The defendant was prosecuted under the following indictment:
"The Grand Jurors of the County of Harrison in the name and by the authority of the State of Iowa accuse C.W. Huff of the crime of embezzlement and charge that the said C.W. Huff while county treasurer of Harrison County, Iowa, did then and there embezzle and convert to his own use $4,251.80, then and there money that came into his hands during the year 1929 and 1930 by virtue of his office as county treasurer of Harrison County, Iowa, which said sum the said C.W. Huff as county treasurer failed to account for, in the county and state aforesaid."
It will be noted that the indictment does not plead separate items as constituting the sum total of the embezzlement. The evidence on the first trial, however, disclosed that this sum total was made up of a series comprising eleven transactions. The first transaction *Page 43 involved an item of $800 as of January 8, 1930, and a second item of $620.62 as of July 7, 1930. Nine other transactions were shown, any one of which, if deemed proven, would support the indictment. At the close of the evidence on the first trial the defendant moved that the state be required to elect upon which transaction the state would ask a conviction. This motion was sustained. The state conformed to the ruling and elected to claim a conviction upon the item of $620.62 of July 7, 1930. The reason for the foregoing ruling is not made apparent in the record and is not material here. The verdict of the jury found the defendant guilty of embezzlement in the transaction thus specified by the state. Later, upon defendant's motion in arrest of judgment, the court awarded him a new trial. Pursuant to such ruling a new trial was had wherein the defendant was again found guilty by the verdict of the jury and judgment was entered accordingly. It is from this judgment that the appeal is prosecuted. On this latter trial the defendant pressed the point that the first trial had operated as a jeopardy, and that the state had no further right of prosecution. This point was predicated upon a particular feature of the record on the second trial. On such trial the defendant asked the court to withdraw from the jury the consideration of all other transactions than that of July 7, 1930, involving $620.62. The court refused this request. It permitted evidence to be introduced in support of eleven transactions. The jury rendered a verdict of guilty of embezzlement in the amount of $800. For the purpose of supplementing this verdict the defendant filed the affidavits of certain jurors to the effect that the verdict of guilty was predicated upon the first item of $800 under date of January 8, 1930. The defendant thereupon moved in arrest of judgment on the ground that he could not have been found guilty upon any item save that of July 7, 1930, for $620.62, and that as to all the other items he had been in jeopardy on the first trial, and that the same had been dismissed. Whether the affidavits of these jurors could be considered at all for the purpose indicated is a question which we need not now consider. The contention for the defendant is that he had been acquitted of the charge so far as this transaction was concerned upon the first trial, in that such was the necessary legal effect of the election by the state upon the first trial and of the withdrawal of such transaction from the jury on such first trial. Such is the principal contention now presented for our consideration. *Page 44
Section 12 of article I of our Constitution provides:
"No person shall after acquittal, be tried for the same offence."
Our Code sections 13807, 13808, and 13809, are as follows:
"13807. A conviction or acquittal by a judgment upon a verdict shall bar another prosecution for the same offense, notwithstanding a defect in form or substance in the indictment on which the conviction or acquittal took place.
"13808. When a defendant has been convicted or acquitted upon an indictment for an offense consisting of different degrees, the conviction or acquittal shall be a bar to another indictment for the offense charged in the former or for any lower degree of that offense, or for an offense necessarily included therein.
"13809. Except where otherwise provided, the judgment for a defendant on a demurrer, or on an objection to its form or substance taken on the trial, or for variance between the indictment and the proof, shall not bar another prosecution for the same offense, if a resubmission has been ordered."
The first trial of the defendant involved no entry of judgment. That was rendered impossible by the very granting of defendant's motion for a new trial. There was but one count to the indictment. The indictment did not purport to state the same offense in different forms; nor did it present any alternative methods in the perpetration of the offense whereby one alternative would negative the other. The eleven transactions disclosed in the evidence present no inconsistency with each other. Each of them, if proven, supported the charge. As authority for his contention, the defendant relies upon one precedent: Schultz v. State, 135 Wis. 644, 114 N.W. 505, 116 N.W. 259. In the cited case the defendant was charged with two separate offenses, both being contained in the same information. The first charged him with threatening a criminal accusation against another and the second charged him with threatening to do personal injury to the same person. The trial court held at the close of the evidence that there was no support therein for the second charge, and on that ground withdrew the same from the jury, and submitted the first charge to the jury. The jury rendered a verdict of guilty. On appeal, the Supreme Court found that the first charge thus submitted by the trial court to the jury had no support in the evidence. It further held that *Page 45 the second charge did have such support. It thereupon remanded the case for trial upon the second charge. On rehearing it receded from this order of remand and held in effect that the second charge was not before it, in that the trial court, even though erroneously, had disposed of it by refusing to submit it to the jury. The court therefore ordered the discharge of the prisoner. It will be seen that the case is rather an extraordinary one in its facts. The information might well have been defeated on the ground that it charged two independent crimes. The only ground considered, however, was as here indicated. The decision was by a divided court, and a very cogent dissenting opinion was presented. The case is by no means parallel with the case at bar. We have no occasion, therefore, either to follow it or to take issue with it. The opinion in the case is not easily analyzed. In Montgomery v. State,136 Wis. 119, 116 N.W. 876, 18 L.R.A. (N.S.) 339, the same court took occasion to distinguish its then opinion from its opinion in the Schultz case. In the Montgomery case the defendant was charged with murder in the first degree. On the first trial the trial court withdrew from the consideration of the jury all the included offenses, and charged the jury that the defendant could be found guilty, if at all, only of first-degree murder. The jury rendered a verdict of guilty upon which judgment was entered. On appeal to the Supreme Court (128 Wis. 183, 107 N.W. 14) it was held that the verdict of guilty of murder in the first degree was not sustained by the evidence and the case was remanded for a new trial. Upon a second trial, in the trial court, the jury rendered a verdict of guilty of manslaughter. The defendant contended that he had been acquitted as to the included offense upon the first trial, and that he could not be put in jeopardy again. From an adverse ruling of the trial court he appealed again to the Supreme Court. Our citation refers to this second appeal. On this appeal the Wisconsin court quotes from its former decisions as follows:
"When a verdict of guilty in a criminal case is set aside, all the proceedings on the trial are necessarily set aside and vacated with the verdict. So when the verdict is set aside on motion of the accused, and he afterwards alleges that the trial and verdict put him in jeopardy of punishment, it may well be replied that the portions of the record by which alone the jeopardy can be proved have been set aside and vacated at his request, and that he has thereby deprived *Page 46 himself of the means of proving his allegation of jeopardy." State v. Parish, 43 Wis. 395.
Quoting further from the same court:
"The defendant was convicted on the first trial of murder in the first degree. When he prosecuted his writ of error from the judgment upon that conviction and obtained a reversal and a new trial, the case went back for a retrial on the charge of murder in the first degree, which included all homicides of a lesser degree just as it did upon his first trial. He had by his own act in applying for a new trial waived his constitutional protection against a second trial for murder in the first degree, and necessarily waived his right to object to a new trial for any of the lesser degrees included within the charge of murder in the first degree as to which charge he had thus consented that he might be again put in jeopardy. This is not a case where two separate crimes, neither of which is included within the other, are charged in the same information, as was the case of Schultz v. State, 135 Wis. 644, 114 N.W. 506, 116 N.W. 259, 571. In that case the court by instructions took from the jury the consideration of one of the separate offenses charged and a verdict of guilty was rendered, which, under the instructions, this court held must be construed as meaning guilty of the other offense only. A writ of error was prosecuted by the defendant, and it was held to be addressed only to the offense of which he was convicted, and not to the one of which he was not convicted, and hence that he had not waived his defense of former jeopardy as to the last-named defense. The distinction between that situation and the present seems to me so manifest as not to call for further elucidation. So it seems to me clear that upon the second trial the defendant might rightly be convicted of any degree of homicide which the evidence sufficiently proved." Montgomery v. State, 136 Wis. 119, 116 N.W. 876, 18 L.R.A. (N.S.) 339.
It will be noted that the very distinction, which that court makes between the Montgomery case and the Schultz case, is quite applicable as a distinction between the case at bar and the Schultz case.
Some reliance is placed upon the case of State v. Severson,79 Iowa 750, 45 N.W. 305. In that case defendant was tried on information in a justice court. Four charges in four counts were alleged in the information. The defendant was found guilty on one *Page 47 count only in the justice court. An appeal was taken to the district court where trial was had. This trial resulted in his acquittal on the charge sustained by the justice court. The district court held in effect that the counts upon which defendant had been acquitted in the justice court were not involved in the appeal, and we sustained the contention here. In that case there was a judgment entered in the justice court, and this conformed to the requirements of our statute, section 13807.
In State v. Bowman, 94 Iowa 228, 62 N.W. 759, the defendant was convicted of uttering a forged instrument. He obtained a new trial by motion. Upon the second trial he pleaded that he had been put in jeopardy by his first trial. We said:
"But the defendant was not acquitted at the first trial. The motion which the court sustained, although nominally in arrest of judgment, was in fact based upon a statutory ground for a new trial — that is, that the verdict was contrary to the evidence; and the court gave to the motion the effect of a motion for a new trial, and in sustaining it the verdict was set aside."
In State v. Clark, 69 Iowa 196, 28 N.W. 537, a similar state of facts was involved. In State v. Knouse, 33 Iowa 365, the defendant obtained a new trial after conviction of murder in the second degree. Upon his second trial he was convicted of manslaughter. On the second trial he pleaded a former jeopardy. The plea was not sustained here. The general rule in such a case is stated in 16 C.J. 263 as follows:
"A defendant waives his right to plead former jeopardy by applying for a new trial. When therefore a new trial is granted in the appellate court, and he is reindicted, or is tried on the original indictment, he cannot plead, as a bar to the prosecution, the conviction which was reversed on the appeal. This is true, although on the new trial he is convicted of a different offense carrying an increased sentence."
In Trono v. U.S., 199 U.S. 521, 26 S. Ct. 121, 50 L. Ed. 292, 4 Ann. Cas. 773, the rule is stated as follows:
"When, at his own request, he has obtained a new trial, he must take the burden with the benefit, and go back for a new trial of the whole case." *Page 48
It will be noted that the indictment is couched in the general terms of the statute and specifies no particular date for any particular amount. The defendant was entitled to a bill of particulars, but he did not move for it. As already indicated, the evidence disclosed eleven different transactions on nine different dates, which tended to show a sum total of default of approximately $3,300. At the first trial the trial court took the view that each one of these transactions appearing in the evidence constituted separate and distinct offenses, and that conviction could be had for only one of them. Evidence of the other transactions was received only as bearing on the question of intent of the defendant. It was on this theory that the court required the state to elect. Pursuant to such theory it also charged the jury that they could not consider the evidence of the other transactions except as bearing upon the fraudulent intent of the defendant. The state having elected to rely upon the item of $620.62, the verdict of the jury found the defendant guilty of embezzlement to the amount of $620.62.
The defendant now argues that by these instructions the trial court on the first trial dismissed the other charges of the indictment. This is an erroneous view. There were no othercharges in the indictment. The other "transactions" were made to appear as items of evidence only. As such they were strictly confined by the court to the purpose of proving fraudulent intent. It cannot be said, therefore, that there was any dismissal by the court of any count or charge in the indictment. And this is so even though it might be said that, if the defendant had suffered judgment upon the verdict of the jury, such judgment might have operated as a bar to any further prosecution involving the period of time covered by the indictment. As to this hypothesis we need express no view. The second trial was conducted by another judge. This judge appears to have held the view that section 13032 of the present Code was applicable to the case, and that the series of transactions disclosed by the evidence should be construed under section 13032 as one act and therefore one embezzlement. The case was submitted at the second trial on that theory. In this respect one or the other of the two judges entertained the wrong view. But this is not the point argued by the appellant. His point is that he was put in jeopardy at the first trial for the reasons already stated. We are holding that he was not. This holding is not affected by the question whether the second judge was wrong in interpreting section 13032. The complaint is not that *Page 49 the second judge erroneously submitted a multiplicity of charges under a single count, but that he erroneously disregarded the defendant's plea of former jeopardy. Whether section 13032 should be deemed as applying to an indictment under section 13027 has no particular bearing upon the question whether the defendant was put in jeopardy upon the first trial as to transactions, which were not charged in the indictment and which were not submitted to the jury.
We hold only that the proceedings on the first trial of the defendant did not result in an adjudication, which is now available to him as a plea of former jeopardy. This meets the one contention upon which the appellant rests his appeal. — Affirmed.
KINDIG, MITCHELL, ANDERSON, DONEGAN, and KINTZINGER, JJ., concur.