State v. Healy

• Court: Minnesota Supreme Court
• Citation: State v. Healy, 136 Minn. 264, 161 N.W. 590 (Minn. 1917)
• Decision Date: 02 March 1917
• Docket Number: No. 20280[302].,20280[302].
• Parties: STATE v. HEALY.

136 Minn. 264

161 N.W. 590

STATE

v.HEALY.

No. 20280[302].

Supreme Court of Minnesota.

March 2, 1917.

Certified from District Court, Sherburne County; A. E. Giddings, Judge.

Edward Healy was convicted of carnal knowledge of a female under the age of consent, and the trial court certified questions to the Supreme Court for decision. Questions answered, and case remanded.

Syllabus by the Court

Defendant was tried for the crime of carnal knowledge of a female under the age of consent, committed on January 16, 1914, and acquitted. He was subsequently tried and convicted for a like offense committed with the same female on July 16, 1914. Held, that the acquittal of the offense of January 16th was not a bar to the prosecution for the offense of July 16th, and that the court properly disallowed the plea of former acquittal without submitting it to the jury.

Where the state is permitted to prove all similar offenses which have taken place within a designated period without electing upon which it will rely, and can convict if the jury find that defendant has committed any one of such offenses, an acquittal is a bar to a second prosecution for any specific offense committed within the designated period.

Where the state, although permitted to prove several similar offenses, is required to point out the specific offense for which it seeks a conviction, and the jury is required to acquit unless they find that the defendant had committed that particular offense, an acquittal is not a bar to another prosecution for another like offense. Lyndon A. Smith, Atty. Gen., James E. Markham, Asst. Atty. Gen., and George H. Tyler, Co. Atty., of Elk River, for plaintiff.

Mead & Bryngelson, of Minneapolis, for defendant.

TAYLOR, C.

[1] Three indictments were returned against defendant charging him with carnal knowledge of a female child under the age of consent. The first charged an offense committed on the 5th day of April, 1913; the second, an offense committed on the 16th day of January, 1914; and the third, an offense committed on the 16th day of July, 1914. He was placed on trial upon the indictment charging an offense committed on the 16th day of January, 1914. The trial resulted in an acquittal. At the next term of court the other two indictments were dismissed because he had not been arraigned thereon at the prior term. At the following term of court the grand jury returned two other indictments charging defendant with carnal knowledge of the same child. The first charged an offense committed on the 5th day of April, 1913, the other, an offense committed on the 16th day of July, 1914. To both indictments he entered a plea of not guilty, and of former acquittal. He was placed on trial upon the indictment charging an offense committed on the 16th day of July, 1914. The court disallowed the plea of former acquittal, and defendant was convicted. Thereafter the court certified five questions to this court for decision. They in fact present only two questions: Whether the former acquittal was a bar to this prosecution; and whether that question should have been submitted to the jury, instead of being determined by the court.

The illicit relations between the parties had continued for some two years, according to the testimony of the girl, and during about a year of this time defendant was the village marshal. At the first trial, the prosecution presented evidence tending to prove an act of intercourse on or about January 16, 1914, in the village jail, and then proceeded to show by the girl that other similar acts had taken place with much frequency for a considerable period of time prior thereto. She stated that they had been committed in defendant's own house, in the village jail, in the village engine house, and once in the Methodist church. She was not interrogated concerning any acts which took place subsequent to January 16, 1914, and did not testify as to any such acts; but certain general statements in reference to the length of time during which the illicit commerce had continued indicated that it had continued after that date. When the state rested, defendant moved the court to require the state to elect upon which offense it would rely for conviction, and the state elected to rely upon the offense committed on January 16, 1914, the date stated in the indictment. In submitting the case to the jury, the court confined them to the specific offense alleged to have been committed on January 16th, and directed them to acquit defendant unless they found that he had committed that particular offense on that date. At the present trial, the prosecution proved the commission of the offense in defendant's own house on July 16, 1914, and then presented substantially the same evidence as to other acts which had been presented at the former trial. In submitting the case to the jury, the court confined them to the specific offense committed on July 16, 1914, and directed them to acquit defendant unless they found that he had committed that particular offense on that date.

It is perfectly clear that the crime of which defendant was convicted was an entirely separate and distinct offense from that of which he was acquitted. It was another specific act committed at a different time and place, and is not within the rule which applies where a series of acts are necessary to constitute the offense.

Defendant contends that proof of all acts of carnal intercourse which took place before the return of the former indictment and within the time fixed by the statute of limitations was admissible at his trial upon such former indictment; that the state had the right to elect upon which of such acts it would rely for conviction, and could not be required to make such election until the close of its case in chief; that he was in jeopardy as to all such acts until the state made its election; that he could have been convicted at the trial upon the former indictment for the same act for which he was convicted at the present trial; and that in consequence thereof the former acquittal is a bar to the present prosecution.

His counsel argues with much force and ability that, although he may have committed any number of separate crimes, yet having been indicted and tried for one of them, he cannot be tried for any other; that as the state could prove several different offenses at that trial and could elect upon which it would rely for conviction, he cannot again be placed upon trial regardless of the number of separate offenses which he may have committed.

The constitutional provision that ‘no person for the same offense shall be put twice in jeopardy of punishment’ is but declaratory of a common-law right which has existed from time immemorial. The general principles and general rules for determining when a second prosecution infringes this right of the defendant have long been settled.

Blackstone says that the plea of a former acquittal, ‘must be upon a prosecution for the same identical act and crime.’ Chitty says that the plea ‘is sufficient if an acquittal of the one would show that the defendant could not have been guilty of the other.’ In Commonwealth v. Roby, 12 Pick. (Mass.) 496, Chief Justice Shaw said:

‘In considering the identity of the offense, it must appear by the plea that the offense charged in both cases was the same in law and in fact.’

In United States v. Pandenbush, 8 Pet. 288, 8 L. Ed. 948, the defendant was prosecuted for passing a counterfeit $10 bank note, and pleaded that the same note had been put in evidence at his previous trial for passing another counterfeit $10 bank note. Chief Justice Marshall said:

‘The plea does not show that he had ever been indicted for passing the same counterfeit bill, or that he had ever been put in jeopardy for the same offense.’

In State v. Day, 5 Pen. (Del.) 101, 58 Atl. 946, the court say:

‘The crime must be the same in fact * * * or must be necessarily included in the former.’

In Miller v. State, 33 Ind. App. 509, 71 N. E. 248, the court say:

‘When the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second.’

In Hooper v. State, 30 Tex. App. 412,17 S. W. 1066,28 Am. St. Rep. 926, the court say:

‘The proof must be made by showing the identity of the very acts or omissions which constitute the offense; that the acts * * * for which the former acquittal was had are the very acts which constitute the offense on trial.’

In State v. Klugherz, 91 Minn. 406, 98 N. W. 99,1 Ann. Cas. 307, this court said:

‘A plea of former acquittal is sufficient whenever it shows on its face that the second indictment is based upon the same * * * criminal act which was the basis of the indictment upon which the defendant was acquitted.’

Among other cases of similar purport see State v. Howe, 27 Or. 138, 44 Pac. 672;Wright v. State, 17 Tex. App. 152;Burton v. United States, 202 U. S. 344, 26 Sup. Ct. 688, 50 L. Ed. 1057,6 Ann. Cas. 362;Wilson v. State, 24 Conn. 57;Spears v. People, 220 Ill. 72, 77 N. E. 112,4 L. R. A. (N. S.) 402;Commonwealth v. Shoener, 216 Pa. 71, 64 Atl. 890;Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528;State v. Learned, 73 Kan. 328, 85 Pac. 293;State v. Rose, 89 Ohio St. 383, 106 N. E. 50, L. R. A. 1915A, 256;State v. Virgo, 14 N. D. 293, 103 N. W. 610; also cases cited in note found in 92 Am. St. Rep. 89 et seq.

Defendant relies upon State v. Price, 127 Iowa, 301, 103 N. W. 195, and State v. Dye, 81 Wash. 388, 142 Pac. 873. The Price Case supports his contention. In that case two indictments were returned against the defendant at the same time, one for statutory rape and the other for incest; both charged the crime to have been committed on October 1st. Defendant was tried and acquitted of the charge of statutory rape, and interposed such acquittal as a bar to the prosecution for incest. At the trial upon the charge of rape, the state proved all the acts of intercourse between the...