The State v. Panchuk

• Court: North Dakota Supreme Court
• Writing for the Court: JOHNSON, J.
• Citation: The State v. Panchuk, 207 N.W. 991, 53 N.D. 669 (N.D. 1926)
• Decision Date: 17 February 1926

207 N.W. 991

53 N.D. 669

THE STATE OF NORTH DAKOTA, Respondent, v. JACK PANCHUK, Appellant

Supreme Court of North Dakota

February 17, 1926

Appeal from the District Court of Mountrail County, Lowe, J.

Affirmed.

F. F Wyckoff, for appellant.

"No person shall be twice put in jeopardy for the same offense ." N.D. Const. § 13, art. 1.

" . . Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . . ." Amendments to U.S. Const. art. 5.

"Jeopardy is the peril and danger to life or liberty in which a person is put when he has been regularly and sufficiently charged with the commission of a crime; has been arraigned and pleaded to such charge; has been put upon his trial before a tribunal properly organized and competent to try him for the offense charged and a jury has been duly empaneled from persons competent to sit on the trial and duly sworn to try the cause and charged with due deliverance." 1 Whart. Crim. Law, p. 513.

"Prosecution for, and a conviction or acquittal of, is a bar to any subsequent prosecution based upon the whole or any part of the same crime." 1 Whart. Crim. Law, p. 507; 16 C. J. p 268, § 477; Com. v. Robinson (Mass.) 30 Am. Rep. 673; Com. v. Peretz (Mass.) Ann. Cas. 1913D, 484; State v. Lesh, 72 N.D. 165; State v. Nash (N. C.) 41 Am. Rep. 472; State v. Waterman (Iowa) 54 N.W. 359.

The extent and range of the cross-examination of a witness is, as a general rule, left to the sound discretion of the trial court. Jones, Ev. p. 1052; State v. Mulch (S.D.) 96 N.W. 101.

George F. Shafer, Attorney General, and C. N. Cottingham, for respondent.

The prohibition of the common law and the Constitution is against a second jeopardy for the same offense, that is for the identical act and crime. Burton v. United States, 202 U.S. 344.

To entitle a defendant to plead successfully former jeopardy the offense charged in the two prosecutions must be the same in law and in fact. See 17 L.R.A.(N.S.) 720.

"Errors alleged to have been committed by the trial court must affect the substantial rights of appellant in order to be grounds for disturbing the verdict." State v. Tulley, 23 N.D. 284, 136 N.W. 784.

JOHNSON, J. CHRISTIANSON, Ch. J., and NUESSLE, BURKE, and BIRDZELL, JJ., concur.

OPINION

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 on 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 wilfully 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. 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, 21 N.D. 133, 129 N.W. 234. 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, 95 Vt. 485, 115 A. 734. 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. When the defendant pleads former jeopardy he is required by subdivision 4 of § 10,747, to specify the time, place and the court when and where such jeopardy occurred. The defendant in the case at bar complied in all things with this statute. See also State v. Barnes, 29 N.D. 164, 150 N.W. 557, Ann. Cas. 1917C, 762. Section 10,754 provides that "when the defendant is convicted or acquitted, or has been placed in jeopardy upon an information or indictment the conviction, acquittal or jeopardy is a bar to another information or indictment for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted, under the information or indictment." The defendant contends that under this statute he was in jeopardy because the charge in the former information," to wit: May 28, 1924, was "necessarily included" in the period covered by the second information, that is, January 1, 1924 to May 11, 1925, and that within the statute "he might have been convicted under the information." The rule invoked by the defendant is thus stated in 16 C. J. 268: "An acquittal or a conviction upon a charge that a continuing offense has been committed during a specified time will be a bar to another prosecution for a like offense during...