People v. Laverty

COOPER, P. J.

The indictment charges the defendant with the crime of arson for having willfully and feloniously, in t'he night-time, set fire to and burned a certain building, described in the indictment, in which there were human beings, said building being alleged to have been then and there the property of one Frederick Brown.

The defendant interposed the plea of not guilty, and a further plea of once in jeopardy. After a full and fair trial the jury found against him on each of said pleas, and returned a verdict finding him guilty of arson in the first degree. Defendant made a motion for a new trial, which was denied. This appeal is from the judgment, and from the order .denying his motion for a new trial.

It' is not claimed that the evidence is insufficient to sustain the verdict; but certain alleged errors are assigned, the most plausible of which we will notice.

The first point urged is that the verdict in favor of the people upon the plea of once in jeopardy was rendered by means other than of a fair expression on the part of the jurors. The record shows that when the jury returned with its verdict of guilty it did not return a verdict upon the plea of once in jeopardy. Upon being informed by the judge of the court that such verdict had not been returned, the foreman replied that by reason of the verdict it had found the jury

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did not deem it necessary to pass upon the plea of “once in jeopardy.” The judge thereupon informed the jury that it was necessary so to find, and the foreman then and there in open court, by consent of the jurors, signed a verdict finding in favor of the people on the issue of “once in jeopardy.” The jury was thereupon polled by direction of the court. Each juror stated that the verdict as returned was his verdict. No objection was made to the jury returning the verdict in open court without retiring, and no exception was taken. No intimation was in any way given to the jury by t'he judge as to how it should find upon the issue of “once in jeopardy.” It follows that no error could be predicated upon the above facts.

We have discussed the alleged error on its merits, although the record shows that the plea of “once in jeopardy” did not state the court in which the jeopardy is claimed to have attached, and fails entirely to show that any evidence was introduced by defendant in proof of the plea.