State v. Howe
| Decision Date | 22 April 1895 |
| Citation | 27 Or. 138,44 P. 672 |
| Parties | STATE v. HOWE. [1] |
| Court | Oregon Supreme Court |
Appeal from circuit court, Jackson county; H.K. Hanna, Judge.
W.E Howe was convicted of larceny, and appeals. Affirmed.
J.W. Hamaker, for appellant.
C.M Idleman, Atty.Gen., and H.L. Benson, Dist.Atty., for the State.
The defendant, who was treasurer of Klamath county from July 6, 1892, to July 6, 1894, was, on November 14, 1894 indicted for the crime of larceny of public money, alleged to have been committed on January 23, 1893, by converting to his own use the sum of $52 of the county funds which came into his possession, and which he held by virtue of his office. Upon this indictment he was tried and acquitted. On the 15th of November, 1894, another indictment was returned against him, in which it was alleged that, at the expiration of his term of office, he had in his possession as treasurer the sum of $8,000 of the public moneys of the county, and that he "did then and there fraudulently and feloniously steal, make way with, and convert to his own use, the said $8,000, and then and there neglected and refused to pay over the said sum of $8,000, or any part thereof, to his successor in office, as by law directed and required." When called upon to plead to this indictment, in addition to the plea of not guilty, he pleaded his acquittal under the former indictment as a bar to this prosecution, and at the trial offered in evidence the record of the proceedings therein which being excluded, he again presented the same record, accompanied by an offer to show that the $52 mentioned therein was a part of the $8,000 which, it is charged in the second indictment, he failed to pay over to his successor. This was also excluded, and these rulings of the trial court present the important question in this case.
It is a principle as old as the common law itself, and which has been firmly imbedded in the jurisprudence of nearly every state of the Union by constitutional provision, that "no person shall be put in jeopardy twice for the same offense." It is upon this principle that the pleas of former acquittal and of former conviction are allowed in criminal cases. "The right not to be put in jeopardy a second time for the same cause is as sacred as the right of trial by jury, and is guarded with as much care by the common law and by the constitution." Black, C.J., in Dinkey v. Com., 17 Pa.St. 126. But the solution of the question as to what facts will sustain the plea is attended with difficulty, and has provoked much discussion by the courts and text writers. The general rules upon the subject, and the tests usually applied, are well settled; but, in the method of their application, much contrariety of opinion appears, owing, no doubt, to the generality and consequent elasticity of the rules themselves. We do not propose at this time to enter upon any elaborate discussion of the question, but, having examined all the authorities cited in the briefs of counsel, and as many others bearing upon the question as were within our reach, we shall proceed to state our view of the law applicable to the facts in this case. All the writers seem to concur that a plea of former conviction or acquittal must be "upon a prosecution for the same identical act and crime." 4 Bl.Comm. *336. "But," as said by Chitty (page 455), "it is not in all cases necessary that the two charges should be precisely the same in point of degree, for it is sufficient if an acquittal of the one would show that the defendant could not have been guilty of the other." We are therefore to determine whether the charges in the two indictments in question are for the same identical act and offense, or, applying the test of Mr. Chitty, whether the acquittal of the crime charged in the first indictment shows that the defendant could not have been guilty of the crime charged in the second.
It is first contended that the defendant could have committed but one crime in violating any or all of the provisions of section 1772, and that, after the expiration of his term of office, he could be prosecuted only on one indictment for a violation of such provisions, even though it embraced all the enumerated acts, and hence the prosecution under the first indictment, charging the crime to have been committed by the conversion of $52 in January, 1893, was a bar to another indictment charging him with having converted to his own use and failed to pay over $8,000 at the expiration of his term 18 months later. This argument proceeds on the theory that the crime is, under the statute, necessarily a continuing offense, commencing with the first taking or misappropriation of money while in office, and ending with the failure to account for or turn over the balance in his hands to his successor at the expiration of his term. It is settled that when embezzlement is committed by means of a series of connected transactions, a charge that the crime was committed on a certain day will cover and admit evidence of the whole. State v. Reinhart (Or.) 38 P. 822. But when the acts constituting the crime are separate and distinct, so that the prosecution can allege and prove one distinct act, which renders the offense complete, it is ordinarily to be held to the general rule that the proof must correspond with the crime charged in the indictment. See Edelhoff v. State, 36 P. 627, for a well-considered discussion of this question. It seems to us plain that the statute defining the crime of larceny of public money clearly specifies three separate and distinct acts, the commission of either of which will constitute the crime, to wit, conversion by the party having the same in possession, loaning with or without interest, and neglecting or refusing to pay over as by law directed or when lawfully demanded (section 1772); and, unless two or more of these enumerated acts are in truth only successive steps in one appropriation, they will each constitute a full statutory offense. They are enumerated in the statute in the disjunctive, are of equal legal import, and, prima facie, each charge is a separate offense. From this it necessarily follows that a prosecution for a crime committed in either of the three ways mentioned will not bar a prosecution for one committed in either of the other two, unless it be for the same identical act. A defendant could not, of course, be tried for converting public money to his own use, and afterwards prosecuted for failing to pay over the same money as by law directed or required; or, e converso, he could not be tried for failing to pay over public money as by law required, and afterwards prosecuted for converting the same money to his own use. But the...
To continue reading
Request your trial
-
State v. Cloutier
...of the same course of conduct depends upon the intent of the legislature in enacting the statutes creating the offenses. State v. Howe, 27 Or. 138, 44 P. 672 (1895); State v. Nodine, 121 Or. 567, 256 P. 387 (1927); State v. Gerritson, 124 Or. 525, 265 P. 422 (1928). See also State v. Woolar......
-
State v. Laundy
...or an acquittal of the act of assembling would not bar a subsequent trial for the offense of joining on April 26, 1919. State v. Howe, 27 Or. 138, 44 P. 672; State v. Magone, 33 Or. 570, 56 P. But it may be argued that the I.W.W. as an organization continued to exist, and that its continued......
-
State v. Brown
...of opinion appears, owing, no doubt, to the generality and consequent elasticity of the rules themselves. * * *' State v. Howe, 27 Or. 138, 140, 44 P. 672 (1895). The problem of defining the same offense has continued to provoke discussion, and the courts have been unsuccessful in devising ......
-
State v. Healy
...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......