Lewis v. Commonwealth , 201 Ky. 48 ( 1923 )

Opinion op the Court by

Turner, Commissioner

Reversing.

On Ihe 20th of March the grand jury .returned into court two indictments against appellant charging him in each with the unlawful .sale of spirituous liquors to Will Wolf. The indictments were numbered 28318 and 2839. They are identical in terms, except number 2839 charges the sale of one quart of whiskey to Wolf, and number 2838 charges the sale of one pint of whiskey to Wolf.

Neither cf the indictments definitely fixes the day upon which the alleged sales to Wolf were made, but they each in the descriptive part fix the time only as being “On the day-A. D. 192 — ■.”

The cases were each set for trial on the 26th of March, and on that day number 2839 — the quart case — was first tried.

On that trial the witness Wolf, on his examination in chief, was asked this question: “At any time within a year before you appeared before the grand jury, did youi buy any whiskey, or did you buy a quart of whiskey, from the defendant Henry Lewis ? ’ ’ He answered that he had, and later in that examination, when asked to fix the time, he •answered: “I reckon it must ¡have been about a .month or a month and a half ago. I don’t remember the date.” Later on in his examination he stated that upon the occasion referred to he had been accompanied to the home of appellant, where the sale took place, by one Alfred Payne.

On that trial the following instruction was given, to-wit: “If the jury believe from the evidence to the exclusion of a reasonable doubt, that in Edmonson county, Kentucky, within twelve months before the finding of this indictment herein, the defendant, Henry Lewis, did unlawfully sell spirituous, vinous, or malt liquor to Will Wolf, and not for medicinal, scientific, or sacramental purposes., they will find defendant guilty.” It will be observed that in this instruction there was no effort to sever or distinguish the sale by appellant to Wolf from any other similar transaction that might have taken place between the two within the statutory period.

The jury upon that trial returned a verdict of guilty, upon which jiidgment was entered.

Thereafter and on the same day a trial was had under indictment 2838 — the pint case- — and in that case the defendant not only entered a plea of not guilty, but filed his written plea in bar because of the judgment of conviction under indictment 2839. At the conclusion of all the evidence the defendant asked for a directed verdict under his plea in bar, and the court overruled his motion, proceeded with the trial, and another judgment of guilty resulted.

This is an appeal from the last named judgment, and . the only question necessary to consider is the sufficiency of the plea in bar.

On the trial of the second indictment, number 2838, the prosecuting witness, Wolf, was asked, on his examination in chief, the following question: “Within a year before the time that you were before the grand jury, did you go to the place, Henry Lewis’ place, in company with W. A. Johnson?” He answered that he did, and when asked when that was, answered: “Some three or four weeks ago. I don’t know the exact date.” He then proceeded to state that upon that occasion he bought from appellant a pint of whiskey for himself and a pint for Johnson.

The instruction in the last named trial was identical with that given on the first trial, and there was still no effort therein to distinguish the transaction there involved from any other similar transaction between Wolf and appellant within the statutory period.

Although one indictment charged a sale of a quart to Wolf and the other indictment charged a sale of a pint to Wolf, a conviction under either of them might have been had upon evidence that either a larger or a smaller quantity had been sold by defendant to Wolf within the statutory period. It may, however, be conceded that the two indictments on their faces appear to refer to separate and distinct transactions; and it is apparent from the evidence of the prosecuting witness that the- two sales referred to in the indictments took place at separate and distinct times. But when the court came to instruct the jury and set forth the conditions under which they might find defendant quilty, there was a total failure, or even attempt, to distinguish between the two sales, and in its instruction on the- first trial authorized a conviction for any sale made within the statutory period by appellant to Wolf.

So, conceding the indictments on their faces referred to separate and distinct transactions, -and admitting that the evidence of the prosecuting -witness on the first trial referred to a separate and distinct transaction from that testified about on the second trial, still the question remains whether the failure of the court in its instruction in the two trials to distinguish, or attempt to distinguish, between the two transactions, and authorized in its instruction a conviction on the first trial for any sale that might have been made by appellant to Wolf within the statutory period, makes the first trial a har to a conviction on the second.

The plea in bar should have been sustained because the instruction on the first trial authorized a conviction for any sale during the statutory period made by appellant to Wolf, and the Commonwealth could have procured a conviction on the- first trial by introducing the same evidence that was introduced on the last trial, and in law this constitutes such identity of -offenses as will make the first trial a bar to a subsequent one.

The unfailing, tost applied in -ascertaining the identity of offenses for the purpose of determining such question is that if the evidence offered in 'support of the last prosecution would have -been competent upon the trial of the first, and might have resulted in a conviction thereon, then the plea in bar upon the second trial is good and should be sustained. The indictment in the first trial charged the sale by appellant of one quart of whiskey to Wolf, and it needs no argument to prove that he might have been convicted on that trial by evidence that at any time within the statutory period he had sold to Wolf one pint of whiskey. That being true, it seems to necessarily follow from an application of the rule stated that the first trial operated as- a bar to the second one.

In the case of Shirley v. Commonwealth, 143 Ky. 183, there were three indictments returned against the defendant, each charging him with the sale of spirituous liquor® to the .same person; one indictment charged the sale in August, 1910, one in September, 1910, and the other in October, 1910. In considering the question whether a trial under one of them was a bar to a prosecution under the others, this court, after reciting’ that each separate, independent sale constitutes an offense, whether they be to the same, or different persons or made on the same or different days, 'and after saying that the Commonwealth is not confined to the day or the time specified in the indictment, but may inquire of witnesses concerning any sales, that will -support the prosecution made at any time within the year, -said:

“When, however, as in the cases before us, there is more than one- indictment returned against the same person, charging sales at different specified times during the year to the same person, it is usual for the attorney for the Commonwealth to confine the witnesses introduced in support -of each indictment to the particular time specified in the indictment and for the court to limit the instructions to this time. If the Commonwealth’s attorney and the court do this, the verdict in the case, whether it be of conviction or acquittal, will not bar other subsequent prosecutions against the same defendant for selling to the same person at other times within the year. But if the attorney for the Commonwealth in a prosecution under any one of the several indictments found against the same defendant for selling to the .same person embraces the entire year in his questions or permits the witnesses to cover the entire year in their answers, or the instructions allow a conviction for a sale within the year, a conviction -or acquittal under one indictment will be a bar to another subsequent prosecution against the same defendant for selling to the -same person within the year covered by the questions and answers or the instructions in the former prosecution.”

That opinion in and of itself is conclusive of the question presented in this, for it distinctly and unequivocally holds in a case markedly similar to the one at bar, that if the witnesses on the first trial are permitted to cover the entire year in their answers, or the instructions allow a conviction for a sale within the year, to the same person a conviction or acquittal under the first indictment will operate as a bar to a trial under the subsequent one. Although the court did not in that case base its ruling upon the instructions of the court, yet in stating the proposition of law there involved it directly held that the plea should be upheld if the instructions on the first trial allow a conviction for a sale within the year to the same person, although the evidence on that trial may not have embraced the entire year.

But we are not confined to the authority of that case in upholding the plea in bar here. All the text writers so far as we have been able to ascertain make the test of whether the plea in bar is good the determination of the question whether the evidence introduced on the last trial if presented on the first would have been competent, and would have sustained a conviction on that first trial.

Gregory’s Criminal Law, p. 759, says:

“In order to make the plea of former jeopardy available, it is necessary to establish the identity between the instant-case and that pleaded in bar thereof. If the first indictment or information was such, that the- accused might have been convicted under it upon proof of the facts by which the second is sought to be sustained, the plea of former jeopardy should be .sustained.”

Under that text the writer refers to Thomas v. Com., 150 Ky. 374; Com. v. Browning, 146 Ky. 770, and Drake v. Com., 29 R. 981.

Rose’s Kentucky Criminal Law, vol. 1, .section 715, in discussing the identity -of offenses, says-:

“But the safest general rule is, to decide whether or not the two -crimes are in substance precisely the same or of the same general nature, or whether or not the evidence of the oiie would support a conviction for the other. If the evidence necessary to support the .second indictment is admissible in the first and supports the- same charge as in the first, and if that evidence, if believed, would convict under the first, -the crimes must be identical. ’ ’

Under that text the writer cites the Drake and Thomas cases above referred to.

Bishop’s New Criminal Law, 8th edition, .page 630, says on this subject:

“The test is, whether, if what is set -out in the second indictment had been proved under the first, there could have been a conviction; when there could the -second cannot be maintained; when there could not, it can be-. ’ ’

Wharton’s Criminal Law, vol. 1, 11th ed., on page 508 states the proposition thus:

“The proper test is: Was the matter set out in a second indictment admissible- as evidence- under the first indictment, and could a conviction'have been properly maintained upon such evidence? If the answer is yes, then tbe plea sufficient; otherwise, it is not.”

■Cooley’s Constitutional Limitations, on page 328, lays down the same rule in this language:

“If the first indictment or information were such that the accused might 'have been convicted under it on proof of the facts by which the second is sought to be sustained, then the jeopardy which attached on the first must constitute a protection against a trial on the second.”

This language of Mr. Cooley has been quoted with approval by this court in no less than four cases, to-wit: Williams v. Com., 78 Ky. 93; Com. v. Browning, 146 Ky. 770; Thomas v. Com., 150 Ky. 374, and Drake v. Com., 29 R. 981.

In addition to all these, in the recent case of Scarf v. Com., 195 Ky. 830, in considering the sufficiency of a plea similar to the one here involved, this court said: “Many rules have been promulgated and adopted for the determination of that question in the light of the various circumstances under which it was- presented, but only one of which is. necessary to be considered under the facts disclosed by this record, and there is no dissent by any court, or contrariety of statement by any text writer, as to how it should be determined. It is, that “When the facts necessary to convict on the isecond prosecution would necessarily have convicted on the first, a final judgment on the first prosecution will be a bar to the second one, ’ ’ and then that opinion cites many authorities in its support not referred to in this opinion.

From all these considerations it is apparent the rule has become so firmly engrafted upon our system of jurisprudence it would be most unwise to depart from it. Its application in the case at bar cannot be questioned, for plainly the evidence admitted on the last trial against appellant would have been competent against him on the first trial, and would have sustained a conviction in that trial.

For the reasons given the judgment is reversed with directions to overrule the demurrer to the plea in bar and discharge the defendant.

Whole court sitting, Chief Justice Sampson dissenting.