State v. Gutke

• Decision Date: 13 March 1914
• Citation: 139 P. 346,25 Idaho 737
• Parties: STATE, Respondent, v. SYLVENUS GUTKE, Appellant
• Court: Idaho Supreme Court

139 P. 346

25 Idaho 737

STATE, Respondent, v. SYLVENUS GUTKE, Appellant

Supreme Court of Idaho

March 13, 1914

CRIMINAL LAW-PLEA OF FORMER ACQUITTAL-NEGLECT OF JURY TO RENDER VERDICT ON-SEC. 7230, REV. CODES, CONSTRUED.

1. Under sec. 7230, Rev. Codes, where an act or an omission to act constitutes a violation of different statutes and may be punished under any one of them, the state may elect under which of such statutes it will prosecute the offender, but when the facts of the transaction are once submitted to a jury under the charge that it is in violation of a specific penal statute of the state, and the jury has returned a verdict thereon, any further prosecutions for the commission of that particular act under other statutes are prohibited.

2. Section 7230, Rev. Codes, is directed against more than one prosecution for the same "act or omission" rather than the "same offense," and where the criminal act which is the subject of prosecution consists in selling two specific bottles of beer on a given date, and under the facts of the case prosecution may be had either under the statute prohibiting the sale of intoxicating liquor to minors or under the statute prohibiting the sale of intoxicating liquor in a prohibition district, the circumstance that it is not necessary to prove the same facts upon one prosecution that must be proven in the other makes no difference in the real act itself and cannot make it consist of more than one transaction.

3. The court takes judicial notice of the existence of a prohibition district, and that fact need not be proven upon the trial of one prosecuted for selling intoxicating liquor in such district.

4. Where a defendant on a criminal trial enters a plea of not guilty and also of former acquittal, the jury should be instructed by the trial judge to render a verdict on both pleas, and it is error for the court to accept a verdict of guilty without also requiring the jury to return a verdict on the defendant's plea of former acquittal.

5. Where the plea of former acquittal has been entered by a defendant in a criminal case, no judgment of conviction can be sustained unless the jury has passed on such plea of former acquittal adversely to the defendant.

APPEAL from the District Court of the Sixth Judicial District for Bingham County. Hon. J. M. Stevens, Judge.

Prosecution for the crime of selling intoxicating liquors in a prohibition district. Judgment of guilty, from which defendant appeals. Reversed.

Reversed.

C. S Beebe and William A. Lee, for Appellant.

Sec 7756, Rev. Codes, is identical with sec. 1017 of Kerr's California Penal Code, and has been frequently construed by the courts of that and other states having similar provisions. (People v. Kinsey, 51 Cal. 278; People v. Fuqua, 61 Cal. 377; People v Helbing, 59 Cal. 567; People v. Hamberg, 84 Cal. 468, 24 P. 298; People v. Eppinger, 109 Cal. 294, 41 P. 1037; People v. Tucker, 115 Cal. 337, 47 P. 111.)

J. H. Peterson, Attorney General, T. C. Coffin, Assistant, and J. E. Good, Prosecuting Attorney, for Respondent.

We do not believe that sec. 7230 applies to a case such as the case at bar, but that it is rather intended to apply to that class of cases where the same offense is made punishable in different ways, as, for instance, by fine under one statute and by imprisonment under another. The infliction of one punishment would necessarily be a bar to the other. This section is evidently one of the numerous saving sections, which a wise legislature has put in our statute to guard against ill-considered legislation by subsequent legislatures whereby additional penalties are prescribed for offenses for which penalties already existed. (17 Am. & Eng. Ency. Law, 596-598; Wright v. State, 17 Tex. App. 152.)

If the plea of the defendant of former acquittal is legally insufficient, the lower court did right in refusing to submit it to the jury. (Shubert v. State, 21 Tex. App. 551, 2 S.W. 883; Johnson v. State, 34 Tex. Cr. 115, 29 S.W. 473; Hite v. State, 9 Yerg. (Tenn.) 357, 366; Pickens v. State, 9 Tex. App. 270; State v. Lee, 46 La. Ann. 623, 626, 15 So. 159; State v. Shaw, 5 La. Ann. 342; State v. Meekins, 41 La. Ann. 543, 6 So. 822; State v. Paterno, 43 La. Ann. 514, 9 So. 442; Gormley v. State, 37 Ohio St. 120.)

If the evidence required to convict under the first indictment would not be sufficient to convict under the second indictment, but proof of an additional fact would be necessary to constitute the offense charged in the second indictment, then the former conviction or acquittal could not be pleaded in bar to the second indictment. (Blair v. State, 81 Ga. 629, 7 S.E. 855; Arrington v. Commonwealth, 87 Va. 96, 12 S.E. 224, 10 L. R. A. 242; Smith v. State, 105 Ga. 724, 32 S.E. 127; Ruble v. State, 51 Ark. 170, 10 S.W. 262; State v. Gapen, 17 Ind.App. 524, 45 N.E. 678, 47 N.E. 25; State v. Wheeler, 62 Vt. 439, 20 A. 601; State v. Miller, 63 Kan. 62, 64 P. 1033; State v. Magone, 33 Ore. 570, 56 P. 648; Woolen & Thornton on Intoxicating Liquors, sec. 966; 12 Cyc. 280.)

AILSHIE, C. J. Sullivan, J., concurs. STEWART, J., Dissenting.

OPINION

AILSHIE, C. J.

In this case the defendant was tried and acquitted upon the charge of selling two bottles of beer on the 13th of August, 1911, in Bingham county, to a minor in violation of the law which makes it a misdemeanor to sell intoxicating liquor to a minor. He was thereafter charged upon the same act and transaction with selling intoxicating liquor in Bingham county in violation of the local option statute, which makes it a misdemeanor to sell intoxicating liquor within a prohibition district. On the trial of the latter charge the defendant plead "not guilty" and "former acquittal," his plea of former acquittal being based on his trial and acquittal for selling intoxicating liquor to a minor.

The only question with which we are confronted on this appeal is whether this second conviction is in violation of section 7230 of the Rev. Codes of this state. That section reads as follows:

"An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other."

Our attention has only been called to one statute which is in any way similar to the foregoing, and that is section 654, Kerr's California Penal Code, which is in the exact language of our statute, except that it has added thereto some reservations and exceptions. So far as we have been able to find, there is no decision of the California court that throws any light upon the inquiry which confronts us.

It should also be remembered upon the very threshold of our investigation of this case that our statute differs materially and essentially from the provisions of sec. 13, art. 1, of the state constitution, and the like provision of the federal constitution which provides that "no person shall be put twice in jeopardy for the same offense." It should therefore be remembered, upon the very outset, that decisions from courts which discuss the foregoing constitutional provision with reference to being put "twice in jeopardy" for the same offense are in no essential respect applicable to the statute here under consideration. The constitutional provision deals with the subject of putting a defendant twice in jeopardy for the same offense. On the other hand, the statute (sec. 7230) above quoted is not dealing with the "same offense," but the same "act or omission." In other words, the legislature has said that where an act or an omission to act is a violation of different statutes of this state and may be punished under several statutes, the state may elect as to the statute under which it will prosecute the party, but "in no case can" such party "be punished under more than one" statute. This statute appears to have been adopted from California by the 1872 codes, and it was first introduced into the Idaho statutes in the 1887 Revised Statutes. The commission which proposed the Revised Statutes of 1887 of this territory was composed of some of the ablest lawyers in the territory, and they were undoubtedly familiar with the conflicting decisions and diversity of opinion among lawyers and judges as to just when a party can be legally said to have been "once in jeopardy" under the constitutional provision and when he may be again tried for the commission of the same act which is a violation of another statute, and, in our opinion, it was for the purpose of setting this question at rest, so far as any conflict might arise in Idaho, that this statute was adopted. This was before the admission of the state and the adoption of the constitution, and the legislature accordingly directed its prohibition against twice prosecuting a man for the same "act or omission," although that act or omission might be a violation of several statutes and therefore constitutes several offenses.

In the case at bar, it is admitted and conceded by all parties that the act for which the appellant has been twice prosecuted consisted in selling two bottles of beer in Bingham county on the 13th day of August, 1911. The first prosecution was for making the sale to a minor. The jury acquitted the defendant on that charge. It may be that that acquittal was the result of the jury finding that the person to whom the sale was made was not a minor and still they might have been satisfied that a sale was made. The next prosecution was for the same act by charging that the sale was made in a prohibition district, Bingham county then being a "dry" county. The jury believed this charge and convicted the...