State v. Caddy

• Decision Date: 25 October 1901
• Citation: 87 N.W. 927,15 S.D. 167
• Parties: STATE v. CADDY.
• Court: South Dakota Supreme Court

87 N.W. 927

15 S.D. 167

STATE v. CADDY.

Supreme Court of South Dakota

October 25, 1901

Error to circuit court, Lawrence county; Joseph B. Moore, Judge.

Herbert D. Caddy was convicted of robbery, and he brings error. Affirmed.

Frawley & Laffey, for plaintiff in error. John L. Pyle, Atty. Gen and S. C. Polly, State's Atty. (W. G. Rice, of counsel) for the State.

CORSON J.

At the February term, 1900, of the circuit court of Lawrence county the defendant was indicted for the crime of robbery. The indictment charges that the plaintiff in error and one Thomas Carberry on the 29th of October, 1899, did unlawfully wrongfully, and feloniously take and carry away from the person of Michael R. Russell the sum of $5, and that said taking was accomplished by means of force and putting the said Russell in fear of an immediate and unlawful injury to his person. To this indictment the defendant entered the plea of not guilty, and also pleaded that he had been acquitted upon the trial of an indictment charging him with an assault with intent to commit a felony, other than an assault with intent to kill, and adding thereto the usual allegations that the parties named in the two indictments were the same, and that the transaction upon which the second indictment was based was the same identical transaction as the one upon which the former indictment was based, and that the proof to sustain the indictment to which the plea was interposed would be identically the same as that given in support of the former indictment. To this plea of former acquittal the state interposed a demurrer, except to the portion of the plea alleging that the evidence would be the same, which allegation was denied. The court sustained the demurrer, and the plaintiff in error was thereupon tried upon the indictment for robbery and convicted, and has brought the case to this court by writ of error.

The principal question presented to this court for review is as to the rulings of the court in sustaining the demurrer to the plea of former acquittal. The indictment under which the plaintiff in error was tried and convicted was based upon section 6481, Comp. Laws, which reads as follows "Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." The indictment under which he was tried and acquitted was based upon section 6491, Comp. Laws, which reads as follows: "Every person who shoots or attempts to shoot at another with any kind of fire arm, air gun, or other means whatever, or commits any assault or battery upon another by means of, any deadly weapon, or by such other means or force as was likely to produce death, with intent to commit a felony other than assault with intent to kill, or in resisting the execution of any legal process, is punishable by imprisonment in the territorial prison not exceeding ten years." It is contended on the part of the plaintiff in error that, having been acquitted of the offense charged in the former indictment, he could not, under the constitution of this state, again be tried upon the second indictment, and that the court therefore erred in sustaining the demurrer of the state to his plea in bar. Section 9, art. 6, of the constitution of this state, reads as follows: "No person shall be compelled, in any criminal case, to give evidence against himself or to be twice put in jeopardy for the same offense." A similar provision is found in all or nearly all of the constitutions of the several states, and the decisions construing the same are very numerous and somewhat conflicting, and we shall not attempt to review them in this opinion. The rule applicable to this class of cases, in our opinion, is clearly stated by Gray, J., speaking for the supreme court of Massachusetts, in Morey v. Com., 108 Mass. 433. He says: "A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes, and, if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." In People v. Bentley, 77 Cal. 7, 18 P. 799, 11 Am. St. Rep. 225, the defendant was tried and convicted of an assault with a deadly weapon under an information charging him with an assault with intent to commit murder. He was afterwards indicted for an attempt to commit robbery, and upon that indictment he sought to prove that he had been convicted of the former offense, as a bar to the action, but the trial court excluded this evidence. It seemed to have been assumed in the opinion of the appellate court that the parties were the same, and that the acts constituting the two offenses were substantially the same, and were sustained by substantially the same evidence, but the ruling of the court below was sustained by the supreme court. In the opinion the court says: "The evidence offered tended to show that he had been convicted of an assault with a deadly weapon under an information charging an assault with intent to commit murder. It is plain that the defendant had not formerly been convicted of an offense for which he could have been or was tried and convicted on the information charging the offense of which he here stands convicted. 'It is believed that no well-considered case can be found where a putting in jeopardy for one act, or a conviction for one act, was held to bar a prosecution for another separate and distinct one, merely because they were so closely connected in point of time that it is impossible to separate the evidence relating to them.' Teat v. State, 53 Miss. 456, 24 Am. Rep. 708. According to the testimony in this case, the first thing done by the defendant and his confederate was an attempt to intimidate and rob. The next was an attack with a deadly weapon. It cannot be law that a man, having assaulted another with a deadly weapon, and having also attempted before that to rob him, can escape punishment for the attempt to rob because of a conviction for assault with a deadly weapon. If the offenses do not possess the same elements, although both relate to the same transaction, it would seem that both may be punished. This view of the law seems to have been taken by the supreme court of this state in the case of People v. Majors, 65 Cal. 138, 3 P. 597, 52 Am. Rep. 295, where many authorities bearing upon the matter in hand are cited and discussed. The offense of which the defendant was first convicted was an effort to injure the person of the prosecutor with a deadly weapon. That of which he was last convicted was an attempt to take away the goods of the prosecutor from his person by intimidation or violence. The essential elements of the two offenses are not the same."In State v. Elder, 65 Ind. 282, 32 Am. Rep. 69, the supreme court of that state, in discussing the question we are now considering, says: "The English rule is that, when the facts necessary to convict upon 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 would 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; and we believe this rule is valid in all the states of the Union." The court in its opinion further says: "But when the same facts constitute two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on the second prosecution would not necessarily have convicted on the first, then the first prosecution will be a bar to the second, although the offenses were both committed at the same time and by the same act." This is cited with approval by the supreme court of California in the case of People v. Majors, supra. In the case of Com. v. Roby, 12 Pick. 496, Shaw, C. J., says: "It must therefore appear to depend upon the facts so combined and charged as to constitute the same legal offense or crime. It is obvious, therefore, that there may be a 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 considera ble diversity of circumstances where the legal character of the offense 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...