Fisher v. Commonwealth
| Citation | 64 Ky. 211 |
| Parties | Fisher v. Commonwealth. |
| Decision Date | 18 January 1866 |
| Court | Kentucky Court of Appeals |
By the same act, and with the same intent, F. took a horse, wagon and harness, the property of H. Two indictments were found against F.-- one for stealing the horse, the other for stealing the wagon and harness. On the trial for stealing the horse F. plead not guilty, and was acquitted. This acquittal was a good plea in bar against the indictment for stealing the wagon and harness.
APPEAL FROM KENTON CIRCUIT COURT.
FISK & FISK, For Appellant,
CITED--
4 Dana, 518; Hinkle vs. Commonwealth.
2 McMullan, 382.?? State vs. Thurston.
10 Humph., 101; State vs. Williams.
7 Miss., 55; Lorton vs. State.
29 Maine, 329; State vs. Nelson.
4 Cor. & R., 386; Rex vs. Birdseye.
2 Met., 413; Plumbly vs. Commonwealth.
12 Ala., 840; State vs. Johnson.
14 Ga., 8; Roberts vs. State.
Bishop's Criminal Law, sec. 691.
2 B. & . H. Leading Crim. Cases, p. 556.
2 Russell on Crimes, s. p. 127.
17 Wend., 385; People vs. McGowan.
Archibald's Plead. and Practice, 363, 362, 366.
JOHN M. HARLAN, Attorney General, For Appellee,
CITED--
1 Bishop's Criminal Law, 893.
On the 13th of October, 1866, two indictments were found in the Kenton circuit court against the appellant, one of them charging him with having stolen a horse, the property of Patrick Harlines, and the other with having stolen from said Harlines a wagon and harness. Each offense is alleged to have been committed in August, 1866.
The appellant having pleaded " not guilty" to the first of these indictments, was put upon his trial and acquitted.
This acquittal the appellant subsequently pleaded as a bar to the second indictment, averring in his plea " that the horse, harness, and wagon, in the two indictments aforesaid, belonged to one and the same person, were taken at one time, and all together were taken from defendant at the same time, and that, in fact and in law, there was but one offense, and for that he has been acquitted."
On the trial the appellant moved the court to give to the jury the following instruction:
" If the jury believe from all the evidence that the prisoner at the bar in this county, before the finding of the indictment, took and removed the horse, and at the same time and place, and with the same intent, took and removed the wagon and harness in the indictment and proof mentioned, and that he kept them hitched together, and they were taken from him, and that the horse, wagon, and harness were alike then and there the property of Harlines, and that the prisoner had, previously, to-wit: on the 15th day of October, 1866, been in this court tried and acquitted on a sufficient indictment for stealing the same horse of the same man, at the same time and place, and by the same identical act as the taking of the wagon and harness, then the jury should find for the defendant."
An objection of the Commonwealth to the giving of the instruction was sustained, to which ruling the appellant excepted.
The jury having found the appellant guilty, a motion for a new trial was overruled, and the judgment of the court rendered in conformity to the verdict, from which this appeal is prosecuted.
The refusal of the court to give to the jury the instruction asked by the appellant presents the principal question for our determination.
As the evidence conduces strongly to establish the facts on which the instruction is hypothecated, it should not have been, and we presume was not, refused on the assumption that it was abstract. The question to be considered, therefore, is, whether or not, upon the facts supposed in the instruction, the result of the previous trial was a bar to the further prosecution of the appellant under the indictment in this case.
Supposing the horse, wagon, and harness to have been taken by the appellant from the possession of Harlines with one and the same purpose or intent, so that the act of taking could not have been felonious as to the wagon and harness unless it was as to the horse also, and this purpose or intent being a necessary ingredient in the offense charged in each indictment, and common to them both, having been put in issue, and decided on the trial of the first indictment not to have been felonious, it is insisted for the appellant that the judgment of acquittal was an available bar to this prosecution, and the court should have so instructed the jury.
On the contrary, it is contended for the Commonwealth, that although, upon an indictment for the simple larceny of one article of property an acquittal may bar another indictment for the mere larceny of another article of property taken with the same intent and at the same time, yet, as the offense charged in the first...
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...states have divided (illogically at times, I think) on this question. Reference is made to Annotations in 19 A.L.R. 626. In Fisher v. Com., 1 Bush 211, 64 Ky. 211, accused stole a horse, wagon and harness which hitched the horse to the wagon. It was held an acquittal on an indictment chargi......
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