State v. Schneller

• Decision Date: 02 March 1942
• Docket Number: 36345.
• Citation: 199 La. 811,7 So.2d 66
• Court: Louisiana Supreme Court
• Parties: STATE v. SCHNELLER.

7 So.2d 66

199 La. 811

STATE v. SCHNELLER.

No. 36345.

Supreme Court of Louisiana

March 2, 1942

Eugene Stanley, Atty. Gen., Niels F. Hertz, Sp Asst. Atty. Gen., and J. Bernard Cocke, Dist. Atty., and Guy Johnson, Asst. Dist. Atty., both of New Orleans, for the State, appellant.

Albert B. Granzin, Jr., of New Orleans, for defendant and appellee.

HIGGINS Justice.

The State appealed from the judgment of the district court sustaining the defendant's plea of former jeopardy or autrefois acquit.

The accused contends that he was tried and acquitted by the jury of the same alleged crime for which the State now seeks to try him. The assistant district attorney argues that the offense now charged is separate and distinct from the former one and that the defendant has not been acquitted thereof.

In the first bill of information filed on May 13, 1941, it was alleged that on July 21, 1940, the defendant unlawfully received and had in his possession certain property knowing that the same had been feloniously stolen, taken and carried away; that the goods and chattels were the property of Goodman & Beer and consisted of the following:

"Three (3) cases of Palmolive

soap of the value of ............... $22.80

One (1) case of Lifebuoy soap,

of the value of .................... 5.50

One (1) case of Tuna fish, of

the value of ....................... 6.00

Four (4) cases of Magnolia

Brand Milk of the value of ......... 21.00

A total value of fifty-five dollars

and thirty cents ................... ($55.30),

A total value of fifty-five dollars and thirty cents ($55.30), in the lawful money of the United States of America. * * *.' The defendant was arraigned and pleaded not guilty and the case was set for trial on May 21, 1941. The jury was impaneled and the information read to the members thereof. The assistant district attorney then made his opening statement to the jury to the effect that between Thursday, July 18, 1940 and Sunday, July 21, 1940, an employee of Goodman & Beer, and a third party entered the warehouse of Goodman & Beer at 412-430 Front Street, New Orleans, La., and carried away the above decribed merchandise; that these parties then sold the stolen goods for a price less than one-half of its value to the defendant, who operates a retail grocery in the city of New Orleans; that the defendant knew that the merchandise had been stolen when he purchased it; and that the merchandise was found in his place of business, 9000 Pear Street, New Orleans, on July 21, 1940.

The State placed on the stand a witness who identified the merchandise as the property of Goodman & Beer and gave the value of the respective articles. Upon the defendant's objection the district judge ruled that the prosecution would have to confine the evidence to the theft of the particular merchandise in question and the sale thereof to the defendant and that he would not permit testimony as to thefts of other goods and sales thereof to the defendant. The assistant district attorney then offered as a State witness the former employee of Goodman & Beer, and he stated that over a period of time, particularly beginning July 18, 1940 he and his confederate, on different occasions, stole certain merchanise from the warehouse of Goodman & Beer. The defendant objected on the ground that the evidence should be confined to the theft of the goods in question and especially on July 21, 1940. The district judge sustained the objection excluding testimony tending to show the theft of goods on July 18, 1940. Whereupon, the assistant district attorney stated to the court that if he were not permitted to prove the theft of goods on July 18, 1940, the State would be compelled to abandon the prosecution and file a new information convering that date. The State's attorney did not move to either prosequi the charge or to have the information amended. After the jury was instructed by the judge, the case was submitted to it, and a verdict of not guilty was returned.

On June 27 1941, the assistant district attorney filed another information wherein it was charged that on July 18, 1940, the defendant had in his possession, knowing the same to have been stolen, the identical specifically described merchandise of Goodman & Beer set forth in the first bill of information. In other words, the two informations were exactly alike, except for the dates.

When the defendant was arraigned on the second information, he filed a plea of former jeopardy or autrefois acquit and on the trial thereof before the judge, the entire record in the first prosecution was filed in evidence. The issue before the court was whether or not two bills of information charged one and the same crime against the same person, and whether or not he had been acquitted of the identical offense by the jury in the first prosecution. The district judge sustained the plea of former jeopardy and discharged the accused, and the State appealed.

The pertinent part of Section 9, Article 1 of the Constitution of 1921, reads:

'* * * nor shall any person be twice put in jeopardy of life or liberty for the same offense, except on his own application for a new trial, or where there is a mistrial, or a motion in arrest of judgment is sustained.' (Italics ours.)

See also Article 274, Code of Criminal Procedure.

In the case of State v. Yokum, 155 La. 846, at page 854, 99 So. 621, at page 624, this Court, on the first rehearing, in interpreting Section 9 of Article 1 of the Constitution of 1921, stated:

'In order for a plea of autrefois acquit or convict to prevail under section 9 of article 1 of the Constitution of 1921, the offense, that is, the criminal act of which the accused has been acquitted or convicted, must be the same as the one for which he is being again prosecuted. However, this does not mean that the offense must be the same eo nomine. It is enough if the evidence required to legally secure a conviction on the charge preferred in the first indictment will be sufficient to convict on the charge preferred in the second, or if the offense charged in the first includes the one charged in the second, or if the one charged in the second includes the one charged in the first. This was so held under preceding Constitutions, containing provisions similar in all respects to the provisions contained in section 9 of article 1 of the Constitution of 1921, quoted above. State v. Vines et al., 34 La.Ann. 1079; State v. Williams, 45 La.Ann. 936, 12 So. 932; State v. Terry, 128 La. 680, 55 So. 15; Marr's Criminal Jurisprudence (2d Ed.) � 488, p. 744, et seq. Since the provisions relative to former jeopardy contained in preceding Constitutions have the incorporated word for word in the present Constitution, the decisions cited above, rendered under the preceding Constitutions, are entitled to great might in interpreting the present organic law of the state. * * *

'In our view, when the trial is by jury, jeopardy attaches, under the constitutional guaranty cited, the moment the jury is impaneled and sworn. * * * State v. Robinson, 46 La.Ann. 769, 15 So. 146. * * *' and other authorities.

On the second rehearing, 155 La. at page 875, 99 So. at page 631, it was stated by the Court that:

"Jeopardy' is used in our state Constitutions to designate the danger of conviction and punishment which a defendant in a criminal prosecution incurs, when a valid indictment has been found, or a valid information or complaint presented, and a petit jury has been impaneled and sworn to try the case and to give a verdict in a court of competent jurisdiction.

'Under the jurisprudence of this state, when jeopardy has once begun, if the jury is set aside against the objection of the accused, he may successfully plead former jeopardy to another prosecution; that is to say that after the jury has been impaneled and sworn the accused has the right to insist that the jury be permitted to return a verdict on his plea. 1 Bish. to return a verdict on his plea. 1 Bish. Cr.Law, �� 1014, 1015; 1 Whart.Cr.Law, � 590; State v. Paterno, 43 La.Ann. 769, 773, 15 So. 146; State v. Duvall et al., 135 La. 710, 65 So. 904, L.R.A.1916E, 1264.'

The record leaves no doubt that the State, in the first instance charged the accused with the crime of having stolen property in his possession, knowing the same to have been stolen, and that the identical offense is set forth in the second bill of information. This is made clear because both bills are drawn under the same statute and cover the same defendant, the same goods and the same owner, and the State will use the same evidence and testimony introduced and sought to be introduced in the first trial to prove the charge in the trial under the...