Opinion
No. 3906.
Decided April 4, 1950.
Where the respondent was found guilty in the Municipal Court upon a complaint for operating a motor vehicle while under the influence of intoxicating liquor and after his appeal to the Superior Court was perfected a nolle prosequi was entered there by the solicitor, the substitution of an information for the complaint did not entitle the respondent to a discharge on the ground of former jeopardy. The recitation in a complaint that the respondent was previously convicted for a similar offense "in the Cheshire County Superior Court, at the September term, 1945" was not defective for failure to give a more specific date of the conviction. The effect of an appeal, to the Superior Court from a conviction in the Municipal Court, is to vacate that judgment and transfer the whole proceeding to the higher court, there to be tried de novo on the original complaint, unless amended, or on an information if substituted for the complaint. In such case, the parties stand as though there had been no trial.
INFORMATION, under R. L., c. 118, s. 16, for operating a motor vehicle in Swanzey while under the influence of intoxicating liquor. The defendant was tried on a complaint for the same offense in the Municipal Court of Keene, and upon being found guilty he seasonably appealed to the Superior Court under R. L., c. 425, s. 2. After the appeal was perfected the County Solicitor entered a nolle prosequi of the complaint and substituted the above information. The defendant filed a motion to dismiss the information on the ground of former jeopardy. The motion was denied, defendant excepted, and his exception was transferred in advance of trial by Wescott, J.
Other facts appear in the opinion.
William L. Phinney, Attorney General, and Harry C. Lichman, County Solicitor (Mr. Lichman orally), for the State.
William H. Watson (by brief and orally), for the defendant.
The defendant was put in jeopardy by his trial in the Municipal Court. The complaint in charging the defendant with a second conviction stated that he had been previously convicted "in the Cheshire County Superior Court, at the September term, 1945. . . ." The information described it more fully as having taken place "in the Cheshire County Superior Court on October 16, 1945. . . ." This failure to recite the prior conviction more precisely in the complaint did not make it so defective in form or substance that it would not support a conviction (State v. Adams, 64 N.H. 440; State v. Small, 64 N.H. 491) and prevent the defendant from being placed in jeopardy by a trial thereon. State v. Sherburne, 58 N.H. 535; State v. Liptzer, 90 N.H. 395; State v. Moore, 93 N.H. 169; State v. Belmestieri, 93 N.H. 262. The Municipal Court of Keene had jurisdiction of the offense with which he was charged. R. L., c. 377, s. 15. He was arraigned, tried, convicted and sentenced.
In the absence of an appeal, the defendant having been tried and convicted on a sufficient complaint by a court having jurisdiction thereof, he could never have been tried again for this same offense. State v. Hodgkins, 42 N.H. 474; State v. Shannon, 136 Me. 127; Clawans v. Rives, 104 F.2d 240; 22 C. J. S. 368; 15 Am. Jur. 38, 39; 1 Wharton's Criminal Law (12th ed.), s. 395.
This brings us to the consideration of the effect of defendant's appeal to the Superior Court from his conviction in the Municipal Court. "The appeal is a continuation of the original proceeding; its object is to carry the cause to a higher tribunal, to be tried there anew, and a new judgment entered. . . . The effect of the appeal is to vacate, for most purposes, the judgment below; and the judgment rendered in the court above is a distinct and original judgment." Wallace v. Brown, 25 N.H. 216, 220, 221; Bickford v. Franconia, 73 N.H. 194. "The defendant by his appeal vacated the decision and sentence" of the lower court. Commonwealth v. Downing, Mass. 197, 199. The appeal, in fact, is more than a stay of the judgment of conviction before the Municipal Court. It vacates that judgment and transfers the whole proceeding to the Superior Court, there to be tried de novo on the original complaint, unless amended (R. L., c. 427, s. 12), or on a new information. Malone v. State, 179 Ind. 184; 22 C. J. S., s. 256, p. 393. The parties stand as though there had been no trial. Jacoby v. State, 210 Ind. 49.
Standing thus as though he had never been tried for this offense, a nolle prosequi of the original Complaint by the prosecutor (State v. Dover, 46 N.H. 452) and the filing by him of an information for the same offense, does not give the defendant the right to plead former jeopardy thereto for by his appeal he has given up that right. Jacoby v. State, supra; Commonwealth v. McLaughlin, 293 Pa. 218; People v. Woodward, 394 Ill. 433; McDowell v. State, 225 Ind. 495; Pratt v. United States 102 F.2d 275; Bryan v. United States, 70 S. Ct. 317; 2 Wharton's Criminal Procedure (10th ed.), s. 1455.
Exception overruled.
All concurred.