State v. Tucker
| Decision Date | 02 January 1929 |
| Docket Number | CRIM 3 |
| Citation | 224 N.W. 878,58 N.D. 82 |
| Court | North Dakota Supreme Court |
Rehearing Denied April 22, 1929.
Appeal from the District Court of LaMoure County, Wolfe, J.
Affirmed.
M A. Hildreth and F. S. Thomas, for appellant.
George F. Shafer, Attorney General, William C. Green Special Assistant Attorney General, and E. M. Warren, State's Attorney, for respondent.
Birdzell, J. Burke, Ch. J., and Nuessle and Christianson, JJ., and Pugh, Dist. J., concur. Burr, J., did not participate; Honorable Thomas H. Pugh, Judge of the Sixth Judicial District, sitting in his stead.
Francis Tucker was tried in the district court of LaMoure county for the murder of one Hans C. Bjone and was convicted. He appeals to this court from the judgment of conviction and from an order denying his motion for a new trial.
Hans C. Bjone during his lifetime was the cashier of the Farmers & Merchants Bank of Verona. He was in sole charge of the bank except for such supervision as was exercised by two uncles, who lived in the vicinity of Verona and owned the controlling interest in the bank. He was a bachelor and had a living room in the bank building where he slept and sometimes cooked for himself. On the morning of March 1, 1927, the bank did not open as usual. After this fact had been noted by several, one of the townsmen upon trying the front door discovered that it was not locked. Thereupon he forced the door open and found that one nail had been driven in the frame and one below the door into the threshhold to hold it shut. After an examination of the banking room and of the living room it was ascertained that the vault door was locked. This was soon opened by a former employee of the bank, who remembered the combination, and just inside the vault was found the body of Hans C. Bjone. There were five bullet wounds in the head. Upon a later examination it developed that the bullets were not all of the same caliber. Three bullets were later extracted from the head of the deceased. Two were .22 caliber and one .25 caliber. In checking up the cash assets of the bank it was discovered that some $ 3,600 had been taken between February 28th and March 1st. The back door of the building was equipped with a Yale lock which locked automatically when the door was closed. There was a storm door outside the rear door, which was kept closed by a hook and fastened from the inside. This storm door was open on the morning of March 1st. These main facts which were patent upon a casual examination indicated that some one actuated by the motive of robbery had shot the cashier, locked his body in the vault, nailed the front door shut, taken the cash and escaped through the rear door. The evidence to connect the defendant with the crime is circumstantial and will require a more adequate statement in that portion of this opinion which will deal with its sufficiency.
The defendant was indicted by a grand jury in LaMoure county on May 6, 1927. He later appeared and filed an affidavit of prejudice against the court and against the county. The presiding judge, Hon. George M. McKenna, thereafter on June 14, 1927, made an order removing the action for further proceedings and for trial to Cass county, to which county the records and proceedings were transmitted. On September 28, 1927, the defendant was again indicted by a grand jury in LaMoure county for the same crime as that charged in the indictment of May 6th. After the return of the second indictment an ex parte application, dated October 1, 1927, was made by the attorneys for the prosecution for an order of dismissal of the indictment of May 6th and it was accordingly dismissed by an order signed by the district judge presiding in Cass county. The order of dismissal was signed October 6, 1927, and recites as reasons that a subsequent indictment had been returned charging the defendant in the first indictment with the same crime as that charged therein and that the state had elected to proceed upon the second indictment, that returned on September 28th. The record shows some very questionable proceedings with reference to the empanelling of the first grand jury, which go to the validity of the indictment. It therefore suggests the existence of substantial reasons for procuring a second indictment. The defendant was never required to plead to the first indictment.
The record is voluminous. There are seventy-six assignments of error and twenty-three additional assignments on the instructions of the court to the jury in addition to the specifications of the insufficiency of the evidence. The first seven assignments are grouped for argument by the appellant under the head of jurisdiction of the district court of LaMoure county to proceed with the trial of the defendant under the second indictment. The power of the district court of Cass county to dismiss the prosecution under the first indictment is also questioned. The proceedings disclose the theory of the prosecution to be that there may be more than one indictment against a person for the same offense and that a prior indictment may be dismissed and a defendant tried under a subsequent indictment regardless of any proceedings that may have been taken under a prior indictment to secure a change of the place of trial; whereas, it is the theory of the defendant and appellant that after proceedings are taken on a prior indictment, to secure a change of judge and a change of place of trial in a criminal case, there can be no subsequent proceedings looking toward a prosecution for the same offense in the county where the indictment was procured, particularly where a second indictment is procured in circumstances that might deprive the defendant of the benefit of the change previously obtained.
When the case was called for trial in LaMoure county the defendant was permitted to withdraw his plea of not guilty and to file written objections to the jurisdiction of the court, together with a motion to quash. These objections and the motion were overruled. In denying the motion, the court expressed the reservation that the defendant should have time and opportunity to make application for a change of venue in the second action if he should desire. The court also overruled a demurrer to the indictment, whereupon the defendant interposed a plea of not guilty and the trial proceeded.
The appellant argues that that portion of the ruling of the trial judge, wherein the court offered to give the defendant time to make an application to change the venue of the trial under the second indictment, could not operate to secure to him the enjoyment of such a right for the reason that there was no opportunity to file the affidavit "not less than five days before the opening day of the term," as the statute requires. Sess. Laws 1927, chap. 215. Whatever substance there is in this argument is contained in the suggestion that through the action of the court the defendant lost the right to apply for a change of place of trial under the second indictment. The record shows that during a special term of the district court of LaMoure county, on October 3, 1927, the defendant appeared and filed a demurrer to the second indictment, in which, among other grounds, it was recited that the court had no jurisdiction of the offense on account of the change of place of trial previously secured under the first indictment. It shows that the demurrer was overruled and that the defendant was arraigned. On advice of counsel he declined to plead and a plea of not guilty was entered for him, whereupon the special term of the court was that day adjourned sine die. It further appears that the regular term of the district court at which the defendant was tried was convened on the 1st day of November, 1927. It appears, then, that there was ample time after the defendant had been held to answer to the district court under the second indictment for him to have availed himself of the statutory procedure for obtaining a change of place of trial, even construing the statute as appellant construes it. Hence, there is no merit in this suggestion. We pass, then, to the main question on this branch of the case, namely: After a defendant has been indicted for a specific offense and has secured a change of the place of trial under the statute, may he be re-indicted for the same offense and tried in the county from which the change had previously been secured?
When a defendant has not been placed in jeopardy no reason is apparent why the state may not take whatever proceedings are deemed advisable looking toward a trial for the offense. It should not be necessary for the state to proceed to trial upon an indictment which it conceives to be faulty when the fault, if any, can readily be corrected by a second indictment. We can see no substantial reason for any distinction between a criminal and a civil action in this regard and the common law recognizes no such distinction. State v. Faulks, 97 N.J.L. 408, 117 A. 476; O'Meara v. State, 17 Ohio St. 515; Reed v Territory, 1 Okla. Crim. Rep. 481, 129 Am. St. Rep. 861, 98 P. 583; Com. v. Cody, 165 Mass. 133, 42 N.E. 575; 1 Bishop, New Crim. Proc. § 770; 31 C.J. 598. The rule is thus expressed in C.J. supra: "It is generally held that a grand jury may find a valid indictment notwithstanding another indictment is pending against accused for the same offense, and the pendency of the other indictment, where there has been no conviction or jeopardy thereon, is not ground for a plea either in abatement or in bar of the second indictment, or for motion in arrest of judgment thereon, although as a rule accused can be tried or put in jeopardy on only one." In the absence of some statutory provision...
To continue reading
Request your trial