195 Ky. 830 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
On September 21,1921, the grand jury of Pike county returned into court an indictment against the appellant, John Scalf, the validity and sufficiency of which, is not and may not be questioned, charging him with incest with his daughter, Maud Scalf, and later in the term the court by notice duly posted called a special term of the court to be held on a named day in the following December. Later, and on the 14th day of October the indictment against appellant was set for trial during the special called term, and it was tried on the 9th day of December during that term. The prosecuting witness, Maud Scalf, who in May prior thereto had married a Mr. Brown, upon that trial testified that her testimony before the grand jury upon which it returned the indictment was absolutely false and that she was induced .to prefer the charge and to SO' testify through the threats and promise's of her husband, from whom she had separated prior to her appearance before the grand jury, because he had preferred charges of unchastity against her, and, as she stated, he agreed that if she would indict .her father he.would take her back and not only live with her but would provide her a comfortable home and make her happy. Her testimony at the trial of that indictment, as copied in the transcript was: “Q. 'Now, this indictment charges that your father, some time before you were before the grand jury, had carnal sexual intercourse with you, is that a fact? A. No, no, sir, it is not. Q. Do you mean to tell this jury that your father, the defendant, never did have sexual intercourse with you? A. That is what I said, wasn’t it? Q. Do you mean to say that is what you want to say here now that he didn’t? A. Yes, sir, it is, that is exactly what I want to say. Q. Why, didn’t you testify to that fact before the grand jury? A. Yes, sir, I did. Q. Now you want to testify that he did not have? A. I testified before the grand jury that he did, that he was guilty, but I say that he was not now. Q. But you-did testify bef ore the grand jury that he was
Not only does the record show, by the admission of the prosecuting witness herself, that she testified before the grand jury in September, 1921, to the guilt of her father and also testified in the following December, as above stated, to his innocence and :to the falsity of her. testimony before the grand jury, but it is further shown by herself that between the latter date and the following February term of the court she gave her deposition in the divorce proceeding filed against her by her husband, and at that time she testified that her father was innocent of any unbecoming conduct with her. That testimony was given in the state of Virginia, where she appears to have been living at that time, and when she was
We are fully aware of the rule that, ordinarily, the. jury are the sole judges of the credibility of the witnesses, which rule prevails in criminal as well as civil causes, and that ordinarily the giving of prior testimony under oath directly contrary to that given on the trial has only a contradictory or impeaching effect rather than a nullifying or destructive effect, and that under such circumstances the court in passing on a motion for a new trial would not be authorized to wholly disregard the testimony of the witness which is under review, yet the purpose of courts is to administer justice and to try causes according to the facts, and under the circumstancess of this case we would heisitate very much to allow the liberties of appellant to be taken from him upon such utterly unreliable testimony. It will be observed that the case is different from the ordinary one where the witness is impeached by proving contrary statements made by him on a former occasion, even under oath, when the witness denied having made such .statements, in which case the only effect Which can -be given to the contradictions would be to impeach the testimony of the witness given on the trial, while in this case the contradictory statements were knowingly, wilfully and admittedly made for a clorrupt purpose and upon which the Commonwealth subsequently based an indictment of the witness for false swearing, and which was pending at the time of the trial. To say the least of it a conviction under such cir
The doctrine of former jeopardy in criminal jurisprudence is as old as the common law, and while a strict adherence to it may result in cheating justice in a few instances, yet it is universally held that it is better that an occasional guilty person escape punishment than that any innovations may be made upon the doctrine which indeed is so highly regarded as to receive constitutional sanction in almost, if not all, Anglo-Saxon jurisdictions, ours being section 13 of our Constitution, saying: “No person shall, for the same offense, be twice put in jeopardy of his life or limb. ’ ’ The inhibition has been construed to apply to all classes of criminal prosecutions regardless of the nature of the punishment. But for such a plea to prevail it is essential that the court on the first trial had jurisdiction of the offense as well as of the person of the defendant, and the first trial will not be a bar to the second one unless the defendant was then put in jeopardy, which we have uniformly held attached upon the swearing of the jury when the case was so tried. It is als'o essential to the plea that the offense on the first trial be identical in substance and legal effect with the one on the subsequent trial in which the plea was interposed, and the only difficulty experienced by the courts as appears from all the adjudicated cases and text writers, is to determine, after settling the question of jurisdiction, the legal identity of the two offenses. Many rules have been promulgated and adopted for the determination of that question in the light of the various circumstances under which it was presented, but only one of which is necessary to be considered under the facts disclosed by this record, and there is no dissent by any court, or contrariety of statement by any text writer, as to how it should be determined. It is, that “When the facts necessary to convict on the second prosecution would necessarily have convicted on the first, a final judgment on the first prosecution will be a bar to the second one.” 8 R. C. L. 143; Notes to the case of Roberts v. State, 58 Am. Dec. 536; Notes to the case of State v. Rose, L. R. A. 1915A 256; Cases cited in note 21 to above quoted text; 16 Corpus Juris 265, and cases cited in note 48; Wharton’s Criminal Law, vol. I, seventh
The cited ¡Shirley case involved three prosecutions for the unlawful sale of intoxicating liquors to the same person; each indictment alleged a separate month within the period of limitation for the commission of the offense (one year in that case), but upon the trial of the indictment for the sale in the latest month named in any of them the prosecuting witness was not confined to that particular month, her testimony covering the whole period of twelve months preceding the indictment, and the court instructed the jury to find the defendant guilty if it believed the sale was made at any time within the preceding twelve months. A conviction was had and the defendant upon arraignment under one of the other indictments interposed a plea of former jeopardy which the lower court denied, ¡followed by a Conviction which was reversed on appeal to this court, which held that the first conviction was a bar to prosecutions under the two other indictments. It was recognized in the opinion that each separate sale constituted a distinct offense and that if the Commonwealth had confined its testimony on the first trial to a particular time or ¡occasion, whether alleged in the indictment or not, and the court had confined the issue to the proven time or occasion, the verdict and judgment in that case would not bar a prosecution on another indictment for a sale made within the year if at a different proven time. But, since the evidence upon the first trial covered the whole period for which a prosecution might be had, and was sufficient to authorize a conviction on the trial of the second indictment, 'the latter prosecution was barred by the judgment
The opinion in the case of McCreary v. Commonwealth, 163 Ky. 206, announces no contrary doctrine •, the question there involved was the effect of the admission of testimony of other similar acts to the one for which the defendant was indicted and which were committed prior to the finding of the indictment. There was an election in that ease of the Commonwealth of the particular act for which defendant was tried and the instruction of the court confined the issue to that act alone, the.commission of other acts being admitted only for the purpose of corroboration, and it was'held that a conviction or an acquittal of the charge based on the elected act would not bar a subsequent prosecution based upon any of the corroborating acts. We have no such particularizing upon the trial of the prosecution pleaded in bar in this case, which -, fact materially differentiates the two Cases.
On the trial in December, 1921, of the indictment found at the prior September term of the Pike circuit court, the prosecuting witness testified, as hereinbefore shown, that her father “never did have sexual intercourse with her,” which covers all prior time and everywhere, included in which broad term is Pike county. And when the verdict of acquittal was returned in that prosecution it had the effect of exonerating defendant of all charges of the same nature occurring in Pike county before the finding of that indictment. The case comes squarely within the universally applied rule as shown by the authorities, supra.
But, it is stated in brief of counsel for the defendant (which, however, is neither referred to nor discussed in brief for the Commonwealth), that the court denied the plea of former jeopardy upon the ground that the trial
There can he no doubt of the efficacy of the plea of former acquittal interposed by defendant and because the court declined to sustain it the judgment is reversed with directions to grant a new trial and for proceedings consistent with this opinion.