CRIMES--DOUBLE JEOPARDY--IDENTITY OF OFFENSES

Authors

Abstract

The principle that no person shall be twice put in jeopardy for the same offense appears too clear and precise to afford much opportunity for litigation over its application. Judicial utterances and decisions belie the appearance, however. The difficulty is in determining identity of alleged offenses. The most frequently uttered test is that of Buller, J., in Rex v. Vandercomb, 2 Leach, C. C. 708, that, "unless 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 on the first indictment can be no bar to the second." 'this is clear and precise in statement, but decisions fail to accord with it. In Spanell v. State, 83 Tex. Cr. 418, for instance, Spanell had fired several shots at A. He not only killed A, as he intended, but also, quite unintentionally, killed B. On indictment for the murder of B he was acquitted. Thereafter he was indicted for the killing of A. By Buller's rule quoted above, the first acquittal should have been no bar to the second trial since the defendant could not have been convicted under the first indictment upon proof of the facts alleged in the second one. Milontree v. State, 30 Tex. Ct. App. 151; Penrod v. People, 89 Ill. 150; Lewis v. State, 90 Ga. 95. The court decided, however, that Spanell could not be tried upon the second indictment. The first acquittal was a bar, it said, because the verdict of not guilty of murdering B must have been based on a finding of justification in shooting A. Had this decision been predicated upon the doctrine of res judicata it might have stood in harmony with Buller's idea of identity of offenses. But the court expressly said, "The plea of res judicata * * * is not to be entertained. * * * The accused can not be tried twice for the same offense." Accord, Gunter v. State, III Ala. 23. Compare Winn v. State, 82 Wis. 571, in which there were two distinct acts. In Jones v. State, 89 Tex. Cr. 355, defendant had shot at Elliott but unintentionally hit Mathis. The court said, "It was within the discretion of the state to charge an assault upon both Elliott and Mathis, or upon either of them * * * but the conviction or acquittal in one case would bar the prosecution in the other". And this statement was made despite the fact that under an indictment for assault upon Elliott the defendant could not have been convicted by proof of assault upon Mathis. Gorman v. State, 42 Tex. 221; State v. McClintock, 8 Iowa 203, allegation of assault upon two not supported by proof of assault on one; Swails v. State, 7 Blackf. (Ind.) 324; People v. Christian, 101 Cal. 471. Compare also with Buller's rule the decision of Hudson v. State, 9 Tex. Ct. App. 151, holding that one who had in a single transaction stolen goods of two persons could not be tried for theft of goods of one person and then for theft of goods of the other, even though a charge of larceny of goods of A can not be sustained by proof of larceny of goods of B. Ganoway v. State (Tex. 1893) 21 S. W. 46. It would appear in view of these decisions that the Buller test is not accurate.

Recommended Citation

CRIMES--DOUBLE JEOPARDY--IDENTITY OF OFFENSES, 22 Mich. L. Rev. 142 (1923).
Available at: https://repository.law.umich.edu/mlr/vol22/iss2/7