131 Ky. 502 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
This record presents a single question of law, and that is- whether or not the plea of former conviction interposed hy appellant as a defense to the prosecution against him should have been sustained. It grows out- of the following facts:
In 1907 an indictment was found by the grand jury
The offense of illegal registration, and the penalty therefor, is defined in section 1503 of the Kentucky Statutes for 1909 reading as follows: “Any person who shall cause himself to be registered in more than one election precinct (or give a false number of the ward of his residence), or otherwise than is provided in section one thousand four hundred* and ninety-seven of this article, or more than once in the same precinct, or who shall cause himself to be registered, knowing that he is not lawfully entitled to registration, and any person who shall aid or abet in the commission of any of said acts, shall be deemed guilty of a misdemeanor, and shall be imprisoned in the county jail not less than one nor more than twelve months.”
The offense of false swearing is defined in section 1589 of the statutes, as follows: “Any person who shall make any wilfully false statement, under an oath
The contention of counsel for appellant is that, as appellant’s right to register was challenged, it therefore became necessary that he should take the required oath.before being allowed to register, and that having taken the oath, and thereupon registered, the act of taking the oath and the act of registration were but parts of a single act, as in taking the oath he was only doing one of the things necessary to his registration,' and that, as a separate penalty was prescribed for each of the two parts of this act, the Commonwealth had the right to elect which one of them it would prosecute, and, jhaving made the election to prosecute for the offense of illegal registration, it could not afterwards prosecute him for making a false oath.
The defense presented in this case has been often made, and it has received full consideration, not only from, this court, but from text-writers on criminal law and other courts of last resort. It is a part of the Constitution of this State that “no person shall for the same offense be twice put in jeopardy of his life or limb,” and the same provision is found in the Constitution of the United States and in the Constitutions of all the States that we have examined. Under this constitutional provision* there is no difference of opinion that the accused can not, after he has been convicted or acquitted, be again put upon trial for the same offense. And it has also been frequently held that a conviction or an acquittal of a lesser offense will bar a prosecution for a larger one growing
In this connection, however, the rule laid down in Reddy v. Commonwealth, 97 Ky. 784, 17 Ky. Law Rep. 536, 31 S. W. 730, should be kept in mind. In that case the court said: “While we take it to be true that if the acts done may properly be laid as misdemeanors only, there the courts having authority, to try for misdemeanors may make the election, and one prosecution will bar the others. Yet it was never intended by this principle or rule to say that a prosecution for a misdemeanor only, in an inferior court
Nor will the Commonwealth be permitted to divide an act constituting one offense into two or more parts and prosecute for each of them. This principle has been frequently applied by this court. Thus, in Fisher v. Commonwealth, 1 Bush 211, 89 Am. Dec. 620, two indictments were found against Fisher, one of them charging him with having stolen a horse, and the other with having stolen a wagon and harness. Upon a trial under one of the indictments there was an acquittal, and this acquittal he pleaded in bar of a prosecution under the other, resting his plea upon the ground that the horse, wagon and harness belonged to the same person and were taken at the same time, and hence the taking constituted but one act or offense. In holding that the plea was good, the court said: “We do not regard the two indictments as for different grades of the same offense, nor for distinct and independent offenses, but different offenses arising out of one and the same transaction, having
In the case of Nichols v. Commonwealth, 78 Ky. 180, the principle applied in the Fisher case was extended so as to constitute one prosecution a bar against other indictments, although the property stolen belonged to different persons, if it was all taken at the same time and by the same act.
And it has also been ruled that when a criminal act is committed that constitutes more than one offense, and there might be more than one prosecution against the perpetrator, the Commonwealth has the right to elect which one of the offenses that may be carved out of the act it will prosecute for; but, having made the election, it will be bound and can not thereafter prosecute for another offense. Thus, in Carman v. Commonwealth, 76 S. W. 1078, 25 Ky. Law Rep. 1048, a case on the very border line, it appeared that Carman was convicted of the statutory offense of shooting at random on the public highway. Afterwards he was arrested on the charge of flourishing and using a deadly weapon in a threatening and boisterous manner, which is also a statutory offense.. Upon the trial for the latter offense, he pleaded in bar the conviction, and offered to prove that the two charges were for identically the same offense; that he at the same
On the other hand, two distinct and independent offenses may grow out of the same original transaction, and a conviction or acquittal in one will not be a bar to a prosecution for the other. This is illustrated where the same person commits a forgery and also utters the forged paper, there being a statute making each a punishable offense (Hooper v. State, 30 Tex. App. 412, 17 S. W. 1066, 28 Am. St. Rep. 926), and is well exemplified' in Mann v. Commonwealth, 118 Ky. 67, 80 S. W. 438, 111 Am. St. Rep. 289, 25 Ky. Law Rep. 2281, where the court said:- “A putting in jeopardy for one act is no bar to a prosecution for a separate and distinct act, merely because they are so closely connected in point of time that it is impossible to separate the evidence relating to them on the trial for the one of them first had.”
And so it was held in Commonwealth v. Vaughan, 101 Ky. 603, 42 S. W. 117, 45 L. R. A. 858, that a conviction of the ojffense of furnishing liquor to a minor was not a bar to a prosecution for selling the same liquor in violation of the local option law. In
Many other authorities might be reviewed, andl phases of the doctrine of former jeopardy in the numerous cases in which it has been presented discussed ; but this would involve a digression from the questions presented by this case, in which the conr trolling and dieisive ones are, Were the two offenses the same act? or, Did the act of illegal registration and the act of false swearing, although growing out of and being a part of the same transaction, constitute two separate and distinct offenses? If they did, a conviction for one is not a bar to a prosecution for the other. As we have endeavored to show, the mere fact that the two offenses spring from the same transaction does not of itself make them one and the same act, nor does it prevent the Commonwealth from maintaining a prosecution for both of them. The test generally applied to determine whether two. offenses growing out of the same transaction constitutes in fact but one criminal act or two distinct criminal acts, and the one that meets with our approval is, “whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction.” Bishop’s New Criminal Law. Vol. 1, section 1052. The same author makes a more elab
This test is approved in Clarke’s Criminal Procedure, section 396; Black on Constitutional Law, p. 588; Cooley on Constitutional Limitations, p. 401; Turner v. Commonwealth, 42 S. W. 1129, 19 Ky. Law Rep. 1161; Commonwealth v. Vaughan, 101 Ky. 603, 42 S. W. 117, 45 L. R. A. 858; 12 Cyc. 280; 17 Am. & Eng. Ency. of Law 597.
Applying to the case before us this generally accepted test, the question presented is, Would proof of the facts set out in the indictment for false swearing have been sufficient to secure a conviction under the indictment for illegal registration? Manifestly not, as it is not at all essential to sustain a prosecution for illegal registration that the person shall have- first taken an oath that he was entitled to register. If
The error in the argument for appellant consists in the assumption that the crime of false swearing was merged in the act of illegal registration. That it was one of the means by which the registration was accomplished may be conceded, but it does not follow from this that there were not two distinct, independent offenses committed. The same methods may be used in committing two crimes, and the processes employed may be part of the same transaction, and yet'the two things be distinct and independent of each other. Thus, a person who shoots at randon on the highway may be convicted of that offense after he has been convicted of the offense of carrying concealed the pistol with which he did the shooting, although except for the fact that he had the pistol he could not have done the shooting. And so a person who forges a paper may be convicted of uttering it, and afterwards be convicted of the forgery, yet he could not utter the paper until he had forged it. Other illustrations of this character might be employed, but we do not deem it necessary. One offense will not be merged in an
In our opinion, the prosecutions instituted against the appellant were not for the same offense, and therefore his plea of former conviction was properly rejected.
The judgment is affirmed.