Williams v. Commonwealth

• Decision Date: 07 October 1879
• Citation: 78 Ky. 93
• Parties: Williams v. The Commonwealth.
• Court: Kentucky Court of Appeals

78 Ky. 93

Williams v. The Commonwealth.

Court of Appeals of Kentucky.

October 7, 1879

1. An indictment charged appellant in one count with grand larceny in another with receiving stolen goods. To this he pleaded not guilty. Evidence was heard before a jury, and the Attorney for the Commonwealth moved to dismiss the indictment, which was done, against appellant's objections. Afterwards another indictment was found similar to the one dismissed, except that it charged a part of the property stolen belonged to Watson & Bough, while the first stated it belonged to Watson. Appellant pleaded former acquittal, and that he had once been in jeopardy.

2. The Court erred in refusing the plea. The last indictment is barred by the former proceedings.

3. Sections 243 and 252 of the Criminal Code, in so far as they authorize, after jeopardy attaches, the dismissal of an indictment for felony, so that it may not operate as a bar to a future prosecution for the same offense, are unconstitutional.

APPEAL FROM GRAVES CIRCUIT COURT.

CROSSLAND & CROSSLAND FOR APPELLANT.

The second prosecution is barred by the first. (O'Brien v. The Commonwealth, 9 Bush, 333; Commonwealth v Daniels, MS. Opin., 1876; Cooley on Constitutional Lim 328; Tully v. Commonwealth, 11 Bush, 154.)

P. W HARDIN, ATTORNEY GENERAL, AND B. A. NEALE, COMMONWEALTH'S ATTORNEY, FOR APPELLEE.

The Attorney for the Commonwealth may, with the permission of the Court, dismiss an indictment at any time before the case is given to the jury. (Section 243, Criminal Code; O'Brien v. The Commonwealth, 9 Bush, 333; Wilson v. The Commonwealth, 3 Bush; Wharton's Am. Crim. Law, 2d vol., sec. 1833.)

OPINION

HINES JUDGE:

In April, 1879, appellant was indicted, and charged in one count of the indictment with grand larceny, and in another with receiving the same goods, knowing them to have been stolen. To this indictment he pleaded not guilty, and the evidence for the Commonwealth and the accused having been heard, the Commonwealth's Attorney moved to dismiss the indictment and refer it to the grand jury, which motion the court sustained over the objection of appellant. Subsequently another indictment was returned, the same as the one dismissed, with the exception that it charged that a portion of the property stolen, instead of being the property of J. D. Watson, as alleged in the first indictment, was the property of J. D. Watson and Philip Bough. To this last indictment appellant entered a plea of former acquittal and once in jeopardy, and upon this plea evidence was heard establishing the facts above stated, but the Court refused to sustain the plea, and on a trial on the merits, appellant was convicted and sentenced to the penitentiary for two years.

The first inquiry is as to the sufficiency of that plea.

The provisions of the Criminal Code that may be considered as bearing upon this question are as follows:

Section 243. " The Attorney of the Commonwealth, with permission of the court, may, at any time before the case is finally submitted to the jury, dismiss the indictment as to all or a part of the defendants, and such dismissal shall not bar a future prosecution for the same offense."

Section 251. " If, after retirement, one of the jurors become so sick as to prevent the continuance of his duty, or other accident or cause occur preventing them being kept together, or if, after being kept together such a length of time as the court deems proper, they do not agree in a verdict, and it satisfactorily appear that there is no probability they can agree, the court may discharge the jury; or if the sickness of a juror be temporary, the court may permit him to separate from the other jurors, and may place him in charge of an officer or not, in its discretion."

Section 252. " In all cases, if a jury be discharged, either in the progress of a trial or after the case is submitted to them, the cause may be again tried at the same or another term of the court."

As the argument of counsel had not been had and the court had not, with proper charge, finally submitted the case to the jury, the Attorney for the Commonwealth had a right, on motion and with the approval of the court, to dismiss the indictment, unless section 243 of the Criminal Code is unconstitutional.

The only provision of the constitution restricting the power of the legislature in this regard, relied upon by counsel for appellant, is the 14th section of article 13, which reads: " No person shall, for the same offense, be twice put in jeopardy of his life or limb."

In order to determine how far the cases from other states, cited by counsel, and the statements of the text-writers on this question, should be considered as authority in this state, it may be well to call attention to similar provisions in the constitutions of other states. We find that the constitutions of Alabama, Delaware, Maine, Pennsylvania, and Tennessee contain clauses in the language of our constitution, while the other states, whose decisions are relied upon by appellant, have in their constitutions language of decidedly broader import. They contain such language as: " No person's life or liberty shall be twice placed in jeopardy for the same offense." " Shall not be twice tried for the same offense." " No person, after acquittal on the merits, shall be tried for the same offense."

As to the meaning of legal jeopardy under these various clauses, Mr. Cooley, in his work on Constitutional Limitations, page 327, says: " A person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged when they have been empaneled and sworn." (Bishop on Criminal Law, secs. 1013, 1014.)

After a careful examination of all the reported cases within our reach, we conclude that the decided weight of authority is in support of the rule as thus stated. It was applied by this court in O'Brian v. The Commonwealth, 9 Bush, which was an indictment for murder. A graver question, however, arises when we seek to extend the constitutional provision to other than capital cases. The language, literally construed, limits the constitutional protection to " jeopardy of life or limb," which, according to a familiar rule of construction, should not be extended to embrace a case where liberty only is at stake. To thus narrow it, however, would leave the legislative power at liberty to authorize, in cases where the punishment is confinement in the penitentiary, a re-trial on the same charge, after the accused is once tried and acquitted or convicted, for there is no other provision of the constitution that can be construed to interdict a re-trial or to sanction the pleas of former conviction and former acquittal. Such a construction would be at war with every sense of justice, subversive of civil government, and contrary to the whole theory of our institutions. There is nothing better settled in the jurisprudence of England or America than that no one can be twice tried for the same offense. No doubt has ever been expressed that a plea of former conviction or former acquittal might, in a proper case, be interposed. (Bishop on Criminal Law, section 1026.)

We think it far more reasonable to presume that the framers of the constitution intended that the interdiction should extend to all felonies or to all cases where the punishment inflicted is infamous. In this, as in all other cases of the construction of statutes, contracts, or constitutions, the thing sought for is the intention of those who make the law or the...