Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1915-01-03
WRIT IS
REFUSED !. ]
BY COURT |
G. E. BARNES LOSES HABEAS
CORPUS ACTION BROUGHT
BEFORE THE SUPREME
COURT; MUST SERVE TIME

COURT; MUST SERVE TIME
DEFENDANT WAIVED Rights
Should Have Interposed Plea OF
Former Jeopardy When An.
swering to Information.
G. E. Barnes, former deputy sheriff,
must serve ten days in the Burleigh
county Jail and pay the fine imposed
in district court according to a de-
cision handed down yesterday by the
supreme court upon a writ of habeas
corpus. 1t is held that the defendant
in pleading to the information for
felony should have interposed plea
of former jeopardy.
Opinion BY Goss.
The opinion of the court is written
by Justice Goss. Mr.. Barnes assault
ed Chris. Martineson, pleaded guilty
in police court and was fined SIS. ~
Later, information was lodged
against him charging assault with in
tent to kill. He was found guilty In
district court of assault and battery
which was the offense he had pleaded
guilty to in the lower court. His at
torneys holding that he had been
placed in jeopardy twice carried the
point to the supreme court. The opin-
ion follows:
A criminal complaint was laid in
Justice Court against defendant
Barnes, charging him with assault and
battery, misdemeanor He plead
ed guilty and paid a fine and costs i'm
posed ON judgment. Subsequently he
was prosecuted for felony, assault ana
battery with intent to kill. On trial
thereon the jury found him guilty OF
the included offense charged of as
sault and battery, misdemeanor. The
prosecution for felony was based upon
the same acts committed upon the
same person as was the first prosecu-
tion for misdemeanor in justice court,
to which the plea Of guilty was entel-
ed. y. r 4
Arrest Of Judgment.
When defendant was called for
Judgment on the verdict Of guilty Of
assault and battery he moved an ar
rest of Judgment, asserting for the
first time that he had been once be-
fore convicted and punished for that
same Offense and that under the sta
tutes and the state and federal con-
stitutions the court was without juris.
diction to render judgment of c0nvic-
ton. The motion was denied and a
sentence of fine and Imprisonment was
imposed. He applies to the supreme
court asking for writ of habeas cor
pus directing his discharge from Gus
tody claiming he is being illegally res
trained of his liberty under void SEN
tence. 1t is held:
Failed to Enter Plea.
That under the statutes, defendant
in pleading to the information for
felony should also have interposed a
plea of former jeopardy arising from
prior conviction for the same offense
to the included misdemeanor charged
in the information, the statutes con-
template that the jury shall determine
as fact whether prior conviction has
been had and find either for the de-
fendant or for the state on that ques-
ton in addition to their general ver-
dict of guilty or not guilty.
Was a Waiver.
2. That the failure to interpOse the
plea of prior jeopardy prior to verdict
was waiver of the defense of for
mer jeopardy arising from such form
er conviction.
3. That the statutes defining and
providing for motion in arrest OF the
judA nent prevent former jeopardy be-
ing interposed in arrest of judgment.
4. That Sec 13 of the state consti-
tuition that "no person shall be twice
put in jeopardy for the same Offens+'
merely prescribes immunity from a
second prosecution and is not bar
thereto unless the immunity given is
claimed by a plea of former jeopardy
and prior to verdict.
:. Twice in Jeopardy.
5. That the fifth amendment to the
federal constitution that "nOr shall
any person be subject for the same
offense to be twice put in jeopardy OF
life or limb" applies only to proceed
ings in federal tribunals and in no
way restricts or prescribes the limits
of the constitutional provisions and
statutory enactments of the several
states,
6. HabeasE corpus is assumed to be
the proper remedy without that ques-
ton being decided, the court prefering
to place it's decision upon the merits.
(Syllabus by the court.)
Original application for habeas cor
pus denied.
Opinion by Goss, ]. ....
F. H. Register Of Bismarck and ]. T.
Ianley of lMandan, attorneys for pc
titioner
H. r. Berndt, states attorney and
Theodore Koffel, asst. states attorney
If Bismarck opposed granting of writ.
Serve Another Day.
Under his sentence Barnes will serve
time in Jail until Monday, Jan. A.
ANOTHER ARREST MADE.
Philadelphia, Pa, Jan. 2.-The de-
partment of justice agents tonight
took intOcustOdy Morris DeitCh. said