State v. Clinkingbeard
| Decision Date | 09 December 1922 |
| Parties | THE STATE v. JOSEPH CLINKINGBEARD, Appellant |
| Court | Missouri Supreme Court |
Appeal from Crawford Circuit Court. -- Hon. L. B. Woodside, Judge.
Affirmed.
Wm. R Lay and A. H. Harrison for appellant.
(1) The court should have discharged the defendant on the trial of the plea in abatement and former jeopardy; failing in this the defendant should have been discharged at the close of the State's case; failing in this, the defendant should have been discharged at the close of the whole case. When one offense is a necessary element in and constitutes part of another offense, and both were in fact but one transaction, a conviction or acquittal of one is a bar to the prosecution for the other. State v. Williams, 152 Mo. 123; State v. Huffman, 136 Mo. 58; State v Smith, 43 Vt. 324. Where the evidence necessary to support the second indictment, would have been sufficient to procure a legal conviction upon the first, the plea of autrefois acquit is generally good, but not otherwise. 2 Am. Crim. Law, sec. 565; State v. Williams, 152 Mo. 123; Commonwealth v. Trimmer, 84 Pa. St. 69; Hilands v. Commonwealth, 114 Pa. St. 377; Commonwealth v. Shoener, 216 Pa. St. 77. In determining whether or not a plea of autrefois acquit is sufficient in law in a case of this kind, the following may be regarded as the proper test: Was the matter set out in the indictment admissible as evidence under the first, and could a conviction have been properly maintained upon such evidence? If yes, then the plea is sufficient; otherwise it is not. Dill v. People, 26 P. 229; Storm v. Territory, 94 Pa. 1101; 2 Van Fleet, Former Adjudication, pp. 1249, 1250, note; 1 Wharton, Crim. Law (11 Ed.) p. 528, sec. 395. The true test to determine the sufficiency or insufficiency of a plea of former acquittal as a bar to the pending prosecution is this: would the same evidence be necessary to secure a conviction in the pending, as in the former, prosecution? If it would be, then the plea of former acquittal would be a complete bar to the pending prosecution; otherwise, the plea would not be sufficient. Smith v. State, 85 Ind. 557; Barker v. State, 188 Ind. 274; 2 Van Fleet, Former Adjudication, p. 1201, sub-sec. 594; 2 Bishop, Crim. Law, sec. 1052, p. 630; Price v. State, 19 Ohio 223; Hiekes v. Commonwealth, 26 Pa. St. 513; Commonwealth v. Trimmer, 84 Pa. St. 65; Ex parte Rogers, 10 Tex.App. 655; Williams v. State, 13 Tex.App. 285; Winn v. State, 82 Wis. 571; Hughes, Crim. Law & Proc., p. 415, sec. 1614. A person acquitted of a crime cannot be again tried for it under the guise of a charge of perjury. United States v. Butler, 38 F. 498; Cooper v. Commonwealth, 106 Ky. 909; Petit v. Commonwealth, 57 S.W. 14; Chitwood v. United States, 178 F. 442. When a fact has once been judicially determined, that determination is conclusive in all controversies between the same parties. This rule applies, though the subjectmatter and purposes of the two controversies are not the same. Coffey v. United States, 116 U.S. 436; Green v. Bogue, 158 U.S. 478. If the truth or falsity of the charge in the former indictment is the gist of the question under investigation so that a conviction for perjury will necessarily import a contradiction of the jury's verdict for not guilty in the former trial, the subsequent prosecution will be barred. 14 Standard Ency. of Proc., p. 554, sec. 3; United States v. Butler, 38 F. 498; Chitwood v. United States, 178 F. 442; Cooper v. Commonwealth, 106 Ky. 909; Petit v. Commonwealth, 57 S.W. 14; Coffey v. United States, 116 U.S. 436; State v. Smith, 119 Minn. 107. (2) The testimony on the part of the State did not show that any whiskey was manufactured by the defendant; the most and all that can be said of the testimony is that it showed an attempt to manufacture whiskey. An attempt in criminal law is an effort or endeavor to accomplish a crime, amounting to more than mere preparation or planning for it, and which, if not prevented, would have resulted in the full consummation of the act attempted, but which, in fact does not bring to pass the party's ultimate design. Black's Law Dictionary, p. 102; State v. Davidson, 172 Mo.App. 363; 1 Bishop, Crim. Law, sec. 728; State v. Smith, 119 Mo. 445. (3) It is a settled rule of criminal procedure that testimony of a confession of the crime charged, made out of court by the accused, must be supported by independent proof of the corpus delicti; that is, proof that a crime was in fact committed. State v. Young, 237 Mo. 177. (4) A mere intent to commit a criminal offense is not a crime. State v. Rider, 90 Mo. 60; State v. Riseling, 186 Mo. 529. The testimony failing to show that the defendant had in fact actually manufactured whiskey, it follows that he did not commit perjury. (5) Earl R. Stringfellow was not competent to testify as a witness for the State and against the appellant; he and appellant had been jointly indicted charged with having illegally manufactured whiskey; the case against Stringfellow was pending against him at the time he testified. Over the objections of the appellant he was permitted to testify as to the alleged manufacture of whiskey by himself and the appellant. When two persons are jointly indicted for the same offense one may not testify for the State against the other while his case is undisposed of. State v. Reppley, 278 Mo. 337.
Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Special Assistant Attorney-General, for respondent.
(1) The trial court committed no error in overruling appellant's plea in abatement based on former adjudication and former jeopardy. Allan v. United States, 194 F. 666, 39 L.R.A. (N.S.) 385; Teague v. Commonwealth, 189 S.W. 909, L.R.A. 1917B, 738; State v. Tedder, 242 S.W. 893; State v. Ruddy, 228 S.W. 762; State v. Jennings, 278 Mo. 552; State v. Hardiman, 277 Mo. 233; State v. Moran, 216 Mo. 550; State v. Ackerman, 214 Mo. 332; State v. Smith, 119 Minn. 107; People v. Albers, 137 Mich. 679; State v. Caywood, 96 Iowa 372; State v. Cary, 159 Ind. 504. (2) After defendant's demurrer offered at the close of State's case was overruled, the appellant proceeded to offer testimony in support of his defense, and thereby waived his right to be heard on said demurrer. State v. Hembree, 242 S.W. 913; State v. Ellis, 234 S.W. 847; State v. Jackson, 283 Mo. 24. (3) The court properly refused appellant's demurrer offered at the close of all the evidence, as there was ample evidence of appellant's guilt. State v. Hascall, 226 S.W. 21; State v. McKenzie, 177 Mo. 717; State v. Williams, 186 Mo. 135. (4) The testimony was sufficient to raise an issue for the jury and amply supports the verdict and this court will not interfere. State v. Arnett, 210 S.W. 83; State v. Long, 257 Mo. 208; State v. Hembree, 242 S.W. 914. (5) The falsity of appellant's testimony in his trial for unlawfully having in his possession a still and unlawfully manufacturing whiskey was established by not only two witnesses but by five or more.
RAILEY, C. White, and Reeves, CC., concur.
On February 25, 1921, the grand jury of Crawford County, Missouri, returned an indictment against defendant and one Earl R. Stringfellow, charging that they jointly, on February 24, 1921, in Crawford County aforesaid, did unlawfully and wilfully manufacture, sell and give away certain intoxicating liquors, to-wit, one quart of whiskey for beverage purposes, etc. The case came on for trial at the June term, 1921, of said court and, on application of this appellant, he was granted a severance. At the same term of said court, he was placed upon trial before a jury who, after hearing the testimony, including that of defendant, returned a verdict of not guilty, and he was discharged.
At the former trial the court, by instruction numbered seven, declared the law of the case, as follows:
"The court instructs the jury that if you believe and find from the evidence that the defendant, Joseph Clinkingbeard, in Crawford County, Missouri, on the 24th day of February, 1921, did wilfully manufacture, for beverage purposes, intoxicating liquors, to-wit, whiskey, you will find him guilty, as charged in the indictment and assess his punishment at a fine of not less than one hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for a term of not less than thirty days nor more than twelve months, or by both such fine and imprisonment."
Instruction two given in the former trial, reads as follows:
"The court instructs the jury that if you find and believe from the evidence that the defendant had no agency in the manufacture of intoxicating liquor, if you find any was manufactured, and that he merely attempted to screen the guilty party, he cannot be convicted of manufacturing intoxicating liquor, as charged in the indictment."
Said instructions seven and two, supra, substantially covered the main issues in the former trial, relating to the charges against this appellant. A large number of witnesses testified in behalf of the State at said trial, and eight or ten witnesses testified for defendant in respect to the issues aforesaid.
On October 4, 1921, the Prosecuting Attorney of Crawford County filed an information against appellant, charging him with having committed perjury in the former trial. It contains two counts, but as the jury returned a verdict herein on the first count against appellant, and assessed his punishment at two years and six months in the penitentiary, we will not consider the second count. The first count of said information alleges that it was a material question at the former trial as to whether this appellant had knowledge or information that certain stills, vessels, etc., and other equipment were...
To continue reading
Request your trial