Dinkey v. The Commonwealth
| Decision Date | 29 December 1851 |
| Citation | 17 Pa. 126 |
| Parties | Dinkey <I>versus</I> The Commonwealth. |
| Court | Pennsylvania Supreme Court |
The case was argued by A. H. Reeder, with whom was W. A. Porter, for Dinkey, the plaintiff in error.—The pleas of autrefois acquit and of autrefois convict, depend on the same principle, viz. that no man shall be placed in peril of legal penalties, more than once upon the same accusation: 1 Ch. Cr. Law 452 and 462. 1 Ch. Cr. Law 461: To the plea of autrefois acquit, the Attorney General on the part of the crown may either reply taking issue upon the averments of identity, or nul tiel record, if he intends to dispute the fact of an acquittal; or if he relies upon its insufficiency in point of law to bar the proceedings he may demur. 1 Ch. Cr. Law, 455: it is not in all cases necessary that the two charges should be precisely the same in point of degree, for it is sufficient if an acquittal of the one will show that the defendant could not have been guilty of the other: Whart. Crim. Law 141; 9 Car. & Payne 364; 17 Wend. 386; 5 Barr 83; 4 Ser. & R. 451.
O. H. Wheeler, for the Com'th., cited 4 Coke's Reports, 40; 9 Yerger 357; 17 Wend. 386.—The indictment contained two counts, one for seduction, and the other for fornication and bastardy. An indictment cannot be grounded on two Acts of Assembly, so as to bring the offence within them, where the Acts are separate and distinct in their provisions: Updegraff v. Com., 6 Ser. & R. 10; U. S. Crim. Law, by Judge LEWIS, p. 41.
The opinion of the court was delivered, Dec. 29, 1851, by BLACK, C. J.
The plaintiff in error being indicted for fornication and bastardy, pleaded autrefois acquit, setting forth in his plea an indictment for seduction, together with the record of his trial, and a verdict of not guilty. To this plea the district attorney demurred, and the court gave judgment, quod respondeat ouster, against the defendant, who was afterwards tried on the plea of not guilty, and convicted. The case comes before us on the single question whether the acquittal on the first indictment was a bar to the second.
No man who has been guilty of a crime against society, should be suffered to escape on a mere technical defence, not founded in any principle of natural justice or rule of public policy. But it is also true, that where a man has once been fairly tried, there ought to be an end of the accusation for ever. The right not to be put in jeopardy a second time for the same cause, is as sacred as the right of trial by jury, and is guarded with as much care by the common law and by the constitution.
Where a party is accused of a crime, and acquitted by the verdict of a jury, such acquittal will be a complete protection against any subsequent prosecution for the same offence, provided the first indictment was such that he could have been lawfully found guilty, and sentenced on it. This well settled rule, while it shields the citizen against the peril of repeated prosecutions, is broad enough for all the purposes of public justice.
If, therefore, the present plaintiff in error might have been convicted of, and punished for fornication, on the indictment for seduction, that record ought to have been held to be a good defence to the indictment for fornication. If there was no legal impediment to his conviction of fornication on the first indictment, the conclusive presumption is, that he was acquitted on the pure justice of his case; and we are not at liberty to ascribe the verdict of not guilty to any cause except the belief of the jury that he was innocent of fornication, as well as of all other offences then charged against him.
The general rule is, that where an indictment charges an offence which includes within it another and less offence, the party may be convicted of the latter, if he is guilty; and acquitted of the former, if the evidence makes it proper. For instance; on an indictment for murder, there...
To continue reading
Request your trial
-
Commonwealth v. Garcia
... ... Lewis, 140 Pa ... 561, 21 A. 501 (1891); Hunter v. Commonwealth, 79 ... Pa. 503, 506 (1875) ("The general rule is well settled ... that upon an indictment charging a particular crime, the ... defendant may be convicted of a lesser offense included ... within it."); Dinkey v. Commonwealth, 17 Pa ... 126, 129 (1851); accord, Fed.R.Crim.P. 31(c) ("The ... defendant may be found guilty of an offense necessarily ... included in the offense charged ... "). [ 2a ] In our ... previous cases, however, this Court has not considered ... whether involuntary ... ...
-
Commonwealth v. Moore
... ... Parker, 146 Pa. 343, 344, 23 A. 323 (1892) (percuriam); ... Hunter v. Commonwealth, 79 Pa. 503, 506 (1875) ('The ... general rule is well settled that upon an indictment charging ... a particular crime, the defendant may be convicted of a ... lesser offense included within it.'); Dinkey v ... Commonwealth, 17 Pa. 126, 129 (1851); Respublica v. Roberts, ... 1 Yeates 6, 7, 1 L.Ed. 316 (Pa.1791); Commonwealth v. Nace, ... 222 Pa.Super. 329, 330, 295 A.2d 87, 88 (1972) ... [ 2 ] But see Act of June 24, 1939, P.L. 872, ... § 1107 (formerly codified as 18 P.S. § 5107 (1963)) ... ...
-
Commonwealth v. Campana
... ... have constructed our Double Jeopardy Clause to protect a ... defendant ... [304 A.2d 437] ... upon retrial in a murder prosecution from conviction in the ... second trial of a greater offense than that of the first, ... [ 16 ] or greater punishment ... [ 17 ] In Dinkey v. Commonwealth, ... 17 Pa. 126 (1851), this Court applied collateral estoppel to ... prevent a second prosecution where an issue necessary to ... sustain the charge was resolved in defendant's favor at ... the first trial. [ 18 ] In Commonwealth v. Lloyd, ... 141 Pa. 28, 30, 21 A. 411 ... ...
-
Commonwealth v. Boerner
...See also Commonwealth ex rel. Papy v. Maroney, 417 Pa. 368, 207 A.2d 814 (1965). McCreary, however, made no reference to Dinkey v. Commonwealth, 17 Pa. 126 (1851), which the Court found a double jeopardy violation with respect to a non-capital offense, only six years before the contrary hol......