State v. Gutke , 25 Idaho 737 ( 1914 )

AILSHIE, C. J.

In this case the defendant was tried and acquitted upon the charge of selling two bottles of beer on the 13th of August, 1911, in Bingham county, to a minor in violation of the law which makes it a misdemeanor to sell intoxicating liquor to a minor. He was thereafter charged upon the same act and transaction with selling intoxicating liquor in Bingham county in violation of the local option statute, which makes it a misdemeanor to sell intoxicating liquor within a prohibition district. On the trial of the latter charge the defendant plead “not guilty” and “former acquittal,” his plea of former acquittal being based on his trial and acquittal for selling intoxicating liquor to a minor.

The only question with which we are confronted on this appeal is whether this second conviction is in violation of section 7230 of the Rev. Codes of this state. That section reads as follows:

“An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other. ’ ’

Our attention has only been called to one statute which is in any way similar to the foregoing, and that is section 654, Kerr’s California Penal Code, which is in the exact language of our statute, except that it has added thereto some reservations and exceptions. So far as we have been able to find, there is no decision of the California court that throws any light upon the inquiry which confronts us.

It should also be remembered upon the very threshold of our investigation of this case that our statute differs materially and essentially from the provisions of sec. 13, art. 1, of the state constitution, and the like provision of the federal constitution which provides that “no person shall be put twice in jeopardy for the same offense.” It should therefore be remembered, upon the very outset, that decisions from courts which discuss the foregoing constitutional provision with reference to being put “twice in jeopardy” for the same offense are in no essential respect applicable to the statute here under consideration. The constitutional provision deals with the subject of putting a defendant twice in jeopardy for the same offense. On the other hand, the statute (sec. 7230) above quoted is not dealing with the.“same offense,” but the same ‘ ‘ act or omission. ’ ’ In other words, the legislature has said that where an act or an omission to act is a violation of different statutes of this state and may be punished under several statutes, the state may elect as to the statute under which it will prosecute the party, but “in no ease can” such party “be punished under more than one” statute. This statute appears to have been adopted from California by the 1872 codes, and it was first introduced into the Idaho statutes in the 1887 Revised Statutes. The’commission which proposed the Revised Statutes of 1887 of this territory was composed of some of the ablest lawyers in the territory, and they were undoubtedly familiar with the conflicting decisions and diversity of opinion among lawyers and judges as to just when a party can be legally said to have been “once in jeopardy” under the constitutional provision and when he may be again tried for the commission of the same act which is a violation of another statute, and, in our opinion, it was for the purpose of setting this question at rest, so far as any conflict might arise in Idaho, that this statute was adopted. This was before the admission of the state and the adoption of the constitution, and the legislature accordingly directed its prohibition against twice prosecuting a man for the same “act or omission,” although that act or omission might be a violation of several statutes and therefore constitutes several offenses.

In the case at bar, it is admitted and conceded by all parties that the act for which the appellant has been twice prosecuted consisted in selling two bottles of beer in Bingham county on the 13th day of August, 1911. The first prosecution was for making the sale to a minor. The jury acquitted the defendant on that charge. It may be that that acquittal was the result of the jury finding that the person to whom the sale was made was not a minor and still they might have been satisfied that a sale was made. The nest prosecution was for the same act, by charging that the sale was made in a prohibition district, Bingham county then being a “dry” county. The jury believed this charge and convicted the defendant. The state had a clear right to make its election as to which offense it would prosecute the defendant for committing, but when the facts of the transaction were once submitted to a jury under a charge that they were a violation of a penal statute of the state and the jury returned a verdict thereon, it was clearly the intention of the legislature by the provisions of see. 7230 to forbid and prohibit any further prosecutions for the commission of that 'pa/rticular act. The fact that it was not necessary to prove the same facts upon one trial that must be proven upon another makes no difference in the real act itself and does not make the act consist of more than one transaction, nor does it render it divisible or change the facts and circumstances which go to make up the act of selling two specific bottles of beer on a given date.

The court takes judicial notice of the existence of a prohibition district and so that fact does not have to be proven. (See State v. Schmitz, 19 Ida. 566, 114 Pac. 1.)

The only case that we have found which is directly in point on this question is State v. Gapen, 17 Ind. App. 524, 45 N. E. 678, on rehearing 47 N. E. 25. In that case the defendant was first prosecuted and acquitted upon the charge of selling liquor to a minor and subsequently tried and convicted for selling liquor without a license. The Indiana appellate court sustained the conviction, but the opinions in that ease disclose that the discussion was had over the question of a person being twice put in jeopardy “for the same offense,” and the argument and reasoning of the court revolves about that phase of the question, which makes it clear that if the court had been discussing a statute dealing with the “same act” instead of the “same offense,” it would have reached a different conclusion and would have, in our opinion, judging from their line of reasoning, reversed the judgment of conviction. The original opinion in State v. Gapen was based squarely upon the provision of the Indiana constitution, which reads as follows: “No person shall be put in. jeopardy twice for the same offense.” Even under a constitutional provision like this which is to be found in all the states, the majority of the courts have held to the views we have above expressed.

A good illustration of this is to be found in Cook v. State, 43 Tex. Cr. 182, 96 Am. St. 854, 63 S. W. 872. The court in discussing the question of “once in jeopardy” said: “But where there is one act, one intent, one violation .... then appellant cannot be convicted upon an act, intent and violation for which he has been previously acquitted. ’ ’

In State v. Colgate, 31 Kan. 511, 47 Am. Rep. 507, 3 Pac. 346, defendant was indicted and acquitted of burning a mill. He was subsequently prosecuted for burning the books of account contained in the mill and pleaded a former acquittal. The supreme court of Kansas held that the plea was good and should have been sustained.

State v. Price, 127 Iowa, 301, 103 N. W. 195, is interesting in its discussion of the question of former jeopardy and has in it much reasoning that is applicable here. There the defendant had been tried and acquitted on the charge of rape on a female under the age of consent. He was subsequently tried and convicted upon the charge of incest, upon the same facts, however, as were involved in the previous case. The court divided on the question. The majority opinion was written by Mr. Justice Deemer, holding that the trial and acquittal on the first charge was a bar to the subsequent prosecution. Mr. Justice McClean, speaking for the minority of the court, dissented and held that the previous prosecution and acquittal was no bar. The dissenting opinion, however, dealt purely with the constitutional question of former jeopardy “for the same offense” and pointed out that there were two distinct offenses or crimes under the statute. (See, also, article entitled “Same Offense,” vol. 4, Journal of Criminal Law and Criminology, p. 722.)

The foregoing cases to which we have called attention cite a multitude of authorities which discuss both sides of this question and well illustrate the diversity of opinion on the subject as it has been discussed under the uniform constitutional provision against being twice put in jeopardy for the same offense. As has been previously pointed out, however, our statute is directed against more than one prosecution for the same “act or omission” rather than for the “same offense. ’

This brings us to the matter of pleas that were entered in this ease. Defendant entered the plea of not guilty and also the plea of a former acquittal. The jury returned a verdict of guilty and did not return any verdict on the plea of former acquittal. This was clearly erroneous. The court should have instructed the jury, under the provisions of sec. 7230, that it was their duty to find whether or not defendant had been previously acquitted on a charge of committing the same act for which he was being prosecuted in the present case, and the jury should have returned a verdict on that question. They might have been satisfied that the defendant was guilty of the charge preferred and at the same time have found that he had been once acquitted for the commission of the same act for which he was then being prosecuted in this case. Upon the return of a verdict of former acquittal for the same act, it would have been the duty of the trial court to enter judgment of acquittal and dismissal.

Sec. 7780 of the Rev. Codes provides that an issue of fact arises, first, upon a plea of not guilty; second, upon a plea of former conviction; and, third, upon a plea of once in jeopardy, and sec. 7781 provides that an issue of fact shall be tried by a jury unless a trial by jury be waived. A similar statute has received consideration by the supreme court of California on several occasions, and it has been held by that court that no judgment of conviction can be entered or sustained until the plea of former acquittal has been passed upon by the jury. (See People v. Kinsey, 51 Cal. 278; People v. Fuqua, 61 Cal. 377; People v. Eppinger, 109 Cal. 294, 41 Pac. 1037; People v. Tucker, 115 Cal. 337, 47 Pac. 111.)

It was clearly error for the court to accept the verdict of guilty in this case without also requiring the jury to return a verdict on the defendant’s plea of former acquittal. Since, however, it is admitted by the state in this case that the same and identical act affords the cause of complaint in this prosecution that was involved in the former prosecution, there can be no occasion or reason for ordering a new trial.

The judgment must be reversed, and the defendant will be discharged, and it is so ordered.

Sullivan, J., concurs.