Plaintiff in error was indicted for disturbing the peace, and, upon arraignment, pleaded in bar a former trial and conviction for the same offense, under an ordinance of the town of Colorado Springs, within the limits of which town the act was cоmmitted. To^ this plea the prosecution demurred, and the demurrer was sustained; whereupon the court rendered judgment against the accused the same as upon trial and verdict of guilty.
The principal questions presented for review, and argued by counsel, are: (1) Was the plea of the former
Upon the first question there is a diversity of opinion by the authorities, some holding that, under the general rule that no person may be punished twice for the same offense, a plea of former conviction, such as was interposed by the plaintiff in error here, should be held a bar to the prosecutiоn in which it is pleaded. The cases most in point which we have been able to find in support of the foregoing doctrine are the following, which are cited in the brief of counsel for plaintiff in error: State v. Thornton,
Mr. Dillon, in his work on Municipal Corporations, discusses this question fully, and concludes that the great weight of authority is as we have stated it above, although upon the precise question he puts — “ Can the same act be twice punished, once under the ordinance and once under the statute ? ” — he says:
“The cases on this subject cannot be reconciled. Some hold that the same act may be a double оffense, — • one against the state and one against the corporation; others regard the same act as constituting a single offense, and hold that it can be punished but once, and may be thus punished by whichever party first acquires jurisdiction.”
One of the principles stated by Mr. Dillon, as extracted from the authorities, is that “ when the act is, in its nature, one which constitutes two offenses, — one against the state and one against the municipal government,— the latter may be authorizеd to punish it, though it be also an offense under the state law; but the legislative intention that this may be done should be manifest and unmistakable, or the power in the corporation should be held not to exist.” Among the powers specially conferred by the legislature upon the municipal authorities of towns and cities in this state is the power “to prevent and suppress riots, routs, affrays, noises, disturbances,
Upon the second question, counsel for plaintiff in error contends that, after sustaining a demurrer tо a plea of former conviction, the proper order is that the defendant answer over; that in this case the plaintiff in error should have been allowed his plea of not guilty, and been put to trial; and, in support of this view, counsеl cites the case of Fulkner v. State,
“The plea not necessarily showing that the two offenses were distinct, nor that the municipal court had no jurisdiction, the attorney of the commonwealth, if he intended to deny their identity, should have joined issue on the plea, and submitted that fact to the determination of a jury. By demurring to the plea, he admitted the truth of the allegation therein that the оffense now charged against the defendant was the same of which he had already been acquitted. The judgment of the superior court, sustaining the demurrer to the plea of autrefois acquit, was therefore erroneous, and must be reversed,”— citing 2 Halе, P. C. 243; 1 Stark. Crim. Pl. (2d ed.) 325, 326; King v. Emden, 9 East, 431; Com. v. Curtis,
The principal case above cited fails of being in point for the reason that the plea in that case did not show that the former acquittal was a proceeding under any ordinance of the town of Taunton, and nоt under a general statute. Eor all that is shown by the plea, and by that case, the former acquittal may have been in a court of concurrent criminal jurisdiction (within the sum of $50) with the court wherein the same was pleaded, and under a like form оf procedure. In the case before us, the plea averred that the former conviction was had “ before one George H. Stewart, who was then and there a justice of the peace in and for the county of El Paso aforesaid, and police magistrate of the town of Colorado Springs, state and county aforesaid; * * * that said conviction was for a violation of section 4 of article 1, section 2 of article 1, and section 1 of articlе 3, of an ordinance concerning misdemeanors, being one of the ordinances of the said city of Colorado Springs, then and there in full force and effect; that the said conviction was had in the name of the people of the state .pf Col
This plea thus showed on its face that the former conviction was had under the ordinances of the town of Colorado Springs, under a jurisdiction and mode of procedure of which the court below wаs bound to take judicial notice, since the authority of that town, as of all others in the state, is conferred and defined by the general statutes concerning towns and cities to which we we have already referred, and hence upоn the ground that the one act constituted two distinct offenses, — the one punishable by the municipal authorities, and the other by the state; and under the different forms of procedure provided, as held upon the first question herein discussed, we must also hold that the court did not err in sustaining the demurrer to the plea. In other words, the plea, while averring that the offense of which he had been convicted, and that of which he then stood charged, were one and the same offensе, it set forth facts from which it appeared that they were legally two distinct and different offenses. The judgment of the court below is therefore affirmed. Judgment affirmed.
(Helm, J., having presided as district judge of the court below in the hearing and rendition of judgment in this case, took no part in this decision.)
Affirmed.