*1 alleged accomplished was abortion are set out in identical lan guage both informations. The last filed and upon which de apparently an copy one, fendant convicted exact of the first except slight unimportant in most differences details. From the "Francis M. appears circumstance the name Mason” both in- defendant, formations the name an of fact inference arises they person (22 32; J. 92, are one and C. sec. 451) Court, l. c. 125 S. W. and defendant was not required identity produce further persons charged in the two informations. person charged
Aside this, fact effectually information was first conceded the State in its pro motion for the order nunc tunc when it asked that the record of Term, 1928, showing* the March defendant, "that M. Francis put upon trial,” etc., pro Mason, was be corrected nunc tunc. possibly The court trial have overruled the of former ground jeopardy on proof the failure of as to defendant’s identity. conclusively the view we take that record shows that de- put Term, in jeopardy
fendant the March he could not legally again be tried and be convicted in the trial which we are reviewing. It, unnecessary here therefore, becomes to consider other assignments of error made in briefs. judgment discharged.
The and the defendant All is.reversed concur. Roy Toombs, Appellant. (2d) C. 61. Two,
Division December 1930. *2 appellant. Abbott, Edwards Eauntleroy, OuUen é *3 As- el, Robison, G. Attorney-General, Stratton Short Edward Attorney-General, respondent. sistant for COOLEY, was tried C. Defendant convicted Circuit City
Court of of St. Louis violation of Section 3350, Revised January charging or about that on tbe indictment
Statutes Com- being president Insurance 1928, he, International Life feloniously procured corporation, pany, wilfully, designedly ownership signing fraudulent certificate of a certain false with corporation capital of three thousand shares of the stock said numbered being same, intent to issue the said certificate felonious of one fine punishment at a jury D11011. defendant’s The assessed From years’ imprisonment penitentiary. and three dollar judgment upon appeals. verdict he sentence exactly like alleged certificate, together false with two others The signed, respects except numbers, was dated it in all the serial respectively January 17, 1928. other numbered The two were D11009 and D11010. Each certified be the owner 3,000 shares of stock. issued to defendant at the The three were part single transaction, procuring time as of a purpose them, parties being pledge which was known concerned, all 9,000 represented by Great shares to the Southern the three certificates security Company $500,000 he owed that Life Insurance note $500,- company. previously, August, procured He had about through president, Mr. Green- loan Southern Great its wood, pledging security. Desiring back certain take collateral as pledged agreement the collateral Mr. Green- first effected an wood, Southern, December, 1927, lie acting for the Great might and would Great substitute for held the collateral then Southern 9000 shares stock of International Insurance Life D11011, ag- Company. certificates, D11009, D11010 and three gregating 9,000 agreed Green- upon shares between defendant and wood, immediately January 17, their on sent issuance *4 by defendant in a letter of for the Great that date to Greenwood Southern, pursuant agreement. previous to their made, When agreement the above mentioned with Greenwood defendant did own Insur- shares Life 9.000 of the International Company’s ance stock. was then capital total authorized stock Its January 1928, and on 17, 37,500 shares, all which had been of outstanding. 23,624 5, 1927, and was January shares of this Prior to by corporation stock were owned known the International Com- pany, company. holding is referred in the as the to record Defendant ing all hold- practically owned or stock of the of the common all 5, company. January holding by On company resolution the 15,924 of its directors, board of Life sold to defendant shares of the by Company’s de- Insurance stock stock so sold to owned it. Of this shares, encumbered, 10,000 repre- fendant over pledged were or by sented safety-deposit banking certificates then insti- boxes in two tutions in St. provided Louis. The to the resolution above referred that stock should be blocks delivered to such times and such defendant at delivery, or upon paid numbers of might desire, as he shares to provided possession further should be but entitled to defendant payment president of the stock before of giving therefor to the holding company the an he "interim certificate” for stock as present purpose desired to For receive. our further we need not detail provisions payment the relative to for the the interim certificates and stock. prior January 17, 1928, given
Defendant claims had to to which, president holding company of interim certificates true, of the resolution statement was entitled him under terms January of possession of certificates of stock immediate who safety-deposit company, holding boxes. president Other officers brother, defendant’s was not witness. called as a company they of that knew no far as testified for the State that so any delivered, in given, interim certificates were nor were bonds January payment of the stock resolution of by sold to defendant may, possession 5. Be that as get of defendant did not actual It safety January stock 1928. certificates boxes until after inability get appears, however, the real reason for his stock open held keys certificates was that the boxes were necessary to parties other months after continued so to be held bought from the had clear defendant the stock. It is means no authority keys any parties holding State’s evidence that had January according so do defend- after the resolution 5. authority. ant’s they evidence did not have such outlined, certificates With matters in the the three situation above evening numbered D11009. D11010 D11011 issued. were January meeting directors there was of the board over, Company. Life meeting Insurance After the secretary, Darst, him issue to came into the office and asked (Toombs) three him Darst tore three certificates of 3.000 shares each. book, assistant, passed blank from stock them to his certificates Grantges, spaces they signed by who filled out blank were defendant, secretary, Darst, vice-president, and and handed to three, stated, immediately who letter enclosed all as above being hurry, Grantges, Greenwood. The indicated any signed they out, the blank before filled certificates out, occupied delivery making signing of the certificates event the pursuant to a but a few minutes and was all done at one time request testified that single or defendant. D'efendant direction "charge” he, time, of stock the certificates at the directed Darst *5 which against safety-deposit he in the boxes thus issued the stock January acquired had 5. Darst testified that the resolution of given specifically he recall was did not direction time, was to be done and that he understood that that but admitted procured old could be certificates keys the boxes that as soon as the to then in the represented by boxes the the certificates amount new were to be canceled. throughout Defendant certificates contended that the three the case January or addi represent 17th new were never intended to stock.,
tional only but were and in fact intended to be transfer of right stock which in good the he faith believed had he owned and transfer; court, sought, and permitted by he the was not but May show possession keys, that as soon about get as he of the original or following, June intent pursuant and he did fact officers, produce original understanding company’s and the of the the equal certificates, have1 canceled an so amount of old the outstanding increased. The company stock fact of the State claimed constituted an the mentioned certificates above over-issue of stock fraudulent. and were therefore false and
Prior to the trial of had been tried and the instant case defendant issue, of certif- procuring signing, convicted for with intent the $3,000 icate D11009 of mentioned, pay a fine above and sentenced to years’ imprisonment appeal On penitentiary. three this' under- judgment court the now is affirmed and going imprisonment in that case thereby opinion The assessed. is which reported (2d) Toombs, 324 Mo. 25 S. facts, see indictment which for further of statement also the alleged therein copied. there false certificate indictment and the except set out are identical in the instant those have disposition we serial of number For the certificate. facts foregoing outline of concluded be made of must this case the is deemed sufficient. many of urged by for reversal
Among appellant contentions convicted for judgment herein is that had been once tried well it is decisive offense. If that taken contention is provision Constitution II, of our case. While Article Section again any person, jury, being acquitted “nor shall after once liberty,” does not put or in'jeopardy for the same strictly of life but convicted on apply, acquitted since defendant was for the trial, yet person shall rule that no first common-law (State in force put jeopardy same offense be twice Linton, con- 847) precludes a second first punishment shall therefore viction for the We same offense. question. determine that plea written convict not file a formal Defendant did autrefois general no-* proof sought under issue
but to make that or 1919. Hr guilty, Section Revised Statutes as authorized transcript proceedings record of the entire offered instructions, indictment, evidence, trial, including former judgment. ruling, ro.e As understand the court’s we verdict court, ord admitted the consideration was excluded
987 (with holding the court jury, doubt) considerable that from the jeopardy. defendant’s of former Since sustain the whole did legal its question the court effect was thus before record jury to determine. v. Keating, rather than court [State From thus appears the record offered it that 699.] by in substantially the State the first trial was offered evidence in ease. substantive facts relied the instant the same except, course, of in the the same that were first case conviction procured required signing to find that defendant jury was of D'11009, certificate fraudulent while the instruc- false and numbered finding procured signing required the that he in this case tions certificate numbered In D11011. both trials fraudulent of a false and alleged certificates, D11009, false D11010 D11011 all three of the appeared In both it evidence. the State’s were introduced arranged pledge had with Greenwood that defendant stock, mention 9,000 of without of the number of company shares 9,000 represented, such shares to be certificates given request pursuant to Darst one direction or he had aggregating 9,000 signed certificates shares were which the three gave numbering He no direction as at the same time. of the certificates. question whether determining
In defendant’s act constituted may holding we from consideration or three crimes eliminate eases of an may be a violation two statutes where essential act ele- that one statute is offense denounced not an ment of the essential ele- other, having in the such as carnal knowl- defined ment of the offense previous statutory chaste character under edge female previous character of age, which chaste the female essen- is an offense, .guardian the defilement of his tial element previous ward, wherein chaste character of the female need not be guardian appear. and ward relation of must but the shown acquittal charge an of one is not a bar á held that we havé Oakes, 202 Mo. statute. other prosecution [State under the may principle, however, on well doubted It be 100 S. 434.] one of statute under those sections convicted one were punished under the other for same again prosecuted and be point. act, though need here decide that we criminal may directly point which hold that there are cases Neither general in the course of the same offenses committed distinct intoxicating example, separate and distinct sales of transaction, as, for persons transaction, gen- same or to different liquor to succession; v. Salter erally which State speaking, immediate example. principle applied (Mo. 256 S. W. is an That App.), by respondent, Morgan, Ebeling U. S. cited also successively open cut several mail which ease the accused one time cutting and it was held sacks steal from each with intent to being designed a distinct statute sack of each open spoliation. Attorney- sack from The learned mail each protect analogy statute herein de- argues by that the involved General think, stock. however, We do not share signed protect each *7 separate a defendant committed offense for that contend means to he issued. The makes it an 9,000 shares statute offense to of the each “any or etc., false fraudulent . signed, certificate . . cause to be any ownership capital ... of share or shares of the stock of the ours.) Obviously, statute, under that (Italics there . . .” repre- distinct offense for each share of stock separate abe not in certificate. one sented 443, 263, Juris, page Section the rule is stated Corpus 16 to be In of common law and of the constitutions prohibition is “the that ‘offense,’ is, that for jeopardy the same the identi against for a second expressed a crime; cases, as in of entitle or number cal act charged successfully jeopardy, former the offenses plead a defendant prosecutions must be the same law and fact.” See in the two page 143, 128, sec. and State v. 152 Law, Gustin, Ruling 8 Case also 421. But rule is well settled that the can 108, State 53 S. Mo. single prosecute parts, prose it that crime a split up a single any prosecution crime any of bars further part a cution for part same J. or of the crime. upon the whole another C. [16 based 145, sec. ; Many support 448 8 R. C. L. cases of the 270, sec. 130.] notes in both above mentioned authorities. in the are cited texts Ruling Law, it is in 8 just rule stated said Case of the Illustrative supra: offense, though may facts constitute but
“Thus when the parts, larceny stealing for into of division susceptible time, prosecution judgment final same at the property of articles subsequent prosecution will bar a stealing of the articles some time.” any the other articles taken at stealing of weight by authority, seems, of held foregoing rule to be larceny several articles in cases of of same time and applicable belong even when continuous act the articles stolen place and as one Sampson, Iowa, 257, v. 157 138 W. State N. persons. to different [See (N. S.) note; 967 State, 76, A. Wilson v. 45 473, 42 R.L. Tex. 68 602; Emery, 34 54 Rep. v. Vt. Atl. Am. 23 Am. 55; State, in this State. the rule Mo. [Lorton Such St. 878.] Morphin, 37 Mo. 373.] States, Henry Appeals Fed. the Court of v. United of held the embezzlement at the same time the District of Columbia that corporate belonging of stock different persons certificates of two saying: principle the court “The is sus- constituted but one weight authority or overwhelming stealing of tained persons belonging to different at the same time property conversion single [Citing many offense.” cases from place constitutes but court, Laughlin, State v. This 79 W. S. states.] inapplicable held tbe rule in-an respondent, embezzlement cited curator of two separate defendant was tbe estates com- where case him, charged separate times and indict- at different mitted embezzling each acquitted funds from estate. Tried ments with acquit in case, then filed the other he autrefois appeal On which was sustained. demurrer court.held sustained, distinguished properly embezzlement demurrer statute ground charge larceny under the on the exist, relation must “and it violation a trust predicated and the conversion of fund that constitutes the of this relation ’’ in larceny, is violated and that, having no trust relation offense; persons, different charge funds of found fact no embezzling funds one furnished reason why, guilty of embezzling other, prosecution funds of the therefor guilty should be barred. forbidding single splitting up rule *8 application the of a prosecutions parts for illus- and thereof further successive
crime following Iowa, 41 Egglesht, 574, v. 20 in cases: State Am. trated holding delivery 612, at the same Rep. that time the same forged purporting of four checks a bank teller to act to have been persons constituted one drawn four different but of utter- offense for prosecution uttering forged paper, that one ing prose- barred uttering others; Moore, 422, v. 86 for State Minn. 61 L. cution uttering forged a 819, A. conviction for mortgage that barred R. subsequent uttering forged for prosecution the same time a mortgage purported (and to note secure see note to that State, 23 819); 587, uttering 61 A. Barton v. L. R. Wis. that forged offense; Benham, drafts at one time is one State v. having possession at one time 414, 7 Conn. that with intent to purporting or notes them several counterfeit bills to have been utter offense; is one v. (Tex.), banks Gates State 271 different pass forged at one time intent to nine 632, possessing that S. possession one offense conviction of instruments constituted prosecution further for possession said instruments barred one of others; (Wash.), 124 212, v. Elliott Pac. State that uttering sev- forged person documents to the same eral at one time one forging but one offense. transaction constituted That several names single instrument at one time constitutes to same see 106, 71 Everage State, App. 14 Ala. So. 983, v. State v. Coffman 33 A. L. 559. 678, 261 W. R. (Tenn.), S. 236, 23 Ind. 77 Rosenbaum, App. Am. St. 432,
In State v. a statute proprietor for of a permit any it unlawful saloon to made person family go other than himself and into saloon at certain times. go together. Two men had been allowed to Defendant had been acquitted allowing for of them ingo tried one trial and
990 subsequent prosecution a bar to the for permitting held other same time. go in at the supra, for Linton, prosecution held
In v. that State court Option Law intoxicating liquor in violation of Local delivery subsequent prosecution liquor, for sale the same was a bar to having completing prin- made delivery been the sale. The same applied to similar facts in Schroeder v. United ciple somewhat counts, (2d) 60, in States, 7 Fed. which the contained two indictment transportation liquor, the for of the same possession for and one one only transportation, being incidental possession shown permit on counts would be holding that sentence both the court punishment. double to inflict 507, Colgate, Rep. Pac. 47 Am.
In Kan. in a certain of account which were defendant had set fire to books spread mill. He had been grist mill fire to and consumed the and the charge burning On a acquitted on a arson for the mill. tried and pleaded former subsequent burning arson books he trial for for opinion, In reasoned which numerous eases are in bar. a well trial good, saying there reviewed, the court held the was but prosecution be criminal act which but one criminal quoted Law, Bish. sec. founded. The court Cr. give provision meant, “to constitutional the force evidently our interpreted equiva effectual, render it ‘the offense' must same lent to the same criminal act.” (La.), v. Roberts 93 So. A. L. R. held prosecution transporting liquor that a parish was a bar prosecution transporting liquor in one continuous transportation in parish; another identity of offense does not formal, technical,
mean
absolute identity, identity.
substantial
*9
States,
See
United
283
785;
also Weiss
Fed.
State v. Shaver (Iowa),
329;
Headrick,
198
v.
N. W.
State
179
300,
Mo.
In 16 264, sec. 443, it is said: “The term‘same offense’ . . . does signify the same offense nominee, eo act, the same criminal transaction, or omission.” Huffman, v. 136 58, 62, Mo. 37 797, quoted court approvingly from Smith, 324, Vt. as follows: “When necessary one offense a is element in and constitutes an part essential of another and both in are fact but one transac- prosecution is bar tion, acquittal or a to tbe a conviction one tbe other.” is Ruling Law, page 144, In 8 sec. said Case . . act, volition, tbe defendant
if there was one and one one intent and no act, volition, and intent charge a on such has been tried on based certif- . The three charge .' subsequent can be based thereon one signed only and icates hereinabove referred to were by defendant procurement and at one time but the transaction request or direction signing and their issuance single intent. identity of the universally applied “A test almost determine effect, of identity, in character and offenses is to ascertain the necessary support both If the cases. evidence which former, related the second indictment was admissible under crime, jury have if same and was sufficient believed identical, and crime, the offenses are warranted a conviction of that acquittal if the facts or is a bar. former conviction But necessarily have prosecution will convict on the would not second second, will first, a bar to the convicted on the first not be then the charged may same although have committed been offenses transaction.” C. J. sec. [16 445.] authority states, however, page The same in Section prosecutions proofs identical, the two need and this not be necessarily single split crime and up so. Otherwise the State could many offense prosecute parts were into which the as times as there part for one susceptible being divided, prosecution and a there subsequent prosecution part because would not bar another proof. or identity would not indictment either absolute stole example, place act one For if the same time and money prosecuted a watch belonging person same and convicted under charging an watch alone. theft of the indictment money, and charge then stealing should be indicted for the necessarily both proof in the second ease would differ hardly describing thing it could the first stolen. Yet in separate be contended that offenses had been committed. [State two O’Connell, S. 175.] In this show case the State to upon material .relied facts guilt necessary defendant’s support and that were the indictment proved herein were the upon same as those which he was convicted under the first indictment. above, As we have stated the evidence tending guilt show which conviction must rest is evidence, respects all material in both cases. Under the *10 charged guilty of the crime in the first ease would necessarily charged second, guilty of that be innocent necessarily he would be innocent other. one presented us to here seems to meet both of the tests situation
The Ruling Corpus Law and Juris.- quoted from Case We are aware above applying general concrete cases may rules that said be established, in fairly endeavoring well to be determine whether given several, in a case there was offense committed or appellate one that, courts have reached different conclusions facts if not the same, appear at least be similar nature and to call ap- for the plication principle. attempt We shall no make reconcile apparently conflicting no these decisions. We have found case that directly point seems its facts. keeping spirit our law that
It is not in one should be guaranty person The that no punished for the same crime. shall twice always jeopardy put be twice has in this coun- the same offense try regarded rights sacred individual. one of the most of the been as design principle apply as to defeat the While courts should so society crime, penal protect prevent we think no laws to of the legitimate purpose criminal of the laws would be subserved a tech- whereby might prosecutions nical construction several maintained punishments essentially inflicted what constitutes opinion is criminal act. It our defendant committed but being punished, for which he has been convicted and is offense should sustained. that his of former conviction have been We cited, following cases, support well as think the those above as. State, 79; 11 Am. conclusion: Hurst Ala. So. St. State, Rep. 369; (Tex.), Spannell 42 Ind. 13 Am. v. State Clem 357, 2 A. 203 S. W. R. 593. L. unnecessary for us to disposes
As of the case is this conclusion judgment of circuit court questions presented. consider other Davis, G., discharged is to this ease. and the defendant reversed concurs; Westimes, C., sitting. PER opinion CURIAM: The foregoing by Cooley, C., adopted opinion
as the of the court. All judges concur. v. Willie Caviness, Appellant. The State (2d) 940. Two,
Division December 1930.