Triplett v. Commonwealth

• Decision Date: 05 June 1886
• Parties: TRIPLETT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

1 S.W. 84

84 Ky. 193

TRIPLETT v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 5, 1886

Appeal from Fayette circuit court.

Park Phepps, for appellant.

PRYOR J.

The appellant, Dick Triplett, was indicted by the grand jury of Fayette county for grand larceny, in feloniously taking and carrying away $30 in United States currency, bank notes etc., the personal property of one Ed. Caldwell. On the trial of the indictment the accused entered the plea of former acquittal, alleging, in substance, that he had been indicted in the same court for burglary in breaking and entering the dwelling of Ed. Caldwell with the intent to steal therefrom that the present indictment for larceny is for stealing the same $30,--a part of and connected with the same transaction constituting the alleged burglary for which he had been previously tried; that the commonwealth elected to try him for the burglary, and, upon the hearing, the jury returned a verdict of not guilty. He pleads the same as a bar to the present prosecution. The record of the indictment for burglary, and the trial resulting in a verdict of not guilty was offered as evidence, and the accused then proposed to prove that the alleged taking of the $30 was connected with and a part of the same transaction constituting the burglary at the same place, and on the same occasion.

The only question is, did the plea and proof, if conceded to be true, constitute a bar to the indictment for grand larceny? We think the bar was complete. At common law, in an indictment for burglary, a count might be added for the larceny where there had been an actual taking, and it therefore resulted that an acquittal of the burglary with intent to steal constituted no bar to a prosecution for the actual theft. Without the intention to commit a felony, the mere fact of breaking would not, at common law, constitute a burglary; and where the intent to steal is charged, and the party acquitted, it would seem that a subsequent indictment for grand larceny, with the same facts developed on the trial, would be placing the accused in jeopardy the second time for the same offense. The weight of authority, we are aware, is adverse to such a view of the question, but the whole reason and philosophy of the law, as well as justice to the accused, requires a different ruling. Mr. Bishop, in alluding to the decisions on this class of cases, takes occasion to say that, "on principle, we may question whether they do not press more heavily against defendants than the humane policy of our criminal jurisprudence justifies." 1 Bish. Crim. Law, 1064.

The dissenting opinion in the case of Wilson v. State, 24 Conn. 57, lays down the correct rule viz.: "When a criminal act has been committed, every part of which may be alleged in a single count, and proved under it, the act cannot be split into several distinct crimes, and a separate indictment sustained on each; and...