Warren v. State
| Decision Date | 12 July 1907 |
| Docket Number | 15,007 |
| Citation | 113 N.W. 143,79 Neb. 526 |
| Parties | JOE WARREN v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county: ABRAHAM L. SUTTON JUDGE. Affirmed: Sentence reduced.
Judgment affirmed, sentence reduced to ten years.
H. B Fleharty and T. S. Hollister, for plaintiff in error.
W. T Thompson, Attorney General, and Grant G. Martin, contra.
On the 14th day of February, 1906, an information was filed in the district court for Douglas county charging Jay O'Hearn, Raymond Nelson, Leo Angus and Joe Warren with robbery upon one Nels Lausten. Joe Warren was separately tried. He filed a plea in bar, alleging that at the February term, 1906, of the same court, an information was presented against him for the same offense, and that he was tried thereon and acquitted. The plea sets forth at length the information upon which he was tried. This information charges O'Hearn, Nelson, Angus and Warren with the murder of Lausten in the attempt to perpetrate a robbery, while the present information charges the same persons with the robbery of $ 18.70 in money from Lausten. The plea further alleges that all of the evidence upon the trial was with reference to the crime of murder, and is necessarily the same as the evidence to be adduced in the case at bar, and the defendant prayed that he might be dismissed from the present charge. The county attorney demurred to this plea. The court sustained the demurrer, and the defendant was placed upon trial and convicted.
The principal errors alleged depend upon the question whether the crime charged against the defendant of murder in the attempt to perpetrate a robbery, and for which he was tried, is the identical crime which is charged in the present case. The defendant insists that the acts and circumstances which were relied upon to establish the charge of murder are identically the same acts and circumstances which are relied upon in this case to establish the charge of robbery; that it is the same transaction which is the subject of the charge; that in the former case the intent to perpetrate the robbery was an essential element of the crime charged, and that the acts relied upon to show the intent to rob in the first case are those relied upon to prove the robbery in the present case. It is further contended that the lesser crime of robbery is necessarily involved in the greater crime of murder, since the deliberation and malice necessary to make the killing murder in the first degree are presumed from the fact that the defendant was engaged in the perpetration of a robbery at the time.
An examination of the authorities bearing upon the question presented shows that it is not entirely free from doubt, and that no fixed rule or principle is universally accepted, and no fixed and uniform criterion established, whereby to determine the identity of causes. The English rule seems to be plain and well established that, unless the former indictment was such that the prisoner might have been convicted under it by proof of the facts set up in the second indictment, an acquittal on the first indictment cannot be a bar to the second. 2 East P.C. (Eng.) 522. But the American courts seem in some measure to have departed from the rule or test laid down by the English courts and have become a law unto themselves. It seems to be settled by the weight of authority, however, that where the second transaction is for a crime which is but another degree of the crime for which the first prosecution was had, the previous jeopardy will constitute a bar. A man cannot be tried for manslaughter when he has previously been tried for murder of the same person, nor vice versa, for the gist of the charge is the same in both cases, namely, the unlawful killing. The degree of the crime, or, in other words, the gravity of the punishment which may be inflicted, depends upon the circumstances surrounding the transaction, which may aggravate or mitigate the punishment according to its heinousness or the degree of moral turpitude of the guilty party in its commission. Since in such a case the defendant might have been convicted of manslaughter under the charge of murder in the first degree, the identity of the crime is clear, and as to such a state of facts there is no conflict in the authorities. Where, however, the same transaction or criminal acts may constitute more than one crime, the question becomes more difficult. If a man breaks into a building and steals from the person of an inmate by force and violence or by putting him in fear, he is guilty of burglary on account of the breaking, of robbery because of the larceny perpetrated by the assault and putting in fear, and of simple larceny on account of the taking and asportation of the goods or money. In such a case a man may be indicted for the burglary, for breaking and entering with intent to steal, or he may be indicted for the robbery, or for the simple larceny. Since these are crimes which differ in their essential elements, the authorities are almost uniform that the former jeopardy of one is no bar to a prosecution for the other (1 Bishop, New Criminal Law, sec. 1062), although a few courts, notably North Carolina and Georgia, hold to the contrary. State v. Lewis, 9 N.C. 98, 2 Hawks 98, 11 Am. Dec. 741; Roberts & Copenhaven v. State, 14 Ga. 8, 58 Am. Dec. 528. See, also, State v. Colgate, 31 Kan. 511, 3 P. 346. The rule which seems to be best supported by the authorities is that, where "the same facts constitute two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second, although the offenses were both committed at the same time and by the same act." State v. Elder, 65 Ind. 282; Morey v. Commonwealth, 108 Mass. 433; Wilson v. State, 24 Conn. 57; State v. Caddy, 15 S.D. 167, ...
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