People v. Saunders

4 Park. Cr. 196 | Court Of Oyer And Terminer New York | 1859

Mason, P. J.

These pleas constitute no bar to this indictment for a felony; and acquittal, even upon an indictment for a felony, is no bar to an indictment for a misdemeanor, and an acquittal for a misdemeanor is no bar to an indictment for a felony. (2 Hawk. P. G, 35, § 5; Arch. Cr. Plead., 88.) The justice had no jurisdiction to try the felony for which the defendant is now indicted. He could not, on the examination, even pass upon the question of the defendant’s guilt or innocence. The only thing which the statute. allowed him to determine was the question whether there was probable cause to believe the defendant guilty, and this only for the limited purpose of committing him to await his trial before a court that has jurisdiction to try him, or of requiring him to give sureties to appear before such court and answer to an indictment.

The defendant was tried simply on a charge of assault and battery, as is shown by the defendant’s pleas, and was convicted of that charge.

This constitutes no defence to an indictment for a rápe. To entitle the defendant to this plea, it is necessary that the crime charged be precisely the same (1 Chitty Cr. Law, 452); and in considering the identity of the offences, it must appear by the plea that the offence charged in both cases was the same in law and in fact. The plea will be vicious, if the offences charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact. (12 Pick. R., 496; 1 Park. Cr. R., 182, 183; 3 Park. Cr. R., 579; Arch. Cr. Pl., 91.)

The former conviction must have been for the same identical crime. (4 Black. Com., 336; Russ, on Cr., 829, 836; 1 Park. Cr. R. 184.) In these cases the plea will be held vicious unless the first indictment was such that the prisoner might have been convicted upon it by proofs of the fact contained in the second indictment. (1 Russ, on Cr., 831; 1 Park. Cr. R., 184; Arch. Cr. Pl., 87; Rex v. Taylor, 3 Barn. & Cress., 502; 3 Park. Cr. R., 579.)

There is another reason why the pleas must be held void. The plea of autrefois convict admits the offence charged in the indictment, and as these pleas admit the crime of rape against the defendant, hefiould not be convicted of assault and battery, for the misdemeanor was merged in the felony. (5 Mass. R., 106; 9 Cow. R., 578; 1 Comst. R., 384; 1 Russ, on Cr., 50; 2 vol. Id., 550; Bouv. Law Dict., titles “Merger,” “Cr. Law;” 1 Park. Cr. R., 186; 22 Pick. R., 508; 2 Eng. Law and Equity R., 448.) The defendant cannot, upon this indictment, be tried or convicted of assault and battery. This is well settled at common law, and our statute is but declaratory of the common law (2 B. S, 702, §§ 27 and 28), which prescribes the rule for plea of former acquittal or conviction. It only applies to offences where the statute has fixed different degrees to the offence, and in such case a former trial and acquittal or conviction for any one of the degrees of such offence, shall be a bar to an indictment for such offence in any other degree, or of an attempt to commit such an offence. These demurrers to the defendant’s special pleas are sustained, and judgment given for the People thereon. The defendant was right in pleading over to this felony the plea of not guilty. (Arch. Cr. Pleading, 89, 90, 91; Rex v. Vandercomb, 2 Leach, 708; Rex v. Cogan, 1 Leach, 448; Rex v. Shaw, 2 Carr. & P., 635.) This, however, is of little consequence, as the judgment in cases of felony on such pleas is respondea ouster. (Arch. Cr. Pl., 91; 12 Hawking Cr. Law, 23 and 128; 2 Carr. & P., 634.)

Pleas overruled and judgment of respondeos ouster.