Ruble v. State

• Decision Date: 12 January 1889
• Parties: RUBLE v. STATE
• Court: Arkansas Supreme Court

10 S.W. 262

51 Ark. 170

RUBLE v. STATE

Supreme Court of Arkansas

January 12, 1889

APPEAL from Boone Circuit Court, R. H. POWELL, Judge.

Judgment affirmed.

Crump & Watkins, for appellant.

There is only one question in this case: Can a party for a single sale be convicted of selling without license and for selling to a minor? 1 Bish. Cr. Law (6th Ed.), sec. 1058; Ib., sec 1054 and note to sec. 1061, and sec. 1057.

Only one offence can be carved out of the same illegal act, and the state must elect which it will prosecute. The lesser crime (selling to a minor), is merged into the larger (selling without license), of which appellant had already been convicted.

Dan. W Jones, Attorney General, for appellee.

The plea was not verified by a transcript of the record of conviction.

There was no motion for new trial, and no bill of exceptions, and hence nothing before this court.

OPINION

BATTLE, J.

Appellant sold one pint of ardent spirits to Peter Dees, a minor, without the consent of his parents or guardian. For doing so he was indicted for and convicted of selling liquor without license, and fined in the sum of two hundred dollars, and was indicted for selling ardent, alcoholic and vinous liquors and intoxicating spirits to a minor, without the written consent of his parents or guardian. After he was convicted under the first indictment he pleaded such conviction and not guilty to the second indictment, and was convicted of the offence therein charged, and fined. Were the trial and conviction under the second indictment lawful?

It is sometimes difficult to determine whether the offence for which an accused party stands charged is the same offence of which he has before been acquitted or convicted; and this is the only inquiry in this case.

Mr. Justice Blackstone says: "It is to be observed, that the pleas of autre fois acquit and autre lois convict, must be upon a prosecution for the same identical act and crime." 4th Com., 336.

In Com. v. Roby, 12 Pick. 496, Chief Justice Shaw, in delivering the opinion of the court, as to what is necessary to constitute offences charged in two indictments the same, said: "It must, therefore, appear to depend upon facts so combined and charged as to constitute the same legal offence or crime. It is obvious, therefore, that there may be great similarity in the facts, where there is a substantial legal difference in the nature of the crimes; and on the contrary, there may be a considerable diversity of circumstances, where the legal character of the offence is the same. As where most of the facts are identical, but by adding, withdrawing or changing some one fact the nature of the crime is changed; as where one burglary is charged as a burglarious breaking and stealing certain goods and another as a burglarious breaking with an intent to steal. These are distinct offences. Rex v. Vandercomb, 3 Leach 816. So, on the other hand, where there is a diversity of circumstances, such as time and place, where time and place are not necessary ingredients in the crime, still the offences are to be regarded as the same.

"In considering the identity of the offence, it must appear by the plea, that the offence charged in both cases was the same in law and in fact. The plea will be vicious, if the offences charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact. As if one is charged as accessory before the fact and acquitted, this is no bar to an indictment against him as principal. But it is not necessary that the charge in the two indictments should be precisely the same; it is sufficient if an acquittal from the offence charged in the first indictment virtually includes an acquittal from that set forth in the second, however they may differ in degree. Thus an acquittal on an indictment for murder will be a good bar to an indictment for manslaughter, and e converso, an acquittal on an indictment for manslaughter will be a bar to a prosecution for murder; for in the first instance, had the defendant been guilty, not of murder but of manslaughter, he would have been found guilty of the latter offence upon that indictment; and in the second instance, since the defendant was not guilty of manslaughter, he cannot be guilty of manslaughter under circumstances of aggravation which enlarge it into murder."

Chitty, in speaking of the identity of the offence necessary to sustain a plea of former acquittal or conviction, says: "As to the identity of the offence, if the crime charged in the former and present prosecution are so distinct, that evidence of the one will not support the other, it is inconsistent with reason, as it is repugnant to the rules of law, to say that the offences are so far the same, that an acquittal of the one will he a bar to the prosecution of the other." 1 Chit. Cr. Law 453; State v. Hall, 50 Ark. 28, 6 S.W. 20; Emerson v. State, 43 Ark. 372; Wilson v. State, 24 Conn. 57; State v. Nash, 86 N.C. 650; King v. Vandercomb, 2 Leach 816, 828; State v. Sias, 17 N.H. 558; Durham v. People, 5 Ill. 172, 4 Scam. 172; Guedel v. People, 43 Ill. 226; Freeland v. People, 16 Ill. 380; Foster v. State, 39 Ala. 229; Dominick v. State, 40 Ala. 680; Hite v. State, 17 Tenn. 357, 9 Yer. 357; State v. Glasgow Dudley, [S. C.] 43; State v. Warner, 14 Ind. 572; Lewis v. State, 1 Tex. Ct. App. 323; 1 Russell on Crimes, 831; Wharton Cr. Pl. & Pr., [8th Ed.] secs. 471, 472; Bishop Cr.. Law, [7th Ed.] secs. 1051, 1065.

Mr. Bishop says: "Looking further to see when the offences are the same, we have in reason the following propositions: They are not the same, first, when the two indictments axe so diverse as to preclude the same evidence from sustaining both; or, secondly, when the evidence offered on the first indictment, and that intended to be offered on the second, relate to different transactions, whatever be the words of the respective allegations; or, thirdly, when each indictment sets out an offence differing in all its elements from that in the other, though both relate to one transaction, a proposition of which the exact limits are difficult to define; or, fourthly, when some technical variance precludes a conviction on the first indictment, but permits it on the second; yet, fifthly, the offences are the same in all other circumstances wherein the evidence to support one of the indictments sustains also the other; and, sixthly, if the two indictments set out offences which are alike, and relate to one transaction, yet, if one contains more of criminal charge than the other, but upon it there could be a conviction for what is embraced in the other, the offences, though of different names, are, within the constitutional protection from a second jeopardy, the same." 1 Bishop Cr. Law, [7th Ed.] sec. 1051,

In Com. v. Bubser, 14 Gray 83, it was held that "an acquittal upon an indictment for a nuisance in keeping a tenement house used for the unlawful sale of intoxicating liquors, is no defence to an indictment for being a common seller of intoxicating liquors at the same time and place." Mr. Justice Hoar, in delivering the opinion of the court, said: "The offences were not identical. The gist of one offence is the keeping a...