State v. Frank O'brien

• Decision Date: 04 January 1934
• Citation: 170 A. 98,106 Vt. 97
• Parties: STATE v. FRANK O'BRIEN
• Court: Vermont Supreme Court

170 A. 98

106 Vt. 97

STATE v. FRANK O'BRIEN

Supreme Court of Vermont

January 4, 1934

November 1933.

Special Term at Rutland, November, 1933.

Criminal Law---Admissibility of Evidence Unlawfully Obtained---Searches and Seizures---Application of Fourth and Fifth Amendments to Federal Constitution---Articles 10 and 11 of State Constitution as Not Affecting Admission in Evidence of Things Possession of Which Tend To Show Respondent's Guilt, though Obtained from Him without Warrant---Indictment and Information---Motion To Quash Information---Discretion of Court---Presumption as to Court Having Exercised Discretion---Insufficiency of Facts To Show Abuse of Discretion in Denial of Motion To Quash Information---Maxim upon Which Plea of Autrefois Convict Is Founded---Extent of Application of Maxim That No Man Is To Be Brought into Jeopardy of His Life More than Once for Same Offense---Application of Phrase, "Jeopardy of Life or Limb" as Used in Fifth Amendment to Federal Constitution---Constitutional Provisions against Double Jeopardy as Declaratory of Common Law---Upon What Plea of Former Conviction May Be Based---Necessity of Identity of Offenses in Law and Fact---Same Act as Constituting Two Crimes---Meaning of Prohibition as to Double Jeopardy---Same Act Constituting Criminal Offense Equally against United States and State---Right To Prosecute in Both Jurisdictions Where Offenses Not Identical in Point of Fact---Intoxicating Liquor---Introduction of Intoxicating Liquor as Evidence Unnecessary Where Possession Otherwise Proveable---Sufficiency of Record To Show Intoxicating Liquor Treated as Evidence in Case---Sufficiency of Evidence To Show Respondent's Knowledge of Intoxicating Liquor Being on His Premises---Application of Eighth Amendment to Federal Constitution---Prohibition as to Excessive Fines and Cruel and Unusual Punishment as Part of Common Law Adopted by State---"Common Law"---Part of Common Law Adopted by State---Evidence---Judicial Notice---Imposition of Penalty under State Law for Illegal Possession of Intoxicating Liquor as Not Constituting Excessive Fine or Cruel or Unusual Punishment by Reason of Respondent's Previous Conviction for Possession under National Prohibition Act---Consideration of Sentence in One Jurisdiction in Imposing Penalty upon Conviction in Another Jurisdiction---Question as to Matters Which May Be Considered by Court in Imposing Sentence Immaterial before Sentence.

1. In prosecution for unlawful possession of intoxicating liquor if liquor was seized upon void search warrant, liquor would not thereby be rendered inadmissible as evidence.

2. In criminal prosecution, when evidence is offered by State legality of search by which it was obtained is not in issue and court will take no notice of whether evidence was obtained legally or illegally, properly or improperly, and will not form collateral issue to try that question.

3. Fourth and Fifth Amendments to federal Constitution, relating to unreasonable search and seizure and freedom from self-crimination, are not restrictions upon powers of State, but operate only upon those of federal government.

4. Articles 10 and 11 of State Constitution, relating to freedom from self-crimination and unreasonable search and seizure, do not prevent admission in evidence of things, possession of which tend to show guilt of respondent, even though obtained from him by means of search without warrant.

5. Motion to quash information is not a right, but addressed to discretion of court.

6. Where court denied respondent's motion to quash information charging unlawful possession of intoxicating liquor on ground that search warrant on which liquor was seized was void, Supreme Court will presume that ruling was made as matter of discretion though record does not show ruling was so made, contrary not affirmatively appearing.

7. Under facts in case, denial by trial court of respondent's motion to quash information charging unlawful possession of intoxicating liquor on ground that search warrant on which liquor was seized was void, held not to show abuse of discretion.

8. Plea of autrefois convict is grounded upon maxim of common law that no man is to be brought into jeopardy of his life more than once for same offense.

9. Operation of maxim of common law that no man is to brought into jeopardy of his life more than once for same offense, although language in strictness applies only to capital offenses, is not so confined, but extends as well to misdemeanors.

10. Phrase "jeopardy of life or limb," as used in Fifth Amendment to federal Constitution, while by strict construction extending only to treasons and felonies, applies to all indictable offenses, including misdemeanors.

11. Constitutional provisions against double jeopardy are regarded as merely declaratory of common law.

12. Plea of former conviction may be based either on constitutional guaranty or upon common law.

13. Plea of former conviction must be upon prosecution for identical crime, and must make it to appear that offenses charged in both cases are same in law as well as in fact.

14. Same act may constitute two separate crimes, and, if they are not so related that one of them is constitutent part, or necessary element, in other, so that both are in fact one transaction, prosecution and conviction may be had for each offense.

15. Second jeopardy for same offense is prohibited, not second jeopardy for same act.

16. Same act may constitute criminal offense equally against United States and State, subjecting guilty party to punishment under laws of each, provided act is one over which both sovereignties have jurisdiction.

17. In prosecution by State charging unlawful possession of intoxicating liquor, held that such prosecution was not barred by reason of respondent's prior prosecution and conviction in United States court for illegal possession of intoxicating liquor found by federal officers on same premises, on ground that thereby he would be twice put in jeopardy for same offense in violation of Fifth Amendment to federal Constitution.

18. Prosecution in State court for illegal possession of intoxicating liquor, held not barred under common-law rule as to double jeopardy by reason of respondent's prior prosecution in federal court for illegal possession of liquor found by federal officers on same premises.

19. Prosecution and conviction in federal court for illegal possession of intoxicating liquor found by federal officers, held not to bar subsequent prosecution by State for illegal possession of other intoxicating liquor which respondent had in his possession at same time and continued to possess subsequent thereto, offenses not being identical in point of fact.

20. In prosecution for illegal possession of intoxicating liquor, introduction of liquor itself in evidence held unnecessary, because such illegal possession could be proved without it.

21. In such prosecution, where respondent claimed that conviction was without supporting evidence because State failed to offer any intoxicating liquor in evidence, held that objection was unavailing where, although transcript failed to show any offer of them in evidence, seven bottles of such liquor, conceded to be respondent's property and shown to have been found concealed on his premises by his direction, were produced in court, marked as State's exhibits, without objection, referred to as exhibits during trial by both sides, used by respondent's counsel in examination of his witnesses, and designated as exhibits in bill of exceptions.

22. In such prosecution, evidence held to tend to show knowledge of respondent that intoxicating liquor was on premises at time of search by State officers.

23. Eighth Amendment to federal Constitution, prohibiting excessive fines and cruel and unusual punishments, held to apply to United States government and not to states.

24. Though Constitution of Vermont contains no provision similar to Eighth Amendment to federal Constitution, prohibiting excessive fines and cruel and unusual punishments, common law of England, which had similar provision, held to have been adopted by statute, G. L. 1479.

25. Common law of England is law administered by common law courts whether jus scriptum or jus non scriptum, as distinct from rules of courts of equity.

26. Common law adopted in Vermont by statute, G. L. 1479, is unwritten law of England as amended or altered by Acts of Parliament in force at time of migration of settlers to this country, and such other acts of Parliament, passed since such migration, which have been adopted by State courts.

27. Supreme Court takes judicial notice that humane and beneficent principle of act of Parliament, forming part of common law, prohibiting excessive bail, imposition of excessive fines, and infliction of cruel and unusual punishments, has been recognized in practice in courts of this State.

28. Imposition of penalty provided by law of State for illegal possession of intoxicating liquor, after respondent had previously been convicted in federal court for illegal possession of intoxicating liquor, held not to result in imposition of excessive fine or cruel and unusual punishment contrary to prohibition of common law adopted by State, breach of law of State being distinct offense from violation of National Prohibition Act under which respondent had been punished.

29. That sentence in one jurisdiction may be taken into consideration in fixing or suspending penalty in another, and that, though not prohibited, punishment in two jurisdictions should not be imposed where there are no aggravating circumstances, as stated in some decisions, held not rules of law, but mere suggestions for guidance of court in exercising its discretion in determining penalty to be...