State v. O'Brien
| Decision Date | 04 January 1934 |
| Citation | 170 A. 98 |
| Parties | STATE v. O'BRIEN. |
| Court | Vermont Supreme Court |
Exceptions from City Court of Rutland; Harold I. O'Brien, Judge.
Frank O'Brien was convicted of unlawful possession of intoxicating liquor, and he brings exceptions.
Affirmed.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
Philip M. M. Phelps, of Fair Haven, for respondent.
Jack A. Crowley, State's Atty., of Rutland, for the State.
This respondent has been convicted of the unlawful possession of intoxicating liquor, and the case has been passed to this court, before sentence, upon his exceptions. The first question concerns the denial of his motion to quash the information, upon the ground that the search warrant upon which the liquor was seized was void. The argument is that, since this was so, the liquor would not be admissible in evidence, and so there could be no conviction for the possession of it. But if the search warrant were invalid, which it is not necessary to decide, this result would not follow. The legality of the search would not be in issue. When evidence is offered, the court will take no notice of how it was obtained, whether legally or illegally, whether properly or improperly, and it will not form a collateral issue to try that question. The Fourth and Fifth Amendments to the Federal Constitution, relating to unreasonable search and seizure, and freedom from self-crimination, are not restrictions upon the powers of a state, but operate only upon those of the federal government. The corresponding provisions of our state Constitution (articles 10 and 11, c. 1) do not prevent the admission in evidence of things, the possession of which tend to show the guilt of a respondent, even though obtained from him by means of a search without a warrant. All this is fully stated, and the authorities are cited, in State) v. Stacy, 104 Vt. 379, 401, 160 A. 257, 747, and the rule has been approved and followed, since then, in State v. Pilon, 105 Vt. 55, 57, 163 A. 571, and State v. Parker, 104 Vt. 494, 498, 499, 162 A. 696.
Furthermore, the motion to quash was not a right, but was addressed to the discretion of the court. State v. Louanis, 79 Vt. 463, 466, 65 A. 532, 9 Ann. Cas. 194; State v. Stewart, 59 Vt. 273, 284, 9 A. 559, 59 Am. Rep. 710. Although the record does not show that the ruling was made as a matter of discretion, we will presume that it was since the contrary does net affirmatively appear. State v. Fairbanks, 101 Vt. 30, 34, 139 A. 918, and cases cited. Certainly no abuse of discretion is shown.
The respondent pleaded autrefois convict, and not guilty. Trial by jury was waived, as it might be under G. L. 2494, and after hearing evidence upon the issues, the court filed a finding of fact. This finding, which so far as the claim of double jeopardy was concerned followed, in the main, the allegations of the plea, is this: In August, 1931, agents of the federal government, armed with a proper warrant, searched the respondent's premises and found a quantity of intoxicating liquor. On the 11th of September following the respondent was indicted for the illegal possession of it, and, at a session of the District Court of the United States for the District of Vermont, he pleaded guilty and paid a fine. On the 17th of October the officers of the state searched the same premises, which were still occupied by the respondent, and found, artfully concealed beneath the flooring of the woodshed, more intoxicating liquor which had been there at the time of the visit of the federal officers, but which they had failed to unearth. The liquor had been hidden in this place before the first raid occurred, by two friends under the direction of the respondent. That the liquor was the property of the respondent was admitted.
It is urged that the conviction in the United States District Court is a bar to a prosecution in the state court, because otherwise the respondent would be twice put in jeopardy for the same offense, as prohibited in the Fifth Amendment to the Federal Constitution.
The plea of autrefois convict, as well as the plea of autrefois acquit, is grounded upon the universal maxim of the common law that no man is to be brought into jeopardy of his life more than once for the same offense. 3 Blaekstone, Comm. 335, 336. Although this language in strictness applies only to capital crimes, the operation of the maxim is not so confined, but extends to mi* demeanors. 4 Stephen, Commentaries, 451, note. And so, too, the phrase "jeopardy of life or limb," as used in the Fifth Amendment to the Federal Constitution, while by strict construction it extends only to treasons and felonies, has been practically and wisely applied to all indictable offenses, including misdemeanors. 1 Bishop, New Criminal Law (8th Ed.) pars. 990, 991, and cases cited. The maxim itself is stated in different forms: "Nemo his debet vexnri pro una et eadem causa," "Nemo his in periculum veniet pro eodem delicto," and "Nemo his punitur pro eodem delicto"; but in each instance the meaning is essentially the same, and includes all criminal offenses. This ancient and well-established rule of the common law is sanctioned and enforced in most of the Constitutions of the several states and in that of the United States. Commonwealth v. Roby, 12 Pick. (Mass.) 496, 502. Constitutional provisions against double jeopardy are regarded as merely declaratory of the common law. Kepner v. United States, 195 U. S. 100, 125, 126, 24 S. Ct. 797, 49 L. Ed. 114, 123, 1 Ann. Cas. 655; United States v. Sanges, 144 U. S. 310, 12 S. Ct 609, 36 L. Ed. 445, 447; Commonwealth v. Ramunno, 219 Pa. 204, 68 A. 184, 185, 14 L. R. A. (N. S.) 209, 123 Am. St. Rep. 653, 12 Ann. Cas. 818; State v. Healy, 130 Minn. 264, 161 N. W. 590, L. R. A. 1917D, 726, 729; Ex parte Bornee, 76 W. Va. 360, 85 S. E. 529, L. R. A. 1915F, 1093, 1098; Commonwealth v. Roby, 12 Pick. (Mass.) 496, 502.
A plea of former conviction may therefore, be based either upon a constitutional guaranty or upon the common law. Commonwealth v. Ramunno, supra.
The plea must, however, be upon a prosecution for the identical crime, and must make it to appear that the offenses charged in both cases are the same in law as well as in fact, for it will be vicious if they are perfectly distinct in point of law, however nearly they may be connected in fact State v. Pianfetti, 79 Vt. 236, 241, 65 A. 84, 9 Ann. Cas. 127; State v. Jangraw, 61 Vt. 39, 40, 17 A. 733: State v. Lincoln, 50 Vt. 644, 647; State v. Watson, 20 R. I. 354, 39 A. 193, 195, 78 Am. St. Rep. 871; Commonwealth v. Roby, 12 Pick. (Mass.) 496, 504. The same act may constitute two separate crimes, and if they are not so related that one of them is a constituent part, or necessary element, in the other, so that both are in fact one transaction, a prosecution and conviction may be had for each offense. State v. Jangraw, supra, page 41 of 61 Vt, 17 A. 733; State v. Smith, 43 Vt. 324, 327; State v. Locklin, 59 Vt 654, 655, 10 A. 464; State v. Lincoln, supra; State v. Nutt, 28 Vt. 598, 602.
It is not a second jeopardy for the same act, but a second jeopardy for the same offense that is prohibited. Theisen v. McDavid, 34 Fla. 440, 16 So. 321, 26 L. R. A. 234, 235. Thus, it has been held that an offense may be at the same time an infraction of a city ordinance and of a state statute, and may be punished by both municipality and state without putting the offender twice in jeopardy, being regarded as two distinct offenses growing out of the same act; the one being a transgression of the municipal law, and the other a violation of the state law. Theisen v. McDavid, supra; State v. Shimman, 122 Ohio St. 522, 172 N. E. 367, 368, 73 A. L. R. 1502; Thomas v. City of Indianapolis, 195 Ind. 440, 145 N. E. 550, 35 A. I* R. 1194, 1200; Mayhew v. City of Eugene, 56 Or. 102, 104 P. 727, Ann. Cas. 1912C, 33, 34; In re Henry, 15 Idaho, 755, 99 P. 1054, 21 L. R. A. (N. S.) 207, 209; cases cited in notes, 17 L. R. A. (N. S.) 68, and Ann. Cas. 1912C, 37.
And so, too, the same act may constitute a criminal offense equally against the United States and the state, subjecting the guilty party to punishment under the laws of each, provided the act is one over which both sovereignties have jurisdiction. In re Guerra, 94 Vt 1, 13, 110 A. 224, 10 A. L. R. 1560; United States v. Lanza, 260 U. S. 377, 382-385, 43 S. Ct. 141, 142, 143, 67 L. Ed. 314; Cross v. North Carolina, 132 U. S. 132, 10 S. Ct. 47, 33 L. Ed. 287, 290; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717, 724; United States v. Marigold, 9 How. (U. S.) 560, 13 L. Ed. 257, 261; Pox v. Ohio, 5 How. (U. S.) 410, 12 L. Ed. 213, 224. In the Guerra Case the question whether the acquittal or conviction under the federal statute would bar a prosecution under the statute of the state, or vice versa, was expressly left untouched, because it was not necessary to the determination of the issue presented, but in the subsequent Lanza Case it was held that the Fifth Amendment applies only to the proceedings of the federal government, and that "the double jeopardy therein forbidden is a second prosecution under authority of the federal government after a first trial for the same offense under the same authority" (page 142 of 43 S. Ct, 260 U. S. 377), and therefore a conviction obtained under a statute of the state of Washington forbidding the manufacture, transportation, or possession of intoxicating liquor was not a bar to a subsequent prosecution, involving the possession of the same liquor, under the National Prohibition Act (27 USCA). The principle upon which the decision is based is perhaps nowhere more clearly stated than in Moore v. Illinois, 14 How. (U. S.) 13, 19, 14 L. Ed. 306, 309, by Mr. Justice Grier, as follows: ...
To continue reading
Request your trial