State v. Johnson , 11 Nev. 273 ( 1876 )

By the Court,

Beatty, J.:

In this case the defendant appeals from a conviction of grand larceny. At the time of his arraignment he offered, together with a plea of not guilty, two special pleas. The first of these was what may be called a plea of former jeopardy. It sets out with great fullness and particularity, that the defendant had been formerly indicted for the same offense; that to that indictment he had pleaded not guilty; that a jury had been duly impaneled, sworn and charged with the case, and thereafter discharged before finding a verdict without his consent and without any legal necessity. This plea comes fully up to any precedent of such a plea that we hare found, except that it merely refers to the former indictment as of record in that court instead of reciting its terms.

The other special plea was a plea of former acquittal in the exact form prescribed by the statute. (C. L., sec. 1921.)

The court refused to allow these pleas to be entered of record, and, when the defendant declined to -plead further, ordered a plea of not guilty to be entered, upon which he was tried and convicted.

The error assigned by the defendant is the rejection of his special pleas. We think it was error. The plea of former acquittal was certainly well pleaded, and should have been-entered. (C. L., sec. 1920.) It was not for the court to decide'in advance that it could not be established. That issue was for the jury (C. L., secs. 1936-37), subject of course to the .right of the court to decide upon the competency and relevancy of the evidence offered in support of the plea. It may be true that the defendant never had been acquitted of the offense for which he was indicted, but neither the district court nor this court can say so. He had a right to offer the plea along with his plea of not guilty (C. L., sec. 1919), and to have the issue submitted to a jury, if he could adduce any evidence tending to support it. Whether he could have adduced such evidence, wo repeat, could not be decided in advance of the offer to do so, and he could .not offer the evidence without having entered the plea. For this error the judgment must be reversed. .

As to the other special plea of former jeopardy, it was perhaps unnecessary to offer it as the facts set out in it might possibly have been given in evidence under the general issue (C. L., sec. 1925); or if not, then under the plea of former acquittal. We think, however, that although this plea may have been superfluous, if the facts disclosed by it amounted to a defense, it would have been better to allow it to be entered. It was the safer practice to offer it. Its reception could have done no possible harm, and would have given the state the advantage of knowing what Avas the defense rélied on.

We do not decide whether or not the facts alleged in the plea of former jeopardy would constitute a good defense to the present indictment. The question will be involved in tlie future proceedings in tbe case, but it is of too inucli consequence to be decided without argument, and it bas not been argued here.

Judgment reversed and cause remanded for further proceedings.