The State v. Williams

• Decision Date: 31 October 1899
• Citation: 53 S.W. 424,152 Mo. 115
• Parties: The State v. Williams, Appellant
• Court: Missouri Supreme Court

53 S.W. 424

152 Mo. 115

The State v. Williams, Appellant

Supreme Court of Missouri, Second Division

October 31, 1899

Appeal from Scotland Circuit Court. -- Hon. E. R. McKee, Judge.

Affirmed.

Smoot Mudd & Wagner for appellant.

(1) The plea of former acquittal filed by the defendant, should have been tried by a jury. It was a constitutional right which he had. State v. Huffman, 136 Mo. 58; State v Hatcher, 136 Mo. 641. And this constitutional right can not be taken away by the court. Coffey v. U.S. 116 U.S. 436; Hunt v. State, 86 Ala. 604; 34 S.W. 943; 131 Mass. 773; 168 U.S. 48. (2) If any of the elements necessary to sustain the indictment, were tried in the first indictment, it is jeopardy. State v. Hesseltine, 130 Mo. 468; 11 Am. and Eng. Ency. of Law, 934; 4 Am. and Eng Ency. of Law, 792. Now it was necessary in this case, in the first indictment, to prove the forgery, so it was in the second. State v. Huffman, supra. (3) When one offense is a necessary element in, and constitutes an essential part of another offense, and both are, in fact, but one transaction, the conviction or acquittal of the one, is a bar to the prosecution of the other. State v. Smith, 43 Vt. 324; State v. Huffman, 136 Mo. 62. In the case at bar, the forgery was an ingredient in both offenses, in which case he was put in jeopardy for the forgery. (4) Forgery that constitutes crime is such that would deceive an ordinary prudent person. State v. Warren, 109 Mo. 430. Hence, the instruction, offered by the defendant and refused by the court, should have been given. (5) The corporate existence of the bank should have been proved. It will not be presumed. Bishop on Crim. Law (7 Ed.), sec. 543.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) The plea set up by defendant may be more appropriately designated as a "plea in bar," though designated by his counsel as a plea in abatement. Stephens on Pleading, secs. 71 and 73; Schoonmaker v. Elmendorf, 10 Johns (N. Y.) 49; Nowland v. Geddes, 1 East. 634; Pickering v. Pickering, 19 N.H. 389; Hall v. Marks, 56 Ill. 125; Knapp v. Hoboken, 39 N. J. L. 394; 9 Ency. of Plead. and Practice 630; sec. 3953, R. S. 1889. A plea in bar may be termed a substantial and conclusive answer to the action. Stephens on Pleading, secs. 71 and 73. (2) Where the plea fails upon its face to show that the cause of action should not be maintained, or, as in this particular case, that the defendant had not previously been indicted, tried and acquitted for the particular offense then under consideration, a demurrer is the proper course to pursue, and when so shown, will be sustained by the court. State v. Purcell, 31 W.Va. 44; Stephens on Pleading, secs. 75 and 76; State v. Good, 70 Ga. 752; Com. v. Trimmer, 84 Pa. St. 65; State v. Gormerey, 37 Oh. St. 120. (3) In order for a former prosecution to be a good and valid plea in bar to the subsequent trial, it must appear that all the constituent elements of the one were involved in the other, and were directly and expressly adjudicated; and unless it be apparent that the defendant was previously tried for identically the same offense as the one for which he is now charged, the plea of former adjudication or former jeopardy will not be credited. State v. Andrew, 27 Mo. 267; State ex rel. v. James, 82 Mo. 509; 1 Bishop, New Crim. Law, sec. 1066; Wharton, Crim. Plead. and Practice, sec. 456; Com. v. Trimmer, 84 Pa. St. 69; Com. v. Morey, 108 Mass. 434; State v. Stuart, 11 Ore. 52. (4) There may be the same elements in the one that are contained in the other indictment; and to a certain extent the constituents may be identical, but all of the constituents which go to make the corpus delicti of the case at bar fall short of constituting the corpus delicti of the previous indictment. State v. Irvin, 7 Tex.App. 78; State v. Littlefield, 70 Me. 452; State v. Inness, 53 Me. 536; State v. Bridge, 30 Oh. St. 264. (5) One who is recently in possession and attempts to sell or obtain money on a forged note is presumed to have forged the same; and unless such possession or forgery is satisfactorily explained, the presumption becomes conclusive. State v. Allen, 116 Mo. 556; State v. Yerger, 86 Mo. 33; State v. Burd, 115 Mo. 405; State v. Kelly, 73 Mo. 608.

GANTT, P. J. Sherwood and Burgess, JJ., concur.

OPINION

GANTT, P. J.

At the August term, 1897, of the Scotland county circuit court, the defendant was indicted for forging a certain note for fifty dollars of the tenor following: "$ 50.00. Memphis, Mo., July 28th, 1897.

"One hundred and twenty days after date for value received we promise to pay to the order of the Scotland County National Bank of Memphis, fifty dollars at its banking house in Memphis, Mo., with interest at the rate of eight per cent per annum from maturity, payable annually, and if not so paid to become as principal and bear the same rate of interest.

"Robert Williams,

"Edward Butler."

Prior to the finding of this indictment defendant had been indicted in the same county at the preceding February term of said court for having feloniously had in his possession a certain false, forged and counterfeited promissory note of the same tenor of the one he is charged in this indictment with having forged, which said promissory note he sold and delivered to one Robert M. Barnes, with intent to have the same uttered, passed and exchanged. He was acquitted of that offense.

When the indictment in this last case was filed defendant filed a special plea in bar, in which he alleged that he was charged in said indictment with uttering the forged instrument therein described, knowing the same to be forged and pleaded not guilty thereto, and that thereupon afterwards the court ordered a trial of defendant on said indictment, a jury of twelve good and lawful men were duly impaneled, sworn and charged with the deliverance of defendant, who after hearing the evidence returned a verdict acquitting defendant of said charge. He concluded his plea as follows: "And the said Harry Williams in fact saith that he, the said Harry Williams and the said Harry Williams so indicted and acquitted as last aforesaid are one and the same person and not other and different persons, and that the felonious uttering, knowing the same to have been a forged note, as described in said indictment are one and the same forged instrument, charged in the present indictment, and not other and different notes; that in the present indictment to which he files this as a plea in bar or in abatement he is charged with forging the identical same instrument that he was charged with uttering, knowing the same to be forged, in the indictment on which he was tried and acquitted and no other or different instrument. Wherefore he claims that he has been put in jeopardy for the said offense with which he is now charged in said prior indictment and of this he, the same Harry Williams, is ready to verify. Wherefore he prays judgment and that by the court here he may be dismissed from said premises in the present indictment specified." The plea was subscribed and sworn to by defendant.

Thereupon the State filed a demurrer to said plea, which is in words and figures, as follows:

"Now comes the plaintiff, by her prosecuting attorney and demurs to the plea in abatement filed in above cause by defendant, and for reason assigns:

"First: The plea in abatement filed does not set up any defense to the charge against defendant, alleged in the indictment now against him.

"Second: Said plea in abatement sets forth the fact that the defendant had heretofore been prosecuted and acquitted on a different and distinct charge and for a different and distinct offense from that charged in the indictment against him, and to which he now pleads in abatement."

The court sustained the demurrer to said plea, and denied defendant the right to have the same tried by a jury.

This action of the court presents the first question involved in this record. Did the plea present anything more than a question of law? Did the court err in refusing to submit it to a jury?

It is obvious that it simply pleads the record of defendant's acquittal of a criminal charge, and the demurrer of the State admits the existence of that record, but says conceding all that it shows, it is not a bar to the indictment in this case. Granting as we may freely do that when a plea of former conviction or acquittal tenders an issue of both law and fact that it should be tried by a jury, as in State v. Huffman, 136 Mo. 58, 37 S.W. 797, it does not follow that when as in this case the identity of the prisoner and the record of the former indictment, trial and acquittal are admitted by the State, that there is anything for a jury to pass upon. The legal efficacy of the record offered to sustain the discharge from the crime charged in this second indictment was solely a question of law which the court was bound to decide.

Bishop in his New Criminal Procedure, volume 1, section 816, sub-sections 4 and 5, says: "The question of identity, both of the parties and of the offense, being settled, the court determines as of law whether or not there has been a previous conviction or acquittal." This must be so, for whether the second indictment charges the same offense as that set forth in the plea can be decided only by an inspection of the record and it is the duty of the court to declare the legal effect of a record which is offered to sustain a plea of autrefois acquit. [State v. Rugan, 68 Mo. 214; Martha v. State, 26 Ala. 72; Com. v. Trimmer, 84 Pa. 70; Gormley v. State, 37 Ohio St. 120.]

In a word, it is the accepted doctrine, resting alike upon precedents and reason, that where a plea of former conviction or acquittal on...