Curry, Earl Moss, Jr.

English

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Volume 65 Issue 1 Article 8 December 1962 Criminal Law--Double Jeopardy--Multiple Transgressions from a Single Act Earl Moss Curry Jr. West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Constitutional Law Commons, and the Criminal Law Commons Recommended Citation Earl M. Curry Jr., Criminal Law--Double Jeopardy--Multiple Transgressions from a Single Act, 65 W. Va. L. Rev. (1962). Available at: https://researchrepository.wvu.edu/wvlr/vol65/iss1/8 This Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. WEST VIRGINIA LAW REVIEWCriminal Law-Double Jeopardy-Multiple Transgressionsfrom a Single ActD, a twenty-three-year-old male, pleaded guilty in the juvenilecourt to contributing to the delinquency of a thirteen-year-old girl,was convicted and sentenced. In a subsequent trial, D was con-victed of statutory rape upon the same facts over his objection offormer jeopardy. Held, affirmed. Conviction in a juvenile courtof contributing to the delinquency of a minor does not bar prosecu-tion in the circuit court for statutory rape, although the evidencenecessary for conviction was substantially the same in both prosecu-tions. Bennett v. State, 182 A.2d 815 (Md. 1962).The principal case does not involve any particularly new de-velopment in the law. The doctrine of former jeopardy arose insixteenth century England when the death penalty was meted outfor many minor offenses. It was a means by which the courts at-tempted to restrain excessive use of severe punishments. Horack,The Multiple Consequences of a Single Criminal Act, 21 MiNN. L.REv. 805 (1937). This reason for the rule is now obsolete. Abetter reason for the rule today is to prevent the state from harassingan individual by prosecuting him again for the same offense. Thedoctrine might also be considered the criminal counterpart to thecivil law's maxim of res judicata, where each person is entitled toone day in court and only one. In West Virginia the defense ofdouble jeopardy is provided for in the State Constitution:nor shall any person, in any criminal case, . . . be twice put injeopardy of life or liberty for the same offense." W. VA. CONST.art. III § 5. Generally speaking, the doctrine forbids a second trialas well as a second punishment for the same offense. State v.Fredlund, 200 Minn. 44, 273 N.W. 353 (1937). For a collectionof cases on this principle, see Annot., 113 A.L.R. 222 (1938).The principal case is an example of one of the three areaswhere the doctrine of double jeopardy fails to bar multiple prosecu-tions. These are, cases of multiple sovereignty of the defendant, casesof a single act producing the same wrong against more than oneperson, and cases of a single act producing more than one wrongagainst a single person. An example of the first area wouldbe a violation of a city ordinance and a state statute in the sameact, or a violation of a state and federal statute in the same act.Hebert v. Louisiana, 272 U.S. 312 (1926). The second area in-volves cases where in one criminal act, more than one person is[ Vol. 651Curry: Criminal Law--Double Jeopardy--Multiple Transgressions from a SinDisseminated by The Research Repository @ WVU, 1962CASE COMMENTSwronged. Such as, one gun shot killing two persons, or the robberyof more than one person at one time. Hoag v. New Jersey, 356U.S. 464 (1958). The third area, in which the principal case falls,involves one criminal act producing several wrongs against one per-son. Examples of this would be aggravated assault and murder,rape and incest, or statutory rape and contributing to the delin-quency of a minor. State v. Watson, 99 W. Va. 34, 127 S.E. 637(1925).The two tests commonly applied to determine whether oneoffense or more is committed are the "same evidence" test and the"same transaction" test. The "same evidence" test is applied in amajority of jurisdictions. Lugar, Criminal Law, Double Jeopardyand Res Judicata, 39 IowA L. REv. 317 (1954). Under this testa conviction or acquittal upon one indictment is no bar to a sub-sequent conviction and sentence upon another, unless the evidencerequired to support a conviction upon one of them would havebeen sufficient to warrant a conviction upon the other. Note, 24MINN. L. REv. 522 (1940). Generally, the "same evidence" testis construed in terms of whether the same evidence would supporta conviction in either case. Hoag v. New Jersey, supra.The "same transaction" test is that there can only be oneprosecution for the consequences of a single criminal transaction.Dowdy v. State, 158 Tenn. 364, 13 S.W.2d 794 (1929). TheDowdy case in referring to a second punishment said that even ifit were conceded that two convictions and two punishments maybe had in any case upon separate counts, the practice was notapproved and certainly it must be clear that the offenses were whollyseparate and distinct. The "same transaction" test would bar asubsequent prosecution, because even though there may be manyoffenses which took place during the same transaction, only oneprosecution may take place for the whole transaction. This resultis apparently reached under the theory that there was only onecrime, so that the defendant could not be tried twice for the sameoffense. The "same evidence" test attempts to pin point whichoffense in the transaction has been tried, while the "same trans-action" test treats the whole transaction as one crime. The "sametransaction" test would prevent a second prosecution when theproof shows that the second offense charged concerns the sametransaction as the first, even though additional elements need tobe proved. Kirshheimer, The Act, The Offense and Double Jeopardy,1962 ]2West Virginia Law Review, Vol. 65, Iss. 1 [1962], Art. 8https://researchrepository.wvu.edu/wvlr/vol65/iss1/8WEST VIRGINIA LAW REVIEW58 YALE L. J. 513 (1949). If the "same transaction" test hadbeen applied to the principal case the defendant would not havebeen tried the second time.In West Virginia, there probably exists a comparable overlapbetween the two offenses as in the principal case. Although thereare no cases directly in point, the West Virginia Court has statedthat an act or transaction may constitute two offenses which maybe separately charged and punished. State ex rel. Lovejoy v. Skeen,138 W. Va. 901, 78 S.E.2d 456 (1953). In the Lovejoy case, thedefendant had been convicted, in a magistrate court, of the offense ofhaving copper wire in his possession without a bill of sale. On a sub-sequent warrant issued by the same justice the defendant was chargedwith stealing copper wire. The defendant was convicted of grandlarceny in the circuit court on this second charge. Both offenses aredescribed in the same provision of the West Virginia Code, W. VA.CODE ch. 61, art. 3, § 49 (Michie 1961). The court held that they wereseparate offenses, and since the defendant was charged in thejustice's court with the crime of having wire in his possession with-out a bill of sale, he was not tried for the crime of grand larcenyof the wire. Following the theory of the court, it would seem thatthe defendant could have been tried again under the general pro-vision for grand larceny in W. VA. CODE ch. 61, art. 3, § 13 (Michie1961).A situation that probably also parallels the instant case inWest Virginia is the negligent homicide provision W. VA. CODE ch.17C, art. 5, § 1 (Michie 1961) and common law manslaughteras provided in W. VA. CODE ch. 61, art. 2, § 5 (Michie 1961).Cases of this type have, in the past, been prosecuted under thecommon law manslaughter provision. State v. Lough, 143 W. Va.838, 103 S.E.2d 538 (1958); State v. Lawson, 138 W. Va. 136,36 S.E.2d 26 (1945). Although it is an open question in thisstate, there seems to be nothing to prevent a prosecutor from tryinga defendant under the common law provision for manslaughterand, failing to convict him, proceed again on the same facts underthe statutory provision of negligent homicide. It may be construedthat there are two separate offenses, one a statutory offense andthe other a common law offense. If this be the case, it wouldappear that a prosecutor could so phrase his indictment as to createtwo separate offenses out of the one act. An indictment whichcharges a statutory offense is sufficient if it substantially follows the[ Vol. 653Curry: Criminal Law--Double Jeopardy--Multiple Transgressions from a SinDisseminated by The Research Repository @ WVU, 1962CASE COMMENTSlanguage of the statute and fully and completely informs the de-fendant of the character and causes of the particular offense charged.The provision of our constitution which forbids that any personshall be twice put in jeopardy, applies only to the same offense.It has no application to another or different offense. State v. Taylor,130 W. Va. 74, 42 S.E.2d 549 (1947). Thus the question presentsitself as to whether the statutory offense of negligent homicide isthe same offense as common law manslaughter. The court followedState v. Taylor supra, in saying that the State Constitutional pro-vision denying the State the right to twice place in jeopardy a de-fendant has no application where the offense for which a defendantis being tried is a different offense than the one involved in aformer prosecution. State v. Pietranton, 140 W. Va. 444, 84 S.E.2d774 (1954).For the doctrine of double jeopardy to operate properly, theremust be a balance drawn between the rights of an individual, in thenumber of times he may be brought to trial for one act, and theauthority of the State to prosecute separate criminal offenses thatare committed in one act. It would seem that there is little thecourts can do to avoid these overlaps in the law. If they are to becorrected it is up to the legislature to do it.Earl Moss Curry, Jr.Domestic Relations-The Effect of a Bigamous Marriage in aWorkmen's Compensation ProceedingP married M, who at the time of their wedding was alreadylegally married. Under Kentucky laws this ceremony, between Pand M, was void. P was awarded benefits as a dependent widowin a workmen's compensation proceeding. Held, a marriage con-tracted in Kentucky, which is made void by the laws of that state,cannot form the basis of a claim for compensation by one claimingto be the widow of the deceased workman by reason of such mar-riage. Meade v. State Compensation Comn'r, 125 S.E.2d 771 (W.Va. 1962).The instant case itself poses no particular difficulty, for it iswell established that a marriage which is void under the laws ofthe state in which it is contracted or celebrated is considered voideverywhere. Spradlin v. State Compensation Comm'r, 145 W. Va.196214West Virginia Law Review, Vol. 65, Iss. 1 [1962], Art. 8https://researchrepository.wvu.edu/wvlr/vol65/iss1/8

Criminal Law--Double Jeopardy--Multiple Transgressions from a Single Act

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Criminal Law--Double Jeopardy--Multiple Transgressions from a Single Act

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