State v. Tennison
| Decision Date | 05 October 1929 |
| Docket Number | A-6261. |
| Citation | 281 P. 313,44 Okla.Crim. 409 |
| Parties | STATE v. TENNISON et al. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The burden is upon the defendants to show that their plea of former conviction and former jeopardy is well founded both in law and fact.
Where the plea of former jeopardy shows on its face a different offense from that for which the defendants are then on trial or if it is otherwise fatally defective, it should not be submitted to the jury, but should be stricken from the record of the court.
Additional Syllabus by Editorial Staff.
Conviction for possession of whisky still held not to bar prosecution for possessing 19 gallons of whisky for purpose of sale; proof required for conviction in each case not being the same.
Appeal from County Court, Muskogee County; Wm. A. Killey, Judge.
Criminal prosecution against Mathew Tennison and another for violation of the prohibitory liquor law of the state. Defendants' plea of former conviction and former jeopardy was sustained by the trial court, and the State appeals. Reversed and remanded, with directions.
Edwin Dabney, Atty. Gen., and W. C. Lewis, Asst. Atty. Gen., for the State.
M. D Hartsell, of Muskogee, for defendants.
Mathew Tennison and Jim Tennison were charged with a violation of the prohibitory liquor law of the state of Oklahoma. It appears from the record that the officers with a search warrant found a still in one place, and at about the same time found 19 gallons of whisky in two other and separate places. The county attorney charged the defendants in the county court of Muskogee county in criminal cause No. 3897, with the possession of a whisky still; and in criminal cause No. 3898 charged the defendants with unlawful possession of intoxicating liquor in the amount of 19 gallons of whisky. A trial was had in cause No. 3897, and the defendant Mathew Tennison was convicted upon the charge of having possession of a still. The defendants Mathew Tennison and Jim Tennison filed a plea of former jepoardy in cause No. 3898, wherein they were charged with the possession of 19 gallons of whisky, which plea of former jeopardy and conviction was sustained by the county court, and whereupon the state reserved the question of former conviction and former jeopardy, and appealed to this court for an adjudication thereon.
The issues involved in this case were settled in the case of Harmon v. State (Okl. Cr. App.) 278 P. 354. In the body of the opinion this court said:
"The first error complained of by the defendant is the overruling by the trial court of his plea in jeopardy. The deputy sheriff with the search warrant found the whisky, which the defendant is charged with having possession of, between defendant's house and the still, and, going further on out into the field, found the still. Two charges were filed against the defendant, one charging him with the possession of the still. He was tried and acquitted on that charge. The other charge filed against the defendant was the possession of the gallon of whisky, and the question now presented to the court is, Was the acquittal of the defendant on the charge of having possession of the still a bar to his prosecution in the case at bar? Cyc. states the rule to be: 'That the former conviction and acquittal must have been upon the prosecution of the identical act or crime but the two charges need not be precisely the same in point of degree; it is enough if an acquittal of the one shows that the defendant could not have been guilty of the other.' 12 Cyc. 280.
In the case of Morris v. Territory, 1 Okl. Cr. 618, 99 P 760 , this court said: 'If a plea of...
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