State v. Magone
| Decision Date | 03 April 1899 |
| Citation | 56 P. 648,33 Or. 570 |
| Parties | STATE v. MAGONE. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Multnomah county; M.C. George, Judge.
Daniel Magone was convicted of illegal disinterment, and he appeals. Affirmed.
The facts out of which the present controversy arises are, in brief, as follows: The defendant was indicted May 25, 1897 for the crime of illegal disinterment. The indictment charges "that the said Daniel Magone, on the 18th day of May A.D.1897, *** did willfully, feloniously, and wrongfully dig up and disinter a human body, to wit, the dead body of one W.S. Ladd, deceased, which said dead body *** [the said Daniel Magone] did willfully, feloniously, and wrongfully take, remove, and carry away." Upon conviction thereof in June, 1897, he was sentenced to the penitentiary for a period of two years, but upon appeal to this court the judgment was reversed in November following. 51 P. 452. After the appeal had been taken, and while the case was pending here, to wit, on the 1st day of July, 1897, he was again indicted for the malicious destruction of personal property. This indictment charges that "the said Daniel Magone, on the 18th day of May, A.D.1897, *** did willfully and feloniously, maliciously and wantonly, injure a certain coffin, the personal property of C.A. Ladd and others, by then and there feloniously, maliciously, and wantonly cutting, sawing, and splitting and breaking, said coffin, and the glass in the top thereof, by the use of certain hooks saws, spades, and other tools to the grand jury unknown, thereby fracturing, cracking, and breaking the glass in the top of said coffin, and cutting and breaking the top and sides and lining, and otherwise injuring and damaging said coffin." When the latter case was called for trial, the defendant, in connection with his plea of "Not guilty," entered a plea of former conviction for the same crime charged in the indictment, setting up the conviction had on the indictment for illegal disinterment. The jury found in his favor upon the latter plea, and defendant was accordingly discharged. Subsequently, and after the mandate had gone down from this court, the case at bar was brought on for hearing; and the defendant, by leave of the court first had and obtained, interposed a plea of former acquittal, setting up his acquittal upon the indictment for malicious destruction of personal property; and when at the trial the judgment roll, showing the indictment, plea, trial, and verdict in such case, was offered in evidence, an objection was made and sustained by the court, which held, as a matter of law, that the two offenses were not the same, and former jeopardy in the one constituted no defense on the trial of the other, and instructed the jury that they must find for the state upon the plea of former jeopardy. The defendant, having been convicted and judgment entered upon the conviction, again appeals.
J.C. Moreland, for appellant.
R.E. Sewell, Dist. Atty., and D.R.N. Blackburn, Atty. Gen., for the State.
WOLVERTON C.J. (after stating the facts).
The only question presented by the appeal is whether the acquittal of defendant upon the charge or indictment for malicious destruction of personal property is a bar to the prosecution on the second trial, under the indictment for illegal disinterment. The injury to the coffin was accomplished by the defendant while in the act and during the course of the disinterment and removal of the body of the late W.S. Ladd, for which offense the defendant was indicted and convicted. While the judgment in the latter case was in force, the defendant was put on his trial for the injury to the coffin. To the indictment therein preferred he interposed the plea of former conviction of the same offense, referring to the judgment then standing against him for the illegal disinterment, and in this he was successful before the jury. Now, the judgment in the case at bar, having been reversed on the former appeal, the defendant, upon his second trial, by leave of the court, interposed a plea of former acquittal, because of his acquittal upon the charge of malicious injury to personal property, and it is urged that the court erred in not giving effect to the plea. The case presents a novelty in logic, and, at first blush, would seem to present the nonlogical fallacy of petitio principii. In the first instance, it is said the defendant ought to be acquitted because he has been convicted upon another indictment for the same offense; and, in the second, that the defendant ought to be acquitted because he has been acquitted of the same offense; and yet the indictment to which the plea of autrefois acquit is interposed is the same upon which the former conviction was had, which conviction formed the basis of his plea of autrefois convict. But, however the logic may strike one, we presume that, if the defendant has secured an acquittal upon a mistrial for the same offense, the acquittal would furnish ground for the plea of autrefois acquit upon the retrial in the cause wherein the mistrial was had for we must not lose sight of the constitutional guaranty that "no person shall be tried twice for the same offense." Both the plea of former conviction and former acquittal are founded alike upon that great principle and fundamental maxim of criminal jurisprudence that no man shall be twice put in jeopardy for the same offense. This is one of the ancient and well-established principles of the common law, and the constitutional guaranty was wisely designed to sanction its enforcement. Com. v. Roby, 12 Pick. 496.
There is not only a seeming, but irreconcilable, conflict in the authorities touching what elements or ingredients, and the nature thereof, are requisite to constitute what is termed in book lore "the same offense," and we will not at this time attempt the bootless task of reconciling them. Mr Chief Justice Bean, in State v. Howe, 27 Or. 138, 44 P. 672, says: "Many tests have been announced by which the question as to when the offense is the same can be determined, but their application must necessarily depend largely upon the facts of each particular case." Coming to the present controversy, Biddell, J., in State v. Elder, 65 Ind. 282, laid down a rule which has impressed us as sound, and from which one may be adduced appropriate and applicable to its solution. He says: "When the same facts constitute two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily...
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