty. In addition, he interposed the plea of previous acquittal and former jeopardy of the offense charged in the information.

Only two assignments of error are urged, one based upon a ruling of the trial court in excluding certain evidence, and the other relating to the plea of former jeopardy.

The state called one Cyscewski as a witness for the prosecution. It appears that he was in the employ of the state or the state's attorney for the purpose of gathering evidence of violations of the Prohibition Law. On cross-examination, counsel for the defendant asked him the following question: “Q. How much did the state's attorney pay you when you were in his employ?” To this question the state's attorney objected on the ground that it was “improper cross-examination.” The objection was sustained, and this ruling is assigned as error. The inference is necessary from the testimony that this witness was a paid detective in the employ of the county or the state's attorney for the purpose of securing evidence against this defendant; that the plan of action was laid out in advance by the witness and the state's attorney. The witness claimed his privilege and refused to answer certain questions on the ground that his answers might incriminate himself. The defendant's attorney strenuously urges that he should have been permitted to show by cross-examination any and all facts tending to show interest or bias; that the amount of his compensation was a matter which he had a right to show as bearing upon his interest in the controversy and as showing bias and prejudice.

The facts, with reference to the plea of former jeopardy and former acquittal, are as follows: On June 16, 1924, the state's attorney of Mountrail county, the predecessor of the present incumbent of that office, filed an information in the district court, charging this defendant with the crime of engaging in the liquor traffic; “committed as follows: That at said time and place the said Jack Panchuk did willfully and unlawfully manufacture, sell, barter, transport, import, export, deliver, furnish and possess intoxicating liquor.” This is the language of the statute, except that the disjunctive “or” is used in the law, and not the conjunctive “and” as in the information. The defendant is thus in reality charged with committing nine offenses on May 28, 1924.

Upon the trial of that action, on June 17, 1924, the jury returned a general verdict of not guilty. On June 15, 1925, the present state's attorney filed the information under which the defendant was convicted, and charged, as heretofore stated, that the latter engaged in the liquor traffic between January 1, 1924, and May 11, 1925. The specific contention of counsel is that the defendant was placed in jeopardy by this information for the second time, because May 28, 1924, the day on which he was charged in the first information with having engaged in the liquor traffic, is included in the period of January 1, 1924, to May 11, 1925. It is urged that inasmuch as the second information overlaps the period covered by the first, the defendant is again in jeopardy for the same offense.

No evidence was offered by the state tending to show that the defendant committed the crime charged at any time before June 17, 1924, the day on which he was acquitted of the charge made in the first information; the trial court specifically instructed the jury that they should not consider any evidence in this case as to the commission of the crime of engaging in the liquor traffic on or prior to June 17, 1924, and should convict only in the event that they were satisfied, beyond a reasonable doubt, that the defendant committed the crime charged in the information on or after June 17, 1924. They were instructed to make a special finding upon the claim of former acquittal, and a form of verdict was submitted for that purpose. They found that the defendant had not been acquitted of the offense on which he was tried. There is nothing in the record showing what evidence was offered in support of the first information.

[1] 1. It is always permissible to prove facts and circumstances tending to show the bias or prejudice of a witness. Ordinarily the cause or the particulars of such bias are not legitimate subjects of inquiry, except so far as the trial court, in the exercise of a sound discretion, permits. In the case at bar it appears, without dispute, that the witness was in the employ of the state for the purpose of collecting evidence of violations of the Prohibition Law. Counsel for the prisoner was not satisfied to establish this fact, but desired to prove the amount of the compensation. There is no offer of proof either as to the amount of the compensation, or as to whether such amount was in any manner contingent upon the outcome of the prosecution. Undoubtedly the discretion of the trial court should be liberally exercised to the end that the jury may have before it every fact tending reasonably to disclose any circumstances which, if present, may cast doubt upon the existence of that wholly disinterested frame of mind essential to complete confidence in the candor of a witness. The defendant has a legal right to show that a witness for the state is prejudiced against him. State v. Hakon, 129 N. W. 234, 21 N. D. 133. The extent of the inquiry, however, is largely within the sound discretion of the trial judge, and his conclusion in that behalf will not be disturbed unless it appears that the ruling amounts to an abuse of discretion. Upon the whole record we do not feel justified in holding that the trial court abused its discretion in excluding the amount of the compensation. See State v. Long, 115 A. 734, 95 Vt. 485. The employment had apparently terminated; indeed, it had continued only for about one month. Considerable latitude was allowed in the cross-examination of the witness, in other particulars, and we are satisfied that the trial court did not improperly restrict the examination.

[2] 2. When the defendant pleads former jeopardy, he is required by subdivision 4 of section 10747, to specify the time, place, and the court...