Moore v. State
| Citation | 240 P. 153,32 Okla.Crim. 83 |
| Decision Date | 21 October 1925 |
| Docket Number | A-5182. |
| Parties | MOORE et al. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
Under our system of jurisprudence, if the state elects through its authorized officers to prosecute an offense in one of its phases, or aspects, and upon his trial the defendant is acquitted by a jury, it cannot afterwards prosecute the same criminal act or transaction under the color of another name.
Having been previously tried in the same court for manufacturing certain intoxicating liquors and acquitted of that charge the defendants were tried and convicted on the charge that they did unlawfully have in their 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 alleged the same date, and have reference to the same intoxicating liquors, and, 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 defendants did not have possession of the liquor in question, and they should not have been again put in jeopardy for that of which they had been acquitted.
Under the constitutional guaranty not to be twice put in jeopardy the decisive test on a plea of former jeopardy is whether the same testimony will support both charges. Otherwise stated the offenses are the same whenever evidence adequate to one information will equally sustain the other.
Appeal from County Court, Canadian County; W. N. Wallace, Judge.
Ralph Moore and Theodore Moore were convicted of a violation of the prohibitory liquor law, and they appeal. Reversed and remanded, with direction.
Orban C. Patterson and Victor Sniggs, both of Miami, Fla., for plaintiffs in error.
George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
The information in this case charged that in Canadian county December 19, 1922, Ralph Moore and Theodore Moore "did then and there willfully and unlawfully have in their possession intoxicating liquor, to wit, corn whisky, for the purpose of selling, bartering, and otherwise furnishing the same contrary to," etc.
On the trial the jury returned a verdict finding them guilty and fixing the punishment of each at confinement in the county jail for 30 days and a fine of $300. From the judgment rendered upon the verdict the defendants appeal.
Upon arraignment the defendants and each of them interposed a special plea of former acquittal, reciting that they are the identical persons tried and acquitted of the same charge in the same court in case No. 4318, and in support of the plea of former acquittal introduced the record, including the judgment of acquittal in said cause.
The information in cause No. 4318 charged that in Canadian county, December 19, 1922, Ralph Moore and Theodore Moore did manufacture corn whisky by the use of mash and a still.
The court of its own motion overruled this plea. Thereupon defendants filed a motion to quash the information on the ground that they were the defendants in cause No. 4318, in this court, and that by reason of the former information, trial, and acquittal by a jury in the case tried on the 20th day of February, 1923, they have been in jeopardy for the identical offense charged in this case, and this is a prosecution for that of which they have been acquitted, which motion was overruled and exception allowed.
The evidence shows that on December 19, 1922, Jack Smith, sheriff, together with his son, Jim Smith, and Lee Ryan, deputy sheriff, went to a tract of land northeast of Calumet, which appears to have been allotted to an Indian and unoccupied by any person; that upon arriving there they saw three men near a still. One of the men ran away and was not arrested. The other two men, the defendants in this case, remained. At the place where the defendants were standing was a whisky still and 25 gallons of whisky; the still was connected up and warm. The defendants claimed to have no interest in the still or the liquor, and stated that they lived some two or three miles northeast of the place; that they had started to their brother's farm, a short distance away, taking with them a shotgun for the purpose of hunting; that they had seen some quail, and were led out of their path while shooting quail, and had in their possession one quail; that they did not know who the man was that ran away, and did not know who the still belonged to.
Sheriff Smith testified that his testimony in the former trial of the defendants in this court, wherein they were charged with manufacturing the corn whisky seized on this occasion upon which the defendants were acquitted, was the same as his testimony in this case.
Lee Ryan, deputy sheriff, testified in substance to the same facts as did Sheriff Smith.
Jim Smith was also called by the state, and testified in substance to the same state of facts.
The state rested, and there was a motion by the defendants for a directed verdict upon the plea of former acquittal, and in support thereof the defendants introduced the information and the verdict of the jury in case No. 4318. The motion was by the court overruled.
The defendant Theodore Moore testified that he and his brother his codefendant, were on the way to obtain a tractor from another brother who lived in the vicinity, and that they took a shot gun with them and shot a quail, which was in their possession at the time of their arrest;...
To continue reading
Request your trial