No. 1459 | Haw. | Jul 23, 1923
OPINION OF THE COURT BY
In the district court of North Kona, Hawaii, the defendant pleaded guilty to a charge of assault and battery and was thereupon adjudged guilty and sentenced. Subsequently he was indicted by the grand jury upon a charge of rape. In the language of the record sent up by the circuit court, “the facts upon which the defendant was charged in the assault and battery case are admittedly the same and identical with the facts charged in said indictment for rape and the offense is the same in each case.” In the second case the defendant filed, a plea setting up the former conviction as a bar and the circuit court reserved to this court the question whether the plea should be sustained.
The constitutional provision referred to in the briefs is that of the fifth amendment reading, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” In view of our conclusion, based upon local statutes about to be referred to, it will be unnecessary to consider in this case the effect of this
“In any plea of autrefois convict or autrefois acquit, it shall be sufficient for the defendant to state that he has been lawfully convicted or acquitted (as the case may be) of the said offense charged in the indictment.” R. L., Sec. 3816.
“No person shall be required to answer again for an offense, for which he has once been duly convicted.” R. L., Sec. 3691.
“Any person who has been tried and convicted of any offense before a court, tribunal or magistrate having jurisdiction of the case, shall not be subject to subsequent criminal prosecution therefor, and such conviction may be pleaded in bar of any such subsequent prosecution.” R. L., Sec. 3692.
The language of these sections is clear and unambiguous. Irrespective of whether the court in which the defendant is first convicted had jurisdiction to try the accused for the second offense, it is plain that if a defendant has been lawfully convicted in the first case, he cannot be again convicted for the same offense. In the case at bar, it is not doubted that the district court of North Kona had jurisdiction to convict and punish for assault and battery. The only question is whether the second prosecution is for the same offense.
The commission of the crime of rape necessarily includes the element of force. It is indispensable to the
“There is considerable conflict in the authorities upon this subject, but we think the rule is now well established, that when one offense is a necessary element in and constitutes an essential part of another offense, and both are in fact one transaction, a conviction or acquittal of one is a bar to the prosecution for the other. * * * The crime of rape cannot be committed without an assault with an intent to do the act. They constitute the essence of the crime and a party cannot be convicted of both without being twice convicted of one; and as the party may be convicted of the lesser offense, such conviction must necessarily be a bar to a prosecution for the greater. And this we think is the more salutary rule, the one that in practice best protects the rights of the individual, and secures the public.” State v. Smith, 43 Vt. 324" court="Vt." date_filed="1871-01-15" href="https://app.midpage.ai/document/state-v-smith-6579167?utm_source=webapp" opinion_id="6579167">43 Vt. 324, 326, 327. In the case at bar it is admitted that both charges are based upon one transaction.
“The felonious assault for which the defendant was bound over embraced the minor offense of assault and battery, for which he was arrested and put on trial. If the defendant had been convicted for the assault and battery, it would not for a moment be contended that he could again be tried and punished for the assault with intent to ravish. To do so would be in violation of an organic law, — that no person shall for the same offense be twice put in jeopardy of life or limb. While cases
“All offenses, such as battery, mayhem, rape, robbery, etc., as well as assaults with intent, necessarily include an assault, and it is now generally conceded that a conviction of the higher offense is necessarily a conviction of the assault included in it, and it would seem to follow logically as well as by construction that a conviction or acquittal of any of the included offenses must bar a prosecution of the higher, since the higher cannot afterwards be prosecuted without opening the door for a second conviction, or a conviction of an offense for which the defendant had before been tried and acquitted.” People v. McDaniels, 137 Cal. 192" court="Cal." date_filed="1902-08-09" href="https://app.midpage.ai/document/people-v-mcdaniels-3298117?utm_source=webapp" opinion_id="3298117">137 Cal. 192, 197.
“An indictment for rape necessarily includes an allegation of assault.” People v. Purcell, 16 N. Y. S. 199. The court in that case quoted with approval the same language herein above quoted from State v. Smith, 43 Vt. 324" court="Vt." date_filed="1871-01-15" href="https://app.midpage.ai/document/state-v-smith-6579167?utm_source=webapp" opinion_id="6579167">43 Vt. 324.
“Where a person has been put in legal jeopardy of a conviction of an offense which is a necessary element in and constitutes an essential part of another offense, such jeopardy is a bar to a subsequent prosecution for the latter offense, if founded upon the same act. If a man perpetrates the offense of assault and battery and by the same act commits the offense of assault with intent to commit a rape, the lesser offense is a part of the greater. * * * Upon an indictment for assault with intent to
“We think that when a man has been tried for the offense of assault and subsequently, for the same act, tried for the crime of assault with the intent to commit a rape, he has been twice put in jeopardy of a conviction for the same offense of assault, and the constitutional provision * * * has been violated.” Bell v. State, supra, 403.
“It is also the almost universally accepted doctrine
The main reliance of the prosecution in the case at bar is upon the Schilling case, in Avhich the majority of the court held that a conviction of assault and battery did not bar a prosecution for assault with intent to commit rape. To some extent at least the opinion of the majority was influenced by the consideration that, at that time, under onr.statutes it was not possible to secure a conviction of assault and battery under an indictment for an assault Avith intent to commit rape. To that extent that case is distinguishable from this, for, in the year following the rendition of the Schilling decision, the statute (R. L., Sec. 3826) Avas amended so as to provide that “upon the trial of any person charged with any offense, he may be found guilty of any lesser degree of the same offense or of any offense necessarily included in that with Avhich he is charged, as the facts proved may warrant.” Possibly this is sufficient ground for distinguishing the Schilling case and for not regarding it as an authority applicable to the case at bar. However that may be, we deem it to be our duty to say that the reasoning of the court in that case does not impress ns favorably and that it ought not to be, in any event, followed as a precedent. The reasoning of Chief Justice Frear, in his elaborate and
In Gavieres v. United States, 220 U.S. 338" court="SCOTUS" date_filed="1911-04-03" href="https://app.midpage.ai/document/gavieres-v-united-states-97395?utm_source=webapp" opinion_id="97395">220 U. S. 338, cited by the Territory, it was indeed held that tbe first conviction did not bar tbe second prosecution but in that instance tbe court said that tbe fact was that while “tbe conduct of tbe accused was one and tbe same, two offenses resulted, each of wbicb bad an element not embraced in the other.” Tbe first conviction was under an ordinance against indulgence in boisterous, rude or indecent conduct in any public place open to view, to tbe annoyance of others; tbe second was for calumniating, outraging and insulting a public official, in tbe exercise of bis office, by word of mouth and in bis presence. While both offenses held an element in common, to wit, that of tbe boisterous conduct, each included an element not included in tbe other. “In tbe second case,” said tbe court, “it was necessary to aver and prove tbe insult to a public official or agent of tbe authorities, in bis presence or in a writing-addressed to him. Without such charge and proof there could have been no conviction in tbe second case. Tbe requirement of insult to a public official was lacking in tbe first offense. Upon tbe charge, under tbe ordinance, it was necessary to show that tbe offense was committed in a public place open to public view; tbe insult to a public official need only be in bis presence or addressed to him in writing. Each offense required proof of a fact, wbicb tbe other did not. Consequently a conviction of one would not bar a prosecution for tbe other.” Ib. pp. 343, 344. Tbe case, therefore, is clearly distinguishable from that at bar.
So also in Morgan v. Devine, 237 U.S. 632" court="SCOTUS" date_filed="1915-06-01" href="https://app.midpage.ai/document/morgan-v-devine-98480?utm_source=webapp" opinion_id="98480">237 U. S. 632, cited by tbe Territory, tbe facts were essentially different. Tbe
Our answer to the question reserved is that the plea should be sustained.