Pewsey, Wilmar

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North Dakota Law Review Volume 27 Number 2 Article 10 1951 Criminal Law - Conspiracy - Former Jeopardy Wilmar Pewsey Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Pewsey, Wilmar (1951) "Criminal Law - Conspiracy - Former Jeopardy," North Dakota Law Review: Vol. 27 : No. 2 , Article 10. Available at: https://commons.und.edu/ndlr/vol27/iss2/10 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. RECENT CASESCRIMINAL LAW-CONSPIRACY-FORMER JEOPARDY. Twoindictments against D were presented, both alleging conspiracy toviolate the same federal laws; times of the alleged violations over-lapped. Of numerous named defendants, D was the only one chargedin both indictments. In the first indictment tried, evidence involvingD and defendants named in the second indictment was introduced.D contended that this evidence was inadmissible and might be usedonly to show the second offense. The evidence was barred, and Dwas acquitted because the remaining evidence was insufficient toconnect him with the conspiracy. In this trial on the second indict-ment, D now pleads former jeopardy claiming that the prior trialwas for the same offense. The court held, that not only had D failedto meet the burden of proof that he had been tried and acquitted ofthe same offense, but also he was estopped to so claim since the ac-quittal had been obtained on his contention that the conspiracies wereseparate offenses. Reid v. United States, 177 F.2d 743 (5th Cir. 1949).The doctrine of former jeopardy' in American courts flows out ofthe provision of the Constitution stating " . . . nor shall any personbe subject for the same offense to be twice put in jeopardy of life andlimb.. ."2 and similar provisions found in state constitutions.' This con-stitutional immunity can, however, be waived.' After the defendanthas proved that he has been placed in jeopardy on a prior occasion,the primary question is whether the defendant is being tried for thesecond time for the same offense.'To determine identity of the offense a minority of state courts adoptthe "same transaction" test whereby a person cannot be convicted ofseveral offenses when they are a part of the same criminal trans-action.' The broader test applied in the instant case is employed bythe federal courts and a majority of the state courts including NorthDakota.' By this "same evidence" test the second indictment is barredwhen the evidence necessary to support it would have been sufficientto ground a prior conviction had such evidence been admitted in thefirst proceeding.' The authorities are not, however, agreed in theFormer jeopardy is defined as that status which attaches to a person whenhe is put on trial, before a court of competent jurisdiction, on an indict-ment, presentment or information which is sufficient in form and sub-stance to sustain a conviction, and a jury has been charged with his de-liverance, O'Brian v. Commonwealth, 9 Bush 333 (Ky. 1872).U.S. Const. Amend. V.3 E.g. N.D. Const. Art. I, § 13.4 This waiver may be express or implied. For specific instances see 1 Bishop,Criminal Law § 988 (9th ed. 1923).5 2 Wharton, Criminal Procedure § 1426 n.5 (10th ed. 1918).Note, 7 Brooklyn L. Rev. 79, 81 (1937).State v. Panchuk, 53 N.D. 669, 207 N.W. 991 (1926); State v. Virgo,14 N.D. 293, 103 N.W. 610 (1910).Hall, Cases and Readings on Criminal Law and Procedure 902 (1949);Note, 7 Brooklyn L. Rev. 79. 81 (1937). The order of the test has attimes been reversed to read ". . . whether the facts necessary to supportthe first indictment would warrant a conviction under the second . .Note, 20 Harv. L. Rev. 642 (1907).NORTH DAKOTA LAW REVIEWmethod of application of this rule.' The well-reasoned case of Shortv. United States expresses the view that since the prosecution forconspiracy is for the criminal agreement, a continuing offense whichbecomes a crime upon the commission of a single overt act, one prose-cution for conspiracy should be a bar to a subsequent conspiracycharge, although the second indictment may be distinguishable inpart." Another line of authorities exemplified by the case of Ferra-cane v. United States' - requires a higher degree of proof by the de-fendant that the offenses charged are the same; these authorities re-fuse to find former jeopardy when there are any material discrepan-cies in the charges against the defendant."Elements considered in determining whether charges constitute oneor more than one conspiracy are time, place, parties, overt acts, andstatutes violated.'" Where times of the alleged conspiracies are over-lapping in part" or different'" it has been held that prosecution onone of the charges is not a bar to prosecution on the other. A prosecu-tion for a conspiracy in one location has been held not to be a bar toa prosecution for that conspiracy in another location."0 Variance ofparties has likewise resulted in divergent holdings. The Ferracanecase, contra to the Short case, holds that where parties named in theindictments are for the greater part different, the two indictments arefor separate offenses unless the defendant can show through otherevidence that the offenses are the same in fact." Courts likewise differupon the effect of differing over acts, the Short case holding that ifthe different acts are part of one conspiracy, there can be only oneconviction, while other courts hold that such different overt acts con-stitute two separate offenses." Also there is substantial authority toNote, 7 Brooklyn L. Rev. 79, 80 (1937).W 91 F.2d 614 (1937); Accord, United States v. Weiss, 293 Fed. 992 (N.D.Ill. 1923).See Ferracane v. United States, 29 F.2d 691, 693 (7th Cir. 1928) (dissent-ing opinion); see Note, 112 A.L.R. 983 (1938).2 29 F.2d 691 (7th Cir. 1928).See also Henry v. United States, 15 F.2d 365 (1st Cir. 1926).See Note. 112 A. L. R. 983, 989 (1938)." Francis v. United States, 152 Fed. 155 (3d Cit. 1907); cf. Henry v. Unit-ed States, 15 F.2d 365 (1st Cir. 1926); Gallagher v. People, 211 I1l. 158,71 N.E. 842, 1904), writ of error dismissed, 203, U.S. 600 (1906), hold-ing that the matter of time was considered by the jury in determiningwhether the offenses were the same.06 Johnson v. United States, 124 F.2d 101 (5th Cir. 1941); Wainer v. UnitedStates, 82 F.2d 305 (7th Cir. 1936); United States v. Swift, 186 Fed.1002 (N.D. Ill. 1911).00 Davidson v. United States, 63 F.2d 90 (1st Cir. 1933); Contra: Short v.United States, 91 F.2d 614 (1937).Henry v. United States, 15 F.2d 365 (1st Cir. 1926); Gallagher v. People.211 I11. 158, 71 N.E. 842 (1904), writ of error dismissed, 203 U.S. 600(1906).Piquit v. United States, 81 F.2d 75 (1936); Henry v. United States.15 F.2d 365 (1st Cir. 1926); Francis v. United States, 152 Fed. 15 (3d.Cir. 1907).RECENT CASESthe effect that, where there has been a conspiracy to violate morethan one statute, a trial for conspiracy to violate one does not bar aprosecution for a conspiracy to violate the others.2 Respectable auth-ority may, however, be found to support a view to the contrary."In the foregoing cases the courts have been unable to formulate ahard and fast rule which will guarantee justice in all situations. Al-though the "same evidence" test is probably the better rule for de-ciding identity of offenses in most criminal cases, it is possible thatan application of the "same transaction" test would produce better re-sults in conspiracy cases. As pointed out in the Short case, the prose-cution is for the criminal agreement or transaction and not for thespecific overt acts. Since the prosecution is for the agreement, a slightdivergence in the evidence or the time, place, parties, overt acts, orstatutes violated should not give rise to numerous prosecutions for thesame conspiracy.The question of identity of offenses involving divergent factual situ-ations does not lend itself to determination -by strict rules of law. Itis probable that more just results would be obtained by freeing thecourts from such rules and allowing them discretion in deciding thequestion on the basis of broad principles of public policy.' However,the court in the principal case is correct in placing on the defendantthe burden of proving that the former prosecution was for the sameoffense" and in holding that the defendant will not be heard to criti-cize a judgment which he insisted should be granted.'Wilmar PewseyTORTS-ATTRACTIVE NUISANCE-ARTIFICIAL POOLS OFWATER AS ATTRACTIVE NUISANCES. Defendant, a land ownerin an area frequented by children, dug an uneven excavation near apublic street. He allowed water to collect, thus creating a pond vary-ing in depth from a few inches to more than eight feet. P's son, aneleven-year-old boy, was drowned while wading in the pool when hestepped into a depression. P sued for damages on the theory the pondwas an attractive nuisance. In dismissing the suit, the Supreme Courtof Indiana held, with two judges dissenting,' that such artificial poolsLewis v. United States, 4 F.2d 520 (5th Cir. 1925); United States v.Owen, 21 F.2d 868 (N.D. Ill. 1927).-1 Manning v. United States. 275 Fed. 29 (8th Cir. 1921); United Statesv. Weiss, 293 Fed. 992 (N.D. Ill. 1923).-- Hall, op. cit. supra note 9, at 908.Johnson v. United States, 124 F.2d 101 (5th Cir. 1941); Kastel v. UnitedStates, 23 F.2d 156 (2d Cir. 1927).' Haugen v. United States, 153 F.2d 850, 851 (9th Cir. 1946); UnitedStates v. Jones, 31 Fed. 725 (S.D. Ga. 1887).The dissenting judges stated that when there is an affirmative act doneby man which creates a body of water, that man must use due care underthe circumstances to avoid injury to others. The excavation attracted theinfant and there was a duty on the part of the defendant to act affirma-tively to avoid injury. The condition was likened to a trap.

Criminal Law - Conspiracy - Former Jeopardy

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Criminal Law - Conspiracy - Former Jeopardy

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