Nordlinger v. United States, 24 App. D.C. 406

Nordlinger v. United States

24 App. D.C. 406 | D.C. Cir. | 1904

Mr. Justice Shepard

delivered the opinion of the Court:

Whilst the proceedings on behalf of the defendant were not *409technically regular, they are sufficient in substance to bring the action of the court before us for review on both points.

1. Without undertaking to determine to what extent an inquiry into the proceedings of a grand jury will be permitted, we think it sufficient to say that it was competent for that body, without rehearing witnesses, to return a second indictment against the same party for the same offense, wherein they merely corrected a formal description in the first. Byers v. State, 63 Md. 207; Whiting v. State, 48 Ohio St. 220, 27 N. E. 96; Creek v. State, 24 Ind. 151.

2. The next question is on the sufficiency of the plea of former acquittal. The Fifth Amendment [of the Constitution of the United States] protects all persons from being twice put in jeopardy for the same offense in the courts of the United States. And one is in jeopardy when put upon trial before a court of competent jurisdiction, upon an indictment sufficient to sustain a conviction, and a jury has been impaneled and sworn to try him. How far this putting in jeopardy is protection against further prosecution, under certain conditions of dismissal, withdrawal of the jury, mistrial, arrest, or reversal of the judgment, and possibly others, is unnecessary to be considered, for here the trial under the first indictment proceeded regularly and ended in a formal judgment of acquittal. The court had unquestioned jurisdiction, and the indictment was, on its face at least, technically formal and substantially good. As has been seen, the property charged in each indictment was the same in fact though described somewhat differently, belonged to the same owner, and was unlawfully taken under the same circumstances from the possession of the same person, at the same time and place. The test of the identity of offenses that has commonly been applied in such cases is whether the facts necessary to conviction under the second indictment would have been sufficient, if proved, to warrant a conviction under the first. Hopkins v. United States, 4 App. D. C. 430, 436; 17 Am. & Eng. Enc. Law, p. 597; 12 Cyc. Law & Proc. p. 280. For an application of this rule see United States v. Nickerson, 17 How. 204, 212, 15 L. ed. 219, 222.

*410Applying that test, which is sufficient for the purposes of this case, we are of the opinion that the court erred in overruling the plea. “Piano” is the short and commonly used name for piano forte, which is defined in the Century Dictionary as “a musical instrument of the percussive group, the tones being produced by •blows of hammers upon stretched strings, and the hammers being operated from a key board.” It is the name of a class of which several kinds are mentioned, among them cabinet, cottage, grand, pedal, square, upright, and electric pianos, and the electric piano is defined as follows: “A piano forte whose wires are set in vibration by electro magnets instead of hammers.”

It would seem clear, then, that a musical instrument answering the general definition above given belongs to the class called piano, regardless of its style or whether it be operated by hand or mechanical device. The agent of the owner said that the one in question was “built like an upright piano of standard make, and the name of the said instrument was an auto-electric piano.” The testimony of all the witnesses shows that they regarded the instrument as a piano. Throughout their examinations it was almost invariably called piano-. The inventor, in testifying, mentioned its name as “piano or auto-electric,” and when asked if he had seen one of the pianos, said: “Yes; said instrument had the number 1082 upon it; it was one of the pianos I built.”

It is a generally recognized rule in criminal pleading that an indictment for larceny is sufficiently certain if the thing stolen be designated by the generic name of the class to which it belongs. And it is the generally accepted doctrine that in such case a conviction may be had upon proof of the unlawful taking of a specific thing clearly within that class. For example: Proof that the accused took a gelding or a mare will ordinarily support an indictment for taking a horse. We need not consume space with the citation of the decisions sustaining this view. Many of them are collated in 12 Enc. Pl. & Pr. pp. 984 et seq.

Believing, therefore, that the evidence given in this ease was admissible on the trial under the first, and would have justified a conviction, the judgment must be reversed and the cause re*411manded for further proceedings not inconsistent with this opinion. It is so ordered. ' Reversed.