7 So. 2d 66 | La. | 1942
Lead Opinion
The State appealed from the judgment of the district court sustaining the defendant's plea of former jeopardy or autrefois acquit.
The accused contends that he was tried and acquitted by the jury of the same alleged crime for which the State now seeks to try him. The assistant district attorney argues that the offense now charged is separate and distinct from the former one and that the defendant has not been acquitted thereof.
In the first bill of information filed on May 13, 1941, it was alleged that on July 21, 1940, the defendant unlawfully received and had in his possession certain property knowing that the same had been feloniously stolen, taken and carried away; that the goods and chattels were the property of Goodman Beer and consisted of the following: *814
"Three (3) cases of Palmolive soap of the value of ................................ $22.80
One (1) case of Lifebuoy soap, of the value of ..................................... 5.50
One (1) case of Tuna fish, of the value of ........................................ 6.00
Four (4) cases of Magnolia Brand Milk of the value of .......................... 21.00
A total value of fifty-five dollars and thirty cents .................................... ($55.30),
in the lawful money of the United States of America. * * *." The defendant was arraigned and pleaded not guilty and the case was set for trial on May 21, 1941. The jury was impaneled and the information read to the members thereof. The assistant district attorney then made his opening statement to the jury to the effect that between Thursday, July 18, 1940 and Sunday, July 21, 1940, an employee of Goodman Beer, and a third party entered the warehouse of Goodman Beer at 412-430 Front Street, New Orleans, La., and carried away the above described merchandise; that these parties then sold the stolen goods for a price less than one-half of its value to the defendant, who operates a retail grocery in the City of New Orleans; that the defendant knew that the merchandise had been stolen when he purchased it; and that the merchandise was found in his place of business, 9000 Pear Street, New Orleans, on July 21, 1940.
The State placed on the stand a witness who identified the merchandise as the property of Goodman Beer and gave the value of the respective articles. Upon the defendant's objection, the district *815 judge ruled that the prosecution would have to confine the evidence to the theft of the particular merchandise in question and the sale thereof to the defendant and that he would not permit testimony as to thefts of other goods and sales thereof to the defendant. The assistant district attorney then offered as a State witness the former employee of Goodman Beer, and he stated that over a period of time, particularly beginning July 18, 1940, he and his confederate, on different occasions, stole certain merchandise from the warehouse of Goodman Beer. The defendant objected on the ground that the evidence should be confined to the theft of the goods in question and especially on July 21, 1940. The district judge sustained the objection excluding testimony tending to show the theft of goods on July 18, 1940. Whereupon, the assistant district attorney stated to the court that if he were not permitted to prove the theft of goods on July 18, 1940, the State would be compelled to abandon the prosecution and file a new information covering that date. The State's attorney did not move to either nolle prosequi the charge or to have the information amended. After the jury was instructed by the judge, the case was submitted to it, and a verdict of not guilty was returned.
On June 27, 1941, the assistant district attorney filed another information wherein it was charged that on July 18, 1940, the defendant had in his possession, knowing the same to have been stolen, the identical specifically described merchandise of Goodman Beer set forth in the first bill *816 of information. In other words, the two informations were exactly alike, except for the dates.
When the defendant was arraigned on the second information, he filed a plea of former jeopardy or autrefois acquit and on the trial thereof before the judge, the entire record in the first prosecution was filed in evidence. The issue before the court was whether or not the two bills of information charged one and the same crime against the same person, and whether or not he had been acquitted of the identical offense by the jury in the first prosecution. The district judge sustained the plea of former jeopardy and discharged the accused, and the State appealed.
The pertinent part of Section 9, Article 1 of the Constitution of 1921, reads:
"* * * nor shall any person be twice put in jeopardy of life orliberty for the same offense, except on his own application for a new trial, or where there is a mistrial, or a motion in arrest of judgment is sustained." (Italics ours.)
See also Article
In the case of State v. Yokum,
"In order for a plea of autrefois acquit or convict to prevail under section 9 of article 1 of the Constitution of 1921, the offense, that is, the criminal act of which the accused has been acquitted or convicted, *817
must be the same as the one for which he is being again prosecuted. However, this does not mean that the offense must be the same eo nomine. It is enough if the evidence required to legally secure a conviction on the charge preferred in the first indictment will be sufficient to convict on the charge preferred in the second, or if the offense charged in the first includes the one charged in the second, or if the one charged in the second includes the one charged in the first. This was so held under preceding Constitutions, containing provisions similar in all respects to the provisions contained in section 9 of article 1 of the Constitution of 1921, quoted above. State v. Vines et al., 34 La.Ann. 1079; State v. Williams, 45 La.Ann. 936, 12 So. 932; State v. Terry,
"In our view, when the trial is by jury, jeopardy attaches, under the constitutional guaranty cited, the moment the jury is impaneled and sworn. * * * State v. Robinson, 46 La.Ann. 769, 15 So. 146. * * *" and other authorities.
On the second rehearing, 155 La. at page 875, 99 So. at page 631, it was stated by the Court that: *818
"`Jeopardy' is used in our state Constitutions to designate the danger of conviction and punishment which a defendant in a criminal prosecution incurs, when a valid indictment has been found, or a valid information or complaint presented, and a petit jury has been impaneled and sworn to try the case and to give a verdict in a court of competent jurisdiction.
"Under the jurisprudence of this state, when jeopardy has once begun, if the jury is set aside against the objection of the accused, he may successfully plead former jeopardy to another prosecution; that is to say that after the jury has been impaneled and sworn the accused has the right to insist that the jury be permitted to return a verdict on his plea. 1 Bish.Cr.Law, §§ 1014, 1015; 1 Whart.Cr.Law, § 590; State v. Paterno, 43 La.Ann. 514, 9 So. 442; State v. Robinson, 46 La.Ann. 769, 773, 15 So. 146; State v. Duvall et al.,
The record leaves no doubt that the State, in the first instance, charged the accused with the crime of having stolen property in his possession, knowing the same to have been stolen, and that the identical offense is set forth in the second bill of information. This is made clear because both bills are drawn under the same statute and cover the same defendant, the same goods and the same owner, and the State will use the same evidence and testimony introduced and sought to be introduced in the first trial to prove the charge in the trial under the second information. Whether the particular merchandise *819 in question had been stolen on July 18, 1940, or July 21, 1940, was immaterial because all that the law required the State to prove was that the goods had been stolen and that the defendant had knowledge thereof before receiving and retaining possession of it on July 21, 1940. The assistant district attorney does not pretend that the same goods were stolen twice, first on the 18th of July, and second, on the 21st of July, 1940, and that the accused came into unlawful possession of the same goods after each of the thefts. It is clear that the defendant received and retained possession of the same alleged stolen property on one occasion only. While his unlawful possession continued over several days, he committed only one offense insofar as the particular merchandise is concerned. The unlawful possession of the goods by the defendant over a period of several days constituted a continuing offense and not a separate and distinct offense for each day that he retained the goods. Article 1306, Code of Criminal Procedure; R.S. 832, Act 72 of 1898.
In the case of State v. Roberts,
"The gravamen or the essence of the offense against the state was the possession and transportation of the liquor. The line dividing the parishes, from which and into which defendant transported the liquor, formed no essential element of the offense. The only importance the parish line could have in the matter would be for the determination of the question of venue or jurisdiction.
"In Marr's Criminal Jurisprudence, p. 580, it is said that identity of the offense is an essential element in support of a plea of autrefois. By this is not meant formal, technical, absolute identity; the rule is that there must be only substantial identity, that evidence necessary to support the second indictment would have been sufficient for the first. In the instant case there was not only substantial identity, but the identity of the possession and the transportation in the two parishes of the same liquor was absolute and conclusive. No more and no different evidence was required to support the charge in Bossier than was necessary to make out the case in Red River."
See also Art. 218 of the Code of Criminal Procedure.
In the case of State v. Schiro,
It will be noted that the facts in that case are very similar to but not as strong as those in the instant case.
The defendant was tried under a valid information before a court of competent jurisdiction. He was arraigned and pleaded not guilty. He was tried and acquitted by the jury. It is our opinion that the plea of former jeopardy or autrefois acquit was properly sustained by the district court. Articles 277, 278 and 279, Code of Criminal Procedure.
For the reasons assigned, the judgment appealed from is affirmed.
Concurrence Opinion
The crime of possessing stolen goods, knowing that the goods were stolen, is a continuing offense. And that is the difference between this case and the case of State v. Schiro,
"An acquittal or a conviction of a crime is no bar to a subsequent indictment for the same offense or the same species of crime, where the latter is alleged to have been committed at a different date from that previously tried, unless the offense iscontinuous." [The italics are mine.] *824
That quotation is repeated, literally, in 16 C.J. 267, § 446; and, on the next page, in the beginning of § 447, it is said:
"A prosecution for an offense which is a continuing one is a bar to a subsequent prosecution for the same offense charged to have been committed at any time previous to institution of the first prosecution."
The latter quotation fits the present case exactly. And both quotations are repeated, literally, in 22 C.J.S., Criminal Law, pp. 419 and 420, §§ 280 and 281.