State v. Proulx, No. 5945

CourtSupreme Court of New Hampshire
Writing for the CourtGRIMES
Citation110 N.H. 187,263 A.2d 673
PartiesSTATE v. Leo PROULX.
Decision Date31 March 1970
Docket NumberNo. 5945

Page 673

263 A.2d 673
110 N.H. 187
STATE

v.
Leo PROULX.
No. 5945.
Supreme Court of New Hampshire.
March 31, 1970.

Page 674

George S. Pappagianis, Atty. Gen., and W. Michael Dunn, Asst. Atty. Gen., for the State.

[110 N.H. 188] Normand L. Dion and Thomas J. Tessier, Manchester, for defendant.

GRIMES, Justice.

Based on his acquittal on four indictments for incest with his daughter on December 27, 1967, February 26 and 28, 1968, and March 15, 1968, the defendant moved to dismiss the present four indictments for statutory rape of the same person on December 26 and 28, 1967, February 27 and 29, 1968, claiming double jeopardy. The motions were denied and defendant's exceptions were transferred by Leahy, C.J.

At the trial on the incest indictments, there was no question but that the alleged victim was the defendant's daughter, and the only question in dispute was whether the defendant had engaged in sexual intercourse with her. There was also no question about the age of the alleged victim as stated in all indictments to have been ten years.

If all the elements of the crime of incest had been contested, an acquittal would not bar the prosecution for statutory rape arising from the same acts. This is so because although intercourse is a common element of both crimes, each requires a different additional element. When all elements are contested, an acquittal for incest might be based on a failure to prove the required relationship rather than a failure to prove intercourse. An acquittal under such circumstances therefore would not bar a prosecution for statutory rape because it is said the crimes are not the 'same in law and in fact.' Commonwealth v. Roby, 12 Pick., Mass., 496, 504. See also, State v. Smith, 98 N.H. 149, 95 A.2d 789; State v. Harlan, 103 N.H. 31, 164 A.2d 562; Morgan v. Divine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153.

However the defendant here has been acquitted after a trial in which the only contested issue was whether he had engaged in intercourse with the same individual who is named as the victim in the pending indictments for statutory rape.

Page 675

Although the dates alleged in the indictments for incest differ from those for rape, we note that the acts are alleged on consecutive dates, i.e., December 26 rape, December 27 incest, December 28 rape, February 26 incest, February 27 rape, February 28 incest, February 29 rape. The evidence introduced by the prosecution at the incest trial was not confined to the dates...

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11 practice notes
  • State v. Peyatt, No. 15799
    • United States
    • Supreme Court of West Virginia
    • December 15, 1983
    ...for first degree sexual conduct and incest arising out of the same act are not violative of double jeopardy). See also State v. Proulx, 110 N.H. 187, 263 A.2d 673 (1970) (subsequent prosecution for statutory rape after acquittal for incest arising out of the same act is not necessarily barr......
  • Douthit v. Estelle, No. 74-4204
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 15, 1976
    ...v. Rolston, 1974, 51 Mich.App. 146, 214 N.W.2d 894; Commonwealth v. Dooley, 1973, 225 Pa.Super. 454, 310 A.2d 690; State v. Proulx, 1970, 110 N.H. 187, 263 A.2d 8 Petitioner does not seek by this argument to have us apply the "same transaction" test espoused by Justice Brennan in his concur......
  • State v. Pugliese, No. 81-224
    • United States
    • Supreme Court of New Hampshire
    • December 30, 1982
    ...extension of the doctrine of res judicata, bars relitigation of factual issues which have already been determined ...." State v. Proulx, 110 N.H. 187, 189, 263 A.2d 673, 675 (1970); see State v. Hastings, 121 N.H. 465, 467, 430 A.2d 1131, 1132 (1981); see also Scheele v. Village District of......
  • State v. Hogg, No. 7923
    • United States
    • Supreme Court of New Hampshire
    • April 25, 1978
    ...aspect of double jeopardy therefore comes into play whether the Page 847 crimes are legally the same or different. State v. Proulx, 110 N.H. 187, 263 A.2d 673 (1970); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 We do not have here cases in which the defendants have been con......
  • Request a trial to view additional results
11 cases
  • State v. Peyatt, No. 15799
    • United States
    • Supreme Court of West Virginia
    • December 15, 1983
    ...for first degree sexual conduct and incest arising out of the same act are not violative of double jeopardy). See also State v. Proulx, 110 N.H. 187, 263 A.2d 673 (1970) (subsequent prosecution for statutory rape after acquittal for incest arising out of the same act is not necessarily barr......
  • Douthit v. Estelle, No. 74-4204
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 15, 1976
    ...v. Rolston, 1974, 51 Mich.App. 146, 214 N.W.2d 894; Commonwealth v. Dooley, 1973, 225 Pa.Super. 454, 310 A.2d 690; State v. Proulx, 1970, 110 N.H. 187, 263 A.2d 8 Petitioner does not seek by this argument to have us apply the "same transaction" test espoused by Justice Brennan in his concur......
  • State v. Pugliese, No. 81-224
    • United States
    • Supreme Court of New Hampshire
    • December 30, 1982
    ...extension of the doctrine of res judicata, bars relitigation of factual issues which have already been determined ...." State v. Proulx, 110 N.H. 187, 189, 263 A.2d 673, 675 (1970); see State v. Hastings, 121 N.H. 465, 467, 430 A.2d 1131, 1132 (1981); see also Scheele v. Village District of......
  • State v. Hogg, No. 7923
    • United States
    • Supreme Court of New Hampshire
    • April 25, 1978
    ...aspect of double jeopardy therefore comes into play whether the Page 847 crimes are legally the same or different. State v. Proulx, 110 N.H. 187, 263 A.2d 673 (1970); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 We do not have here cases in which the defendants have been con......
  • Request a trial to view additional results

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