State v. Ulrich

• Decision Date: 31 May 1892
• Citation: 19 S.W. 656,110 Mo. 350
• Parties: STATE v. ULRICH.
• Court: Missouri Supreme Court

19 S.W. 656

110 Mo. 350

STATE v. ULRICH.

Supreme Court of Missouri, Division No. 2.

May 31, 1892.

JUDICIAL COGNIZANCE OF COURT'S OWN ORDERS — FORMER JEOPARDY — WITNESS — COMPETENCY — CONFIDENTIAL RELATIONS — REMARKS OF COUNSEL — EVIDENCE OF MARRIAGE.

1. Where a plea in abatement or a motion for a new trial is based on the records of the case, extrinsic proofs are not necessary, since courts take judicial knowledge of their own actions in the same cause.

2. After proceeding with a trial for bigamy for a day, with defendant's consent, the jury was dismissed during the trial of another cause in that court by a judge of another court which had previously been announced for that day. At the close of the latter case, the judge being ill, the jury was discharged, a day certain set for the trial, and court adjourned. Held, that the proceedings had were not a trial, within the meaning of Const. art. 2, (Bill of Rights,) § 23, which declares that no person shall be tried twice for the same offense.

3. On a trial for bigamy, the person whom the indictment charges to be defendant's lawful wife is incompetent, without defendant's consent, to testify against him.

4. In such case letters written by defendant to such wife are inadmissible.

5. It is reversible error for the prosecuting attorney, in his argument to the jury, to call defendant "a sugar-loaved, squirrel-headed Dutchman;" or to repeat a statement made by a judge of another court as to his being convinced of defendant's guilt.

6. In a prosecution for bigamy, marriage may be established by witnesses who were present, the admissions of defendant, cohabitation, and treating the woman as his wife.

Appeal from criminal court, Jackson county; HENRY P. WHITE, Judge.

Oscar Ulrich was convicted of bigamy, and appeals. Reversed.

Edward H. Stiles and R. F. Gilkerson, for appellant. The Attorney General, for the State.

GANTT, P. J.

The defendant was indicted in the criminal court of Jackson county, at the January term, 1890, for bigamy. He was brought to trial on April 21, 1890. After the jury was impaneled, the cause progressed until noon on the 22d day of April. The record herein then recites the following proceedings: "The judge announced that Judge JAMES M. SANDUSKY would be present in the afternoon of that day, in obedience to a request that he, Judge SANDUSKY, should preside in the trial of the cause of the State vs. Wheeler, and that no further proceedings would be had in this cause until the case of State against Wheeler was disposed of upon its then setting. The jury was cautioned and dismissed until the Wheeler case should be finished; an explanation being added at the time that possibly the Wheeler case would occupy more time than was then contemplated. If so, the jury were warned that they were to be governed by the caution then given, although it should not be repeated to them. The trial of the Wheeler case was not concluded until April 25, 1890, late in the afternoon. During the continuation of the Wheeler trial the jury were from time to time notified by the judge that they were excused until some specific time in the future. Finally, at the conclusion of the Wheeler trial, and on April 26, 1890, the judge of this court, being ill, announced that he was not able to preside in court, and the jury were discharged, and the cause set for trial on the 26th of May, 1890. Upon this last order being made the court was, on account of the illness of the judge, adjourned until May 5, 1890. From the impaneling of the jury in this cause until after its discharge, on April 26th, above mentioned, the defendant was in custody, it being held by the judge that, during the trial of a cause, from the impaneling of the jury to the conclusion of the trial, a defendant is not entitled to go at large upon his recognizance, although a continuing one, and in usual statutory form, with approved sureties. During all the time occupied with the trial of the Wheeler case, and when the same was called for trial, the defendant, Ulrich, was not in court, and was in confinement, and the jury in his cause was not polled or called, nor did the jury at any time receive any caution further than is herein heretofore stated. At the time of the discharge of the jury, on April 26, 1890, the defendant, Ulrich, and the jury in his cause were present in court, and objection was at the time made by the defendant to the action of the court in discharging the jury, and putting the cause down for trial on the 26th of May, 1890, and exception to the action of the court duly saved. On the morning of the said 26th day of May, 1890, to which defendant's case had been adjourned, and when his said case was called for trial, he then and there filed his motion for discharge, and plea in abatement, on the ground that, having once been placed in jeopardy by the former proceeding, he could not then again be lawfully placed on trial, which said motion and plea set forth the foregoing facts, and was verified by defendant's affidavit, and that of his counsel. No other evidence was offered by defendant." This plea in abatement was overruled by the court, and this is assigned as error, both in the motion for new trial, and in arrest of judgment. The attorney general makes the preliminary objection that the defendant offered no evidence of the facts alleged in his plea, or motion for discharge. It was not necessary to do so in this case. Every fact alleged in the motion was entered of record, or was within the knowledge of the judge of the court, and the motion was directed at his conduct. Courts take judicial cognizance of their own orders in the same cause. State v. Jackson, (Mo. Sup.) 17 S. W. Rep. 301, and cases cited.

2. Assuming, then, the truth, of every fact stated in the plea in abatement, was the defendant entitled to his discharge by the constitution of this state. Section 23 of the bill of rights provides: "Nor shall any person, after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life or liberty; but if the jury to which the question of his guilt or innocence is submitted fail to render a verdict, the court before which the trial is had may, in its discretion, discharge the jury, and commit or bail the prisoner for trial at the next term of court, or, if the state of business will permit, at the same term; and if judgment be arrested after a verdict of guilty on a defective indictment, or if judgment on a verdict of guilty be reversed for error in law, nothing herein contained shall prevent a new trial of the prisoner on a proper indictment, or according to correct principles of law." It is deemed wholly unnecessary to inquire again into the history of this provision or determine whether this guaranty against a second trial for the same offense has its origin in the constitution, or in natural law, independent of the bill of rights. It is sufficient to say that it is not denied nor controverted by any intelligent person in this age of the world. The fifth amendment to the constitution of the United States secured this right in the shorter statement of the principle, "Nor shall any person be subject, for the same offense, to be twice put in jeopardy of life or limb." "A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance; * * * and a jury is said to be thus charged when they have been impaneled and sworn." Cooley, Const. Lim. (6th Ed.) p. 399. As to this statement of this constitutional right, by Judge Cooley, we think there is absolutely no difference of opinion in the courts of this country or at the bar. But he continues: "If, however, the court had no jurisdiction of the cause, or if the indictment was so far defective that no valid judgment could be rendered upon it, or if, by any overruling necessity, the jury are discharged without a verdict, which might happen from the sickness or death of the judge holding the court, or of a juror, or the inability of the jury to agree upon a verdict after reasonable time for deliberation and effort, or if the term of court as fixed by law comes to an end before the trial is finished, or the jury are discharged with the consent of the defendant, express or implied, or if, after verdict against the accused, it has been set aside on his motion for a new trial, or on a writ of error, or the judgment thereon has been arrested, in any of these cases the accused may again be put upon trial upon the same facts before charged against him, and the proceedings had will constitute no protection." Id. pp. 399, 400. So that, while the rule is clear, these exceptions so palpably just and reasonable in themselves are equally well established. They accord with common sense and right, and are firmly established in the most enlightened judicial precedents of this country. When the constitution of 1875 was framed, the intention of its makers was clear to avoid all further cavil as to those cases in which this provision was ordinarily invoked, by inserting in the constitution itself that a failure of the jury to agree, the arrest of the judgment on a defective indictment, or the reversal of the cause on a writ of error should not prevent a new trial. Mr. Bishop, in his work on Criminal Law, (volume 1, § 1032,) states the doctrine as follows: "Sickness may come unknown till it arrives. And if, while the cause is on trial, it falls on the judge or a juror or the prisoner, to interrupt the proceeding before verdict, this result shows that no jeopardy existed in fact, though believed to exist, and the prisoner may be required to answer anew."

The record entry in this cause is as follows: "Now comes the prosecuting attorney, comes also the defendant, Oscar Ulrich, in person and by attorney, come also the jury herein, and the judge of this court, being...