State v. Broderick
| Decision Date | 21 June 1921 |
| Docket Number | No. 34148.,34148. |
| Parties | STATE v. BRODERICK. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; C. C. Hamilton, Judge.
Verdict of jury finding defendant guilty of the crime of receiving stolen property. Defendant entered a special plea of former jeopardy by virtue of an acquittal on an indictment charging breaking and entering based on the same transaction. From the ruling of the court on the special plea and the judgment entered on the verdict, defendant appeals. Affirmed.T. P. Cleary and C. R. Jones, both of Sioux City, for appellant.
Ben. J. Gibson, Atty. Gen., B. J. Flick, Asst. Atty. Gen., and O. T. Naglestad, Co. Atty., of Sioux City, for the State.
DE GRAFF, J.
Former jeopardy is an ancient and venerable plea and is imbedded in the fundamentals of the common law. Coke expressed it, “Nemo debet bis puniri pro uno delicto.” Modern constitutions and statutes declare it, “No person shall, after acquittal, be tried for the same offense,” and “A conviction or acquittal by a judgment upon a verdict shall bar another prosecution for the same offense.” Constitution Iowa, art. 1, § 12; section 5339, Code of Iowa.
A court should so apply this guaranty as to protect the citizen from vexatious criminal procedure and at the same time not defeat the primary purpose of our penal law, which, apart from its reformatory aspect, has in view the twofold aim of protecting society and deterring criminal acts.
In the case at bar there is presented this question: Does an acquittal of the defendant on an indictment for the offense of breaking and entering a building constitute a bar to a prosecution on an indictment against him for receiving stolen property, it being conceded that the goods, chattels, and merchandise alleged to have been received by the defendant resulted from a larceny of said goods and chattels from the building so broken and entered?
“When a defendant has been convicted or acquitted upon an indictment for an offense consisting of different degrees, the conviction or acquittal shall be a bar to another indictment for the offense charged in the former or for any lower degree of that offense, or for an offense necessarily included therein.” Code, § 5340.
It is apparent that the offense of receiving stolen property is not a lower degree of the offense of breaking and entering a building, nor is it an offense necessarily included therein.
It is well established that an act may constitute two or more crimes for which the perpetrator may be lawfully indicted and punished. A conspiracy to commit murder may involve evidence sufficient to base a prosecution, not only for the crime of conspiracy, but also for murder, if a homicide resulted. An acquittal of larceny is not a bar to a prosecution for burglary or for breaking and entering with intent to commit larceny. State v. Ingalls et al., 98 Iowa, 729, 68 N. W. 445.
The forgery of an instrument and the uttering of the instrument are distinct offenses, and the acquittal of the crime of uttering is not a bar to a prosecution for the forgery. State v. Blodgett, 143 Iowa, 578, 121 N. W. 685, 21 Ann. Cas. 231;State v. Bigelow, 101 Iowa, 430, 70 N. W. 600. The keeping of a gambling house and gambling are distinct offenses, although based on the same transaction. State v. White, 123 Iowa, 425, 98 N. W. 1027.
True, the law does not recognize the splitting of actions or offenses. State v. Layton, 25 Iowa, 197. Where a person at the same time and by the same act passed four forged checks, he was guilty of but one offense, and a conviction for uttering one of the checks is a bar to a conviction on the others. State v. Egglesht, 41 Iowa, 574, 20 Am. Rep. 612.
The stealing of several articles at the same time and in the same act from the same person constitutes but one transaction and is one act of larceny.
It is clear that the prohibition of the statute and of the Constitution is against a second jeopardy for the same offense; that is, for the identical act or crime. It is stated in some decisions that to entitle a defendant to plead successfully former jeopardy the offense...
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