Campbell v. People of State

Decision Date29 March 1884
PartiesTHOMAS M. CAMPBELLv.THE PEOPLE OF THE STATE OF ILLINOIS.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Jackson county; the Hon. DANIEL M. BROWNING, Judge, presiding.

Messrs. ALBRIGHT & HARBEN, and Mr. R. M. DAVIS, for the plaintiff in error:

The court erred in sustaining the demurrer to the plea of autre fois acquit. The demurrer admits the offences in the two indictments were identical. Section 399 of the Criminal Code, gives jurisdiction in any county in the State through which stolen property may be taken. Having been tried in the county where property is stolen, the defendant can not be tried in any other county. 1 Bishop on Crim. Law, 981, 982.

One convicted of a particular offence contained in another, or which includes another, can not be again tried for such other offence. State v. Chaffin, 2 Swan, (Tenn.) 493; 1 Bishop on Crim. Law, sec. 1058; State v. Johnson, 12 Ala. 849; Drake v. State, 60 Id. 42.

The State can not split up one crime and prosecute it in parts. A prosecution for a single part of a crime bars any further prosecution upon the whole or any part of the same crime. State v. Cooper, 1 Gr. (N. J.) 361; Regina v. Ellington, 9 Cox, C. C. 86; State v. Damon, 2 Tyler, 387; Jackson v. State, 14 Ind. 327; 1 Bishop on Crim. Law, sec. 1060; Roberts v. State, 14 Ga. 8; State v. Lewis, 2 Hawks, (N. C.) 98; Foster v. State, 39 Ala. 229; Harrison v. State, 36 Id. 248; State v. Spear, 6 Mo. 644.

As to the improper remarks made by the State's attorney in his closing speech, highly calculated to prejudice the jury from consideration of matters not in evidence, counsel referred to the following cases: Wilson v. People, 94 Ill. 299; Bulliner v. People, 95 Id. 394; Earll v. People, 99 Id. 123.

The two offences charged are inconsistent, and a general verdict of guilty, including both counts, is erroneous. Tobin v. People, 104 Ill. 565.

Mr. JAMES MCCARTNEY, Attorney General, and Mr. WILLIAM SCHWARTZ, State's attorney, for the People:

The local jurisdiction of all offences not otherwise provided by law, shall be in the county where the offence was committed. Underwood's Stat. p. 477, chap. 38, sec. 395.

In section 399 of the same statute, in case of larceny, jurisdiction is conferred on the court in any county into which the property is taken, or through which it passed. But this case is not for larceny.

The two offences can not be the same, and saying so does not make it so, where the facts set out in the record contradict it. Perkins v. State, 9 Texas, 272.

The two offences must be the same both in law and in fact. State v. Nash, 86 N. C. 650; Rex v. Tyler, 3 B. & C. 502; Freeland v. People, 16 Ill. 381; 1 Chitty on Crim. Law, 452; 3 Greenleaf on Evidence, sec. 36; State v. Standifer, 5 Ala. 523.

As Campbell could not have been convicted on this charge in Perry county, he could not have been in jeopardy on this indictment. 4 Blackstone's Com. 336, and notes; Rex v. Taylor, Dowling & Ryland's N. P. cases, 422; Rex v. Vandercourt, 2 East's P. C. 519.

In a case of larceny the plea would be good. Meyers v. People, 26 Ill. 176; Stinson v. People, 43 Id. 397.

As to the jurisdiction of the offence, and the sufficiency of the plea, see Wharton on Conflict of Laws, 927, 931; Wharton on Crim. Law, sec. 288; Wharton on Crim. Pl. and Pr. secs. 442, 473, 475; Moore v. Illinois, 14 How. 13; State v. Rankin, 4 Coldw. 145; Phillips v. People, 55 Ill. 430; Marshall v. State, 6 Neb. 121; State v. Adams, 14 Ala. 486; United States v. Amy, 14 Md. 152; State v. Inness, 53 Maine, 536; Commonwealth v. McCauley, 105 Mass. 69.

If one count is good it will sustain a general verdict. Curtis v. People, Breese, 197; Townsend v. People, 3 Scam. 329; Holliday v. People, 4 Gilm. 113; Wharton on Crim. Pl. and Pr. sec. 291.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The indictment presented by the grand jury in the circuit court of Jackson county, at the December term, 1882, against Thomas Campbell, contains two counts. The first one charges defendant with receiving stolen goods, knowing the same to have been stolen, and the second charges him with unlawfully and feloniously aiding in concealing stolen property, knowing the same to have been stolen. On being arraigned at the March term of the court, 1883, defendant entered a motion to quash the indictment, which motion being overruled by the court, he entered a plea of not guilty, on which a trial was had, but the jury failing to agree, they were discharged, and the cause continued. At the August term of court, 1883, defendant seems to have filed a special plea, in which it is averred, in substance, he was indicted in the county of Perry, at the October term, 1882, of the circuit court of that county, with one Robert C. Milburn, for the identical same offence, and that on the trial in the circuit court of that county he was acquitted. To the plea setting forth, with the usual formality, the proceedings had against defendant in the circuit court of Perry county, and his acquittal of the offence charged against him in the indictment, by the verdict of a jury, and the judgment of the court thereon, the State's attorney prosecuting filed a demurrer, which was by the court sustained. On the trial at that term of the court, on the plea of not guilty, filed at a former term, defendant was found guilty by the jury, and the term of punishment fixed at a period of three years in the penitentiary. Motions for a new trial and in arrest of judgment were severally overruled, and the court pronounced judgment on the verdict.

The points made upon which defendant most confidently relies for a reversal of the judgment against him are, the court erred, first, in sustaining the demurrer to the plea of autre fois acquit; second, in refusing certain instructions asked by defendant; and third, in permitting the State's attorney, in his closing argument to the jury on behalf of the People, to make remarks concerning defendant not warranted by the evidence, and which were calculated to prejudice his defence.

The principal question in the case arises on the decision of the court sustaining the demurrer to the plea of autre fois acquit. The plea contains a copy of the indictment found against defendant in the county of Perry, and it is seen it is an exact copy of the one found against defendant by the grand jury of the county of Jackson, and under which he was convicted, except the venue is laid in the county of Perry. The indictments in both counties contain two counts,--one for receiving stolen property, knowing it to have been stolen, and one for aiding in concealing stolen property,--and were found under section 239 of the Criminal Code. (Rev. Stat. 1874.) It is hardly necessary to state a principle so elementary, that if the circuit court of Perry county had no jurisdiction to try defendant for the crime with which he is charged in Jackson county, its judgment would be no bar to the present prosecution. Under the constitution and laws of this State, as at common law, the local jurisdiction of all offences is in the county where the offence is committed. (See art. 2, sec. 9, Const. 1870, and sec. 395 of the Crim. Code, Rev. Stat. 1874.) The statute, it will be seen, follows closely the constitution, and declares, “the local jurisdiction of all offences not otherwise provided by law shall be in the county where the offence was committed.” Among the provisions for jurisdiction of the same offence in more than one county, is where, as in section 399 of the Criminal Code, which provides, concerning jurisdiction in larceny, that “where property is stolen in another State or country, and brought into this State, or is stolen in one county of this State and carried into another, the jurisdiction shall be in any county into or through which the property may have passed, or where the same may be found.” This latter statute is simply declaratory of the common law on the same subject. Larceny, under the laws of this State, “is the felonious stealing, taking and carrying, leading, riding or driving away the personal goods of another.” The common law,--which contained the same definition of larceny,--seems to have regarded the felony as having been committed where the goods were feloniously stolen, but for the purposes of jurisdiction the offence was treated as having been committed within any jurisdiction into which the property was afterwards carried. The rule on this subject proceeds on the legal assumption that where the property has been feloniously taken, every act of removal may be regarded as a new taking and asportation. (3 Gray, 434.) That is the meaning of the statute of this State concerning jurisdiction in larceny cases. It has no application, however, to any crime other than larceny. The offence or offences with which defendant stands charged are not embraced within the terms of the statute.

The plea of autre fois acquit is grounded on that principle of the common law, and which has been incorporated in the constitution of this State, no person shall “be twice put in jeopardy for the same offence.” A former acquittal may always be pleaded to a second indictment for the same offence, which implies that the court that pronounced the judgment of acquittal had jurisdiction of the cause. The principle is of course familiar, but there is often some difficulty met with in its application. Generally the rule is, as at common law, an acquittal in one county can only be pleaded in the same county, and the reason assigned is, because all indictments are local, and therefore if the first were laid in a wrong county the defendant could not be found guilty upon it, and consequently was in no danger, and therefore could not plead an acquittal upon it in bar of a subsequent indictment for the offence in the proper county. ( Vaux's case, Pt. 4, Co. 45d, Com. Dig. Indict. L.; 1 Wharton on...

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