People v. Pline

Sherwood, J.

The respondent was prosecuted before a justice of the peace, in the county of Ionia, for stealing a horse-blanket of the value of three 'dollars.

Upon the trial the jury disagreed, and were discharged, and the canse was continued until the fifteenth of December, 18S5, at which time the prosecuting attorney nolle prosequied the case.

On the same day, and after the discharge of the defendant, *250 a new complaint was made, and warrant issued by the same justice, charging the respondent with the same offense; and, on being arrested and taken before the justice, he pleaded the first proceedings against him, and his discharge by the court, in bar. To this plea demurrer was interposed by the prosecuting attorney. The demurrer was sustained by the justice, and respondent excepted. A trial was then had, and the respondent was convicted of the larceny. He then took his appeal to the circuit court, where the same ruling was had upon the demurrer; and, on trial being had in the circuit, he was again convicted, and he now brings the case here on exceptions before sentence for review.

The only exceptions of importance go to the sufficiency of the plea in bar, and the refusal of the court to quash the proceedings on motion of respondent.

The complaint and warrant in the first case did not state the first name of the party who owned the stolen property, but notice was thereafter given to respondent what the name was. It was a matter which might have been waived by the respondent, and the irregularity was one which might have been cured by amendment under our statute: How. Stat. § 9537; People v. Henssler, 48 Mich. 49 . The complaint in the first case, with such amendments as might have been properly made thereto, or-if the irregularities to which our attention has been called had been waived by the respondent, would have been sufficient to support a judgment against the respondent had the first jury convicted him.

The question still remains, regarding the complaint and warrant in that case sufficient to have supported a conviction if one had been had, does the disagreement of the jury and the nolle prosequi of the case, and discharge of the respondent, furnish him a perfect defense on the trial for the same offense upon the merits? If the case had not been nolle prosequied it certainly would not: People v. Green, 13 Wend. 55 ; U. S. v. Perez, 9 Wheat. 579 ; People v. Webb, 38 Cal. 467 ; People v. Dowd, 44 Mich. 489 .

It is not claimed by the defense, as I understand the case, that had the public prosecutor, at any time before the jury *251 was impaneled, discontinued proceedings against the respondent, he would have imperiled the people’s right to further prosecute him. If this be so, and the jury’s failure to agree-did not place the respondent in jeopardy, it is a little difficult to see how both these things occurring could place him in jeopardy. I confess my judgment fails to approve the reasoning by which such a result can be worked out.

In all such cases there may be special and good reasons why the prosecutor may desire to commence the proceedings against the respondent de novo, and avoid technicalities which always beset every step taken in the progress of a criminal trial when the respondent makes a contest, and which so frequently deprive the people of a successful result when the proceedings are reviewed in courts of last resort; and such a course, when taken in good faith, is not subject to criticism, but rather to be encouraged on the part of public prosecutors.

I find no error in. the proceedings had in this case requiring us to discharge this -respondent, and the circuit judge is advised to proceed to judgment in the case.

Champlin," J., concurred.