State v. Tucker

• Decision Date: 04 January 1926
• Docket Number: 19546.
• Citation: 137 Wash. 162,242 P. 363
• Court: Washington Supreme Court
• Parties: STATE v. TUCKER.

242 P. 363

137 Wash. 162

STATE v. TUCKER.

No. 19546.

Supreme Court of Washington

January 4, 1926

Department 2.

Appeal from Superior Court, Snohomish County; Bell, Judge.

George Tucker was convicted of possessing intoxicating liquors, and he appeals. Affirmed.

Parker J., dissenting.

O. T Webb and Louis A. Merrick, both of Everett, for appellant.

C. T Roscoe, John C. Richards, and Charles R. Denney, all of Everett, for the State.

MACKINTOSH J.

The appellant was found guilty of possessing intoxicating liquor and has appealed.

The most important point on this appeal is raised by the appellant's plea of autrefois acquit. This prosecution was under a state statute, and it appears from the record that previously the appellant had been charged by a complaint in the police court of the city of Everett with the possession of intoxicating liquor, being the exact liquor which he, in the information, is charged with having possessed, and both the complaint and information relate to the same time and concededly cover the same incident. Upon the complaint charging violation of the ordinance, the appellant was tried and acquitted. The question is: Can one be punished for violation of a statute of a state where, for the identical act, he has been prosecuted and acquitted under a city ordinance? This exact question has never been presented to this court before. We have held that as an act may constitute a violation of both a federal statute and a state law, a conviction or acquittal under a federal law for the violation of its statute is no bar to subsequent prosecution by the state for the violation of its law; that the same act may constitute two offenses, one against each of the sovereigns to whose laws the defendant is amenable. State v. Coss, 12 Wash. 673, 42 P. 127; State v. Kenney, 83 Wash. 441, 145 P. 450; State v. Turner, 115 Wash. 170, 196 P. 638; State v. Woods, 116 Wash. 140, 198 P. 737; State v. Gibbons, 118 Wash. 171, 203 P. 390; State v. Jewett, 120 Wash. 36, 207 P. 3. We have also held that a municipality may provide, by ordinance, punishment for acts which are also punishable under the state law. Seattle v. Chin Let, 19 Wash. 38, 52 P. 324; Seattle v. MacDonald, 47 Wash. 298, 91 P. 952, 17 L. R. A. (N. S.) 49; State v. Hagimori, 57 Wash. 623, 107 P. 855; State v. Larkin, 130 Wash. 531, 228 P. 289. But in none of these cases has the situation presented itself which is here present. The nearest approach to it, in any decision of this court to which our attention has been called, is in the case of State v. Cole, 118 Wash. 511, 203 P. 942, where it appears that the defendant had been convicted under both a city ordinance and a state statute. But that case is not decisive of the matter, for, as was there stated, the prior conviction in the municipal court 'was not pleaded as a defense or bar in the present case [prosecution under the statute], and besides, upon stipulation, it was tried with this case as a separate offense, and it was, indeed, a separate and distinct offense.' But this last phrase was, as appears from the portion of the sentence preceding it, above quoted, unnecessary to the opinion, so that it may be positively stated that the question has never been squarely before us heretofore.

We are therefore to determine it upon principle or authorities, and an investigation of the books shows that the question has received consideration in many jurisdictions and that contrary answers have been made. Where the question has arisen as between prosecutions under federal statutes and state statutes, the authorities seem universally agreed that a prosecution under one is not a bar to a prosecution under the other; and this for the fundamental reason that there are two separate sovereignties involved and that one act may be at the same time an assault upon both sovereigns. The argument of those courts which have held that the same rule does not obtain in prosecutions under a state law and a city ordinance finds its support in the view that all the right that a municipality has to define and punish crime arises from the delegation to it by its superior sovereign, the state, and that in the prosecution of such crimes under this delegated authority the municipality is acting as an agent of or for the state itself, and to allow double prosecution would be to allow the state, once directly and once through an agency, to prosecute for the same act. This view finds expression in State v. Welch, 36 Conn. 215; State v. Flint, 63 Conn. 248, 28 A. 28; People v. Hanrahan, 75 Mich. 611, 42 N.W. 1124, 4 L. R. A. 751; United States v. Perez, 3 Hawaii U.S. Dist. Rep. 295; United States v. Colley, 3 Philippine Rep. 58; and in State v. Cowan, 29 Mo. 330, where the court said:

'We do not see how any question can arise in this case as to the jurisdiction of the corporate authorities over this offense, if it is competent to the Legislature to create municipal corporations and to confer on them the power by ordinance to regulate their police. Surely the right to exercise such a power cannot be seriously questioned. If this corporation thus established by law takes cognizance of an act made an offense by its ordinances, and punishes it, the person thus punished cannot be subjected to punishment again for the same act or offense. The Constitution forbids that a person shall be twice punished for the same offense. To hold that a party can be prosecuted for an act under the state laws after he has been punished for the same act by the municipal corporation within whose limits the act was done, would be to overthrow the power of the General Assembly to create corporations to aid in the management of the affairs of the state. For a power in the state to punish, after a punishment had been inflicted by the corporate authorities, could only find a support in the assumption that all the proceedings on the part of the corporation were null and void. The circumstance that the municipal authorities have not exclusive jurisdiction over the acts which constitute offenses within their limits does not affect the question. It is enough that their jurisdiction is not excluded. If it exists, although it may be concurrent, if it is exercised it is valid and binding, so long as it is a constitutional principle, that no man may be punished twice for the same offense.'

The idea probably finds its best expression in the opinion of the Supreme Court of the United States in Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann. Cas. 640, where the court was considering the question of whether a prosecution under a federal statute could be had after the defendant had been prosecuted in a territorial court; the territory, of course, being different from a state and being only a subordinate of the federal government.

'If, therefore, a person be tried for an offense in a tribunal deriving its jurisdiction and authority from the United States and is acquitted or convicted, he cannot again be tried for the same offense in another tribunal deriving its jurisdiction and authority from the United States. * * * But we rest our decision of this question upon the broad ground that the same acts constituting a crime against the United States cannot, after the acquittal or conviction of the accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in another court, civil or military, of the same government. * * * Every citizen of the United States is also a citizen of a state or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. * * * That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other.

'It is clear that the cases above cited are not in point here. The government of the United States and the governments of the several states in the exercise of their respective powers move on different lines. The government of the United States has no power, except such as expressly or by necessary implication has been granted to it, while the several states may exert such powers as are not inconsistent with the Constitution of the United States nor with a republican form of government and which have not been surrendered by them to the general government. An offense against the United States can only be punished under its authority and in the tribunals created by its laws; whereas, an offense against a state can be punished only by its authority and in its tribunals. The same act, as held in Moore's case, may constitute two offenses, one against the United States and the other against a state. But these things cannot be predicated of the relations between the United States and the Philippines. The government of a state does not derive its powers from the United States, while the government of the Philippines owes its existence wholly to the United States and its judicial tribunals exert all their powers by authority of the United States. The jurisdiction and authority of the United States over that territory and its inhabitants, for all legitimate purposes of government, is paramount. So that the cases holding that the same acts committed in a state of the Union may constitute an offense against the United States and also a distinct offense against the state, do not apply here, where the two tribunals that tried the accused exert all their

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