State v. Lieberman

While I concur with nearly all the conclusions reached by the other two members of the court, I am in disagreement with the conclusion that the case should be remanded for resentencing based upon a holding by the majority that counts one and three founded in Sections 2917.06 and 2917.07 of the Revised Code are descriptive of the same offense and cannot validly form the basis for two separate sentences. I do not find a holding or determination as to which of the two counts shall be allowed to stand, and the Common Pleas Court presumably will have a choice as to which to sustain and which to throw out.

It seems to me that the majority opinion is based upon the theory that if the defendant, appellant herein, had previously been convicted of count one and later were put on trial under count three, he would be able successfully to interpose the defense of prior conviction, double jeopardy or a combination of the two. Stated another way, if the defendant had been tried and acquitted of the offense charged in count one under the theory of the majority, and if he then were brought to trial on count three, he would in addition to the two defenses set forth above also be entitled to interpose a plea of res judicata.

In my opinion, count one, which is founded upon the provisions of Section 2917.06, Revised Code, and count three, which is founded upon the provisions of Section 2917.07, Revised Code, charge separate and distinct offenses, and a defendant may, by a single act, violate both of them and may properly be indicted, tried, convicted and punished for each of them.

In the case of Duvall v. State, 111 Ohio St. 657, decided by the Supreme Court in 1924, the defendant had been acquitted on the charge of murder in the first degree while attempting to perpetrate a robbery and later was brought to trial on the charge of robbery committed upon the same person and at the same time named in the former charge. The defendant sought to pleadres judicata which plea was rejected by the Supreme Court, which in the third paragraph of the syllabus held as follows:

"A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. A single act may be an offense against two statutes; and if either statute requires proof of an additional fact, an acquittal of the offense requiring proof of the additional fact does not exempt the defendant from prosecution and punishment under the statute which does not require proof of such additional fact."

In the course of the opinion, at page 660, Day, J., wrote as follows:

"``The words "same offense" mean same offense, not the same transaction, not the same acts, not the same circumstances or same situation. * * *

"``It is not enough that some single element of the offense charged may have a single element of some other offense as to which the defendant had theretofore been in jeopardy, but the constitutional provision requires that it shall be the "same offense." The usual test accepted by the text writers on criminal law and procedure is this: If the defendant upon the first charge could have been convicted of the offense in the second, then he has been in jeopardy.'

"It will not be contended that Duvall could have been found guilty of robbery under the indictment for murder in attempting to perpetrate a robbery. This court recognized this principle inBainbridge v. State, 30 Ohio St. 264, 272, this language appearing in the opinion:

"``While it is the right of every person not to be put in jeopardy more than once for the same offense, the principle should be so applied as not to create an immunity for crimes which do not constitute the offenses for which the criminal has once been exposed to punishment. Wilson v. State, 24 Conn. 57.'

"The same principle was again announced in State v.Corwin, 106 Ohio St. 638, 140 N.E. 369, the syllabus of which case recites:

"``Where one is tried upon a charge of rape with force and violence, under Section 12413, General Code, and upon trial is acquitted of such charge, and thereafter is indicted under Section 12414, General Code, charging rape with consent, and interposes a plea of former jeopardy to the second indictment, such plea upon demurrer of the state should be overruled.'"

For a more recent holding, see City of Akron v. Kline,165 Ohio St. 322, decided by the Supreme Court in 1956. In that case the defendant while driving an automobile in the city of Akron ran off the street and over an embankment. He was arrested and charged by separate affidavits signed by the same police officer and at the same time with reckless driving and with operating an automobile while under the influence of intoxicating liquor under the provisions of the Akron City Code. Defendant pleaded guilty to the reckless driving charge, was given a fine and costs, which he paid. Later, when brought to trial on the drunk driving charge, he pleaded former jeopardy and was found guilty, after which the court imposed a fine and a jail sentence. On appeal to the Court of Appeals of the Ninth Appellate District the conviction was affirmed, but the court found that its judgment was in conflict with a judgment of the Court of Appeals of the Eighth Appellate District and certified the cause to the Supreme Court for review.

The Supreme Court upheld the conviction, fine and sentence upon the second charge and, in a per curiam opinion, set forth the elements of the ordinance defining reckless driving and the ordinance defining driving while intoxicated, after which the court said at page 324 as follows:

"Evidence which would be sufficient to sustain a conviction for reckless driving would not be sufficient to sustain a conviction for operating or being in control of a vehicle while intoxicated. Being under the influence of intoxicating liquor is not necessarily an element of the former offense, and reckless operation is not an element of the latter offense.

"A single act may constitute several offenses by virtue of several statutes or ordinances. A conviction on one charge may not be a bar to a subsequent conviction and sentence on the other charge unless the evidence required to support the conviction on one would be sufficient to warrant a conviction on the other.Duvall v. State, 111 Ohio St. 657, 146 N.E. 90."

To the same effect, see State v. Orth, 106 Ohio App. 35, decided by the Court of Appeals for Allen County in 1957, in which the first paragraph of the syllabus reads as follows:

"The guaranties contained in Section 10, Article I of the Ohio Constitution, and in the Fifth Amendment of the federal Constitution, that no person shall ``be twice put in jeopardy,' apply only to being placed in jeopardy more than once for the same offense — not the same transaction, acts, circumstances or situation."

As I view it, count one which as I have stated is based upon Section 2917.06, Revised Code, and which is frequently referred to as penalizing the offense of "bribery of a witness," is clearly distinguishable from count three which is based upon Section 2917.07, Revised Code, which is frequently referred to as "intimidating witness," etc. It is obvious that in the case of the former it is indispensable that there be either an offer, promise or the giving to the witness or prospective witness of "a thing of value," and to me it is equally clear that in the case of the latter neither allegation nor proof of an offer, promise or gift of any valuable thing is required.

It seems to me therefore upon the authority of the cases above set forth that this is another case where the transaction, acts, circumstances and situation result in the violation of two statutes. So far as necessary to warrant the indictment in count one, Section 2917.06, Revised Code, provides as follows:

"No person, with intent to corrupt a witness, or to influence him in respect to the testimony he is about or may be called upon to give in an action or proceeding pending, or about to be commenced, either before or after he is subpoenaed or sworn, shall offer, promise, or give to him * * * any valuable thing."

So far as necessary to warrant count three of the indictment, Section 2917.07, Revised Code, provides as follows:

"No person shall, corruptly * * * attempt to influence * * * a * * * witness * * * of any court in the discharge of his duty, or corruptly * * * attempt to obstruct or impede, the due administration of justice therein."

In what I have chosen to call the bribery statute, the indispensable element is the offer, promise or giving of a valuable thing, while in the case of what I have called the intimidation of witness statute, no such proof is required.

The trial judge and jury and my two colleagues are in complete agreement that the evidence was sufficient to sustain the convictions and with that I am in full accord. Being of the opinion that convictions on both counts were warranted and that no double jeopardy was involved, I must respectfully dissent from the final paragraphs of the majority opinion ordering the case remanded for resentencing and from the sixth paragraph of the syllabus. In my judgment, the errors assigned are not well taken, should be overruled and the judgment of the court below should be affirmed.

(Decided April 11, 1961.) ON MOTION for rehearing.

Per Curiam. Defendant, appellant herein, has filed a motion for rehearing and a request for an oral hearing thereon. After careful consideration of the brief in support of the motion, and re-examination of our opinion on the merits, it is our opinion that the motion be denied. Appellee may file a journal entry on the motion and a journal entry on the merits forthwith.

Motion denied.

DUFFEY, P. J., BRYANT and DUFFY, JJ., concur.