Jackson v. State
| Decision Date | 28 May 1915 |
| Docket Number | A-2167. |
| Parties | JACKSON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Special pleas of former acquittal or conviction, as are provided for by statute, are allowable, and in most instances required, in subsequent prosecutions for an offense which has before been tried in some other tribunal, or in the same court under another and distinct proceeding from the case in which the plea of jeopardy is interposed, and where such a plea is essential in order to present before the court matters dehors the record then before the court. However, such special plea is unnecessary, and not required, when the record then within the judicial knowledge of the court presents all the facts concerning the prior trial and its results. Upon the question being raised, the court will take cognizance of such facts from the record, and determine their proper legal effect as if upon a demurrer to a plea reciting them.
On a plea of former acquittal, in determining whether the two informations charge the same offense, the test is whether the evidence necessary to support the second information would have been sufficient to procure a conviction upon the first information.
Having been previously tried in the same court for unlawfully conveying certain intoxicating liquors, and acquitted of that charge, the defendant was tried and convicted on the charge that he did unlawfully have in his possession the same intoxicating liquors with the intent to sell the same. An essential ingredient of both offenses charged is the unlawful possession of intoxicating liquors. The two informations allege the same date and have reference to the same intoxicating liquors. While the offenses charged are not necessarily the same, they are of the same nature and kind. An acquittal under the first information was a finding that the defendant did not have possession of the liquors in question, and he should not be again put in jeopardy for that of which he has been acquitted.
The constitutional privilege of immunity from a second prosecution is not waived, if at any time before the jury has been impaneled to try the case the defendant interposes a plea of former acquittal or conviction; and where, as in the instant case, the facts are all before the court as a part of its own record of the case, and the objection of former jeopardy raises only a question of law, the constitutional right will not be considered as waived, where the defendant upon the reading of the information to the jury and before the taking of any testimony, interposes a plea of former acquittal.
Appeal from County Court, Lincoln County; H. M. Jarrett, Judge.
H. W Jackson was convicted of violating the prohibitory law, and appeals. Reversed and remanded.
See also, 10 Okl. Cr. 689, 140 P. 1196.
F. A Rittenhouse, of Chandler, for plaintiff in error.
Chas. West, Atty. Gen., C.J. Davenport, Asst. Atty. Gen., and Streeter Speakman, Co. Atty., of Chandler, for the State.
On information filed in the county court of Lincoln county, charging that on the 7th day of August, 1913, he did unlawfully have in his possession certain intoxicating liquors, to wit, four barrels of whisky and one barrel of beer, with the intention then and there of him, the said H. W. Jackson, of bartering, selling, and giving away the same, the plaintiff in error was convicted, and on the 18th day of November, 1913, was sentenced to be confined in the county jail for 60 days, and that he pay a fine of $150. From this judgment he appeals.
Upon arraignment the defendant entered a plea of not guilty. After the jury had been impaneled, he interposed a special plea that he had been tried and acquitted of the same charge in this court, in case No. 1137, and in support of the plea of former acquittal introduced the record and judgment of acquittal in said cause. The information in cause No. 1137 charged that on the 7th day of August, 1913, H. W. Jackson did then and there unlawfully carry and convey four barrels of whisky and one barrel of beer from the city jail in the town of Prague to another place unknown, and the record of the judgment rendered on the 18th day of October, 1913, is in part as follows:
"And thereupon the state introduces its evidence and rests, and thereupon the defendant demurs to the evidence introduced by the state, and on consideration thereof the court finds that said demurrer should be and the same is hereby sustained, and thereupon, upon motion of the defendant, the defendant is discharged, and the jury discharged from a further consideration of said cause, and thereupon the county attorney asks the court to hold the defendant until he can prepare an information charging the defendant with having possession of liquor with intent to sell the same."
The court of its own motion overruled this plea. Counsel for the defendant contends:
"That the information in the case at bar charges the same offense as the information in cause No. 1137, and has reference to the same four barrels of whisky and one barrel of beer, and both informations charge the same day and the same year, and that the defendant's acquittal in the former cause was a bar to the prosecution in this case."
Section 21, Bill of Rights, declares:
Our Procedure Criminal provides:
An essential ingredient of both offenses charged is the unlawful possession of intoxicating liquors. Unlawful possession with the intent to convey, sell, or otherwise dispose of such liquors being the material facts in issue on the first trial and determined in the defendant's favor by his acquittal, he should not be again put in jeopardy for that of which he has been acquitted. A series of criminal charges cannot under our system of jurisprudence be based upon the same criminal act or transaction. If the state elects through its authorized...
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