State v. Shepard

7 Conn. 54 | Conn. | 1828

Daggett, J.

In support of the motion, the counsel for the prisoner relies solely on this position, viz. that he may now be indicted for a rape ; and therefore, mav be twice punished for Qne offence>

At the trial at the circuit, the only point urged, was, that the less crime was merged in the urcater.—the attempt to commit a rape, merged in the actual rape In support of this position, 1 East’s Crown Law, 411. 410. was cited It is indeed there said, that iVIr. Justice Butler so decided, in a case before him, at the Winchester Spring Assizes, 1787.

With all deference for the opinion of that learned Judge, it is doubtful, if the doctrine by him laid down, can be supported. There would seem to be little reason for the acquittal of a prisoner, because the offence proved is more aggravated, than the one charged, if it be of the same nature ; nor, in such case, could the prisoner have just cause of complaint — nor is this opinion upheld by any other authority. It is, therefore, now abandoned in the argument, and a more rational position assume ; a position, which, if well founded, is of great weight, and ought to vacate the judgment of conviction in the court below. If the conviction there cannot be pleaded in bar of an indictment for a rape, then he may be tried again ; and, as he has already suffered, and is still enduring a punishment for the less crime, and may be condemned and suffer for the greater, he may be twice punished for the same fact, — a doctrine repugnant to well established principles of law. I am satisfied, that had the prisoner been acquitted on this trial, he could have availed himself of the acquittal, on an indictment for rape ; and since he has been convicted for the attempt, the conviction is a good bar to a prosecution for a rape.

He has been convicted of an assault, with an attempt to commit a rape ; for this he has been punished. Of these facts he has been found guilty ; and they must be alleged, and proved, to convict him of a rape. But, for these facts he cannot be tried again; otherwise, he might be twice punished for the same fact. In The Commonwealth v. Cooper, 15 Mass. Rep. 187. the supreme court decided, that, “ where one is indicted for a rape, and the jury cannot agree to convict him, they may find him guilty of an assault with intent to commit a rape,” as that was necessarily included in the greater crime.

The law is well settled, that upon an indictment for petit treason, in a servant’s killing his master, for example, an acquittal on conviction of murder for the same killing, is a good bar. 2 Hale’s P. C. 246. So, if a man be acquitted upon an indictment for murder, it is a good plea to an indictment for manslaughter of the same person ; or, e converso, if he be indicted of manslaughter, and be acquitted, he shall not be indicted for the same death or murder, for they differ only in degree, and the fact is the same. Holcroft's case, 4 Co. Rep. 46. b. So, if a person be on trial for theft, and by the proof, it should appear, that the theft was accompanied with such facts as would constitute robbery, an acquittal or conviction of the larceny, would be a bar to an indictment for robbery. The same fact of stealing, is, in both cases, the subject of enquiry, and in both cases, essential.

In this view of the case, there appears no sufficient ground for a new trial. The prisoner cannot be again indicted for the facts charged ; and had he been acquitted, it must have been a bar to any future prosecution. He therefore would escape punishment, not because he was innocent, but for the very strange reason, that he was too guilty.

The rule fora new trial, must be discharged.

The other Judges were of the same opinion, except Brain ARi>. J., who was absent.

New trial not to be granted.