United States v. Miner

26 F. Cas. 1269 | S.D.N.Y. | 1874

BENEDICT, District Judge.

In this ease, the defendant has interposed a plea of former jeopardy. He is, in the present indictment, charged with the possession of a certain $2 counterfeit plate, with an unlawful intent, and the plea avers that he has been once tried and acquitted of the same act of possession stated in this indictment. It is agreed, that the evidence which the district attorney proposes to give on the trial of the present indictment is, in every respect, substantially the same as that given upon the trial of the former indictment, and that it may be referre.d to upon this issue. This evidence shows the existence of two counterfeit plates, with the possession of one of which the defendant was charged in the former indictment, and as to the possession of tlie other in this. But, from the evidence, the court can see that the act of possession charged was, as a fact, but a single act, and that the trial of the former case necessarily involved a determination of the act of possession charged in this indictment. The two plates were shown to have been so connected at the time, that the possession of one necessarily involved the possession of the other. Where two counterfeits are engraved upon the same piece of metal, or otherwise so connected as to form, in substance, but a single article, and the charge is that of unlawful possession, it would seem that the possession of both may be made the basis of a single charge, and that separate trials for each engraving should not be permitted. Upon the peculiar facts of this case, the inclination of my mind is, therefore, in favor of the defendant’s plea. But, if the law be otherwise, I have no hesitation in advising the district attorney that it is not expedient again to present to a jury the testimony exhibited upon the trial of the former indictment against this man, where the possession of the two plates was also proved. In that case, a very intelligent jury refused, upon the evidence produced, to find that the defendant had the possession of the plates as charged. The conclusion of that jury met with the approval of the court, and it cannot, with propriety, be impugned; and the prisoner should not be again put on trial upon the same evidence. Rex v. Davis, 6 Car. & P. 177. If, therefore, as a matter of law, the defendant’s plea be not sustainable, the alternative would be to advise the district attorney to enter a nolle prosequi in the case. In either event, there would be no trial of this indictment.

Upon the delivery of the foregoing opinion, the district attorney moved that a nolle prosequi be entered, and the motion was granted.