State v. Pianfetti

• Decision Date: 03 November 1906
• Citation: 65 A. 84,79 Vt. 236
• Parties: STATE v. PIANFETTI.
• Court: Vermont Supreme Court

65 A. 84

79 Vt. 236

STATE

v. PIANFETTI.

Supreme Court of Vermont. Caledonia.

Nov. 3, 1906.

Exceptions from Caledonia County Court; John H. Watson, Judge.

Frank Pianfetti was convicted of illegally selling liquor, and he brings exceptions. Reversed and remanded.

Argued before ROWELL, C. J., and TYLER, MUNSON, POWERS, and MILES, JJ.

Taylor & Dutton, for plaintiff. Guy W. Hill, State's Atty., and Elisha May, for the State.

POWERS, J. Pianfetti and another were convicted at the December term, 1904, of Caledonia county court under No. 90, Acts of 1902, of one offense of illegal liquor selling. The information on which they were tried contained six counts charging illegal sales on May 20, 21, 22, 23, 24, and June 1, 1904, respectively, and two counts charging illegal keeping for sale on January 1, and June 1, 1904, respectively.' Many witnesses testified at the trial to unlawful sales, and there was nothing in the verdict to identify the particular offense of which they were convicted, or to indicate the particular count under which the conviction was had. The judgment entered on this verdict was reversed by this court at its October term, 1905, and the case was remanded for a new trial. State v. Barr et al., 78 Vt. 97, 62 Atl. 43. In the meantime, at the June term, 1905, of Caledonia county court, Pianfetti was indicted for illegal selling. The indictment contained four counts, charging illegal sales on February 1, 10, 15, and April 1, 1905, respectively, and the last count charged illegal sales at divers times. To this indictment Pianfetti pleaded guilty to two offenses, and paid the fine imposed by the court. There was nothing in the plea, and there is nothing in the record of that case to Identify the offense or the count in the indictment to which the plea referred. The case against Barr and Pianfetti came on for its second trial at the December term of said court, and separate trials were granted to the respondents. Pianfetti pleaded not guilty, and a special plea of former conviction of the same offenses in bar. Issue was joined on the special plea, and a jury trial ordered and had thereon. The respondent introduced the record of his conviction under his plea of guilty as above set forth, with evidence tending to Identify himself as the respondent in such former case, and rested. Thereupon, upon motion of the state's attorney, the court ordered a verdict against the respondent on the issue raised by the special plea, for want of evidence tending to establish the identity of the offenses charged in the two prosecutions. To which the respondent excepted. The respondent then claimed the right to a trial on his plea of not guilty. This claim was denied, and the respondent excepted. The court then, without further hearing, rendered judgment in chief against the respondent for one offense of illegal selling. To this the respondent excepted. All these rulings of the court were pro forma.

1. Under the special plea, the burden was on the respondent, not only to prove by the record a former conviction, but to establish the identity of the parties and the offenses. 1 Bish. Cr. Proc. § 816. To make the defense therein set up effectual, the offense, of which the respondent stands convicted, must be the same both in law and in fact with the one on trial. State v. Jangraw, 61 Vt. 39, 17 Atl. 733. And this the respondent must establish. Indeed, this is not here disputed; but the respondent insists that the record itself makes a prima facie case of identity in this respect, and invokes the rule that if the same evidence required to support this prosecution would have warranted a conviction in the other, identity of offenses is established. This test is frequently applied, and is sanctioned by many authorities. But it is held that in prosecutions of offenses which from their nature are capable of repetition (and, it might be added, in common experience are usually many times repeated), each separate act being a distinct and substantive offense, this test is not applicable, and that no presumption of identity will arise from the fact that evidence sufficient to convict under one would warrant a conviction under the other. In such cases, the respondent must show affirmatively, by proof outside the record, that the offenses are one and the same. Thus in Rocco v. State, 37 Miss. 357, the respondent was charged with illegally selling liquor to John Hobart. He pleaded in bar a former conviction on the charge of illegally selling liquor to John Smith and divers other persons. He claimed that inasmuch as he might have been convicted in the former case of selling to John Hobart, he was entitled to the benefit of the presumption that the conviction was for that offense. But the court held that the charge being of an offense capable of repetition, each of which would constitute an offense, there was no presumption of identity.

In Emerson v. State, 43 Ark. 372, the respondent was charged with selling liquor to a certain minor in December, 1883. He pleaded in bar a former conviction under an indictment for selling to the same minor in September, 1883. He put in the record of his conviction with proof of the identity of the minor named, and asked the court to rule that this made out a bar, which the trial court declined to do. In affirming this ruling, it was held that the record did not raise a presumption of identity, and that the test above stated did not apply. In State v. Andrews, 27 Mo. 267, a prosecution for selling liquor without a license with a plea of former conviction for the same offense, it is said that it was incumbent on the respondent not only to produce the record of the former conviction, but to show by testimony that he had been previously tried for identically the same offense as the one for which he was then prosecuted; and that it was not sufficient to show that the evidence offered on the last trial would have supported the first indictment.

In State v. Blahut, 48 Ark. 34, 2 S. W. 190, the respondent was charged with selling liquor to Nick Grau, a minor, on January 15, 1886. He pleaded in bar a conviction under an indictment charging him with selling to the same minor on February 15, 1886. It was held that the conviction was no bar without proof of the Identity of the offenses charged.

State v. Shafer, 20 Kan. 226, opinion by Judge Brewer, is to the same effect. Two complaints were filed charging the respondent with selling liquor without a license to the same person, at the same place, but on different days, one August 22d, the other August 27th. The complaints were in all respects alike except in the statement of the time of the commission of the offense. The respondent pleaded guilty of the first charge, and paid a fine. He then pleaded that conviction in bar of the second charge. It was held that the two charges being prima facie for different offenses, one would not bar the other without proof aliunde that the same transaction was complained of in the two actions. People v. Sinell, 131 N. T. 571, 30 N. E. 47. holds that since each act of selling without a license constitutes a separate offense, the acquittal of a respondent on a charge of selling on and after a certain date is no bar to an indictment for a sale made prior to the transaction to which the record of acquittal relates.

The views of our own court on this question, it must be admitted, have not been at all times altogether clear. State v. Ainsworth. 11 Vt. 91, is in full accord with the foregoing cases. It was an information in 11 counts charging the respondent with having sold to 11 different persons named, intoxicating liquors by small measure. Under the plea of not guilty the respondent offered to prove that he had, at the previous term of court, been convicted of selling by small measure to divers persons named. But, it appearing that none of the persons named in that indictment were the same as those specified in the information on trial, the court held that the conviction was no bar, and rejected the evidence. In sustaining this ruling, the court, after alluding to the fact that each act of selling was a distinct offense, said: "When a man is shown...