Opinion
Rehearing Denied Dec. 12, 1929
Hearing Granted by Supreme Court Dec. 26, 1929
Appeal from Superior Court, Los Angeles County; Stanley Murray, Judge.
Fernando Painetti and Fred Casalichio were convicted of having possession of a still, and they appeal. Affirmed.
Houser, J., Acting P.J., dissenting.
COUNSEL
Jesse R. Shafer, of Los Angeles, for appellants.
U.S. Webb, Atty. Gen., and James S. Howie, Deputy Atty. Gen., for the People.
OPINION
HAHN, Justice pro tem.
The defendants were found guilty in the superior court in and for the county of Los Angeles of the offense commonly designated as "possession of a still," which charge was amplified by use in the information of the language of the act denouncing the offense.
From a judgment of conviction and order denying their motion for a new trial the defendants prosecute this appeal. The only question raised on the appeal relates to the ruling of the trial court on defendants’ plea of "once in jeopardy." During the trial of the case, the defendants offered in evidence the records of the municipal court of the city of Los Angeles in two cases; one wherein the defendants had been charged with possession of liquor under the Wright Act (St.1921, p. 79), and the other in which they had been charged with the manufacture of intoxicating liquor, also under the Wright Act. Counsel for defendants, in making the offer, stated that the records would show that the offenses of "possession" and "manufacture" were charged as having been committed on the same day that the defendants in the case on trial were charged with "possession of a still"; that both the defendants were found guilty upon each of the charges in the municipal court and sentence duly pronounced by the court. Subsequently, in support of their pleas of "once in jeopardy," the defendants placed on the witness stand one J.S. Martin, who as a witness for the prosecution testified as to the finding of the still in question and the defendants in charge thereof, and who also testified that he had been a witness for the prosecution in the municipal court in the trials wherein the defendants were charged with the offense of "possession" and the offense of "manufacture"; that in his testimony in the municipal court the witness had testified substantially as he had in the case on trial concerning what he had found when he and his brother officers made the raid on the premises where the defendants had been apprehended. The defendants also offered to call Officers Tolbert and Mosteller, who accompanied the witness Martin at the time of making the raid, and who, according to counsel for defendants, would testify substantially as Martin had testified. The district attorney stipulated that the said officers would so testify if put upon the stand.
The district attorney objected to the introduction of the records from the municipal court and also objected to the testimony of Martin and the proffered testimony of the other two officers on the ground that neither the records nor the testimony would sustain the defendants’ plea of "once in jeopardy." The court sustained the district attorney’s objection on the theory that the offenses of "possession of intoxicating liquor" and of "manufacture of intoxicating liquor" of which defendants had been convicted, were separate and distinct offenses from the offense of "possession of a still," upon which the defendants were then on trial.
Before submitting the case to the jury, the court instructed the jury to find against the defendants on their plea of "once in jeopardy," and the jury so found. Appellants complain of the court’s ruling and instruction as constituting prejudicial error,
The question is thus presented whether the offenses of "possession" and "manufacture" or either of them constitute in law and fact the same offense as that of the "possession of a still." If this question is answered in the affirmative, then the defendants’ offer supported their pleas of "once in a jeopardy," and the court’s ruling constituted prejudicial error.
The question as to when a previous conviction for a public offense will support the plea of "once in jeopardy" in a subsequent trial has frequently occupied the attention of our state and federal courts, and has resulted in a marked divergence of opinion. In California, however, the rule has been declared by our Supreme Court to be that, "to entitle a defendant to the plea of autrefois convict or acquit, it is necessary that the offense *** be the same in law and fact." People v. Kerrick, 144 Cal. 46, 77 P. 711, 712. This declaration of the rule finds support by the weight of authority in our federal courts, as also in a number of our sister states. Burton v. U.S., 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 362.
This brief statement of the rule has been amplified by judicial authority in a number of jurisdictions. In Morey v. Commonwealth, 108 Mass. 433, the rule is stated 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. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offence." The foregoing statement of the rule has been quoted with approval by the United States Supreme Court in Gavieres v. U.S., 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489.
In Ruling Case Law, vol. 8, p. 148, § 133, the author declares the rule to be as follows: "When a single transaction constitutes two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on the second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second." The author, in discussing this same question, further states (page 149, § 135): "A single act may be an offense against two statutes, and, if each statute requires proof of an additional act which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." On page 143, § 128, of the same work, the application of the rule is stated in the following language, and is supported by an extended list of citations from federal and state courts: "In determining whether both indictments charge the same offense the test generally applied is that when the facts necessary to convict on the second prosecution would necessarily have convicted on the first, a final judgment on the first prosecution will be a bar to the second, but if the facts which will convict on the second prosecution would not necessarily have convicted on the first, then the first will not be a bar to the second, although the offenses charged may have been committed by the same state of facts."
In the case of People v. Brannon, 70 Cal.App. 225, 233 P. 88, the court gave its approval both to the rule and its amplification, as declared by the Supreme Court of Ohio in the case of State v. Rose, 89 Ohio St. 383, 106 N.E. 50, L.R.A.1915A, 256, as follows: "The prohibition of the constitution is against putting a person twice in jeopardy for the ‘same offense.’ *** It is the identity of the offense, and not of the act, which is referred to in the constitutional guarantee against putting a person twice in jeopardy. *** ‘The constitutional provision,’ *** ‘uses the word "offense." Layman and lawyer alike understand the word "offense" to here mean simply a "crime." *** 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." ***’ "
In Maine, the Supreme Court, in the case of State v. Littlefield, 70 Me. 452, 35 Am.Rep. 335, states the rule as follows: "If the first indictment were such as the prisoner might have been convicted upon, by proof of the facts contained in the second indictment, an acquittal or conviction on the first indictment will be a bar to the second."
In the case of State v. Elder, 65 Ind. 282, 32 Am.Rep. 69, the Supreme Court of Indiana states the rule as follows: "When the same facts constitute two or more offenses, wherein the lesser offense is not necessarily involved in the greater and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second, although the offenses were both committed at the same time and by the same act." The foregoing amplification of the rule is quoted with approval by our Supreme Court in the case of People v. Majors, 65 Cal. 138, 3 P. 597, 52 Am.Rep. 295.
Other authorities declaring the rule in substantially the same language as that already quoted might be cited, but we feel the foregoing sufficiently declares and amplifies the rule, which is applicable to the instant case.
In an examination of the case brought to our attention, where the question of "once in jeopardy" has been under consideration, we find they may readily be grouped in three classes:
First. Cases where the offense charged, either by reason of statutes or under the common law, necessarily includes one or more lesser offenses. Under the charge of grand larceny, a verdict of petit larceny may be found, and such a verdict would support the plea of "once in jeopardy" if the offender were again charged with grand larceny based upon the same facts. In such a case, in legal verbiage, the second charge would be the same offense, because the facts in the case have been declared to constitute petit larceny.
Grouped in the second class are cases which involve statutes which specify a series of acts; the commission of any one separately from the other being denounced as a crime, or the commission of all in the same transaction or simultaneously constituting but one crime. The statute prescribing the offense here involved, being Act No. 3795, Deering’s Gen.Laws Supp.1925-1927, adopted by the Legislature in 1927 (St.1927, p. 497), presents this type of case. The denouncing portion of the act reads as follows: "Ownership or Possession of Stills, etc. Any person whether acting in his own behalf or as *** who shall be the owner of or have any interest in or who shall operate or cause to be operated or knowingly have in his possession or control, any still, still worm, still cap, still condenser or stilling device of any kind, designed, used or intended for use in the manufacture or production of intoxicating liquor for beverage purposes, shall be guilty of a felony. ***" Section 1.
In the recent case of People v. Clemett (Cal.Sup.) 280 P. 681, 683, wherein the above referred to act was under consideration it was held "*** that the Legislature prescribed but one punishment for a violation of said act." The underlying principle recognized in the Clemett Case gives rise to a similar ruling in cases brought under the Volstead Act (27 USCA § 1 et seq.). The denouncing portion of section 3 of title 2 of that act (27 USCA § 12) reads: "No person shall manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this chapter. ***" The rule has been declared in California, and is, indeed, supported by the weight of authority in other jurisdictions, that, when any two or more of the acts specified in section 3 of title 2 of the Volstead Act are shown to be involved in the same transaction and synchronous in time as to their happening, but one offense has been committed. In re Louis Chaus (Cal.App.) 268 P. 422; People v. Clemett (Cal.Sup.) 280 P. 681; Miller v. U.S. (C.C.A.) 300 F. 529; Schroeder v. U.S. (C.C.A.) 7 F.2d 60.
In the third class fall those cases which involve a consideration of a situation wherein one or several acts are denounced by the same or separate statutes as constituting two separate offenses, or where one act may be involved in each of two separate offenses. As where the possession of a revolver by an unnaturalized foreign-born person is made a felony by an act of the Legislature adopted in 1923 (St.1923, p. 695), and the various other crimes in which a revolver may be used. The act of possession of a revolver is involved in the several separate offenses.
The instant case clearly comes within the last group. The rule applied to the cases in the first group is not applicable, for neither the offenses of "possession of liquor" nor the "manufacture of liquor" are by statute included within the felony charge of "possession of a still." Nor does the instant case come within the rule determining the classification of the second group. The acts of "possession of liquor" and "manufacture of liquor" are not denounced in the act prohibiting the "possession of a still." In People v. Clemett, supra, defendant was charged in count I with the crime of "possession of a still" and in count II with "operation of a still." Both of these acts are denounced in the same sentence in the statute known as the Still Act. The evidence disclosed that the act of "possession of the still" was simultaneous with the act of "operation of the still." The court there held that "all of the acts set out in the statute before us for construction are coupled with the disjunctive ‘or,’ one of which or all of which joined, constitute but one offense"; and the court therefore concluded: "We are of the view, upon the authority heretofore cited, that the Legislature prescribed but one punishment for a violation of said act, the punishment therefor to be meted out as the facts of the case might warrant."
But appellants contend the act of "possession of the still" charged in the instant case was necessarily involved in the act of "manufacturing liquor" of which they were convicted in the municipal court, and that they may not be punished a second time for the same act. Appellants confuse the identity of the act with the identity of the offense. As we have already pointed out, the same act may be involved in two separate offenses, and there can be no doubt that the Legislature so intended. It would be quite without the bounds of reason to say the Legislature intended the crime of "possessing a still," declared to be a felony, to be included in the act of "manufacturing liquor," declared to be a misdemeanor. Furthermore, the Still Act was enacted some time after the adoption of the Wright Act, and manifestly for the purpose of making more difficult the manufacture of distilled liquors, just as the enactment of the "revolver" statute was prompted with the hope of lessening the commission of violent crimes committed with the use of a revolver.
At the risk of extending this opinion to unwarranted length, we will cite a few cases involving an application of the rule, which we believe justifies the conclusion we have arrived at.
In the case of People v. Mehra, 73 Cal.App. 162, 238 P. 802, 807, the defendant was convicted of the offense of maintaining a nuisance; the charge being based upon evidence of the possession of intoxicating liquor by defendant in the place in question. The defendant had previously been convicted under the Wright Act of possession of intoxicating liquor at the place in question, and the record of that conviction was offered in evidence in support of his plea of "once in jeopardy." The court, holding the plea not good, said: "The error of appellant lies in the failure to apprehend the fact that the act or omission constituting the crime known as the unlawful possession of intoxicating liquor is a separate and distinct offense from that of maintaining a nuisance for the sale of such liquor. The act or omission is not made punishable in different ways. The Volstead Act names different acts constituting different offenses, and punishes each act separately." Panzich v. U.S. (C.C.A.) 285 F. 871; State v. Wold, 96 Me. 401, 52 A. 909.
In Commonwealth v. Sheehan, 105 Mass. 192, it was held that conviction of keeping intoxicating liquors with intent to sell was not a bar to a subsequent charge based on the same evidence of maintaining a tenement used for the illegal keeping and sale of intoxicating liquors.
Under the National Motor Vehicle Theft Act (18 USCA § 408), which prohibits the transporting in interstate commerce of a stolen automobile, and also the selling, storing, or concealing of such an automobile, one may be held guilty of two separate offenses arising out of the same acts. U.S. v. Hampden (D.C.) 294 F. 345; York v. U.S. (C.C.A.) 299 F. 778.
In the case of People v. Devlin, 143 Cal. 128, 76 P. 900, where the accused had entered a dwelling and had taken personal property he was guilty of two separate offenses, that of burglary and that of larceny. This case frequently has been cited in California to sustain the proposition that the same act may be involved in the commission of two separate offenses, and that each of two offenses may be supported even though the same testimony is used in both.
In People v. Johnson, 82 Cal.App. 411, 256 P. 273, defendant had been acquitted of a charge of abortion. He subsequently was charged with practicing medicine without a license. The second charge was based upon the same evidence as that presented by the prosecution to support the first charge. It was held that acquittal on the first charge did not support his plea of "once in jeopardy."
In State v. Empey, 65 Utah, 609, 239 P. 25, 44 A.L.R. 558, the court had under consideration an appeal from a judgment of conviction of manslaughter. The evidence showed that the defendant was driving his car under the influence of intoxicating liquor and in a reckless manner, and, while so doing, struck a woman, who subsequently died of her injuries. The defendant was arrested and charged with the misdemeanor of driving an automobile in a reckless manner, while under the influence of intoxicating liquor. He was found guilty of the charge and subsequently an information was lodged against him charging him with manslaughter. The information charged, in substance, the same acts of negligent and reckless driving and intoxication while driving, as were charged in the misdemeanor complaint, there being added the additional charge that as the result of such negligent and reckless driving, the deceased came to her death. In support of the defendant’s plea of "once in jeopardy," it was urged that the defendant was convicted of an offense based upon the same acts which the information charged as constituting the wrongful conduct resulting in the homicide. It was there urged that each and all of the wrongful acts of which defendant was guilty and which resulted in the homicide were presented to the court upon the previous conviction and formed the basis of the conviction. The court, after reviewing a number of California cases wherein was declared the rule determining what evidence might be offered in support of the plea of former jeopardy, held that defendant’s plea was not good and that certain acts might be prohibited by law and punishable as an offense separate from another offense, which might, perchance, be the consequence of the same act.
In State v. Garcia, 198 Iowa, 744, 200 N.W. 201, 202, defendant was charged with driving an automobile while intoxicated. He had been previously found guilty in justice’s court upon a charge of intoxication. The same evidence offered to support the charge of driving while intoxicated was used to support the charge of intoxication in the justice’s court. In fact, the only evidence of intoxication in either case was that of intoxication while defendant was driving his automobile. The court held that the first conviction was not a bar to the trial of the second charge, "because two crimes may be committed in the course of one and the same transaction." The court points out that it is within the power of the Legislature to create two or more offenses out of a single act.
In People v. Majors, 65 Cal. 138, 3 P. 597, 52 Am.Rep. 295, the defendant was placed upon trial on a charge of murder. It appears from the evidence that he had advised one Jewell to rob one Renowden. In perpetrating the robbery, Jewell shot and killed Renowden and a companion, one McIntyre. The act of Majors in advising Jewell to commit the robbery had furnished the basis of the charge and conviction of Majors for the murder of Renowden, and, when brought to trial upon a charge of murdering McIntyre, Majors offered in support of his plea of "former jeopardy" his conviction of the murder of Renowden. The court held that his conviction was not a bar to the second charge, even though based upon the same acts as formed the basis of his first conviction.
The foregoing cases cited will suffice to indicate the application of the rule to various sets of facts, wherein it has been held that separate offenses have been committed.
In making application of the rule to the situation here involved, it appears: (1) That the offense in the instant case is not the same in fact and law as the offenses charged in the municipal court. (2) The evidence necessary to convict on the charge of "possession of a still" would be insufficient to convict on the charge of "possession of liquor" or the charge of "manufacture of liquor."
We therefore conclude that the offense here charged, "possession of a still," a felony, is a separate and distinct offense from those charged in the municipal court, as shown by the records offered in support of defendants’ pleas of "once in jeopardy."
The judgment and ordering denying defendants’ motion for a new trial are affirmed.
I concur in the conclusion reached: YORK, J.
HOUSER, Acting P.J. I dissent.
It is apparent that no one can manufacture intoxicating liquor without being in possession of a still. Conviction of "manufacture" is necessarily inclusive of "possession of a still." The evidence herein is conclusive that the offense of "possession of a still," as charged in the information in the instant case, and the offense of "manufacture of intoxicating liquor," of which the defendant was formerly convicted, rested upon contemporaneous acts, was predicated upon the same transaction, and identical testimony. Personally, I am unable to appreciate the force of the argument that, because on the "manufacture" charge the defendant was prosecuted under the provisions of one statute, and in the instant case for "possession of a still" under the provisions of a different statute, perforce and necessarily he is not entitled to an acquittal on the plea of once in jeopardy. To my mind, the decision in the case of People v. Clemett (Cal.Sup.) 280 P. 681, is controlling in the instant case.