The State v. Linton
| Decision Date | 04 June 1920 |
| Citation | 222 S.W. 847,283 Mo. 1 |
| Parties | THE STATE v. A. E. LINTON, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. -- Hon. W. S. C. Walker, Judge.
Reversed.
Hall & Billings for appellant.
(1) The defendant was entitled to a trial by a jury of the issues of fact specially as made by the plea in bar. Pleas in bar in Missouri, which has no statute permitting pleas in bar to go to the jury along with the general issuse, must be tried by a jury specially. The plea in bar was admitted by the State. State v. Moore, 66 Mo. 372; Kelly's Crim Law & Pr. (3 Ed.) sec. 224, 226, 237. (2) The defendant was entitled to his discharge upon the issue submitted by the plea in bar when the State admitted same by filing no replication, and conceded that there was but the one alleged criminal transaction. Hence the court erred in overruling the plea in bar. The second count of the first information was valid and the jury sworn to try the cause and the defendant had been placed in jeopardy for the same offense. Const. Mo art. 2, sec. 23; Secs. 4905, 4907, R. S. 1909; Kelly's Crim. Law & Pr. (3 Ed.) secs. 229, 230, 226, 234; State v. Webster, 206 Mo. 558; State v. Headrick, 179 Mo. 300; State v. Rambo, 95 Mo. 465; State v Stephens, 70 Mo.App. 562; State v. Needham, 194 Mo.App. 201; State v. Linton, 217 S.W. 874; State v. Buente, 256 Mo. 227. Where there is one act, transaction or offense, and the same is charged differently, yet sustained by the same evidence, and one of said charges is necessarily included in the offense charged in the other, such charge falls within the definition of "same offense," and a conviction or acquittal on one of the same is a bar to further prosecution on the other. "Fundamental rule of law that out of the same facts a series of charges shall not be preferred." Bishop's New Cr. Law (8 Ed.), secs. 1049, 1051, 1057, 1060, 1015, 1016, 1070a; Secs. 4905, 4907, R. S. 1909; State v. Patterson, 116 Mo. 505; Kelly's Crim. Law & Pr. (3 Ed.), sec. 220, State v. Headrick, 179 Mo. 300; State v. Needham, 194 Mo.App. 201; State v. Linton, 217 S.W. 874; State v. Buente, 256 Mo. 227; State v. Snyder, 98 Mo. 555; State v. Brannon, 55 Mo. 63; State v. Pitts, 57 Mo. 85. A delivery is the principal element of a sale, as it is a transfer of the title to the property. The delivery herein was simultaneous with the sale and was the principal ingredient of the same act, transaction or offense. And an acquittal of the delivering by a nolle prosequi after the jury is sworn to try the cause is equivalent to an acquittal on the merits, and is a bar to prosecution for the sale. State v. Needham, 194 Mo.App. 201; Secs. 4905, 4907, R. S. 1909; State v. Patterson, 116 Mo. 505; Kelly's Crim. Law & Prac. (3 Ed.) secs. 220, 234.
Frank W. McAllister, Attorney-General, and C. P. LeMire, Assistant Attorney-General, for respondent.
(1) The plea of autrefois acquit is a special plea in bar and should appear in the record proper. 1 McQuillin's Missouri Practice, secs. 926, 974; Saddlery Co. v. Bullock, 86 Mo.App. 89; State p. Holloway, 57 Ore. 162; State x. Baker, 264 Mo. 339; State v. Collins, 266 Mo. 93; Watson v. Maryland, 105 Md. 650; U.S. v. Oson, 57 F. 582; State v. Lopez, 19 Mo. 254; L. R. A. 1917A, notes, p. 1233. (2) Where the plea in bar is insufficient or where the identity of the two offenses may be determined by the court by an inspection of the record, it is not error to refuse to submit same to a jury. State v. Schyhart, 199 S.W. 290; State v. Goddard, 162 Mo. 224; State v. Keating, 223 Mo. 93; State v. Williams, 152 Mo. 120; State v. Snyder, 182 Mo. 504. (3) Defendant was not placed in jeopardy on either count of the original information. State v. Wilson, 39 Mo.App. 187; State v. Linton, 217 S.W. 875; State v. McWilliams, 267 Mo. 450; State v. Schyhart, 199 S.W. 205. The offense charged in the second information is not the same offense charged in the second count of the original information, consequently the plea of autrefois acquit was without merit. State v. Laughlin, 180 Mo. 342; State v. Anderson, 186 Mo. 25; State v. Oaks. 202 Mo. 86; State v. Hess, 240 Mo. 147; State v. Zehnder, 182 Mo.App. 176.
Defendant was convicted and fined in the sum of three hundred dollars in the Circuit Court of Dunklin County, upon an amended information which charged him with a violation of the Local Option Law, in that he unlawfully sold one pint of whiskey in Dunklin County, in which the Local Option Law was in full force and effect. The defendant was charged and arrested under the name of William Linton.
Upon the trial defendant filed a plea of autrefois acquit, alleging in substance that he had before been placed in jeopardy for the identical crime.
The facts upon which the former jeopardy arises are admitted and may be briefly summarized as follows:
On December 14 1918, the Prosecuting Attorney of Dunklin County filed an information in the circuit court of that county against William Linton. The information was in two counts, but by some mishap, the reason for which does not appear in this record, the first count charged one William Sharp with the unlawful sale of one pint of whiskey on December 13, 1918, in Dunklin County, in violation of the Local Option Law. The second count charged William Linton with having violated said Local Option Law on December 13, 1918, by unlawfully keeping, storing for and delivering to another person, one pint of whiskey. It is admitted that defendant A. E. Linton was arrested under this first information and gave bond thereunder and when the case was called for trial under the first information on January 14, 1919, defendant A. E. Linton, appeared and answered ready for trial. Thereupon a jury was selected and sworn to try the cause. Shortly thereafter the prosecuting attorney discovered the mistake in the first count of the information and entered a nolle prosequi in said cause and the jury was discharged over the protest, objection and exception of the defendant. Thereafter and on the same day the said prosecuting attorney filed the amended information upon which the present trial was had.
It stands conceded by this record that both of these informations undertook to charge a crime based upon the identical transaction. In other words there is evidence tending to show that defendant did violate the Local Option Law by selling said pint of whiskey in said county and in so doing and as part of the transaction he delivered said pint of whiskey, also in violation of said Local Option Law.
The defendant was granted an appeal to the Spring-field Court of Appeals, but that court, in an opinion rendered, transferred the case here on the theory that a constitutional question was involved, in that the cause involved the construction of Article 2, Section 23, of our Constitution which deals with the subject of former jeopardy.
I. The fact that defendant A. E. Linton was named as William Linton in the respective informations does not in any manner affect the question of former jeopardy.
It is admitted that defendant A. E. Linton was the person intended in both informations and that he was the person who in fact was arrested and entered his plea in both instances. Whenever a defendant is indicted by his wrong name and does not call the trial court's attention to his correct name before pleading he is to be proceeded against by the name in the indictment. [Section 5113, R. S. 1909.]
II. It stands conceded that the second count of the original information and the amended information each charge a crime growing out of one and the same criminal transaction. In other words, the unlawful delivery charged in the second count of the original information is but a part of the transaction going to make up the unlawful sale charged in the amended information.
We have no hesitancy in saying that the first count of the original information cannot be used as the basis of a plea of former jeopardy because upon its face it charges no crime against the defendant.
But under the second count of the original information, defendant is charged with an unlawful delivery of this one pint of whiskey. The case was called, the parties announced ready for trial, and a jury was selected and sworn to try the cause and thereafter, over the objection and exception of defendant, the prosecutor entered a nolle prosequi and the jury was discharged.
Under a recent ruling of the Springfield Court of Appeals had the trial proceeded to an acquittal or conviction upon the second count of the original information, it would have been a complete bar to another prosecution for the unlawful sale based upon the same transaction, which forms the basis of the charge in the amended information. [State v. Needham, 194 Mo.App. 201, 186 S.W. 585.]
We think the above ruling of the Court of Appeals is sound and is in harmony with the greater weight of authority. [Kelley's Criminal Law and Practice (3 Ed.), par. 237, p. 194; 8 R. C. L. 143; 16 C. J. 279.]
If it be true, as above stated, that a conviction or acquittal under the second count of the original information would be a complete bar to a prosecution under the amended information then there is no escape from the conclusion that defendant was placed in jeopardy under the second count of the original information when the jury was sworn. This is the well established rule at common law. [State v. Webster, 206 Mo. 558, 571, 105 S.W. 705; State v. Hays, 78 Mo. 600, 606; 8 R. C. L. 138-139 and cases cited; 16 C. J. 236 and cases cited.]
III. Although it be conceded that the defendant has been once before in jeopardy for the same offense, is he entitled to be discharged by reason thereof and if so by what authority of law?
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