State v. Thompson
| Citation | 58 Utah 291,199 P. 161 |
| Decision Date | 18 June 1921 |
| Docket Number | 3630 |
| Court | Supreme Court of Utah |
| Parties | STATE v. THOMPSON |
Appeal from District Court, Third District, Salt Lake County; H. M Stephens, Judge.
C. C Thompson was convicted of indecent assault, and he appeals.
REVERSED, and cause remanded.
H. V Van Pelt and King & Schulder, all of Salt Lake Lake City, for appellant.
Harvey H. Cluff, Atty. Gen., and W. Hal Farr, Asst. Atty. Gen., for the State.
The defendant was convicted in the district court of Salt Lake county of the crime of indecent assault, as defined in Comp. Laws Utah 1917, § 8049, and sentenced to a term of imprisonment in the state prison. No exception was taken to the information. Defendant was arraigned thereon, and pleaded not guilty. A jury was regularly impaneled and sworn to try the cause. After several days devoted to the taking of testimony, information was conveyed to the presiding judge by one of the jurors sworn in the case to the effect that he had been communicated with concerning the case by a person not connected therewith. The judge immediately brought the matter to the attention of counsel for the respective parties, and after an investigation of the matter, the court ordered a mistrial, and discharged the jury. Specific details as to what occurred in the investigation will appear later on.
At the next term of court, the case again came on for trial on the same information, whereupon the defendant entered the following plea:
To this plea the state interposed an oral demurrer, and also a motion to strike. The motion to strike was denied, but the demurrer was sustained. The specific grounds of the demurrer do not appear in the record, but we are justified in assuming that the contention was that the facts stated were insufficient to constitute a plea of "once in jeopardy." The defendant excepted to the ruling of the court sustaining the demurrer. The trial of the case thereafter proceeded, resulting in a conviction, as before stated. Judgment was entered thereon, from which judgment defendant appeals.
1. Appellant assigns as error the ruling of the court sustaining the demurrer to his plea of "once in jeopardy." We have felt somewhat embarrassed in our endeavor to determine this question because of the peculiar angle from which the question appears to have been considered by counsel on both sides of the controversy.
When the sufficiency of a pleading is challenged by demurrer, the facts alleged in the pleading, and those only, constitute the standard by which its sufficiency should be determined. If we are right in our interpretation of the record in the present case, evidence of what occurred in court before the plea in bar was entered during the investigation heretofore referred to, was offered and received upon the question as to whether or not the plea was justified, and the evidence so taken must have been considered by the court in determining the question raised by the demurrer. We feel warranted in indulging in this assumption, for otherwise we do not understand upon what theory the demurrer could have been sustained. The demurrer admits the facts alleged in the plea. The facts pleaded clearly show that at a previous term of the same court the defendant was duly arraigned on the same information, on which arraignment he pleaded not guilty; that a jury was duly impaneled and sworn in said court and cause, and testimony taken on the part of both the state and the defendant; that said jury was discharged by the court on the ground that, after being duly impaneled and after the trial had commenced, the jury had received, out of court, evidence other than that resulting from a view of the premises and a communication referring to said cause; that the discharge of said jury was without the consent of defendant, and without "special necessity," and before an agreement upon a verdict or disagreement thereon. The plea expressly alleges that the defendant had been once in jeopardy upon the same information. Defendant invokes the Constitution and laws of the state against being tried again for the same offense, and prays that he be discharged.
The most serious objection to the plea is that it abounds in superfluity and excessive verbiage. Comp. Laws Utah 1917, § 8899, subd. 4, provides the form of a plea of "once in jeopardy":
"If he pleads once in jeopardy: 'The defendant pleads that he has been once in jeopardy for the offense charged (specifying the time, place and court.)'"
All of this the defendant pleaded, and much more. The question is, Did he plead himself out of court by alleging facts which nullified the effect intended? If not, the superfluous matter should have been disregarded and the plea sustained.
There is no disagreement between counsel for the defendant and the state concerning the proposition as to when jeopardy attaches in a case where the jury is impaneled to try the cause. The defendant is in jeopardy when the jury is impaneled and sworn and the issues presented on a valid indictment or information in a court of competent jurisdiction. The doctrine is tersely stated by the Supreme Court of California in People v. Webb, 38 Cal. 467. The third headnote reads:
"If a party is once placed upon his trial before a competent court and jury, upon a valid indictment, the 'jeopardy' attaches, to which he cannot be again subjected, unless the jury be discharged from rendering a verdict by a legal necessity, or by his consent; or, in case a verdict is rendered, if it be set aside at his instance."
To the same effect is People v. Horn, 70 Cal. 17, 11 P. 470. This statement of the proposition is almost a perfect model of brevity and conciseness.
Defendant's plea of "once in jeopardy" in the instant case alleges, among other things, that the jury was discharged without his consent, and that there was no "special necessity" therefor. These, together with the other matters alleged, constitute a good plea of "once in jeopardy." It follows, therefore, that the state's demurrer to the defendant's plea should have been overruled. But whether or not the error of the court in sustaining the demurrer was one of which defendant can complain is a subject of serious controversy between the parties.
Comp. Laws Utah 1917, § 8924, provides that issues of fact arise, (1) upon a plea of not guilty; (2) upon a plea of former conviction or acquittal; (3) upon a plea of once in jeopardy. The next succeeding section provides that issues of fact must be tried by a jury unless a trial by jury be waived as therein provided. If the circumstances constituting the basis of defendant's plea of "once in jeopardy" involve issues of fact, then such issues should have been tried by the jury. If the circumstances relied on by defendant present only issues of law, then it was the duty of the court to try such issues, and, if properly determined against the defendant, the error of the court in sustaining the demurrer to the plea would be harmless.
In order to determine whether or not there was an issue of fact which should have been submitted to the jury, it becomes necessary at this point to state the circumstances upon which defendant relies for the basis of his plea. It is not necessary to mention the names of persons involved, except those of counsel participating in the investigation.
After the first trial, as heretofore stated, had proceeded for several days, one of the jurors sworn in the case informed the presiding judge that he had been approached by a gentleman with whom he was acquainted and was asked by him "Who is on trial in this court?" The gentleman then looked and saw the defendant, and said. "Oh Thompson is on trial." The juror made no reply. The gentleman then said, "I think a charge of this kind is a great shame." The juror said "Yes, if a man is guilty it is a shame, and if he is innocent it is a shame for him to be charged with that crime." The gentleman then said, in effect, that he had known the defendant casually for many years, and in his opinion the prosecution was a matter of prejudicial spite. The juror answered that...
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