State v. Rhodes

• Decision Date: 01 July 1922
• Citation: 242 S.W. 642,146 Tenn. 398
• Parties: STATE v. RHODES.
• Court: Tennessee Supreme Court

242 S.W. 642

146 Tenn. 398

STATE v. RHODES.

Supreme Court of Tennessee.

July 1, 1922

Appeal from Criminal Court, Shelby County; T. W. Harsh, Judge.

Homer Rhodes was indicted for unlawful possession and transportation of intoxicating liquors. His plea of autre fois convict having been sustained, the State appeals. Reversed and remanded.

Wm. H Swiggart, Jr., Asst. Atty. Gen., for the State.

Chas M. Bryan and Arthur G. Brode, both of Memphis, for defendant.

GREEN J.

The defendant, Homer Rhodes, was indicted in the criminal court of Shelby county under chapter 12 of the Acts of 1917 charged with unlawful possession and transportation of intoxicating liquors. He filed a plea of autre fois convict setting out that he had been indicted and convicted concerning the same acts in the United States Court for the Western District of Tennessee under the federal law known as the Volstead Act (41 Stat. 305). The trial court sustained this plea and ordered the discharge of the defendant. From this order the state has appealed in error to this court.

The defendant relies on article 1, § 10, Constitution of Tennessee:

"That no person shall, for the same offense, be twice put in jeopardy of life or limb."

The Fifth Amendment to the federal Constitution contains an identical provision, and the federal cases to which we shall later refer are accordingly directly in point.

The state insists that the question of former jeopardy has not been raised by proper pleadings herein, but, since the question is important and requires determination, we pass over this criticism of defendant's pleadings.

In Greenwood v. State, 65 Tenn. (6 Bax.) 567, 32 Am. Rep. 539, the question is reserved as to whether the constitutional provisions above quoted from the Constitution of Tennessee and the Constitution of the United States apply to offenses the punishment of which does not extend to life or limb, or to crimes as distinguished from misdemeanors. The court said it was well settled by the common law that no one could be twice put in jeopardy for the same offense, and that, if the protection sought was not found in the Constitution, it was found in the common law.

The Eighteenth Amendment to the federal Constitution was proclaimed as ratified in January, 1919. It is as follows:

"Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation."

We do not venture any elaborate discussion of the effect of the amendment as it touches the rights of the states, or otherwise. The Supreme Court of the United States has so far declined to undertake this. However, the sixth, seventh, eighth, and ninth conclusions of that court in Rhode Island v. Palmer, 253 U.S. 350, 40 S.Ct. 486, 588, 64 L.Ed. 946, were in these words:

"6. The first section of the amendment--the one embodying the prohibition--is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers, and individuals within those limits, and of its own force invalidates every legislative act, whether by Congress, by a state Legislature, or by a territorial assembly, which authorizes or sanctions what the section prohibits.

7. The second section of the amendment--the one declaring 'the Congress and the several states shall have concurrent power to enforce this article by appropriate legislation'--does not enable Congress or the several states to defeat or thwart the prohibition, but only to enforce it by appropriate means.

8. The words 'concurrent power' in that section do not mean joint power, or require that legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the several states or any of them; nor do they mean that the power to enforce is divided between Congress and the several states along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs.

9. The power confided to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as well as importation, exportation, and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several states or any of them."

A consideration of this language leads to the belief that the states, by this amendment, did not surrender their power to deal with intoxicating liquors, otherwise than to give up the power to authorize or sanction what the amendment prohibits. From this grant to the federal government the states excepted to themselves the right to deal with the subject by appropriate legislation not authorizing or sanctioning what the amendment prohibits.

We do not accept the idea that the power of the states over intoxicating liquors now flows from the Eighteenth Amendment to the federal Constitution, as has been suggested. Since Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205, it has not been doubted that full regulation of the manufacture and use of intoxicating liquors within its borders was the prerogative of the states under their reserved police powers. It seems to us that this power has been parted with only to the extent indicated, and state laws tending toward the enforcement of the Eighteenth Amendment still rest on the authority of the state, just as they did before the amendment.

This being so, the state laws and the federal laws as to intoxicating liquors emanate from different sovereignties. They denounce different offenses--the one, offenses against the state; the other, against the United States. That the same act may be an offense against the laws of two governments, may be punished by both, and that a plea of former jeopardy in a tribunal of one government is not available in a tribunal of the other, are propositions fully demonstrated by the decisions of this court and of the Supreme Court of the United States.

Inasmuch as the Supreme Court of Oregon in State v. Smith, 199 P. 194, 16 A. L. R. 1220, has taken a different view, and as this view seems to be shared by some of the federal District Judges, we think it desirable to support our conclusions herein by some consideration of the authorities.

We think it well established that the same act or series of acts may constitute an offense equally against the United States and the state and subject the guilty party to punishment under the laws of each government. We see no sound reason for making a distinction between offenses against the valid liquor laws of the two governments and offenses against other laws which both governments have enacted.

In State v. Rankin, 44 Tenn. (4 Cold.) 145, the defendant, a soldier in the United States army, was tried for murder before a court-martial organized under the military laws of the United States and found not guilty. Later he was indicted for the same act in one of the courts of this state and filed a special plea in bar setting out and relying on his trial and acquittal before the military court. The trial court sustained this plea, but this action was reversed by this court. The court said:

"The United States have provided for the punishment of murder, and other offenses, when committed by persons in the military service of the United States and subject to the articles of war, during the existence of a civil war, insurrection, or rebellion; and this, we think, was in the exercise of a power conferred by the Constitution of the United States.

The government of the United States, and that of the state of Tennessee, are both, within its sphere, separate and distinct sovereignties; each may and has provided for the punishment of offenses against its own laws; but neither can, by merely providing for the punishment of offenders against its laws, deprive the other of the right or the power to punish offenses against its laws; and the mere fact that the same act may be an offense against the laws of both can make no difference. The act of Congress was not designed, neither could it operate, to provide a punishment for an offense against the laws of the state. One sovereign may not administer the criminal laws of another, or oust another of its jurisdiction to try and punish an offender against its laws, by punishing the same act. Murder is an offense against the laws of Tennessee, whether the perpetrator be a citizen or soldier; whilst it is only an offense against the laws of the United States, when committed in time of civil war, insurrection, or rebellion, and when the perpetrator is in the military service of the United States, and subject to the articles of war."

State v. Rankin, supra.

The same conclusion was reached by this court in Pearson v. State, 1 Shan. Cas. 311, which followed State v. Rankin. In an earlier case the Supreme Court of the United States considered the power of a state to punish the offense of circulating counterfeit coin of the United States in view of the power conferred upon Congress by the fifth and sixth clauses of the eighth section of the first article of the Constitution of the United States--

"to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;" "to provide for the punishment of counterfeiting the securities and current coin of the United States."

It was argued that, in view of the power of Congress and the acts of Congress, it would subject an...