State v. Wheelock

• Decision Date: 24 October 1933
• Docket Number: No. 41966.,41966.
• Citation: 250 N.W. 617,216 Iowa 1428
• Parties: STATE v. WHEELOCK.
• Court: Iowa Supreme Court

216 Iowa 1428

250 N.W. 617

STATE

v.WHEELOCK.

No. 41966.

Supreme Court of Iowa.

Oct. 24, 1933.

Appeal from District Court, Polk County; Loy Ladd, Judge.

The defendant was prosecuted on an indictment charging him with involuntary manslaughter. He interposed a plea of former acquittal. The facts were stipulated, and the court sustained the plea and discharged the defendant. The State appeals.

Affirmed.Edward L. O'Connor, Atty. Gen., Walter F. Maley, Asst. Atty. Gen., and Carl A. Burkman, Co. Atty., and Francis J. Kuble, Asst. Co. Atty., both of Des Moines, for the State.

Thomas J. Guthrie and George A. Wilson, both of Des Moines, for appellee.

EVANS, Justice.

This prosecution is the outcome of a tragedy that occurred on June 21, 1931, in the near vicinity of Des Moines. On that day an automobile collision occurred which resulted in the death of three persons, a mother and her two young daughters. The drivers participating in the collision were Telfer and Wheelock, the defendant. The victims of the accident were the wife and two daughters of Telfer. After the accident, each driver cast the blame upon the other. Shortly thereafter three indictments were returned against this defendant, each indictment being predicated upon the wrongful death of one of the victims. In the record of the district court these indictments were numbered 25321, 25322, and 25323. The names of the victims were respectively, Merwyn Telfer, Mildred Telfer, and Erma Telfer. Indictment No. 25322 charged the defendant with responsibility for the wrongful death of Mildred Telfer, the mother. Shortly after the return of that indictment it was prosecuted to judgment in the district court and a verdict of not guilty was rendered thereon, The present case is predicated upon indictment No. 25323, which charged the wrongful death of Erma Telfer. As already indicated, the defendant pleads in this case his former acquittal in case No. 25322. The question presented to us is whether the defendant was subject under the circumstances to three prosecutions under three indictments or whether a prosecution of one operated as a bar to the others. The appeal is by the state. Broadly speaking the state contends that the killing of three persons necessarily results in the commission of three separate offenses, and that therefore judgment in one may not operate as a bar to another. On the other hand, the defendant contends that the act of transgression charged against the defendant was essentially and in a legal sense a single act, the result of which was at no time contemplated or intended by the defendant. The question is one which has had much consideration in many authorities. Counsel for each side respectively have presented able and exhaustive briefs, and the task presented to us consists mainly in a consideration of these authorities.

Introductory to our consideration of the subject we set forth here, for convenient reference later, certain statutes and constitutional provisions.

The Constitution of Iowa, article 1, § 12, provides:

“No person shall after acquittal, be tried for the same offence.”

Code, § 13807, provides:

“A conviction or acquittal by a judgment upon a verdict shall bar another prosecution for the same offense, notwithstanding a defect in form or substance in the indictment on which the conviction or acquittal took place.”

Code, § 13808, provides: “When a defendant has been convicted or acquitted upon an indictment for an offense consisting of different degrees, the conviction or acquittal shall be a bar to another indictment for the offense charged in the former or for any lower degree of that offense, or for an offense necessarily included therein.”

Code, § 13915, provides: “The jury must render a general verdict of “guilty' or ‘not guilty’, which imports a conviction or acquittal on every material allegation in the indictment, except upon a plea of former conviction or acquittal of the same offense, in which case it shall be ‘for the state’ or ‘for the defendant’, and except in cases submitted to determine the grade of the offense and, when authorized, fixing the punishment therefor.”

The basic proposition emphasized by the state is that the prohibition of double jeopardy under the Constitution and under the statute is applicable only where the “same offense” is involved. In identifying an offense as the “same offense,” the state contends that the indictments must disclose the identity both “in fact and in law,” and that there must be an identity, not only of the act of transgression charged against the defendant, but also of the indictable offense as named and defined by the statute. This indicates the general objective of the state's argument. On the other hand, the defendant contends that, in order to find a plurality of offenses, the circumstances must have been such as to warrant a finding that the plurality was contemplated and intended. Cases of murder, robbery, and larceny often come within this category; whereas, in the case at bar, the single act of transgression was that of negligence. The actual results thereof were not contemplated at all and no killing was intended. Concededly the manslaughter was involuntary. The debate between counsel comes down to the point whether the authorities recognize a distinction as to the plurality of offenses which result from accidental causes and those which result from distinct criminal intent and intentionally felonious acts.

As bearing upon the question of defining the term “same offense” as contended by the state, we may begin our discussion by reference to State v. Price, 127 Iowa, 301, 103 N. W. 195, 197. In that case two indictments were returned against the defendant, one charging him with rape and another with incest committed in each case upon his own daughter under age. Being put to trial on the charge of rape, he was acquitted. He pleaded his acquittal as a bar to the prosecution of the incest case. The plea was sustained here. Though the offenses charged were not the same either in statutory definition or in name, the act of transgression was the same. We held that the acquittal upon the charge of rape necessarily negatived the charge of incest. The discussion of Mr. Justice Deemer in that case has much pertinence to the case before us, and we quote therefrom:

“In State v. Mikesell, 70 Iowa, 176, 30 N. W. 474, it is held that a former acquittal of the charge of larceny is a bar to a prosecution for robbery for the taking of the same money. Here the charges are not the same, but, as said in the opinion: ‘The acquittal on the former charge then is a judicial determination that he was not guilty of the larceny charged in that indictment, which is the same property that is described in the indictment on which he was convicted. That acquittal is a bar not only to an indictment for the larceny of the property, but for any other offense of which such larceny is an essential element.’ In Scott v. U. S., Morris (Iowa) 142, it was held that an acquittal for manslaughter is a bar to an indictment for murder, on the theory that the acquittal was a judicial determination that the defendant did not unlawfully take the life of the deceased, and, consequently, was not guilty of any offense of which such unlawful killing was a necessary element. In State v. Gleason, 56 Iowa, 203, 9 N. W. 126, it was held that a conviction for petit larceny before a justice is a bar to a subsequent prosecution on indictment for larceny from the person; the reason given being that, if defendant had been acquitted before the justice, this would have been a bar to another prosecution for stealing from the person, because, if he was not guilty of larceny, he could not be of stealing from the person. In State v. Murray, 55 Iowa, 530, 8 N. W. 350, it is held that a conviction for petit larceny is a bar to a prosecution for grand larceny based upon the same facts. In State v. Cooper, 13 N. J. Law, 361, 25 Am. Dec. 490, it was held that one convicted of arson could not afterwards be tried for murder, in the commission of the same arson, where the statute imposed the penalties of murder for such arson. In State v. Lewis, 9 N. C. 98, 11 Am. Dec. 741, it was decided that, where two indictments for a felonious taking of goods were found against a prisoner, one charging him with burglary and larceny and the other with robbery, and under the first indictment he was convicted of larceny, he could not be tried upon the second indictment. See, also, Roberts v. State [14 Ga. 8, 58 Am. Dec. 528], supra.

These general rules are practically conceded by the state, but counsel contend that, as the state elected in the one case to rely upon an act of intercourse said to have been committed on October 28th, and in the other upon an act committed on November 12th, they do not apply, and are not controlling. This proposition is unsound. When the jury was sworn in the rape case, defendant was in jeopardy as to every act of intercourse committed by him with the prosecutrix during the period covered by the indictment; and upon a verdict of not guilty being returned the state could not have reindicted and tried him for an act of intercourse committed at some time within the period covered by the indictment, for which the state did not elect to prosecute. This is fully established by the authorities already cited.”

On the question of the identity of the offenses as the “same offense,” the definition contended for by the state is negatived also in the following cases: State v. Blackledge (Iowa) 243 N. W. 534;State v. Folger, 204 Iowa, 1296, 210 N. W. 580;State v. Purdin, 206 Iowa, 1058, 221 N. W. 562.

On this same subject we quote from Bishop's Criminal Law, vol. 1 (9th Ed.) § 1060, page 785, the following: “To give our constitutional provision the force evidently meant, and to render it effectual, ‘same offense’ must be interpreted as equivalent to the same criminal act.”

In the case at bar it is stipulated that the evidence...