Hurst v. State

• Decision Date: 23 May 1889
• Citation: 86 Ala. 604,6 So. 120
• Parties: HURST v. STATE.
• Court: Alabama Supreme Court

6 So. 120

86 Ala. 604

HURST v. STATE.

Supreme Court of Alabama

May 23, 1889

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

W A. Gunter and E. P. Morrisette, for appellant.

W L. Martin, Atty. Gen., for the State.

SOMERVILLE J.

The defendant was indicted, tried, and convicted for conveying into the county jail a file, with the intent to facilitate the escape of one Hurst, who was confined under a charge of misdemeanor; the offense being made punishable by fine and imprisonment in the county jail, or sentence to hard labor for the county. Code 1886, § 4003. At the same term of the court the defendant was also indicted, tried, and convicted for the same act of conveying into the county jail the same file, with the intent to facilitate the escape of one Hughes a prisoner confined in the same jail on the charge of felony this offense being punishable by imprisonment in the penitentiary. Code 1886, § 4002. The latter case is the one now before us on appeal.

The defendant, on the latter trial, set up as a defense the conviction in the former case, which plea of autrefois convict, on demurrer by the state, was held to be insufficient. It appears from the evidence that the same act aided both prisoners to escape, and their escape was effected at the same time. The question is whether the defendant is guilty of two separate indictable offenses, each of which may be made the basis of an independent prosecution and conviction. Our constitution, following the parallel principle of the common law, provides that "no person shall, for the same offense, be twice put in jeopardy of life or limb,"-a safeguard of liberty which, under our Anglo-American system of jurisprudence, has always been regarded by our courts with a sanctity scarcely second to that accorded to the right of trial by jury. The purpose of the courts should be so to apply this constitutional guaranty as to protect the citizen from vexatious criminal prosecutions, and at the same time not to defeat the chief design of our penal laws, which, apart from their reformatory aspect, have in view the double aim of protecting society and preventing crime.

If we hold this plea of former conviction to be bad, we can see no reason why a defendant could not be indicted and convicted 100 times, in case he should, by a single act, effect the simultaneous escape of a hundred prisoners, lawfully confined in a county jail or other prison. It is the familiar case of a single criminal act producing several different results, each of which, standing alone, and dissociated from the others, would have been an indictable crime. Is each result a separate and distinct crime, liable to be indicted as such, or is it a mere consequence of a single unlawful act, done with criminal intent? An analogous inquiry would be: If one should cast a stone into a crowd, and wound a dozen men at one blow, is he liable to one or a dozen indictments? If he burns a hundred houses by one act of arson, knowing the probable consequence of his unlawful act, would he be guilty of a hundred crimes? Or should he blow up a hotel with dynamite, murdering a thousand guests, would he be separately triable for the perpetration of a thousand homicides?

The authorities are in direct conflict on this subject, and we shall make no effort to reconcile them. It is our judgment that none of the legitimate purposes of punishing crime require the adoption of the policy of multiplying prosecutions in cases of this nature. Such in fact seems to be the policy of our legislation as to framing indictments, as declared by section 4384 of our Criminal Code. It is there provided that, "when an act is criminal, if producing different results, such results may be charged in the same count in the alternative." Code 1886, § 4384; Code 1876, § 4797. It has often been decided that a single crime cannot be split up or subdivided into two or more indictable offenses. As said in Moore v. State, 71 Ala. 307, "a series of criminal charges cannot, under our system of jurisprudence, be based on the same offense or criminal act, at least, as concerns the dignity of the same sovereignty. If the state elects, through its authorized officers, to prosecute a crime in one of its phases or aspects, it cannot afterwards prosecute the same criminal act under color of another name."

It is accordingly held by the great preponderance of authority that the stealing of several articles at the same time and place, although they belong to different owners, constitutes but a single indictable crime, and can be prosecuted as such but once. "An indictment," says Mr. Freeman, "could not be found for the larceny of one of the articles, and after the verdict another indictment sustained for the stealing of the remaining articles. Indeed, to put such a power in the hands of the prosecuting attorney would be to render the salutary doctrine of prior jeopardy in many instances practically nugatory." Roberts v. State, 58 Amer. Dec. 539, note, and cases cited; Quitzow v. State, 28 Amer. Rep. 396, and cases cited.

In Oleson v. State, 20 Wis. 58, a count of an indictment was held good which charged the defendant with aiding the escape of two prisoners by a single act, although the prisoners were confined under charges of different grades, and the act of aiding the escape of one of the prisoners was punishable more severely than that of aiding the escape of the other. This decision can rest only on the theory that the two escapes resulted from but one criminal act.

In Woodford v. People, 62 N.Y. 117, the indictment charged the burning of a number of houses, belonging to different owners, by a single act, at one time and place. It was held to charge but one offense, and not, therefore, bad for duplicity, the court observing as follows: "A conviction upon separate indictments could not be had for each separate house, although an indictment may have been good for any one, and a conviction or acquittal upon such an indictment would be a bar to an indictment for burning any other house burned by the same act. ...