State v. Howe
44 P. 672
Or.
1895
Check Treatment

Opinion by

Mr. Chief Justice Bean.

*140It is a principle as old as the common law itself, and which has been firmly imbedded in the jurisprudence of nearly every state of the Union by constitutional provision, that “No person shall be put in jeopardy twice for the same offense. ” It is upon this principle that the pleas of former acquittal and of former conviction are allowed in criminal cases. “The right not to be put in jeopardy a second time for the same cause is as sacred as the right of trial by jury, and is guarded with as much care by the common law and by the constitution”: Black, C. J., in Dinkey v. Commonwealth, 17 Pa. St. 126. But the solution of the question as to what facts will sustain the plea is attended with difficulty, and has provoked much discussion by the courts and text writers. The general rules upon the subject and the tests usually applied are well settled, but in the method of their application much contrariety of opinion appears, owing, no doubt, to the generality and consequent elasticity of the rules themselves. We do not propose at this time to enter upon any elaborate discussion of the question, but, having examined all the authorities cited in the briefs of counsel, and as many others bearing upon the question as were within our reach, we shall proceed to state our view of the law applicable to the facts in this case. All the writers seem to concur that a plea of former conviction or acquittal must be “upon a prosecution for tbe same identical act and crime”: 4 Blackstone’s Commentaries, *336. “But,” as said by Chitty, page 455, “it is not in all cases necessary that the two charges should be precisely the same in point of degree, for it is sufficient if an acquittal of the one would show that the defendant could not have been guilty of the other.” We are. therefore to determine whether the charges in the two indictments in question are for the same identical act and offense, or, applying the test of Mr. Chitty, whether the acquittal of the crime charged in *141the first indictment shows that the defendant conld not have been guilty of the crime charged in the second.

1. It is first contended that the defendant could have committed but one crime in violating any of or all the provisions of section 1772, Hill’s Code, and that after the expiration of his term of office he could be prosecuted on only one indictment for a violation of such provisions, even though it embraced all the enumerated acts; and hence the prosecution under the first indictment charging the crime to have been committed by the conversion of fifty-two dollars in January, eighteen hundred and ninety-three, was a bar to another indictment charging him with having converted to his own use and failed to pay over eight thousand dollars at the expiration of his term, eighteen months later. This argument proceeds on the theory that the crime is under the statute necessarily a continuing offense, commencing with the first taking or misappropriation of money while in office, and ending with the failure to account for or turn over the balance in his hands to his successor at the expiration of his term. It is settled that when embezzlement is committed by means of a series of connected transactions, a charge that the crime was committed on a certain day will cover and admit evidence of the whole, (State v. Reinhart, 26 Or. 466, 38 Pac. 822,) but when the acts constituting the crime are separate and distinct, so that the prosecution can allege and prove one distinct act which renders the offense complete, it is ordinarily to be held to the general rule that the proof must correspond with the crime charged in the indictment. See Edelhoff v. State (Wyo.), 36 Pac. 627, for a well considered discussion of this question. It seems to us plain that the statute defining the crime of larceny of public money clearly specifies three separate and distinct acts, the commission of either of which will constitute the crime, to wit, (1) conversion by *142the party having the same in possession; (2) loaning with or without interest; (3) neglecting or refusing to pay over as by law directed or when lawfully demanded. (Hill’s Code, § 1772); and unless two or more of these enumerated acts are in truth only successive steps in one appropriation they will each constitute a full statutory offense. They are enumerated in the statute in the disjunctive, are of equal legal import, and prima faeie each charge is a separate offense. From this it necessarily follows that a prosecution for a crime committed in either of the three ways mentioned will not bar a prosecution for one committed in either of the other two, unless it be for the same identical act. A defendant could not of course be tried for converting public money to his own use, and afterwards prosecuted for failing to pay over the same money as by law directed or required; or, e eon-verso, he could not be tried for failing to pay over publie money as by law required, and afterwards prosecuted for converting the same money to his own use. But the fact that he had been indicted and tried for converting a specific sum of money at a certain date during the term of his office, would not bar a prosecution for failing to pay over money in his hands at the expiration of his term, unless it further appeared that both grew out of the same identical act or transaction, and were for the same offense. Thus, if the defendant was tried for converting certain money to his own use, and the prosecution failed because the money did not in fact belong to the county, such trial would be a bar to a prosecution for failing to pay the same money over to his successor in office, because it would be for the same act or offense; but if he was acquitted because in fact he had not converted the money, but still had it in his official capacity, such acquittal would not bar a subsequent prosecution for failing to pay the same money over at the expiration of *143his term, for the reason that the offenses charged are different, and grow ont of a violation of separate provisions of the statute.

Many tests have been announced by which the question as to when the offense is the same can be determined, but their application must necessarily depend largely upon the facts of each particular case. For instance, it is often said and stated as a test that a conviction or acquittal upon one indictment is a bar to a subsequent prosecution upon another, when the facts alleged in the second indictment would, if given in evidence, have warranted a conviction on the first, and this is the rule principally relied upon by the defendant in this case. But it must be accepted with some qualification, and as true only in a general sense. Thus, if after a conviction of assault and battery, the injury resulted in death, the defendant, it is held, may be prosecuted for manslaughter or murder, although, under the facts set out in the second indictment, he might have been convicted of the crime charged in the first: 1 Bishop’s New Criminal Law, § 1059. So, too, in prosecutions for the unlawful sale of intoxicating liquors, each sale constitutes a separate offense, and although both indictments charge a sale to the same person, and the prosecution could support either by the same evidence, inasmuch as the date is immaterial, yet a prosecution on one would not be a bar to the other, unless it was for the same act of selling: State v. Ainsworth, 11 Vt. 91. So also where each obstruction of a highway by a railway company constitutes a distinct offense, an acquittal on the trial of one indictment is not ipso faeto a bar to another, found at the same time and charging the same character of offense as having been committed on the same date, although the same evidence would have supported a conviction on either at the election of the prosecution. But in such case it is only a bar to a prosecution for such of*144fense as was proven or attempted to be proven on tbe trial of the first indictment: Chesapeake Railway Company v. Commonwealth, 88 Ky. 368 (11 S. W. 87). So, then, it cannot be said that the rule suggested affords an infallible guide.

Another rule sometimes adopted is that the conviction or acquittal on one indictment will be a bar to another prosecution growing out of the same transaction. But this also must be taken as true in a general sense. A single act or transaction may be an offense against two statutes or against the law of two different jurisdictions, in which case one prosecution will not bar the other: State v. Stewart, 11 Or. 238 (4 Pac. 128); Morey v. Commonwealth, 108 Mass. 433. The question is not so much whether the defendant has been tried for the same act, or whether the facts alleged in the second indictment would have warranted a conviction on the first, as it is whether he has been put in jeopardy for the same offense, or some part or constituent element thereof, and the rules to be found in the books are only means for the determination of that question. As said by the learned editor of the American Decisions in an exhaustive and very instructive note to Roberts v. State, 58 Am. Dec. 537, “The offenses charged .in the two indictments must be substantially the same, or, as we shall see, they must be of the same nature or the same species, so that the proof of one involves the proof of the other, or such that one is a part or constituent element of the other.” Now, the two indictments against the defendant in this case were not for the same offense, prima facie, nor did the proof of one necessarily involve the proof of the other, nor did an acquittal on the first necessarily show that the defendant could not have been guilty of the crime charged in the other, and hence such acquittal was not a bar to a prosecution on the second indictment, unless the defendant had shown that they *145were both for the same identical act, which he did not do. The fact, if it was a fact, that the fifty-two dollars which he was accused of converting to his own use in January, eighteen hundred and ninety-three, but which the jury found he did not convert, was a part of the eight thousand dollars which the jury found he did not turn over to his successor eighteen months afterwards, would certainly not make the first acquittal a bar to the second indictment, without additional proof that the failure to turn over was on account of the same identical act which it was charged constituted conversion in eighteen hundred and ninety-three, for such acquittal did not in any way tend to show that he was not guilty of the crime charged in the second indictment. We think, therefore, that the trial court committed no errpr in excluding the testimony offered.

2. The remaining questions in this case require but a brief notice. It is claimed that the court erred in refusing to instruct the jury to find for the defendant on the plea of former acquittal because the same was not formally denied by the state. Pleadings in criminal actions are governed alone by the statute, (Hill’s Code, § 1266,) and while it makes provision for the manner and form of. the plea of former conviction and acquittal, (Hill’s Code, § 1332,) it nowhere requires a reply by the state to such a plea, nor do we think it necessary: Vowells v. Commonwealth, 83 Ky. 193; but, in view of this question, the defendant, by going to trial on his plea without objecting that issue had not been joined on it, waived a formal reply, even though it were necessary: Commonwealth v. MeCauley, 105 Mass. 69.

3. It is next claimed that the indictment is fatally defective because it does not allege the value of the money which the defendant is charged with having failed to pay over to his successor in offiea An allegation of value in *146cases of this character is usually essential to the validity of an indictment, but the rule applicable to this case seems to be that where a public officer charged with the receipt and disbursement of public moneys is accused of a violation of the' statute, an allegation that he failed to pay over a specified sum of money is a sufficient allegation of value, as the presumption is that it was lawful money such as had been received for and could be used in payment of the debts of the county: State v. Knox, 17 Neb. 683 (24 N. W. 882).

4. It is also claimed that the court erred in denying defendant’s motion for a continuance on account of the absence of a witness. This was a matter in the sound discretion of the trial court, with the exercise of which this court will not interfere except in case of manifest abuse of discretion, which does not appear to have been the fact in this case: State v. O’Neil, 13 Or. 183. It follows that the judgment of the court below must be affirmed.

Affirmed.