State v. Huffman
| Decision Date | 20 November 1896 |
| Citation | 37 S.W. 797,136 Mo. 58 |
| Parties | The State v. Huffman, Appellant |
| Court | Missouri Supreme Court |
Appeal from Phelps Circuit Court. -- Hon. C. C. Bland, Judge.
Reversed and remanded.
C. D Jamison and J. J. Crites for appellant.
(1) The plea of former acquittal raised an issue of fact on which defendant was entitled to a jury trial. Com. v Fredericks, 155 Mass. 455; 2 Van Fleet, Former Adjudications, sec. 661; Grisham v. State, 19 Tex.App. 504; Troy v. State, 10 Tex.App. 319; Wharton's Crim. Law, p. 565; Cooley's Const. Lim 328. (2) Parol evidence is admissible to prove the identity of the two offenses. State v. Thornton, 37 Mo. 376; State v. Wister, 62 Mo. 592; State v. Snyder, 98 Mo. 555; State v. Heath, 8 Mo.App. 99; State v. Dunn, 73 Mo. 586; State v. Rugan, 68 Mo. 214; State v. Small, 31 Mo. 197; 1 Bish. Crim. Ev., sec. 821; 2 Am. and Eng. Ency. of Law, p. 969, sec. 4; Buhler v. State, 64 Ga. 504; Grant v. People, 4 Park (N. Y.), C. R. 527. (3) Revised Statutes, 1889, sections 3521 and 3526 define crimes constituting different offenses. Their necessary elements can not be intermingled in evidence, nor can the material parts of one be supplied from the other. The defendant is charged with breaking into and entering a dwelling house with the intent to commit a felony in a warehouse. The indictment is bad for duplicity.
R. F. Walker, attorney general, J. B. Harrison, and Thos. M. Jones, prosecuting attorney, for the state.
(1) The plea of former jeopardy was a matter to be tried by the court. (2) The sufficiency of the plea was voluntarily submitted to the court, and if the defendant was not bound by this finding of the court, then he unquestionably had the right to set up the whole matter as one of his defenses upon the trial and could have offered evidence in support of his plea in bar on the trial proper. Kelley's Criminal Law and Practice [2 Ed.], sec. 224, cases cited; State v. Dunn, 73 Mo. 586; State v. Wister, 62 Mo. 592. (3) The indictment is sufficient.
At the March term, 1895, of the circuit court of Phelps county two indictments were returned by the grand jury against defendant, charging him with burglary and larceny, each indictment charging him with a separate and distinct offense committed on different days. The indictments differ only in this, one of them charged the burglary and larceny to have been committed on the twenty-third day of October, 1893, and the theft of three bushels of wheat, and the other that the burglary and larceny were committed on the twenty-fifth day of October, 1893, and the theft of two bushels of wheat.
The indictments charged the building which was burglarized to be "the dwelling house of J. M. Lenox, * * * the said dwelling house being then and there occupied by the said J. M. Lenox as a warehouse, the same being a building in which divers goods, wares and merchandise and valuable things were then and there kept for sale and deposited," etc.
At the September term, 1895, of said court defendant was tried on the indictment first named and acquitted. He then filed his plea in bar to the indictment in this case in which he alleged that the same evidence was adduced upon the trial of the first case, that would be necessary upon the trial of this; that he had once been but in jeopardy, tried and acquitted of the offense with which he was now charged, and that the judgment of acquittal was a bar to this prosecution.
The issues on the plea in bar were submitted to the court, a jury not being asked for. After hearing the evidence on the plea in bar it was stricken out, by the court, and to this ruling defendant excepted at the time.
Thereafter, on September 23, 1895, defendant filed his motion to quash the indictment, assigning as grounds therefor the following: First. Because two different degrees of burglary are charged in the same count in the indictment. Second. Because the defendant is not informed by the indictment of the nature of the offense charged against him.
The motion was overruled, and, to the action of the court in overruling the motion, defendant duly excepted.
On the twenty-fourth day of September, 1895, the trial of said cause was had to a jury, who found the defendant guilty of burglary as charged, and fixed his punishment at two years' imprisonment in the penitentiary. He thereupon perfected his appeal to this court.
The evidence showed that at the time of the alleged offense James Lenox owned a farm in the county of Phelps upon which there was a brick dwelling house, in which he had sometime before lived with his family. That he moved from this house to Lacoma, Dent county, in March, 1893, and that it was not at the time of the commission of the offense occupied as a dwelling by anybody. That when he harvested and threshed the wheat raised on the farm that year, he stored it away in the house and closed up all entrances thereto, by doors, windows, or otherwise. That on the night of October 25, 1893, defendant broke into the house, for the purpose of stealing wheat and was caught while therein with wheat in sacks, which he had taken there for the purpose of sacking it and carrying it away.
There are a large number of errors assigned for a reversal of the judgment, but it will only be necessary, we think, to pass upon a few of them in order to a correct disposition of the case.
It is not contended by defendant that the indictments charge him with the same offense, but his insistence is that his plea in bar raised an issue of fact, in this, that in the trial of the first case he was in jeopardy because of evidence essential to the trial of the case in hand. In other words, that while the indictments charged defendant with two separate and distinct offenses, the plea in bar showed that there was in truth and in fact but one, thereby presenting an issue which should have been submitted to a jury, and that the court committed error in its failure to so do.
As there is no statute in this state, as in others, authorizing the trial of such special pleas under the plea of not guilty, they must be specially pleaded. Kelley's Crim. Law and Practice, sec. 224; Thomas v. Commonwealth, 22 Gratt. 912.
"When one offense is a necessary element in and constitutes an essential part of another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to the prosecution for the other." State v. Smith, 43 Vt. 324.
A plea of guilty has the same effect as a verdict of conviction or acquittal, and verbal testimony is permissible for the purpose of showing that the offenses charged are one and the same, the burden of proof resting upon the defendant to sustain such plea.
The plea will not be good, however, where the conviction or acquittal was for a lower offense than that which the evidence showed the defendant to be guilty of, unless it be in case he was charged...
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