Heier v. State

Dec 2, 1921
No. 23,883
Reporters:
, ,
Before:
Townsend
Townsend, J.

Appellant was tried in the city court of Indianapolis and convicted of violating the Prohibition Law. Acts 1917 p. j.5, §8356a et seq. Burns’ Supp. *4111918. He appealed to the Marion Criminal Court, was tried by jury and again convicted.

1. It sufficiently appears from the record that the court permitted the affidavit, which had upon it indorsements indicating the finding and judgment of the city court, to be taken by the jury on their retirement to deliberate on their verdict. This was error, for which this cause must be reversed. McNulty v. State (1919), 189 Ind. 88, 125 N. E. 41; Staub v. State (1919), 188 Ind. 688, 125 N. E. 399; Middaugh v. State (1921), ante, 373, 132 N. E. 678; Torphy v. State (1918), 187 Ind. 73, 118 N. E. 355; Lotz v. Briggs (1875), 50 Ind. 346, 348; State v. Tucker (1902), 75 Conn. 201, 203, 52 Atl. 741; Ogden v. United States (1902), 112 Fed. 523, 526, 50 C. C. A. 380.

2. Other questions are presented, but the only one which will probably arise on retrial of this cause is the contention of appellant that his conviction in the United States District Court for the District of Indiana, under the “Reed Amendment,” is a bar to his prosecution under the state Prohibition Law for keeping liquor with the unlawful intent to sell. If the same act is an offense under both the federal and the state laws it seems to be quite well settled that one may be prosecuted under both. That is to say, if he is convicted by a federal authority, he cannot successfully plead former jeopardy when prosecuted by the state authority. ’ Chess v. State (1822), 1 Blackf. 198; Dashing v. State (1881), 78 Ind. 357; Snoddy v. Howard (1875), 51 Ind. 411, 19 Am. Rep. 738; Fox v. Ohio (1847), 5 How. (46 U. S.) 410, 12 L. Ed. 213; United States v. Marigold (1850), 9 How. (50 U. S.) 560, 13 L. Ed. 257; Moore v. Illinois (1852), 14 How. (55 U. S.) 13, 14 L. Ed. 306; United States v. Wells (1872), 28 Fed. Cas. 522, Case No. 16,665.

The greater number of the above cases involve the *412question of passing counterfeit money, and it is held in them that one may be punished under both the federal and state law.

3. Appellant’s position in the present case is weaker even than that of those who were accused in the cases to which we have referred. The former conviction sought to be interposed by him is for violating the “Reed Amendment,” forbidding the transportation of liquor into a “dry” state. He stands charged in the instant case with a separate and distinct offense, that of keeping intoxicating liquor within the state with the intent to sell, in violation of the state law. His act violating the federal law is not the same act which violates the state law. We therefore hold that the court did not err in instructing the jury to disregard appellant’s conviction in the federal court.

Judgment reversed, with instructions to sustain appellant’s motion for a new trial.

Myers, J., absent.