State v. Licari.

• Decision Date: 28 June 1945
• Citation: 132 Conn. 220,43 A.2d 450
• Court: Connecticut Supreme Court
• Parties: STATE v. LICARI.

132 Conn. 220

43 A.2d 450

STATE

v.LICARI.

Supreme Court of Errors of Connecticut.

June 28, 1945.

Ralph Licari was charged by information with the crimes of driving an automobile while under the influence of liquor, reckless driving, and obstructing, resisting and abusing police officers, and he pleaded in bar to the jurisdiction of the court on the ground of double jeopardy. The state demurred to the plea and the case was reserved for the advice of the Supreme Court of Errors.

First reserved question answered in the affirmative and other questions not answered for failure to stipulate sufficient facts.

Edwin S. Pickett, Pros. Atty., and Spencer S. Hoyt, Sp. Asst. Pros. Atty., both of New Haven, for the State.

Louis Godfried, Louis Evans, A. H. Markle and Albert E. Evans, all of New Haven, for defendant.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

MALTBIE, Chief Justice.

The defendant was arrested on a bench warrant issued by the Court of Common Pleas upon an information containing seven counts, each charging a separate offense. One of these was later nolled, and to three he was permitted to file a plea of nolo contendere and a fine was imposed on him on each. The remaining three counts charged him with operating an automobile upon certain highways in the town of Woodbridge while under the influence of liquor; with operating the automobile over those highways recklessly, having regard to their width, the traffic upon them and their use, street intersections and weather conditions; and with obstructing, resisting and abusing certain police officers in Woodbridge. To these counts the defendant filed a plea in bar, in which he alleged that, starting in New Haven, he continuously operated his car through a part of it and a part of the adjoining town of Woodbridge, driving about five miles in the former and three in the latter; that he was arrested and arraigned in the New Haven City Court upon charges of operating a motor vehicle while under the influence of liquor, reckless driving and ‘vilifying’ a police officer, and of committing two other offenses not now of moment; and that he pleaded guilty to the offenses specified above, fines were imposed upon him under the first and second charges and he received a suspended sentence under the third; and he claimed that because of the proceedings in the City Court his prosecution in the Court of Common Pleas upon the first three counts of the information filed there would constitute double jeopardy. The issue so raised was reserved for determination by this court. The essential question is, did the conduct of the defendant give rise to single continuous offenses, so that, having been prosecuted upon the charges in the City Court, he could not be prosecuted for those in the information in the Court of Common Pleas on the basis of the allegation that they had been committed in Woodbridge.

The stipulation of facts adds few to those already stated. The defendant's car early in the morning knocked over a traffic stanchion at a street intersection in New Haven, and continued on. A police car containing two New Haven police officers gave chase, and both cars proceeded at a high speed. They traversed highways in New Haven for five miles and highways in Woodbridge for three miles, and the time elapsed was not less than six or more than ten minutes. The defendant drove his car continuously and without interruption from the beginning to the end. After he crossed the line dividing New Haven from Woodbridge, he turned off the lights on his car for a distance of less than 300 feet. While in Woodbridge one of the officers in the pursuing car fired two shots into the ground, and the defendant stopped his car. He was arrested by the New Haven officers and taken to police headquarters in New Haven.

In Blockburger v. United States, 284 U.S. 299, 302, 52 S.Ct. 180, 181, 76 L.Ed. 306, two statements from 1 Wharton, Criminal Law (11th Ed.), § 34, and the note thereto, are incorporated as follows: ‘* * * when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie. * * * The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. * * * If the latter, there can be but one penalty.’ In United States v. Midstate Co., 306 U.S. 161, 166, 59 S.Ct. 412, 414, 83 L.Ed. 563, a definition given in the opinion of the Circuit Court of Appeals in the same case is approved: ‘A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.’

The first statement in the Blockburger opinion, and the definition in United States v. Midstate Co., supra, often found in substance in other decisions, are applicable to certain types of continuous offense. They do not, however, cover the whole field, and in a certain type of case the application of the test given in the second statement from the Blockburger opinion determines the character of the offense. This is well illustrated by the case of In re Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658. That was a prosecution under a federal statute penalizing any male person who, in a territory of the United States or at any other place over which it had exclusive jurisdiction, ‘cohabits with more than one woman.’ Act Cong. March 22, 1882, 22 Stat. 31, § 3. Three indictments were found against the defendant, each charging him with cohabiting with certain women and each naming the same women, one alleging the offense to have been committed during the year 1883, another during the year 1884 and the third during the year 1885. He was first tried on the last indictment and found guilty. When subsequently he was put to trial on the other two, he pleaded his conviction under the last as a defense. The Supreme Court held that the defense was good, because the act of the Congress charged one continuous offense. The court said (120 U.S. at page 282, 7 S.Ct. at page 560, 30 L.Ed. 658) that its division into parts by years was ‘wholly arbitrary,’ and it continued: ‘On the same principle there might have been an indictment covering each of the 35 months, with imprisonment for 17 1/2 years and fines amounting to $10,500, or even an indictment covering every week, with imprisonment for 74 years and fines amounting to $44,400; and so on, ad infinitum, for smaller periods of time. It is to prevent such an application of penal laws that the rule has obtained that a continuing offence of the character of the one in this case can be committed but once, for the purposes of indictment or prosecution, prior to the time the prosecution is instituted.’ See People v. Cox, 107 Mich. 435, 438, 65 N.W. 283. In the opinion in the Snow case 120 U.S. at page 284, 7 S.Ct. at page 561, 30 L.Ed. 658, the leading case of Crepps v. Durden, 2 Cowp. 640, 98 Eng. Reprint 1283, is referred to; there the defendant was charged under an act of Parliament penalizing one who did the work of his ordinary calling on the Lord's day and was convicted four times for sales made to different persons on the same day. In holding that this could not properly be done, Lord Mansfield said (p. 646): ‘On the construction of the act of parliament, the offence is, ‘exercising his ordinary trade upon the Lord's day;’ and that, without any fractions of a day, hours, or minutes. It is but one entire offence, whether longer or shorter in point of duration; so, whether it consists of one, or a number of particular acts. The penalty incurred by this offence is, five shillings. There is no idea conveyed by the act itself, that if a taylor sews on the Lord's day, every stitch he takes is a separate offence; or, if a shoemaker or carpenter work for different customers at different times...