People v. Cook, 129.

• Decision Date: 04 October 1926
• Docket Number: No. 129.,129.
• Citation: 236 Mich. 333,210 N.W. 296
• Parties: PEOPLE v. COOK.
• Court: Michigan Supreme Court

236 Mich. 333

210 N.W. 296

PEOPLE

v.COOK.

No. 129.

Supreme Court of Michigan.

Oct. 4, 1926.

Error to Circuit Court, Ingham County, Charles B. Collingwood, Judge.

Louis Cook was convicted of unlawfully transporting intoxicating liquor. On exceptions before sentence. Judgment reversed, and respondent ordered discharged.

Argued before the Entire Bench. Andrew B. Dougherty, Atty. Gen., and Harry F. Hittle, Pros. Atty., and John W. Bird Asst. Pros. Atty., both of Lansing, for the People.

Harry H. Partlow and W. J. Carbaugh, both of Lansing, for respondent.

SNOW, J.

The respondent, in response to a telephone call for intoxicating liquor, delivered in his automobile nine pints of moonshine whisky to 1925 John street in the city of Lansing. The call proved to be merely a lure to detect him in a law violation, and when he arrived at his destination he was placed under arrest by an officer, his car searched, and the liquor siezed.

He was arrested, charged under section 2 of Act 53, P. A. of 1919, with having this liquor in his possession, and, upon his plea of guilty, sentenced to imprisonment. He served his time, and after his release was again prosecuted under the same statute and the same state of facts, for unlawfully transporting the same liquor. He was convicted and reviews here on exceptions before sentence, claiming that he has been twice placed upon trial and convicted for the same offense, and that his conviction for possession bars prosecution for transporting.

The facts are not in dispute, and this presents the sole question in the case; the plea of former jeopardy having been properly made.

An examination of authorities involving the question of former jeopardy lays open much that is difficult of reconciliation. It is clear, however, that the second jeopardy, which the common law as well as the Constitution prohibits, is for the same identical act and crime. To determine identity, the following rule is common:

‘One test is to ascertain whether the facts alleged in the second indictment would, if given in evidence, have warranted a conviction on the first, and, if this is the case, then the crimes are identical. * * * The safest general rule is that the two offenses must be in substance precisely the same or of the same nature or of the same species, so that the evidence which proves the one would prove the other.’ 16 Corpus Juris, § 444.

Another rule for determining identity is:

‘The prohibition of the ancient principle of the common law and the constitutional provisions declaratory thereof against a second jeopardy apply only to a second prosecution for the identical act and crime both in law and fact, for which the first prosecution was instituted. In determining whether both indictments charge the same offense, the test generally applied is that, when the facts necessary to convict on the second prosecution would necessarily have convicted on the first, a final judgment on the first prosecution will be a bar to the second, but, if the facts which will convict on the second prosecution will not necessarily have convicted on the first, then the first will not be a bar to the second, although the offenses charged may have been committed by the same state of facts. Stated in another form, if there was one act, one intent, and one volition, and defendant has been tried on a charge based on such act, intent, and volition, no subsequent charge can be based thereon, though the crimes involved in the two proceedings are entirely different.’ 8 R. C. L. p. 143.

Guided by these tests, we cannot conclude other than that the conviction of respondent for possession, bars his subsequent prosecution for transporting the same liquor. It would have been physically impossible to transport it without possessing it, and, under the facts in the instant case, it could not have been possessed by the respondent in the automobile in front of the house on John street where the officers were stationed, and where it was taken from him, without it having been transported to that point. Proof of the facts...