State v. Carte

The opinion of the court was delivered by Wedell, J.: This is an appeal by the defendant from a judgment of sentence imposed in a manslaughter case. The single error urged is the sentence was excessive and we are asked to set it aside. The question presented turns upon whether appellant can be heard to contend now, as a matter of law. that she was improperly sentenced on three counts instead of one. The defendant, Mrs. Cecil Carte, whose real name is Katherine Carte, was charged in an information under three separate and distinct counts of manslaughter in the fourth degree pursuant to G. S. 1935, 21-420 of our crimes act, which provides: “Every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.” Three persons were killed instantly as a result of a collision between appellant’s car and the car occupied by the deceased. The counts were framed in identical language except as to the names of the persons killed. In other words, the theory of the prosecution plainly was that three separate and distinct offenses had been committed by the act, procurement or culpable negligence of appellant. On the charges thus contained in the information appellant went to trial. She filed no motion to quash any count on the theory of duplicity or for any other reason. She did not object to the introduction of evidence on any count. A stipulation entered into by the parties and filed in this court discloses: The state introduced its evidence on all three counts and rested; thereafter appellant entered a plea of guilty on each of the three separate counts and was sentenced on each of the three counts, the judgment being that the three sentences were to run consecutively ; both before and after her plea of guilty on the three separate and distinct counts, her counsel contended: — 675 — Only one offense had been committed; the plea of guilty on the first count barred prosecution on the second and third counts, being second jeopardy for the same offense; the second and third pleas were wrongful because she had been wrongfully charged on those counts. With that contention the trial court did not agree, but after the sentence had been executed the court took a different view of the matter. The later action of the trial court is reflected in a former opinion of this court which involved an appeal by the state from the subsequent judgment of the trial court. (State v. Carte, ante, p. 139, 138 P. 2d 429.) The instant appeal, as previously stated, was taken by defendant from the judgment and sentence pronounced on her plea of guilty to the three- separate and distinct offenses charged. The record in the former appeal disclosed her contention that only one offense had been committed was made after her plea of guilty. In the instant appeal it is stipulated the contention was made both before and after her plea of guilty. There were two journal entries but neither of them discloses such contention was made at any time. The practice of parties stipulating concerning matters which do not appear in journal entries without disclosing a proper and unsuccessful attempt to have the desired facts embodied in the journals cannot be approved. It is unfair to a trial court and in other respects is not conducive to the orderly administration of justice. We have seldom encountered evidence of such a practice but if it is continued we shall be required to deal more drastically with the subject. We shall pass the matter without further comment in this case but we do so only by reason of the conclusion we are obliged to reach on the merits of the appeal irrespective of the discrepancy in the record. It is not our intention to intimate counsel for the parties in this case have untruthfully stipulated concerning the actual facts in the case. Our condemnation pertains to a practice which this court cannot countenance. Assuming the contention of former jeopardy was also advanced, as stipulated, namely, after the state had rested its case but before appellant entered her plea of guilty on each count, that fact does not aid her position. On the contrary, it clearly discloses that although she had made the contention before entering her plea on each count, such contention, for all practical purposes, was effectually abandoned when she thereafter entered her plea of guilty to the three offenses as charged. (People v. Strickler, 167 Cal. 627, 140 Pac. 270; see, also, 22 C. J. S., Criminal Law, §277.) — 676 — The question presented is, assuming appellant is correct in her contention that the second and third counts constituted charges of the same offense contained in count one, did she waive the defense of former jeopardy? That a person may be tried and convicted more than once for the commission of the same identical offense unless he exercises his constitutional right and privilege to object to being twice put in jeopardy for the same offense is, of course, well established. (State v. White, 71 Kan. 356, 80 Pac. 589; State v. Ford, 117 Kan. 735, 232 Pac. 1023; State v. Maxwell, 151 Kan. 951, 962, 102 P. 2d 109, 128 A. L. R. 1315; State v. Carte, ante, p. 139, 144, 138 P. 2d 429.) In the Maxwell case the defendant had been discharged in a former trial as to a certain count which alleged the unlawful uttering of a check. The same identical count again appeared in the amended information filed before the second trial. In the course of the second trial the state introduced its evidence on that count without defendant objecting thereto. It was there said: “The immunity from second jeopardy granted by the constitution to one accused of crime is a personal privilege which may be waived and which appellant did waive in the instant case.” (p. 962.) ' So in this case appellant could be tried and convicted repeatedly on the identical offense charged in the first count, or on any other separate count, if she did not avail herself of her constitutional right and privilege to enter a timely and appropriate plea of former jeopardy. Appellant contends the second and third counts constituted the same offense as that charged in the first count. It follows, if appellant is correct in her contention that only one offense was committed, she clearly did not avail herself of her right to assert the plea of former jeopardy when the information was filed. She did not do so when the state undertook to establish her guilt on the second and third counts. After the state had rested its case appellant pleaded guilty to each of the offenses charged in the respective counts. She claims she also raised the claim of double jeopardy after her plea of guilty on each of the three counts. It is, however, admitted she filed no motion to withdraw her plea of guilty on counts two and three. Furthermore, both the.journal entry of judgment and a later nunc fro tunc journal entry disclose that after her plea of guilty to each of the three offenses charged and before sentence was finally pronounced thereon, appellant was expressly informed by the court that she had been charged with three counts — 677 — of manslaughter in the fourth degree and that the court inquired whether she had any legal cause to show why judgment of sentence should not be pronounced against her and that she failed to assert any cause whatsoever. The stipulation is not to the contrary. In accordance with her plea of guilty to each of the three offenses charged, appellant was sentenced. The sentences were made to run consecutively. In view of these circumstances we have no hesitancy in concluding appellant waived the defense of former jeopardy, assuming she actually had such a defense. It is always well to bear in mind the clear distinction between the subjects of sentence and former jeopardy. Judgment of sentence can be pronounced only after a person has been put on trial and after he has been convicted of, or has pleaded guilty to, the offense or offenses charged. Section 10 of our bill of rights, insofar as pertinent here, provides: “No person shall be twice put in jeopardy for the same offense.” (Emphasis supplied.) It will be observed the protection afforded by this provision is not against the peril of second sentence or punishment but against being put on trial again for the same offense. (The People v. Allen, 368 Ill. 368, 383, 14 N. E. 2d 397.) Having waived the defense of former jeopardy, assuming she had such a defense, sentence was properly imposed on the plea of guilty to each offense charged and the sentence cannot be set aside now. Appellant finally contends the court did not have jurisdiction to render the judgment of sentence it rendered. The contention is not good. The court had jurisdiction of the parties and the subject matter. Its jurisdiction did not depend upon whether it rendered a right or wrong judgment. In view of what has been said it follows the judgment of sentence must be affirmed. It is so ordered.