Sanford v. State
| Decision Date | 07 March 1918 |
| Citation | 75 Fla. 393,78 So. 340 |
| Parties | SANFORD v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Duval County; George Couper Gibbs, Judge.
W. J Sanford was convicted of statutory rape, and from an order sustaining a demurrer to his plea in bar and from the overruling of his motion for new trial, he brings error. Reversed, and cause remanded, with instructions to overrule the demurrer to the plea of former jeopardy and autre fois convict, and for further proceedings.
Syllabus by the Court
If the first indictment or information were such that the accused might have been convicted under it on proof of the facts by which the second is sought to be sustained, then the jeopardy which attached on the first must constitute a protection against a trial on the second.
A conviction of a lesser offense bars a subsequent prosecution for a greater offense in all those cases where the lesser offense is included in the greater.
A legal acquittal or conviction in any court of competent jurisdiction is sufficient in law to preclude any subsequent prosecution for the same offense in any other court.
In cases of concurrent jurisdiction in different tribunals the one first exercising such jurisdiction acquires control to the exclusion of the other.
Where two courts have concurrent jurisdiction of a lower offense necessarily included in a higher, an acquittal or conviction of such offense in either court will bar a prosecution for the higher offense.
Penal laws should be strictly construed, and those in favor of the accused should receive a liberal construction.
COUNSEL W. A. Hallowes, Jr., and Miles W. Lewis, both of Jacksonville, for plaintiff in error.
Van C Swearingen, Atty. Gen., and Worth W. Trammell, Asst. Atty Gen., for the State.
On December 15, 1916, an indictment was filed in the circuit court of Duval county against the plaintiff in error charging him with rape of one A. W. L., a female child under the age of ten years. To this indictment the plaintiff in error filed a plea in bar which alleges, in substance, that in August, 1916, in the criminal court of record in and for Duval county, an information was filed against him charging him with the offense of assault with intent to commit rape upon the said A. W. L., and that in October, 1916, in the said criminal court of record, upon being arraigned upon said information, he pleaded not guilty, but that thereafter during the same term of court in October, 1916, by permission of court, he withdrew his plea of not guilty and pleaded guilty to an assault and battery to said information, which last-mentioned plea was accepted by the state; that thereafter he was adjudged by the last-mentioned court to be guilty of an assault and battery and sentenced to imprisonment in the county jail at hard labor for a period of six months; that the offense charged in the information and the one charged in the indictment are one and the same offense, and that the offense charged in the information is a necessary element of and constitutes an essential part of the offense charged in the indictment; that the assault with intent to rape charged in the information and the assault and rape charged in the indictment are one and the same assault committed at one and the same time, and that the said A. W. L. named in the information and in the indictment are one and the same person; that defendant had once been put in jeopardy upon the charge of assault with intent to rape and for the same offense as that charged in the indictment; and that he could not lawfully be tried therefor again. A certified copy and transcript of the record of the proceedings of the criminal court of record was attached and made a part of the plea.
A demurrer to the plea in bar was sustained, and counsel for defendant duly excepted to the ruling of the court. The defendant was tried by a jury on his plea of not guilty; said trial resulting in a verdict of guilty of an assault with intent to commit rape. Motion for new trial was overruled, and defendant sentenced to imprisonment for two years.
The plaintiff in error seeks a reversal of the judgment of the circuit court on the ground that the court erred in sustaining the demurrer to the plea of former jeopardy and autre fois convict.
The provision of the Constitution upon which plaintiff in error relies is as follows:
'No person shall be subject to be twice put in jeopardy for the same offense.' Declaration of Rights, § 12.
The sole question therefore for determination is: Was the plaintiff in error, upon being required to go to trial in the circuit court upon the indictment, deprived of the right guaranteed to an accused by the constitutional provision quoted.
The great author of Cooley's Const. Lim. (7th Ed.) 470, says:
'If the first indictment or information were such that the accused might have been convicted under it on proof of the facts by which the second is sought to be sustained, then the jeopardy which attached on the first must constitute a protection against a trial on the second.'
Bishop's New Crim. Law, § 1051, subd. 6, states the law as follows:
Wharton's Criminal Law, § 393, lays down the rule in the following concise statement:
'A conviction of a lesser offense bars a subsequent prosecution for a greater offense in all those cases where the lesser offense is included in the greater.'
See, also, Johnson v. State, 27 Fla. 245, 9 South. 208; Ex parte Vickery, 51 Fla. 141, 40 So. 77.
The offense charged in the information is a necessary element of and constitutes an essential part of the higher offense charged in the indictment. It would be unreasonable to assume that a man could be guilty of rape and not guilty of an assault with intent to rape; without the commission of the lesser offense the greater cannot be committed. An acquittal of the lesser offense precludes a conviction of the greater.
If proof was needed to demonstrate the fact that the information was such that the accused might have been convicted under it on proof of the facts by which the indictment was sought to be sustained, the record is conclusive, which shows that the accused was convicted of an assault with intent to rape under the indictment. It also shows beyond controversy that the information and indictment set out like offenses and relate to one transaction, and that the indictment contained more of the criminal charge than the information, but upon it the accused could be, and in this case was, convicted, of the charge embraced in the information.
It was said in the case of Johnson v. State, 27 Fla. 245, 9 So. 208:
'A conviction of a lower grade of offense included in an indictment is an acquittal of the higher, for which higher offense no second trial can be had.'
And Boswell v. State, 20 Fla. 869, it was held that:
'A legal acquittal or conviction in any court of competent jurisdiction is sufficient in law to preclude any subsequent prosecution for the same offense in any other court.'
And further that:
'In cases of concurrent...
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