State v. Thompson

• Decision Date: 22 January 1954
• Docket Number: No. 36067,36067
• Citation: 62 N.W.2d 512,241 Minn. 59
• Parties: STATE v. THOMPSON.
• Court: Minnesota Supreme Court

Page 512

62 N.W.2d 512

241 Minn. 59

STATE v. THOMPSON.

No. 36067.

Supreme Court of Minnesota.

Jan. 22, 1954.

Syllabus by the Court.

1. Two offenses are not identical, so that a prosecution for one constitutes a bar to a prosecution for the other, unless they are the same in both Law and Fact.

2. Two offenses are identical so that a prosecution for one is a bar to a prosecution for the second: (1) If the evidentiary facts essential to establish the requisite elements of the offense charged in the second indictment would have been admissible under the first indictment--or information--to establish the elements of the offense charged therein and, If proved, would necessarily have resulted in a conviction under the first indictment; or (2) if the offense charged in the second indictment, with respect to all its essential elements, was included in the greater offense charged in the first indictment and there was a conviction upon such greater offense, or if under the first indictment for the greater offense, there might have been a valid conviction of the second or lesser offense.

3. Two essential facts may be fundamentally different from each other although both depend for their existence upon separate inferences drawn from the same evidentiary circumstances which surround a single act.

4. M.S.A. § 610.21 implements the constitutional provision against double jeopardy (Minn.Const. art. 1, § 7) but adds nothing to the scope of the prohibition therein contained.

5. Where the record discloses on its face whether the offense charged in the second action is identical with the offense for which the defendant was acquitted or convicted in a prior action, the issue of former jeopardy is one of law for the court and not one of fact for the jury.

6. Whether separate offenses are so closely connected with that with which defendant is charged as to show a general scheme or plan, or permit an inference of guilt to be drawn, is a matter resting largely within the discretion of the trial court and such court will not be reversed unless there is a clear abuse of discretion.

7. Whether evidence, which is otherwise admissible, should be excluded for remoteness rests largely in the discretion of the trial court.

Peterson & Brady, Minneapolis, Logan O. Scow, Long Prairie, for appellant.

J. A. A. Burnquist, Atty. Gen., Charles E. Houston, Asst. Atty. Gen., Frank L. King, County Atty., Long Prairie, for respondent.

MATSON, Justice.

Defendant appeals from an order denying his motion for a new trial.

Defendant, a former treasurer of Todd county, by an information filed on March 19, 1951, was charged with committing the crime, M.S.A. § 620.01(4) and Minn.Const. art. 9, § 12, of receiving $11,639.42 for the county as a public officer thereof and wilfully omitting and refusing to pay over the same to his successor when the defendant left office On June 6, 1950. Proof of the offense was based on evidence of money received by the defendant in his official capacity as county treasurer and of his refusal to turn over the balance which should have existed at the end of his term. On May 29, 1951, he was acquitted of this charge.

On October 8, 1951, the defendant and the deputy treasurer were indicted and charged with the crime, § 620.03, of receiving $11,639.42 for the county and appropriating said money to their own use on or About February 1, 1950. Proof of the offense was based on receipts by the treasurer which showed that at the end of February the treasurer's books should have indicated an 'overage' of $11,639.42 whereas in fact the treasurer's books did not show such an overage and the amount was not accounted for. This was the same evidence presented in support of the first charge to prove that the defendant had refused to turn over public money which he had received as treasurer. Defendant herein pleaded not guilty and also pleaded double jeopardy. The court denied defendant's motion for acquittal on the ground of double jeopardy and refused to submit the issue to the jury. On April 8, 1952, defendant was convicted of the charge, and the indictment against the deputy treasurer was then quashed. Defendant's motion for an acquittal notwithstanding the verdict or in the alternative for a new trial was denied, and defendant appeals from the part of the order denying a new trial.

In addition to the primary issue whether defendant was placed in double jeopardy we have alleged errors in the admission of evidence.

1. Was defendant placed twice in jeopardy of punishment for the same offense, Minn.Const. art. 1, § 7, M.S.A., because, after he had once been acquitted on a charge of Having received $11,639.42 of county funds And of having omitted and refused to pay the same over to his successor on June 6, 1950, pursuant to § 620.01(4), he was indicted, under § 620.03, and tried on a charge of Having received the same sum of county money And of having misappropriated the same to his own use on or about February 1, 1950? In applying the protective prohibition against double jeopardy--whether pursuant to constitutional provision or statute--it is to be borne in mind that its purpose is not to protect the individual against the peril of a second punishment but to protect him against a second trial for the same offense. ¹ The protective doctrine of double jeopardy is nothing more than the declaration of an ancient and well-established Public policy that no man should be unduly harassed by the state's being permitted to try him for the same offense again and again until the desired result is achieved. ² Whether a defendant has been placed in double jeopardy turns, therefore, upon whether the offense with which he is charged in the second action is identical with the offense involved in the first action. The offenses are not identical unless they are the same in both Law and fact. ³

2. Generally speaking ⁴ in determining whether the offense charged in one criminal action is the same in law and fact as that charged in the second action it may be concluded that an identity of offenses exists when the evidentiary facts essential to support a conviction in one action would be both essential and sufficient, if proved, to sustain a conviction in the other, but, conversely, if the evidentiary facts essential to sustain a conviction in one action are not essential and sufficient to sustain a conviction in the other, no identity of offenses exists and a conviction or an acquittal in the first action will not be a bar to the second even though the offenses charged arise from a single act, transaction, or state of facts. ⁵ Any substantial (as distinquished from a merely formal or technical) difference between the two offenses As to the essential facts which must be proved to sustain a conviction make such offenses separate and free from the taint of double jeopardy. ⁶ Evidentiary duplications or differences which do not relate to the essential facts are of no significance.

What facts are essential to each offense obviously can be determined only in the light of the elements which are necessary to constitute the offense. ⁷ In other words, the essentiality of the facts will not turn upon the accidental inclusion of superfluous allegations in an indictment or information, or upon the introduction of irrelevant evidence, but wholly upon those allegations of fact which must necessarily be provded to establish the constitutent elements of the offense charged. It follows that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test of whether they are two separate offenses or only one is whether one of the statutory provisions requires proof of an additional essential fact which the other does not. ⁸ It must not be overlooked, however, that one of two offenses, as hereinafter more particularly set forth, may be included in its entirety in the other greater offense--that is, greater in the sense that it consists of the former offense plus an additional element. ⁹ In summary it may be said that two offenses are identical so that a prosecution for one is a bar to a prosecution for the second:

(1) If the evidentiary facts essential to establish the requisite elements of the offense charged in the second indictment would have been admissible under the first indictment--or information--to establish the elements of the offense charged therein and, If proved, would necessarily have resulted in a conviction under the first indictment, or

(2) If the offense charged in the second indictment, with respect to all its essential elements, was included in the greater offense charged in the first indictment and there was a conviction upon such greater offense, or if under the first indictment for the greater offense, there might have been a valid conviction of the second or lessor offense. ¹⁰

In applying these principles to the instant case, it is clear that the offense charged in the information, which was created by § 620.01(4), contains two essential elements; namely, (1) defendant's receipt of county money and (2) defendant's omission and refusal to pay such money over to his successor on June 6, 1950. The offense charged in the subsequent indictment under the provisions of § 620.03 likewise contains two essential elements; namely, (1) defendant's receipt of county money and (2) defendant's misappropriation of such money to his own use on or about February 1, 1950. Although the two offenses charged are identical as to the first element, they are wholly at variance with each other as to the second. The first element in each case requires the proof of the essential fact of defendant's receipt of $11,639.42. The second element of the offense under the information, upon which defendant was acquitted, requires proof of nothing more than the essential fact of defendant having omitted and refused to pay the money over on June 6, 1950. Proof of a Refusal to pay over money on that date could not possibly ...