State v. Shannon

• Decision Date: 30 January 1939
• Citation: 3 A.2d 899
• Parties: STATE v. SHANNON.
• Court: Maine Supreme Court

3 A.2d 899

STATE

v. SHANNON.

Supreme Judicial Court of Maine.

Jan. 30, 1939.

On Report and Agreed Statement from Superior Court, Somerset County.

Fraser Shannon was indicted for perjury, and filed a special plea of autrefois acquit. On report on agreed statement of facts.

Plea sustained, and case remanded for entry of judgment for respondent.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Clayton E. Eames, Co. Atty., of Skowhegan, for the State.

Fred H. Lancaster, of Lewiston, William Folsom Merrill, of Skowhegan, and Lloyd H. Stitham, of Pittsfield, for defendant.

STURGIS, Justice.

At the September Term, 1938, of the Superior Court in and for Somerset County, the grand jury having returned an indictment for perjury against the respondent Fraser Shannon, he waived reading of the indictment, filed a special plea of autrefois acquit, and the case was reported to the Law Court on an agreed statement of facts, with stipulation that if the respondent's special plea is disallowed he shall plead over and stand trial.

It appears that at the January Term, 1934, of this Superior Court the respondent Fraser Shannon, as plaintiff in a civil action against one George R. Dow, recovered a substantial verdict for damages for injuries received, as the agreed statement admits, through the negligence of that defendant. The transcript of evidence in that case, made available for consideration here by stipulation, shows that the real defense relied upon was the plaintiff's contributory negligence. The trial began on January 17th and continued without interruption through the following 18th and 19th days of the month. The respondent testified in both his direct and cross examinations on the first day of the trial and in rebuttal on the last day.

At the January Term, 1937, of the same Court an indictment for perjury in this civil trial was returned against the respondent upon which he was tried and found guilty. Exceptions to the Law Court, however, were sustained and a new trial granted. At the May Term next following, the respondent was again tried on this indictment and there, by direction of the Justice presiding, he was acquitted and discharged.

And now in an indictment returned to the same Superior Court at the September Term, 1938, Fraser Shannon is again charged with having committed perjury in the trial of his civil action against George R. Dow and has interposed a plea of former jeopardy.

It is the supreme law of the land that no person shall be twice put in jeopardy for the same offense. If the respondent has already been tried and acquitted of the offense now charged in the indictment pending against him, he should not be compelled to again stand trial and be brought into danger of punishment for that offense. U. S. Const., Fifth Amend, U.S.C.A.; Const. of Maine, Art. 1, § 8. The test to be applied is not merely whether the same evidence supports both charges, or whether more proof might come in on a second trial, but whether the two offenses are essentially independent and hence distinct. State v. Beaudette, 122 Me. 44, 118 A. 719. To constitute a bar to the pending indictment against the respondent, it must appear that the former acquittal was for the same offense in law and in fact. State v. Littlefield, 70 Me. 452, 457, 35 Am.Rep. 335; Com. v. Roby, 12 Pick, Mass, 496; Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 698, 50 L.Ed. 1057, 6 Ann.Cas. 362. Whether the offenses are the same or different is a question of law. State v. Jellison, 104 Me. 281, 283, 71 A. 716. They are the same if that now charged against the respondent is not independent and distinct, but in fact and in law only a part of the offense of which he was acquitted. It is elementary that the State cannot divide a single offense into several parts according to time or conduct and base separate prosecutions upon and impose separate punishments for the various divisions. A prosecution for any part of a single crime bars any further prosecution based on the whole or a part of that crime. People v. Stephens, 79 Cal. 428, 21 P. 856, 4 L.R.A, 845; State v. Sampson, 157 Iowa 257, 138 N.W. 473, 42 L.R.A.,N.S, 967; State v. Cotner, 87 Kan. 864, 866, 127 P. 1, 42 L. R.A,N.S, 768; Patterson v. State, 96 Ohio St. 90, 117 N.E. 169, L.R.A.1916A, 583; 15 Am.Jur. 58; 16 Corpus Juris, 270 and cases cited.

In this State, perjury is now defined by statute. R.S. Chap. 133, § 1. And it reads: "Whoever, when required to tell the truth on oath or affirmation lawfully administered, wilfully and corruptly swears or affirms falsely to a material matter, in a proceeding before any court, tribunal or officer created by law, or in relation to which an oath or affirmation is authorized by law, is guilty of perjury."

Except as the statute has enlarged the scope of perjury by including therein corrupt and wilful false oaths and affirmations outside the common law definition of the crime, it is declaratory, we think, of the common law and must be construed in harmony therewith and as not making any innovation therein which it does not clearly express. Wing v. Hussey, 71 Me. 185, 188; End. Int. Statutes, Sec. 127; Bishop Stat. Crimes (2d Ed.), Sec. 144.

In the indictment for perjury upon which the respondent Fraser Shannon was tried and finally acquitted, omitting details not here of controlling importance, it was charged that in the trial of his civil action on the 19th day of January, 1934, he offered himself as a witness and on oath lawfully administered to him, upon the issue then and there joined of whether he was injured through the negligence of the defendant in allowing gunpowder to be stored in his public garage and used to load a cannon or iron tube which exploded and severely injured Shannon while he was in the garage for the purpose of storing his automobile, and also whether Shannon himself was in the exercise of due and reasonable care, the material question being, as averred, whether Shannon participated in the Fourth of July celebration then going on at the garage "by then and there assisting in loading the aforesaid cannon or iron tube with powder and explosives", the respondent upon his oath, feloniously, knowingly, falsely, wilfully and corruptly, "among other things did swear and testify as follows:

"'Q. Did you take part in the loading of the cannon? A. No, I didn't.

"'Q. Did you have any waste in your hands to load the cannon with? A. No, I didn't.

"'Q. And you again say to the jury that you took no part in the celebration (Meaning the Fourth of July celebration held at said garage on the fourth day of July, A. D. 1932)? A. No, I did not.'"

And it was averred: "all of which answers to the three aforesaid questions were material to the issue."

And that in truth and fact the respondent Shannon at the time and place alleged did "take part in the loading of the cannon and did have waste in his hands to load the cannon with and did take part in the celebration as aforesaid."

And in the Report, by reference, it is made to appear that the testimony alleged to be false and relied upon in the assignment of perjury in that indictment was all given by the respondent in his rebuttal testimony on the last day of the trial of his civil action.

In the present indictment, attempt is made to charge a separate and distinct perjury growing out of the testimony of the respondent given in his direct and cross examination in the same proceeding but on the first day of the trial. The general averments of this indictment are the same as those in the one upon which the respondent was acquitted. The proceeding in which perjury is charged, the Court before which the trial was held, the due administration of the oath, and the claim of the respondent as plaintiff therein as alleged in his declaration are identical, the issue being defined with more particularity but in the end averred to be the contributory negligence of the respondent. The framer of this indictment makes multiple averments of alleged material questions and matters covering facts and circumstances occurring before and at the time the so-called cannon exploded and the respondent was injured, all tending to prove his contributory negligence or bearing upon his credibility. And it is alleged that the respondent, upon his oath, feloniously, knowingly, falsely, wilfully and corruptly, among other things, did swear and testify as then set forth in a series of questions and answers recited in detail and...