Lead Opinion
The general allegation of noncompliance is not tenable. The others urge duplicity, and duplicity is not reached by demurrer. State v. Abrahams,
But we incline to resolve the doubt whether the point was sufficiently made below in favor of an application in aid of liberty, and to waive the rule as to presentation here — one intended to relieve us of the burden of ascertaining the point
II. We are clear that it was right to overrule that part of the demurrer which presents that the statutes proceeded under are repugnant to the Bill of Bights, the Constitution of the United States, and the Constitution of the state.
The ultimate proposition is .that upon these premises it is apparent, upon the face of the indictment, that any trial had thereunder must end with a fatal variance between plea and proof.
While isolated sentences in argument and loose words in authorities relied upon convey the idea that the indictment is defective because it charges an impossible offense, they are, instead, merely an argument for the conclusion that this indictment is one under which no effective trial is possible. The consideration of this contention involves, (1) whether a joint commission of the offense charged is impossible; (2) whether two may not be properly charged with the joint commission of it, even though two cannot (physically) jointly fail to procure and file a certificate, and whether, even though the offense charged cannot be committed jointly, it follows that because the charge is joint both must be acquitted, should the evidence show that one alone was guilty, or that both are, independently, guilty.
It is true there are some cases for the proposition that some acts cannot rightly be joined in an indictment. It is equally true that some of these do not hold to the rule unqualifiedly, and, so far from attaching to such joining the consequence that all indicted must be acquitted without reference to what the proof of several guilt is, hold such misjoinder can be obviated and corrected. It may be granted, for the sake of argument, that a few of these first few hold that upon such misjoinder such consequence follows; but we believe these do not voice the weight of authority, and to a certainty do not announce what is now the law.
United States v. Kazinski, Fed. Cases, No. 15,508, holds, without more, that several may hot be joined in an indictment for violating a statute which prohibits defendant to “enlist or enter himself as a soldier in the service of a foreign prince”.
Without discussion or the citation of authority, Vaughn v. State,
State v. Lancaster,
In State v. Deaton,
In 1 Chitty, Criminal Law, star page 270, it is said that if four are joined for erecting four inns which prove common nuisances, and so for keeping disorderly houses, inserting the word “severally” will make the charge several as to each
In 1 Bishop on Criminal Procedure (Ed. of 1866), Sec. 223, King v. Kingston, 8 East. 41, per Lord Ellenborough, and Johnson v. State,
State v. Wainright,
The foregoing is an analysis of the cases cited for appellant, and of others found by independent investigation; and we believe from such examination that these comprise substantially all that may in reason be urged to sustain the appellant in whole or in part.
Now, on the contrary, it has teen held that a joint indictment will lie for assault and battery on part of each defendant upon the other, and at the same time (State v. Lonon,
3.
At one time it might fairly have been claimed that the rule invoked for appellants prevailed in this jurisdiction. But, as will presently be seen, this is no longer so. Without any special discussion or a citation of authority, and in fact
In Cogswell v. Murphy,
Bort & Baldwin v. Yaw,
In Barnes v. Ennenga,
“The error, if any, of the court did not consist in rendering a joint judgment, but in rendering any judgment at all. A joint tort having been averred, it was incumbent upon the plaintiffs to show a joint tort. If that failed, no judgment of any kind should have been rendered. ’ ’
It is plain that these words express no.binding decision, and we so hold in Boswell & Tobin v. Gates,
For itself, the Boswell case decides that, in an action to recover for a tort in which two are joined as defendants, and wherein it is alleged that the tort was committed by them jointly, verdict that it was committed by one defendant alone may lawfully proceed to judgment against that one defendant.
■ Lull v. Anamosa Nat. Bank,
“If plaintiff maintains his action against one of several defendants, he may have judgment against that one, and the other defendants may have judgment against plaintiff for costs. The' rule is alike applicable to actions ex contractu and ex delicto.”
IV. On analysis, it will be found the great weight of authority deals with this proposition on the simple theory that two equals two times one; that an accusation that A and B committed a murder is, in logic, equivalent to asserting that A committed murder and that B did, and that, therefore, B may not escape because A proves innocent. And, as we put it in one of our earlier cases, an argument is not persuasive whereby ‘ ‘ defendant seeks to escape not for the reason that he did not use a deadly weapon, but because he did not use all the weapons.” State v. McClintock, 1 G. Gr. 392.
As to an indictment charging that A and B sold spirituous liquors unlawfully, it was held that evidence was admissible of sales by A alone, and that this constituted no variance;
In Griffin v. Mills, 39 N. J. Law, page 587, it is held that several may be jointly tried for being common thieves, upon the theory that, if the offense be conceded to be several exclusively, the allegation that several committed the act is, in substance, equivalent to stating that each of them did it.
In 1 Chitty, Criminal Law, star page 271, it is said: Except a case like conspiracy and riot, where one alone cannot be guilty, and the acquittal of all others renders it impossible for the one remaining to have committed the offense charged, the joint charge is several against each individual, and the jury may acquit some while others are found guilty; and, at page 270, that, in an indictment for burglary and larceny against two, one may be found guilty of the burglary and larceny and the other of larceny only.
On an indictment against two for being common sellers of intoxicating liquors “in a building then and there used by them as a shop”, it was held in Commonwealth v. Brown,
“It is a well-established principle in all cases, civil as well as criminal, that a charge in tort against two is several as well as joint against all and each of them. All or part may be convicted, and all or part may be acquitted.”
In Rush v. Commonwealth, (Ky.)
In State v. McClintock,
Our own statutes (Sees. 5299 and 5300, Code), and our construction of them (State v. Smith,
Cox v. State,
State v. Nichols, 12 Rich. (S. C.) 672, maintaining the rulé for which appellants contend, in a ease wherein one defendant claimed a hog and marked it, and two others were claimed by another of the defendants and marked by him, said, ‘ ‘ Though a joint conviction cannot be supported in that case, it would be different had there been concurrence in the separate acts.”
Though the ultimate conclusion of the McChord case, supra, is against ours, it yet recognizes that an accomplice may be treated as a principal, in that it affirms that the test whether an offense be joint or several is ascertaining whether each offender be guilty in some degree of the same crime, in which event any one may be separately convicted, although the others are the actual perpetrators, and that, if each may be so convicted, their guilt is joint.
In 1 Chitty, Criminal Law, star page 270, it is said that “if money or goods be obtained upon false pretenses, all who
In State v. Zeibart,
' In State v. Comstock,
The cases rest, and our statutes were made, in recognition of the' fact that, in a literal sense, a joint offense is a
The indictment is good.
DIVISION. II.
The test is whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction. When there could, the second cannot be maintained; when there could not, it can be.”
12 Cyc., page 280, point B, citing cases from Arkansas, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Kentucky, Louisiana, Massachusetts, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, and the Supreme Court of the United States, says:
“A test almost universally applied to determine the identity of the offenses is to ascertain the identity in character and effect of the evidence in both cases. If the evidence which is necessary to support the second indictment was admissible under the former, related to the same crime, and was sufficient if' believed by the jury to have warranted a conviction of that crime, the offenses are identical and a plea of former conviction or acquittal is a bar.”
Is this rule applicable to the case now in consideration?
No case is found wherein the rule that the mere possibility of introducing the same evidence to sustain two indictments will bar prosecution under the last has been applied where the last indictment begins to charge at a point of time later than any covered by the first. The utmost cited is that this rule is applied where the second indictment is not so restricted in terms as to exclude testimony of all acts during the period covered by the first indictment. Or cases.wherein the identical fact upon which the second prosecution rests was upon evidence actually adduced at the first hearing found against the state. Or wherein the second prosecution relies upon some act which was so closely connected with one tried before as to be the creature of the same impulse. Or where there is a merger of all acts preceding the finding of the indictment because, for instance, acts are, in several indictments, charged to have been committed during January, February and March of a given year, and there is trial and acquittal upon the indictment covering March.
Th.e dismissed indictment, urged as a bar, was found on February 10, 1918, and charges that the acts complained of were done “on or about September 1, 1912’’. The indictment at bar was found on October 16, 1913, and charges that the acts complained of were done “on or about October 4, 1913, and from that date to October 16, 1913 ’ ’. So far as the face of the indictments goes, the last does not include,, and confines itself purely to, an accusation that like acts were committed later than any time covered by. the first. This is material on whether some of the eases relied on for appellants are applicable.
With most laborious search, we have been unable to find any case wherein the two indictments involved were, in this particular, either in form or in substance like the two involved in this appeal. Indictment No. 1 complains of acts done 1 ‘ on
In Commonwealth v. Dunster (Mass.),
In Commonwealth v. Robinson,
In State v. Brownrigg (Me.),
2.
It may be gainsaid that in State v. Waterman,
The difficulty is that, while the case might have been decided upon the ground that it was possible to sustain either indictment by acts done within a time common to both, it actually determines nothing except the effect to be given to the actual evidence adduced on the first trial. Whatever .is said, the question of what effect the mere right to put in evidence has is not in the case by way of decision. The essence of it is that the evidence in the case last tried shows
“The first ease involved the question of the existence of the highway, the verdict of the jury in that case, of necessity, determined that the highway did not exist, and that fact cannot be again inquired into in another criminal action. ’ ’
The material allegations of the two indictments are the existence of the highway and its obstruction by the defendant.
“It is clear, then, that the former trial directly involved the question of the existence of a legal highway and the obstruction of that particular highway by the defendant.”
In other words, we hold that, where it is found in one trial that no highway exists during a certain period, defendant may not be again tried for obstructing, because at a later time the same obstruction remains in what is still not a legal highway.
In State v. Blodgett,
In State v. Ingalls,
“While the defendant in that case was twice indicted, yet each presentment was for the same offense, to wit, that of obstructing a highway; and the evidence adduced conclusively established the fact that it was the same highway, and the same obstacle which it was claimed constituted the obstruction*116 to the highway in each case. It was also shown that the indictments covered, in part, at least, the same periods of time. On such a state of facts, we held that an acquittal in the one ease was a bar to the prosecution of the other. ’ ’
Distinguishing the Waterman case, or, perhaps, making a substantive rule of its own, the Ingalls case points out that the question is not whether the same evidence is admissible on both indictments, but whether the evidence that will sustain one is necessary to sustain the other. That is to say, though an act done within the overlapping period might, if used, avail to sustain either indictment, this 'possibility does not control as to acts in a period subsequent to the overlap. For, while the state had the power to use any act in the duplicated period to sustain either indictment, it might prove the second indictment without resorting to any act within the duplicated period.
In Watson v. Richardson,
“ ‘An adjudication by a competent tribunal is conclusive, not only in the proceeding in which it is announced, but in every other where the right or title is the same, although the cause of action may be different.’ The very right to recover is based on precisely the same ground in both actions. It is not essential that the causes of action be the same. The right or title on which they rest must be.”
Something is said in State v. Price,
“It was said (in the Waterman case) that under the provisions of the statute to which we have referred the acquittal under the first indictment was a finding that there was no*117 highway which the defendant could obstruct; that this finding was conclusive, and could not be again inquired into in the same kind of a criminal action.”
This is decisive of the Price case, because the two crimes are of the same general nature, both being sexual crimes, and involving unlawful knowledge, and, ‘ ‘ as the offenses are of the same nature and species, the rule announced in State v. Waterman must govern, and unless we overrule that case we must reverse this. ’ ’
In an elaborate dissent, written by Mr. Justice McClain, and concurred in by Mr., Justice' Sherwin, it is insisted that the true rule is, “that the second prosecution will be barred only where the transaction for which defendant has once been prosecuted is the same as that for which he is proceeded against on the second prosecution, or at least involves the same acts. That identity of transactions is the controlling consideration is the rule of the greatest number of cases, especially of the modern cases” — and a number of authorities are cited.
Construing the Price case, we held, in State v. Norman,
3.
The controlling factor in other cases is the doctrine of merger and the reasoning that, where a single impulse repeats a given act, the offense is continuous, that there may not be indictments for each constituent act, and that a prosecution absolves from all that went before. This is the holding in Smith v. Smith,
In State v. Egglesht,
In Jones’ case, 1 Q. B. (1893) 89, this rule is applied to a case wherein an apothecary, forbidden to act without license, and having none, supplied medicine to three different persons on the same day.
We said in State v. Sterrenberg,
In State v. Nutt,
In McWilliams v. State, (Ga.)
Several cases relied on for appellant’s contention are governed by this doctrine of merger. "
In United States v. Burch, 1 Cranch C. C. 36, it is said:
“The keeping of a disorderly house is a single offense', and one conviction is a bar to a prosecution for keeping a dis*119 orderly house at any time prior to the finding of the indictment.”
In Freeman v. State,
In State v. Lindley,
In Ex parte Snow, 7 Sup. Ct. R. 556,—unlawful cohabitation, — three' indictments were presented on the same day, to wit, December 5, 1885. No. 742 was tried first — it covers between January 1, 1885, and December 1,1885; 743 was tried next — it covers all the year 1884;-741 was tried last, and it covers all the year 1883. It is held that trial and conviction of the one covering all of 1885 barred prosecution for the same continuous act of unlawful cohabitation committed during the two prior years of 1883 and 1884 .
In Wilson v. Commonwealth, (Ky.)
In Cawein v. Commonwealth, (Ky.)
This, too, settles nothing for this controversy.
II. We do not understand just what appellants claim for their statement that ‘ ‘ The difficulties under the second indictment could have been readily obviated by the county attorney by confining the practice to the treatment of certain persons between certain specified dates or by an indictment similar to thé one at bar, but charging the offense as between certain specified dates. ” It seems to us that is precisely what the state did do in the second indictment.
The first indictment against these defendants was found on February 10, 1913, and charged them with acts committed “on or about September 1, 1912”. The second indictment; the one now in hearing, was found October 16, 1913, and charges acts committed “on or about October 4, 1913, and from that day to October 16, 1913”. So far as its terms go,
If more care had been used in making and applying the salutary rule which makes time immaterial so long as the proof does not go back of the statute limitation period, there would be no difficulty now. The rule was formulated to obviate farcical miscarriages of justice — escapes of those clearly shown to be guilty, because, forsooth, the prosecutor had charged the offense to have been committed on the third day of a September,- and the proof showed it was done on the second day of that month — a variance that all care might not be able to guard against and which could have worked no prejudice to the accused. But the fact that there are cases in which it is right 'to apply this rule never proved that' an act charged to have been done on or about a named day, and during specified days from and after that day, might be sustained by evidence of acts done at any time within three years earlier than the named day. The rule that is intended to make harmless variances harmless, rightly understood, never was nor could be used to treat an allegation that a thing was done on and after a day named as being the equivalent of a charge that it was done on the named day 'or earlier — precisely what must be held if the dismissed indictment is to bar the one in hearing,' and on the ground that evidence admissible on the first will sustain the last. We think it does violence to no proper 'application
Just that is ruled by Fleming v. State, (Tex.)
In Commonwealth v. Respass (Ky.),
“It appears that appellee’s business was only operated in the afternoon from about 2 P. M. to 5 P. M. each day; that he had 15 or 20 employes there daily to wait on the crowd; (■hat about 175 or 200 people would meet there every afternoon in this way, except on Sunday, and engage in betting on horse races. The court cannot see that this was the product of a single impulse, and, when the' commonwealth elected to confine each indictment to certain limits of time, the proof should be confined to the period so specified, .and a conviction under an indictment for one period is no bar to an indictment for a different period.”
It is said in the Cawein case, supra, “If, after the indictment is found against him, the defendant continues to maintain the nuisance, he may be subsequently indicted for its continuance after the finding of the former indictment; for proof of this could not be used to secure a conviction under that indictment, and prosecution for an offense cannot operate as a license to continue it. The state has, therefore, an adequate remedy for the suppression of such offenses without splitting them up in different prosecutions, all begun at the same time.”
In State v. Ingraham,
12 Cye., page 281, says: “But where a continuous offense
III. By almost inevitable inferential deduction, the class of eases — of which one that considers whether a preseiitation for conspiracy bars one for the crime which is the object of the conspiracy is a type — refutes any claim that the mere possibility that the evidence which sustained one indictment is usable to sustain the other operates as a bar in either.
In State v. Crofford,
We hold in State v. Brown,
In State v. White,
In McClintock’s case, 1 G. Gr. 392, it is held that, though a co-defendant has been acquitted, it will not bar the prosecution of one jointly indicted and not yet tried, and defendant may not show that one jointly indicted with him and separately tried has been convicted. State v. Fertig,
The acquittal on separate trial of one of two jointly indicted for murder in the first degree does not bar the trial of the other for that offense. State v. Lee,
In our opinion, the judgment below should be and it is —Affirmed.
Dissenting Opinion
(dissenting). — I agree with the majority in all it has to say as to the general rule affirming the propriety of joining in one indictment all persons charged with having any hand in an offense, whether as principals or accessories; but I am equally convinced that there are offenses of such distinctly individual character as to exclude the possibility of accessories, and the case at bar affords an apt illustration of what I mean. If either defendant undertook the practice of medicine without a proper license, he was guilty of the offense charged. If both failed in this respect, then both were guilty, but both were not guilty of the same offense; that is, each was guilty (if at all) for his own failure to comply with the law, and not because of the failure of his co-defendant.
Let us suppose A is alone indicted and put on trial for violating the law by practicing medicine without license. The evidence discloses that he has never pretended to any ability to heal, but, on the contrary, has disclaimed all such accomplishments, and refused at all times to treat the sick and afflicted; but it does appear that he is associated with B, who does hold himself out as a physician and surgeon, and practices in that capacity without a license. It is further shown that A furnishes B an office, actively advertises B’s skill and ability and receives a share of B’s earnings. Now whatever other law of God or man he may be guilty of violating, A is not guilty of B’s offense against the statute which prohibits the practice of medicine without a license.
Again, A and B may form a partnership for the practice of medicine. Both hold themselves out as physicians and practice as such. It happens, however, that, while A has a license
I would reverse the judgment below.