Patmore v. State

^* On right to convict for several offenses growing out of same facts, see note in 31 L.R.A. (N.S.), 693.

On effect of excessive sentence, see note in 45 L.R.A., 136.

On power to impose cumulative sentence, generally, see note in 7 L.R.A. (N.S.), 124. This is an appeal from a conviction under indictment with two counts charging (1) possession of a still, or a part thereof, used or intended to be used for the manufacture of whisky; and (2) the unlawful manufacture of whisky. On the facts of the case it is insisted that all of the evidence for the State was that of accomplices. We have carefully examined the record and are satisfied that the rule requiring corroboration of the testimony of accomplices has not been violated. The testimony of the arresting officer, together with that of the two alleged accomplices, is quite satisfactorily convincing of the guilt of the plaintiffs in error. This rule of corroboration is flexible and its application must largely be left to the judgment of the jury, under proper instructions, which in this case are conceded to have been given.

The jury found the defendants guilty under both counts and fixed a fine of $500 for the offense under the first count and an additional $500 for the offense under the second, with six months in the county workhouse for the offense under the second count. The trial judge sentenced the parties not only to pay the fines fixed by the jury, but sentenced them to the workhouse for eleven months and twenty-nine days on the first count and six months on the second. It is insisted, first, that it is not lawful to convict and sentence on these counts separately; and, second, that the punishment is excessive.

There is authority for the rule that, where separate and distinct offenses are charged under two counts in one indictment, the jury may find the defendant guilty upon each count and fix the punishment for each offense separately. For example, it was so held in Johnson v. Commonwealth, 102 Va. 927, 46 S.E. 789, cited by 16 C.J., 1106, in which the charges were (1) forgery, and (2) uttering the forged instrument, but even that court, after citing Wharton's Criminal Law (8th Ed.), section 910, andSpeers v. Commonwealth, 17 Grat. (58 Va.), 570, for the holding, said:

"While, in view of these authorities, we feel constrained to hold that in a case like this the jury may find the prisoner guilty upon each count, and ascertain the punishment separately, we are of opinion that the usual and better practice in such cases is to find a general verdict for the two cognate offenses charged."

Even if it be conceded that two convictions and two punishments may be had in any case upon separate counts, the practice is not approved, and, certainly it must be clear that the offenses are wholly separate and distinct. Our own cases appear to prohibit the practice where the offenses grow out of one transaction and involve but one criminal intent. In Davis, alias Hennessey v.State, 85 Tenn. 526, 3 S.W. 350, it is said that: "It is well settled that if the different offenses charged in the different counts grow out of the same transaction, as in the case before us, or if they be but different species of the same offense, the several counts may and should be joined in the same indictment, and a general verdict will be good, though the one offense is punishable differently from the other; and the law in such case refers the verdict to the highest offense, or the highest grade of offense, charged. Ayrs v. State, 5 Cold., 28; Kelly v. State, 7 Baxt., 84, and citations; Hall v. State, 3 Lea, 558, 559."

And see State v. De Graffenreid, 9 Baxt., 287.

The instant case seems to come within this rule. While arising under different statutes, and while the offense of possessing is susceptible of being committed without involving liability for the offense of manufacturing, and the two offenses being in this sense separate, on the facts before us the two offenses were but parts of the same transaction, and evidence of the manufacturing affords proof of the possessing. The accused should not be subject to cumulative sentences for the same offense, or for different offenses involving the same intent. Under an indictment containing several counts, upon the verdict of guilty under each, or upon a general verdict, the punishment cannot be pyramided.Cronan v. State, 113 Tenn. 542, 82 S.W. 477. And seePardue v. State, 4 Baxt., 10. In State v. Rounds, 76 Me. 123, forgery was charged in one count and uttering the instrument in another. The court recognized, as held in Johnson v.Commonwealth, supra, that these may be separate and distinct offenses, but, in harmony with the view we have above expressed, said: "Forging and uttering the same paper may or may not be distinct offenses. Here they were not. The crime perpetrated was a single act, one transaction."

The facts showed that the defendant both forged and uttered the paper with the intent to defraud the same person. The rule is laid down in 16 C.J., p. 1280, that — "Where defendant is charged in different counts of the indictment with separate offenses arising out of the same transaction, and the acts of defendant constitute but one offense, . . . he is not subject to sentence on each count to run successively."

Authorities are cited in support of this rule and the following apt statement is contained in a footnote: "The principle upon which the decisions in these cases rest is that two or more separate offenses which are committed at the same time and are parts of a single continuing criminal act, inspired by the same criminal intent which is essential to each offense, are susceptible to but one punishment" — citing Stevens v.McClaughry, 207 F., 18, 20, 125 C.C.A., 102, 51 L.R.A. (N.S.), 390.

In Cronan v. State, supra, the court held that the error committed in applying the cumulative punishment to each count of the indictment was subject to correction on appeal. The court referred the verdict to the higher offense, and the judgment upon that count was affirmed. The judgment in the instant case will be modified, so as to limit the conviction and sentence to the count charging the unlawful manufacture, and with this modification the judgment is affirmed.