Storm v. Territory of Arizona

• Citation: 94 P. 1099,12 Ariz. 26
• Decision Date: 27 March 1908
• Docket Number: Criminal 257
• Parties: JAMES P. STORM, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent
• Court: Supreme Court of Arizona

94 P. 1099

12 Ariz. 26

JAMES P. STORM, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 257

Supreme Court of Arizona

March 27, 1908

APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Richard E. Sloan Judge. Affirmed.

For opinion on motion for rehearing, see 12 Ariz. 109, 99 P. 275.

Affirmed on appeal, 170 F. 423, 95 C.C.A. 593.

The facts are stated in the opinion.

Ross &amp O'Sullivan, for Appellant.

The statute says that "a plea of former conviction or acquittal of the same offense" raises an issue of fact (Pen. Code, par. 894), and that "issues of fact must be tried by a jury." (Pen. Code, par. 895.) Our Penal Code is a practical rescript of the California Penal Code. The California courts have held that where the pleas of former jeopardy and of former acquittal are made in addition to a plea of not guilty, the defendant is entitled to a verdict on each plea, and that if there is a verdict of guilty alone there can be no judgment of conviction. People v Kinsey, 51 Cal. 278; People v. Helbing, 59 Cal. 567; People v. Fuqua, 61 Cal. 371; People v. Tucker, 115 Cal. 337, 47 P. 111, reviewing and approving all the California cases decided under these statutes. Montana and Utah, with like statutes, have followed California. State v. O'Brien, 19 Mont. 6, 47 P. 103; People v. Kerm, 8 Utah, 268, 30 P. 988; State v. Creechley, 27 Utah 142, 75 P. 384; Deaton v. State, 44 Tex. 446. Where evidence outside the record is introduced, the question (former jeopardy and former acquittal) must be referred to a jury for determination, and is within their exclusive province to decide. 5 Ency. of Ev. 881, and cases cited. "A defendant has a right to complain of a mistrial if a question of fact in his cause has not been answered by that tribunal which the law has made his only judge, and to whom he and his accuser have mutually agreed to refer it. When the two pleas of former conviction and not guilty are both in issue, one is just as important as the other. Both may be false or both true, or one may be false and the other true; but the necessity of response to both is palpable, since a verdict for the defendant on either would entitle him to his free discharge." Solliday v. Commonwealth, 28 Pa. 13.

Under the laws of Arizona but one offense can be charged in an indictment, but we submit that, as in the trial of the defendant under indictment No. 674 (an indictment found prior to the one here under consideration), two or more separate offenses are disclosed, and evidence of each and all is introduced as "substantive offenses," and at the end of the prosecution's case an election is ordered (granting for the argument that an election was ordered), it is equivalent to an acquittal of the abandoned offenses. See Mount Pleasant v. State, 14 Ohio 295, 45 Am. Dec. 542; People v. Hamilton (Cal.), 32 P. 526; State v. Price, 127 Iowa 301, 103 N.W. 195. "Jeopardy attaches from the time a jury is sworn." Schrieber v. Clapp, 13 Okl. 215, 74 P. 316.

E. S. Clark, Attorney General, Robert E. Morrison, District Attorney, and P. Tillinghast, for Respondent.

It is the duty of the court to declare the legal effect of the record offered by the defendant to sustain his pleas, and the court has the right to take from the jury all evidence offered, if, as a matter of law, it is not sufficient to sustain the pleas, and instruct the jury to disregard them. Simco v. State, 9 Tex. App. 338; Brown v. State, 7 Tex. App. 619; Pickens v. State, 9 Tex. App. 272; State v. Rosa, 72 N.J.L. 462, 62 A. 696; State v. Williams, 43 Wash. 505, 86 P. 848; People v. Clark, 67 Cal. 99, 7 P. 178; People v. Ammerman, 118 Cal. 23, 50 P. 16; People v. Cummings, 123 Cal. 269, 55 P. 899; Johnson v. State, 34 Tex. Cr. 115, 29 S.W. 473.

There being two separate and distinct crimes shown in the evidence in the first trial, and by the defendant's motion the court having directed the prosecution to elect as to which crime it would proceed under, and the territory having elected to proceed on one charge, an acquittal upon that charge does not sustain the plea of jeopardy or former acquittal on the other charge. Joy v. State, 14 Ind. 139; State v. Jesse, 20 N.C. 98; Teat v. State, 53 Miss. 439, 24 Am. Rep. 708; State v. Hackett, 47 Minn. 425, 28 Am. St. Rep. 380, 50 N.W. 472; State v. Manning, 168 Mo. 418, 68 S.W. 341; 1 Bishop's New Criminal Practice, sec. 816, subds. 5, 6.

OPINION

NAVE, J.

-- On November 23, 1904, James P. Storm was indicted in the district court of Yavapai county under a charge of appropriating to his own use on November 9, 1904, $15,316.53, public moneys of Yavapai county, in his official possession as county treasurer, the indictment being framed under section 398 of the Penal Code of 1901. Upon this indictment he was tried and acquitted. The evidence for the prosecution tended to show distinct appropriations by Storm of $1,000 in the year 1902, of $1,000 in the month of April, 1903, and of several thousand dollars on or about November 9, 1904. On demand of the defendant and the direction of the court the prosecution elected to stand upon the appropriation of November 9, 1904, and the appropriation then in issue. On November 8th Storm had been found bound and gagged in his office. His defense was that at that time he had been robbed by two armed and masked men, and that the money of which he was shown to be short in his accounts had been stolen by these men. The court instructed the jury in that case: "I charge you that there is evidence tending to show several distinct takings of public money by the defendant. Under the law the prosecution was required to elect, and did elect, which of these should be the basis for the verdict in this case. The district attorney has elected to stand upon the charge of the appropriation of money on or about the ninth day of November, 1904, the precise time being, as I have already charged you, immaterial. The proof, therefore, of the taking by the defendant of the sum of $1,000 during the year 1902, and the taking by the defendant some time during the year 1903 of another $1,000, is to be considered by the jury in its bearing upon the probable truth of the charge of an unlawful appropriation of public moneys by the defendant on or about November of the year 1904; that is to say, the evidence of other takings of money than that which constitutes the specific charge upon which a verdict is to be asked is to be regarded only by the jury as evidence indicating the presence or absence of a motive for the taking of public money and the appropriation of the same to the defendant's use on or about November 4, 1904, and for the purpose of indicating or showing the presence or absence of a state of mind on the part of the defendant competent to commit the offense charged against him, and upon which the verdict is asked. . . . The defendant, as a defense to the charge in the indictment, has offered evidence tending to prove that on November 8, 1904, he was robbed, and that the money he is charged with appropriating to his own use was taken from him by force and violence, and against his will and consent. . . . Even though the jury believe from the evidence that the defendant did appropriate of the public moneys of Yavapai county $1,000 in 1902, another $1,000 in 1903, still you cannot find the defendant guilty, unless you are satisfied from the evidence beyond a reasonable doubt that the defendant appropriated some of the county's money at the time or about the time and in the manner relied on by the prosecution."

On November 15, 1905, Storm was again indicted under a charge identical in form and substance with the indictment just described, except that the misappropriation was charged to have been on April 10, 1903, in the sum of $1,000. To this indictment Storm pleaded not guilty, former acquittal, and once in jeopardy, the latter two pleas being based upon his trial and acquittal upon the first indictment above described. The evidence for the prosecution in this case tended to show that the deputy county treasurer found the cash $1,000 short in April, 1903; that the defendant, Storm, produced his personal check drawn in favor of the county for the sum of $1,000 which he stated he was keeping among the county funds to represent the shortage; that upon several subsequent quarterly examinations of the treasurer's funds by the board of supervisors the $1,000 check was removed, and $1,000 borrowed for the occasion was temporarily substituted for it by Storm, the cash being again removed after such examinations and the check replaced. Upon the issues raised by the pleas of former acquittal and once in jeopardy the record of the trial on the first indictment was placed in evidence. With respect to those pleas the court charged the jury: "I charge you as a matter of law that the evidence does not sustain either of these pleas, so that the sole question for this jury to decide is whether or not the defendant is guilty as charged in the indictment." Storm was convicted, sentenced, and from the judgment has appealed. The only verdict returned by the jury was the verdict of guilty.

The errors urged are (1) that the acquittal of Storm upon the first indictment was a bar to his prosecution upon the second, and therefore that the instruction of the court to the contrary was error; (2) that pleas of former acquittal and once in jeopardy raise issues of fact for the jury, wherefore the court was in error in instructing the jury that such pleas were not sustained; (3) that pleas of former acquittal and once in jeopardy raise issues of fact which must be resolved by formal verdicts, hence that the instruction of the court that the sole question for the jury to decide is...