The State v. Gapen

• Decision Date: 18 December 1896
• Docket Number: 2,315
• Citation: 45 N.E. 678,17 Ind.App. 524
• Parties: THE STATE v. GAPEN
• Court: Indiana Appellate Court

45 N.E. 678

17 Ind.App. 524

THE STATE v. GAPEN

No. 2,315

Court of Appeals of Indiana

December 18, 1896

Rehearing denied, May 18, 1897, Reported at: 17 Ind.App. 524 at 529.

From the Hancock Circuit Court.

Reversed.

W. A Ketcham, Attorney-General, Merrill Moores and Charles Downing, for State.

Raymond E. Gery and Poulson & McBane, for appellee.

OPINION

LOTZ C. J.

Under the statute of this State it is a misdemeanor for any person to sell intoxicating liquors in quantities less than a quart at a time, when the seller has not procured a license to retail such liquors. Section 7285, Burns' R. S. 1894 (5320, Horner's R. S. 1896).

It is also a misdemeanor for any person to sell intoxicating liquors to any person under the age of twenty-one years. Section 5323, Horner's R. S. 1896 (Acts 1895, p. 250, section 6).

In the case at bar, the defendant, Loren Gapen, is charged with having unlawfully sold to one William Coberly one half pint of beer, he, Gapen, not then having a license to sell intoxicating liquors in quantities less than a quart at a time.

To this charge the defendant filed a special plea in bar, alleging that on a prior day, the State prosecuted him in a court of competent jurisdiction for having sold intoxicating liquor to William Coberly, a minor; that issue was joined, a trial followed and he had judgment of acquittal; that the sale to the minor in that case, and the sale without a license in this, were one and the same act, transaction and offense.

The court below overruled a demurrer to this plea and this ruling is the error assigned.

It is provided by our State constitution that "No person shall be put in jeopardy twice for the same offense." The jeopardy here prohibited is that which grows out of the same offense not necessarily of the same act or transaction. The same act may constitute an offense under two or more jurisdictions; and it is well settled that jeopardy under one jurisdiction is no bar to jeopardy under another jurisdiction. It frequently occurs that the same act constitutes two or more offenses under the same jurisdiction, as for instance, a sale of intoxicating liquor on Sunday to a minor in a quantity less than a quart by a person not having a license will be a violation of three different statutes of this State, and constitute three distinct offenses.

In the case at bar the sale to the minor and the sale without a license were one and the same transaction. The same acts violated two statutes, and constitute two distinct offenses. The question presented by the record is, does the prosecution of one of the offenses to final judgment constitute a bar to a subsequent prosecution for the other offense? Or, in other words, is the defendant placed twice in jeopardy by the second prosecution?

There is confusion and conflict in the authorities bearing on this question.

In Wininger v. State, 13 Ind. 540, it was held that if an assault and battery was the gravamen, or principal act in a riot, a conviction of the assault and battery was a bar to a prosecution for riot. And in Fritz v. State, 40 Ind. 18, a conviction of an affray was held to be a bar to a subsequent prosecution for assault and battery growing out of the same transaction. It is also well settled that if the act constitutes but one offense although susceptible of division into parts, as in larceny for taking several articles of goods at the same time, the State will not be permitted to split up the offense, but final judgment for taking one part will bar a prosecution for taking the other part.

And if the same act constitute two or more offenses of the grade of felony, and the offenses are of the same character, as robbery and larceny, a final judgment rendered on one will bar the other. So, also, if the same transaction constitute two or more offenses and the offenses are similar in character, as an assault and battery, and an assault and battery with intent to commit a felony, the charge of the higher offense includes the lesser, and a judgment rendered on the higher will bar the lesser. State v. Elder, 65 Ind. 282. But where such offenses are charged in separate indictments a judgment rendered on the lesser, will not necessarily bar the higher offense. A misdemeanor may be merged into a felony, but not a felony into a misdemeanor. The reason for this is that the lesser charge cannot contain the greater, but the greater may, the lesser. State v. Hattabough, 66 Ind. 223.

It would seem that the spirit of the above holdings is, that a man shall not be placed twice in jeopardy for the same act under the same jurisdiction. But it will be observed that in the above cases the offenses which spring out of the same act or transaction are of that character that grade or merge one into another, and that the one offense necessarily involves the whole transaction. Thus, in a charge of assault and battery...