McIntyre v. Commonwealth

• Decision Date: 29 May 1913
• Citation: 154 Ky. 149,156 S.W. 1058
• Parties: McINTYRE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

156 S.W. 1058

154 Ky. 149

McINTYRE v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 29, 1913

Appeal from Circuit Court, Nelson County.

Andrew McIntyre was convicted of malicious wounding with intent to kill, and he appeals. Affirmed.

Osso W Stanley, E. N. Fulton, and Fulton & McGinnis, all of Bardstown, for appellant.

James Garnett, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth.

LASSING J.

Andrew McIntyre was in 1912, in the Nelson circuit court, indicted tried, convicted, and sentenced to serve a life term in the state penitentiary, for the offense of malicious wounding with intent to kill. Coupled with the charge were allegations in separate counts of prior convictions of three successive felonies, the first in 1905, and the second and third in 1907 and 1910, respectively. Upon the trial the defendant pleaded not guilty to the first count of the indictment, and to the second, third, and fourth, he entered a plea of former jeopardy. In this plea it is alleged that in 1912 he was acquitted of an accusation of burglary under an indictment in which the charge was coupled with allegations of the defendant's former conviction of the same three felonies here charged, and that in 1910 he was convicted of the offense of chicken stealing under an indictment in which the charge was coupled with allegations of the identical former convictions for felony as here charged in the second and third counts of the indictment. The jury in that case rendered the following verdict: "We, the jury, find the defendant guilty of chicken stealing, and fix his punishment at confinement in the penitentiary for two years." The trial court sustained a demurrer to this plea of former jeopardy. Motion and grounds for a new trial having been overruled, the defendant appeals. Several errors are alleged in the motion for new trial, but only one of them is seriously urged as ground for reversal, viz., error of the court in sustaining a demurrer to the plea of former jeopardy.

It is insisted that the issue of former convictions of appellant for felony having been submitted to and determined by a jury in a former proceeding, the action of the court in the case at bar, in submitting the identical issue on the same facts, was in violation of his right not to be twice pursued for the same offense. For a plea of former jeopardy to avail, it must appear that, in each prosecution, the accused, the sovereignty whose law has been violated, and the offense, not only as to the act but as to the crime, were identical. Here the accused and the sovereignty were the same, and the charges as to former convictions, together with the proof in their support, were identical. If section 1130, Kentucky Statutes, known as the "Habitual Criminal Act," merely imposes a severer penalty for subsequent offenses, the plea of former jeopardy is without avail, unless the punishment constitutes an element of the offense.

That section 1130 relates solely to the punishment of offenses is no longer a disputed question in this or other jurisdictions, where similar statutes prevail. In Hyser v. Commonwealth, 116 Ky. 410, 76 S.W. 174, 25 Ky. Law Rep. 608, this court in commenting on this section said: "The validity of this statute has been repeatedly upheld by this court upon the ground that it is not in violation of the constitutional provision that no one for the same offense shall be twice put in jeopardy. The increased punishment is not for the former offenses, but the previous convictions merely aggravate the last offense and add to its punishment. The accused is not required to answer to the former charges and defend against them. Nothing is heard in reference to the former trials save the fact of conviction."

The Washington Supreme Court in State v. Le Pitre, 54 Wash. 166, 103 P. 27, 18 Ann. Cas. 922, having under consideration a similar statute, said: "The habitual criminal statute is a thing of modern creation, and while there are many rules of law which may seem inconsistent with its purpose and the procedure adopted to compass it, it is nevertheless sound in principle and sustained by reason. Aside from the offender and his victim, there is always another party...