Marshall v. State, 6 Neb. 120

Marshall v. State

6 Neb. 120 | Neb. | 1877

Gantt, J.

The plaintiff in error was indicted for the offense of forgery and counterfeiting a certain school district bond for the payment of money, and in a second count for having in his possession, for the purpose of uttering and publishing as true and genuine, a certain false, forged, and counterfeited school district bond for the payment of money; and to this indictment he pleaded a former conviction, in a prosecution against him, by the name of H. T. Marshal], in the criminal court of Cook county, and state of Illinois. And in this plea he sets up, that to the former indictment he pleaded guilty, and on the fifth day of October, 1876, he was discharged by said criminal court of Cook county, and that the said prosecution against him was stricken from the docket of said court. To this plea of cmtrefois convict the state interposed a general demurrer, which was sustained by the court below. It is now complained that the court below erred in sustaining the demurrer, and also in not submitting the issue raised by the plea to a trial by a jury. In re-, gard to the second ground of complaint, it is only necessary to remai'k, that the demurrer admitted the truth of the facts pleaded, and that under the ruling of the court they were not considered sufficient to c mstitute a bar or defense to this prosecution1. Hence there was nothing *122to submit to the consideration of a jury. The question raised by the first ground of complaint is: Do the facts stated in the plea constitute a bar or defense to the prosecution of the plaintiff in this state? The plea alleges the former conviction was had in the state of Illinois. This is a foreign state, and the principle seems well settled that the laws of a country do not extend beyond its territorial limits; and therefore it is said to be “ an obvious principle that the maxim and rule of constitutional law cannot span country and country in such a way a to cause a jeopardy in one country to free the party from trial in another. On the one hand, it cannot prevent a foreign government from prosecuting for crime a person who has been tried for th£ same offense by our courts, and on the other hand, it cannot exempt from prosecution here, one who has been tried abroad.” 1 Bish. Crim. Law, § 983. And if a man offends against two governmental powers, which equally bind him, it is not easy to see why “ his paying the penalty of the law to one power should relieve him from liability to pay the penalty of the law to the other powér. Still, though the strict rule of the law would be .so, yet as a sort of merciful dispensation the courts would undoubtedly consider favorably to the defendant the fact, if it existed, that he had been punished for the same act in a foreign country.” Ibid., § 986. But it seems that in order to make such punishment for the act in a foreign country a satisfaction and a bar to a future trial, upon the ground above stated, it is necessary that “ it should be complete and should have been executed to its full extent.” Whart. Conf. Laws, § 934. Now, according to these general principles of constitutional law, it seems quite clear the comity between nations and independent states cannot avail the plaintiff anything, because his plea of a/utrefois convict shows clearly that the former prosecution in a foreign slate was dismissed, and he was *123discharged without any judgment haying been pro.nounced against him, and without having suffered any punishment at all. Therefore, we think the demurrer was properly sustained.- But again, as stated in this plea, that in the former prosecution the plaintiff, was charged in the indictment only with forging, counterfeiting, and uttering a certain school district bond, but in the second count in the indictment, in the case at bar, he is charged with feloniously having in his possession, for the purpose of uttering and publishing the same as true and genuine, a certain school district bond for the payment of money, well knowing the same was forged and counterfeited. This is a distinct offense from that' charged in the former prosecution in Cook county, Ill., and for this réason, also, we think the plea was bad, and the demurrer was properly sustained.

After the ruling of the court upon the demurrer, the plaintiff pleaded not guilty, and also two other pleas, involving the same questions raised and passed upon by the court, upon the demurrer to the plea of former conviction. It is now. complained that the court erred in striking out these two latter pleas upon motion of the state. We however think the motion was properly sustained, for the reason that the subject matter attempted to be put in issue by them, was passed upon by the court, and was res adj'adieata ; and for the further reason that, after the party has pleaded not guilty, he cannot in connection with such plea raise the question of former conviction. The judgment of the court below must be affirmed. -

Judgment aeeiemed.