136 Minn. 264 | Minn. | 1917
Three indictments were returned against defendant, charging him with carnal knowledge of a female child under the age of consent. The first charged an offense committed on the fifth day of April, 1913; the second, an offense committed on the sixteenth day of January, 1914; and the third, an offense committed on the sixteenth day of July, 1914. He was placed on trial upon the indictment charging an offense committed on the sixteenth day of January, 1914. The trial resulted in an acquittal. At the next term of court the other two indictments were dismissed be
The illicit relations between the parties had continued for some two years, according to the testimony of the girl, and during about a year of this time defendant was the village marshal. At the first trial, the prosecution presented evidence tending to prove an act of intercourse on or about January 16,1914, in the village jail, and then proceeded to show by the girl that other similar acts had taken place with much frequency for a considerable period of time prior thereto. She stated that they had been committed in defendant’s own house, in the village jail, in the village engine house, and once in the Methodist church. She was not interrogated concerning any acts which took place subsequent to January 16, 1914, and did not testify as to any such acts, but certain general statements, in reference to the length of time during which the illicit commerce had continued, indicated that it had continued after that date. When the state rested, defendant moved the court to require the state to elect upon which offense it would rely for conviction, and the state elected to rely upon the offense committed on January 16, 1914, the date stated in the indictment. In submitting the case to the jury, the court confined them to the specific offense alleged to have been committed on January 16, and directed them to acquit defendant unless they found that he had committed that particular offense on that date. At the present trial, the prosecution proved the commission of the offense in defendant’s own house on July 16, 1914, and then presented substantially the same evidence as to other acts which had been presented at the former
It is perfectly clear that the crime of which defendant was convicted was an entirely separate and distinct offense from that of which he was acquitted. It was another specific act committed at a different time and place, and is not within the rule which applies where a series of acts are necessary to constitute the offense.
Defendant contends that proof of all acts of carnal intercourse which took place before the return of the former indictment and within the time fixed by the statute of limitations, was admissible at his trial upon such former indictment; that the state had the right to elect upon which of such acts it would rely for conviction, and could not be required to make such election until‘the close of its case in chief; that he was in jeopardy as to all such acts until the state'made its election; that he could have been convicted at the trial upon the former indictment for the same act for which he was convicted at the present trial; and that in consequence thereof the former acquittal is a bar to the present prosecution.
His counsel argues with much force and ability that, although he may have committed any number of separate crimes, yet, having been indicted and tried for one of them, he cannot be tried for any other; that, as the state could prove several different offenses at that trial and could elect upon which it would rely for conviction, he cannot again be placed upon trial regardless of the number of separate offenses which he may have committed.
The constitutional provision that “no person for the same offense shall be put twice in jeopardy of punishment,”
Blackstone says that the plea of a former acquittal “must be upon a prosecution for the same identical act and crime.” Chitty says that the plea “is sufficient if an acquittal of the one would show that the defendant could not have been guilty of the other.” In Commonwealth v.
In State v. Day, 5 Pennewill (Del.) 101, 104, 58 Atl. 946, the court say: “The crime must be the same in fact * * * or must be necessarily included in the former.”
In Miller v. State, 33 Ind. App. 509, 514, 71 N. E. 248, the court say: “When the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second.”
“In Hooper v. State, 30 Tex. App. 412, 414, 17 S. W. 1066, 28 Am. St. 926, the court say: “The proof must be made by showing the identity of the very acts or omissions which constitute the offense, that the acts * * * for which the former acquittal was had are the very acts which constitute the offense on trial.”
In State v. Klugherz, 91 Minn. 406, 98 N. W. 99, 1 Ann. Cas. 307, this court said: “A plea of former acquittal is sufficient whenever it shows on its face that the second indictment is based upon the same single criminal act which was the basis of the indictment upon which the defendant was acquitted.’’
Among other cases of similar purport see State v. Howe, 27 Ore. 138, 44 Pac. 672; Wright v. State, 17 Tex. App. 152; Burton v. United States, 202 U. S. 344, 26 Sup. Ct. 688, 50 L. ed. 1057, 6 Ann. Cas. 362; Wilson v. State, 24 Conn. 57; Spears v. People, 220 Ill. 72, 77 N E. 112, 4 L.R.A.(N.S.) 402; Commonwealth v. Shoener, 216 Pa. 71, 64 Atl. 890; Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528; State v. Learned, 73 Kan. 328, 85 Pac. 293; State v. Rose, 89 Oh. St. 383, 106 N. E. 50, L.R.A.(N.S.) 1915A, 256; State v. Virgo, 14 N. D. 293, 103 N. W. 610; also eases cited in note found in 92 Am. St. 89, et seq.
In the Dye case an information, filed September 3, 1912, charged that the defendant [8.1 Wash. 389] “within three years immediately preceding the date of the filing of this information, * * * did carnally know * * * a female child bewteen the ages of ten and fifteen years.” After the state had submitted its evidence and rested, the court dismissed the case for failure of proof. Shortly thereafter the state filed another information, charging an offense committed on or about February 1,
In such cases the verdict of not guilty in the first prosecution necessarily found that the defendant had not committed the offense charged in the second prosecution. But where the state, although permitted to prove several similar offenses, is required to and does point out the specific offense for which it seeks a conviction, and the jury is required to acquit the defendant, unless they find that he had committed that particular offense, a verdict of not guilty is not a finding that the defendant had not committed other similar offenses, and is not a bar to another prosecution for another and different but similar offense. State v. Shafer, 20 Kan. 226, 2 Pac. 689; State v. Kuhuke, 30 Kan. 402; State v. Learned, 73 Kan. 328, 85 Pac. 293; State v. Blahut, 48 Ark. 34, 2 S. W. 190; Deshazo v. State, 65 Ark. 38, 44 S. W. 453; People v. Williams, 133 Cal. 165, 65 Pac. 332; Fehr v. State, 36 Tex. Crim. 93, 35 S. W. 381, 650; Chesapeake & O. Ry. Co. v. Commonwealth, 88 Ky. 368, 11 S. W. 87; People v. Sinell, 131 N. Y. 571, 30 N. E. 47; State v. Stephens, 70 Mo. App. 554; State v. Howe, 27 Ore. 138, 44 Pac. 672; State v. Ainsworth, 11 Vt.
In the present case, the state, at the first trial, designated a single criminal act committed on January 16, 1914, as the specific crime for which it sought a conviction, and could not convict unless it proved that particular criminal act. At the second trial the state designated a single criminal act committed on July 16, 1914, as the specific crime for which it then sought a conviction, and could not convict unless it proved that particular criminal act. Where the state, in order to convict, must establish the commission of a specific criminal act, such criminal act may be identified and distinguished from other like criminal acts by the time when it was committed, by the place where it was committed, or by any other clearly distinguishing incident.
At the trial for the offense of January 16, the state could not convict by proving the act of July 16, and consequently did not need to prove the act of July 16, and in fact did not prove that act. Likewise at the trial for the offense of July 16, the state could not convict by proving the act of January 16, and did not need to prove that act, and proof thereof was admissible only as corroborative evidence. At each trial defendant was in jeopardy only as to one specific crime. It is true that at each trial, when the evidence disclosed that he had committed several similar criminal acts, the particular crime for which he was in jeopardy was uncertain until made certain by the election which the state was required to make; but this resulted from the rules of evidence which apply in such Gases, not from an attempt to convict him at such trial if he had committed any one of two or more offenses. At neither trial could the jury have returned a verdict of guilty in case they found that defendant had not committed the specific crime pointed out, but had committed another similar crime.
Our conclusion is that the acquittal of defendant for the offense of January 16, 1914, is not a bar to the present prosecution for the offense of July 16, 1914.
The burden rested upon the defendant to establish his plea of former acquittal by showing that he had been acquitted of the same offense for which he was then on trial. As the evidence, standing uncontra
Of the specific questions submitted, the first and second are answered in the affirmative, and the third, fourth and fifth in the negative.
Case remanded.
Const. (Minn.) art. 1 § 7.