294 F. 890 | 5th Cir. | 1923
The plaintiff in error, who is hereafter designated as defendant, was indicted, tried, and convicted in the District Court of the United States, at El Paso, for the offense of having in his possession money that had been stolen from the United States mail, knowing it to have been so stolen, while he had it in possession. He complains of his conviction upon the sole ground that he had been previously put in jeopardy for the same offense, and acquitted thereof, at Lake Charles, in the Western district of Louisiana. He presented the issue by a plea of former jeopardy, which was disallowed by the District Court, and by charge that requested his acquittal because of his previous acquittal of the same offense, which was denied by the District Court. Errors are assigned, based on each ruling of the District Court, and involve the question as to whether the offense, of which he was acquitted at Lake Charles, was the identical offense for which he was convicted at El Paso.
At Lake Charles he was tried for the actual theft of the money, which he was convicted of possessing with knowledge of its stolen character upon the trial at El Paso. Assuming that the identity of the money was established, the .question remains whether the offenses were the same. If they were, the conviction should be set aside; otherwise, it must stand.
In the case of Moorehead v. U. S., 270 Fed. 210, this court said:
“A plea of former acquittal is unavailing, unless the offense presently charged is precisely the same in law and fact ag the former one relied on under the plea [citing cases]. The test of the identity of offenses is whether the same evidence is required to sustain them.”
In that case the defendant Shackelford was charged with conspiracy to steal, and had been previously acquitted of the actual theft. The court said further:
“To sustain the charge made against Shackelford by the count on which he was convicted, it was not necessary to prove his participation in the theft, of which he was acquitted.”
The contention of the defendant that as an element of the second offense he was charged with stealing the money is erroneous. Theft of the money, but not theft by him, was an element in the second offense. The crime could have been as well proven by evidence that it was stolen by others. The indictment permitted such proof. The offense for which Singleton was convicted was a separate offense from that of which he had been previously acquitted. His plea of former jeopardy and former acquittal was bad, and his requested charge properly denied. Moorehead v. U. S. (C. C. A.) 270 Fed. 210; Kelly v. U. S., 258 Fed. 392, 169 C. C. A. 408; Burton v. U. S., 202 U. S. 344, 26 Sup. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; Carter v. McClaughry, 183 U. S. 365, 22 Sup. Ct. 181, 46 L. Ed. 236.
The judgment of the District Court is affirmed.