Cooper v. Com.

• Decision Date: 17 June 1899
• Citation: 106 Ky. 909,51 S.W. 789
• Parties: COOPER v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

51 S.W. 789

106 Ky. 909

COOPER v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

June 17, 1899

Appeal from circuit court, Rowan county.

"To be officially reported."

Lem Cooper was convicted of the offense of false swearing, and he appeals. Reversed.

For dissenting opinion, see 59 S.W. 524.

A. T Wood and R. Blair, for appellant.

W. S Taylor, for the Commonwealth.

BURNAM J.

The appellant and one Libbie Purvis were jointly indicted in the Rowan circuit court for the offense of adultery. The trial under that indictment resulted in a verdict of acquittal for appellant. The grand jury of Rowan county thereupon reported this indictment against him, in which it is charged that upon the trial of appellant and Libbie Purvis upon the charge of adultery "he did knowingly, willfully, and corruptly swear that he had not had carnal sexual intercourse with Libbie Purvis, when same was false and untrue, and was known by him to be false and untrue." The trial under this indictment resulted in a verdict of guilty, and a judgment sentencing appellant to confinement in the penitentiary which we are asked upon this appeal to reverse.

The principal question to be considered is the effect which is to be given to the indictment, trial, verdict, and judgment of acquittal of appellant under the indictment for adultery, as it is manifest that appellant cannot be guilty in this case if he was innocent of the charge contained in the other indictment. His guilt or innocence of the offense of having had carnal sexual intercourse with Libbie Purvis was the exact question which was tried in the first proceeding, and as a result of that trial the defendant was found not guilty. In order to convict him in this case, it was necessary for the jury to believe that he was guilty of the identical offense for which he had been tried and acquitted under the other indictment, as it is evident that, if he was innocent of having had carnal sexual intercourse with Libbie Purvis, he was not guilty of false swearing when he stated that he had not had such intercourse with her. We therefore have, as a result of the trial of appellant under these two indictments, a verdict and judgment finding him not guilty of the offense of having had carnal sexual intercourse with Libbie Purvis, and in the second case a verdict and judgment finding him guilty of false swearing when he testified that he had not had such intercourse with her; in other words, the first jury found him innocent of the misdemeanor with which he was charged, and the second jury found him guilty of a felony because he testified that he was not guilty of such misdemeanor. It certainly was never intended that the enginery of the law should be used to accomplish such inconsistent results. It appears to us from the conflicting character of the testimony in the case upon the question of defendant's guilt or innocence that a verdict of the jury might have been upheld in the first case whether found one way or the other, but certainly the finding of the jury must be conclusive of the fact considered as against the commonwealth, and preclude any further prosecution which involves the ascertainment of such fact.

A question analogous to the one at bar was considered in the case of Coffey v. U. S., 116 U.S. 436, 6 S.Ct. 437 the facts in which case are about as follows: Coffey was a distiller, and was proceeded against under a section of the statute for defrauding, or attempting to defraud, the United States of the tax on spirits distilled by him, and the copper stills and other distillery apparatuses used by him and the distilled spirits found on his distillery premises were...