133 Va. 775 | Va. | 1922
delivered the opinion of the court.
The plaintiffs in error, who were jointly tried, have been found guilty of murder in the first degree and sentenced to twenty years confinement in the penitentiary. They, together with one J. G. Moore, who was the chief witness for the Commonwealth, were jointly indicted for the murder of one Hadie Sasaki, a member of the crew of a merchant vessel owned by a Japanese corporation, while the vessel was in the Elizabeth river a few hundred yards from the Lambert’s Point pier. •
The evidence upon which the Commonwealth relies to justify this conviction may be thus summarized: The accused were jointly engaged in illicit traffic in ardent spirits. Their customary method of securing much if not all of the liquor which they sold was to board foreign vessels while lying in the harbor, and, acting in concert, to negotiate for the purchase of liquor there held by members of the crew for sale. After making the bargain and having the liquor produced for delivery, they would display pistols and badges, impersonate officers and pretend to arrest the vendors of the liquor and sometimes members of their own party also, charging them with the illegal sale and purchase of intoxicating liquor, in violation of
On the night of December 24, 1920, with a similar purpose in view, they boarded the Japanese vessel “Kaisho Maru,” having learned that there was whiskey on board that ship for sale. There were six in the party, the five who were indicted and one Roy Tinder, who was taken on the launch which went out to the vessel, at the last moment, because Sterling, who was expected, failed to appear at the appointed time. They took with them three pairs of handcuffs, some flashlights, a pad of fifty to seventy-five blank search warrants, six badges, three being the badges of the United States Internal Revenue officers, one city of Norfolk policeman’s badge, one Norfolk county special policeman’s badge, and another described as “some kind of secret service” badge. Five of them had pistols loaded, and one, Graham, also wore a belt full of cartridges. Two of them boarded the ship and entered into negotiations with members of the crew, showing their money and pursuing their usual method. When these negotiations were concluded and a large quantity of whiskey (forty-five cases) had already been brought on deck for delivery to them as purchasers, a message was sent to the other four, who had remained on the launch, to come aboard to get the whiskey. Just about this time Jones disclosed his badge, alleging that they were officers of the law, and told the Japanese with whom they had negotiated that they were under arrest. They indicated their purpose to resist, and Jones drew a pistol and told one of them that he didn’t wish to kill him but to lock him up. Some one commenced shooting, and the wireless operator of the ship and a fireman, both
Before this trial they had been tried for the murder of Shagji Miyau, who was killed at the time, and acquitted. Then followed this trial and their conviction for the murder of Hadie Sasaki, who was mortally wounded in the back during the affray and died about four o’clock the next morning.
There was contradiction by the defendants of the incriminating evidence of Moore,' upon whose testimony their conviction chiefly rests, but there was also much corroboration, both in the testimony introduced in behalf of the accused as well as in that of the Commonwealth. As the jury credited the evidence for the Commonwealth, in which they were fully justified, it is clear that the judgment should be affirmed, unless there was some prejudicial error in the procedure.
The precise question emphasized in the argument has never been raised, we believe, in this jurisdiction, but it has been much discussed elsewhere. The accused filed a paper, designated as a special pies of res judicata. It tenders no issue of fact, but prays that the court exclude from the consideration of the jury all evidence purporting to set up or charge them on the occasion in question with robbery or attempted robbery, and a conspiracy to commit the same, for the reason that on the previous trial for the
It is seen that this alleged plea is merely a prayer to exclude certain testimony which had been introduced at their previous trial for a different homicide, and this before the testimony on this trial had been offered. Inasmuch, however, as this testimony was subsequently offered and a motion then made to exclude it, which was overruled, we will pass upon the question as properly raised.
It is observed that in substance it is an effort to secure the benefit of the immunity clause of the Constitution prohibiting persons accused of crime from being placed twice in jeopardy for the same offense, though it is admitted that inasmuch as this indictment for the murder of Hadie Sasaki charges a different crime from the one for which they had been already acquitted, neither the defense by plea of former acquittal nor immunity because previously in jeopardy could be successfully invoked. No indirection is neccessary when such immunity exists, for it may be confidently and successfully invoked.
In Justice v. Commonwealth, 81 Va. 217, it is said: “But the doctrine of estoppel, strictly speaking, is not applicable to the Commonwealth in a criminal prosecution. The nearest approach to it is the doctrine, founded on the maxim of the common law, that no one shall be twice put in jeopardy for the same offense. ‘This doctrine,’ says Bigelow, ‘has a close relation to the subject of estoppel by former judgment, and may be considered as the criminal law counterpart of the same doctrine. But the doctrine rests upon technical notions of jeopardy, and not upon the principle of res judicata,’ etc. Bigelow on Estoppel (3d ed.) 47.”
While unprepared to say that no case can possibly arise in which the doctrine of estoppel or res judicata can be invoked against the Commonwealth, we are clear in our view that it cannot be invoked in this ease.
In Vaughan v. Commonwealth, 2 Va. Cas. (4 Va.) 273, it is held that where one has been indicted for shooting one person and acquitted, and then indicted for shooting another, the plea of autrefois acquit will not be supported, although the same act of shooting is charged in each indictment, for the jury who tried the first indictment might have acquitted the prisoner on several grounds which would not affect the second trial.
In Smith v. Commonwealth, 7 Gratt. (48 Va.) 593, it is held that a conviction for advising, enticing and persuading one slave to abscond is not a bar to prosecution for advising, etc., another slave to abscond,
In McCoy v. State, 46 Ark. 141, where there was a conflict in which a man was killed and his wife wounded in one and the same transaction, the defense that the accused had been acquitted of the charge of assault with intent to kill the wife did not prevent his prosecution on the charge of murder of the husband.
In Jones v. State, 61 Ark. 88, 32 S. W. 81, it is held that the fact that the act of killing two persons was so closely connected in point of time that it was impossible to separate the evidence relating to each of them, would not necessarily make the killing of the two one act or one offense, or the conviction for the killing of one a bar to a prosecution for the killing of the other.
In People v. Majors, 65 Cal. 138, 3 Pac. 597, 52 Am. Rep. 300, 5 Am. Crim. Rep. 486, it is held that where two persons were killed at the same point of time in pursuance of a design to rob, it does not render a conviction for the murder of one a bar to a prosecution for the killing of the other; and while admitting that there was authority to the contrary, the court said that the better rule and that established by the great weight of respectable authority, is that the murder of two persons, even by the same act, constitutes two offenses, for each of which, a separate prosecution will lie, and that a conviction or acquittal in one ease does not bar a prosecution in the other.
Other pertinent cases enforcing the same rule are, Fews v. State, 1 Ga. App. 122, 58 S. E. 64; Johnson v. State, 65 Ga. 94; Baker v. Commonwealth, 20 Ky. L. Rep. 879, 47 S. W. 864.
In State v. Vines, 34 La. Ann. 1079, 4 Am. Crim.
There is an illuminating note upon the precise question as applicable to cases where there is a conspiracy shown, in Patterson v. State, 96 Ohio St. 90, 117 N. E. 169, L. R. A. 1918A, 588. It is there said that “one charged with a substantive offense committed in pursuance of a conspiracy, cannot plead former jeopardy based upon a previous conviction or acquittal of another similar but distinct offense committed in pursuance of the same conspiracy.” Citing Wallace v. State (1899), 41 Fla. 547, 26 So. 713; State v. Barnes (1910), 26 S. D. 268, 128 N. W. 170; Augustine v. State (1899), 41 Tex. Cr. Rep. 59, 52 8. W. 77, 96 Am. St. Rep. 765. The recent case of State v. Corbett (S. C.), 109 S. E. 133, cites many additional authorities, though there the question was raised by plea of former acquittal.
The Commonwealth having the right to indict them for each homicide, though alleged to have been committed pursuant to the same conspiracy, has also the right to try them under each indictment — indeed, could not do otherwise — and having this right is entitled to introduce all of the evidence tending to prove the commission of the specific crime charged. Whatever confusion there may be in the cases with reference to such a defense, no subtleties of reason can sustain it in this case; we find no precedent therefor; and the question was correctly determined by the trial court.
Another assignment relates to the admission of testimony relating to a conversation between some of the alleged conspirators on the morning after the homicide. Inasmuch as the court expressly limited the effect of this testimony and instructed the jury that it could not be considered except as against those of the accused who were present, this assignment is without merit.
It is alleged that the court erred in permitting testimony as to recent previous robberies of ships by these defendants, acting together. The court carefully followed the ruling of this court made so long ago as Trogdon v. Commonwealth, 31 Gratt. (72 Va.) 862, and told the jury that they could only consider this testimony in connection with and as explanatory of the intent, purpose and plan of the accused on the night of December 24, 1920, at the time the crime here charged was committed, and that they could
Complaint is made of the instructions, but it is sufficient to say as to these that there were twelye granted upon motion of the defendants without change, and four more offered by them were slightly modified by the court, and these fully and clearly presented every theory justified by the evidence introduced in behalf of the defendants, and accorded them every right; while those of the Commonwealth followed the established precedents and no valid objection is suggested as to any of them.
There is an exception growing out of this circumstance: Seymour, one of the defendants, on the morning of April 20, 1921, during the trial, was taken ill in jail, so that upon the advice of physicians the trial was suspended from time to time because of his absence from the court room, until 10 o’clock on the morning of April 22nd, when he was brought into court and then the trial proceeded. The statute, Code 1919, section 4894, provides that a person tried for a felony shall be personally present during the trial, but it also provides that a motion for a continuance, whether made before or after the arraignment, shall not be deemed a part of the trial. Certainly this suspension was no part of the trial. It would be indeed a reflection upon the common sense of those who administer and construe the law, if such a suspension, which was necessitated in order that the defendant might be present and thus to safeguard his rights, should be
The twelfth assignment challenges the territorial jurisdiction of the trial court by demurrer and motion to quash. The indictment contained two-counts, one alleging that the crime was committed in the Elizabeth river, between the city of Norfolk and the city of Portsmouth, and the other that it was. committed between the city of Norfolk and the-county of Norfolk. Code 1919, section 5910, provides that corporation courts shall have concurrent jurisdiction with the circuit courts over offenses committed in any county within one mile , of the city, and the evidence shows that the offense was committed within 500 or 600 yards of the Lambert’s Point pier, between that place and the county of Norfolk. It thus clearly appears that the court had jurisdiction, because the homicide was committed within one mile of the city limits.
Affirmed.