84 Ky. 193 | Ky. Ct. App. | 1886
delivered the opinion op the court.
The appellant, Dick Triplett, was indicted by the .grand jnry of Fayette county, for grand larceny, in
On the trial of the indictment the accused entered the plea of former acquittal, alleging in substance that he had been indicted in the same court for burglary, in breaking and entering the dwelling of'. Ed. Caldwell, with the intent to steal therefrom. That the present indictment for larceny is for stealing the same thirty dollars, a part of and connected with the same transaction constituting the alleged burglary for which he had been previously tried. That the Commonwealth elected to try him for the-burglary, and upon the hearing the jury returned a verdict of not guilty. He pleads the same as a bar to the present prosecution. The record of the-indictment for burglary and the trial resulting in a verdict of not guilty was offered as evidence, and the accused then proposed to prove that the alleged taking of the thirty dollars was connected with and a part of the same transaction constituting the burglary, at the same place and on the same occasion.
The only question is, did the plea and proof, if conceded to be true, constitute a bar to the indictment for grand larceny? We think the bar was-complete. ■ At common law, in an indictment for burglary, a. count might be added for the larceny when there had been an actual taking, and it therefore resulted that an acquittal of the burglary with intent to steal constituted no bar to a prosecution for the actual theft. Without the intention to commit a felony, the mere fact of breaking would not, at common law,.
Mr. Bishop, in alluding to the decisions in this, class of cases, takes occasion to say, that “on principle we may question whether they do not press more-heavily against defendants than the humane policy of our criminal jurisprudence justifies.” (Bishop’s; Criminal Law, volume 1, section 1062.)
The dissenting opinion in the case of Wilson v. The State, 24 Conn., 70, lays down the correct rule,, viz.: “Where a criminal act has been committed,, every part of which may be alleged in- a single count in an indictment and proved under it, the act can not be split into several distinct crimes, and a separate indictment sustained upon each; and whenever there has been a conviction for one part, it will operate as a bar to any subsequent proceedings as to the residue.”
In a note to this dissent in Bishop’s Criminal Law, volume 1, section 1062, note 4, it is said: “It would be a very bold thing to say that, leaving out of the account what has been adjudged by the courts, the weight of reason is not clearly with the dissenting opinion.”
The prosecutor may elect whether his indictment
The intent to steal may be shown by proof establishing the actual theft, and when the Commonwealth has made out the case of burglary in this way it is a novel ruling, although sustained by the weight of authority, to hold that two convictions may be had for offenses growing out of the same transaction. It has been held that where one steals two pigs by driving them off from the owner at the same time, he may be convicted of larceny for stealing the one pig, and then again convicted for stealing the other.
This is not the rule in Kentucky. In Fisher v. Commonwealth, 1 Bush, 211, the accused, in the same act, and with like intent, took a horse, wagon, and harness from H — . The indictment was for stealing the horse, another indictment for stealing the wagon and harness, and why there was not a third indictment for stealing the harness does not appear — perhaps the harness was in the wagon.
On the trial for stealing the horse the accused was acquitted, and this was held to be a bar to the indictment for stealing the wagon and harness. Mr. Bishop says, and this is' the true doctrine, that “although, when a man has done a criminal thing, the
The plea of former acquittal may not be sufficiently specific, and for this reason a demurrer was sustained; but it then appears that the accused waived a formal arraignment, pleaded former acquittal, and in support of the plea introduced the proof already adverted to. The plea of former acquittal was the only plea entered — the Code requiring that such facts must be alleged by special plea. There was no plea of not guilty, and the Commonwealth, without offering proof, had an instruction to find the defendant guilty upon the failure of the accused to sustain the plea of former acquittal. The accused can not be deprived of his life, liberty or property unless by the judgment of his peers or the law of the land, nor can Tie te compelled to give evidence against himself. (Section 12, Bill of Rights.)
Does his silence or failure to plead amount to a confession of guilt? This is a grave question, and not necessary to be determined - in this case, as the reversal must go on other grounds. The safer rule would be, where the accused refused to file any plea, to have the plea of not guilty entered and counsel assigned; but when he does plead, no judgment by confession, except that of confession of guilt in open court by the accused in person, will authorize a judgment of conviction
