Strict-Liability Statutory Offenses

CRIMINAL LAW
by
Douglas L. Grundmeyer, M.A., J.D.; W. A. Harrington, L.L.B.; David A.Hunter, J.D.; and Bill Wishard, J.D.

TOPIC SCOPE

Scope of Topic:

This article discusses the general principles of criminal law and covers the nature and elements of criminal offenses, capacity to commit crime or to be tried or punished, participation in crime, criminal responsibility of one person for the acts of another, inchoate crimes of attempt and solicitation, defenses, including insanity, and rights of the accused.  Although, as indicated below, the article does not include comprehensive coverage of criminal procedure, it does discuss jurisdiction and venue in criminal cases, preliminary proceedings, interstate detainers, arraignment, pleas, nolle prosequi, dismissal, and discontinuance, arrest of judgement, and judgement and sentence.  Punishment and disabilities attending conviction are also discussed, as are such matters as the right of crime victims to reparation from state funds, and the liability of principals in a criminal proceeding, including the defendant, for the costs incurred therein.


B.  Strict-Liability Statutory Offenses [137-139]

§ 137  Generally  [21 Am Jur 2d CRIMINAL LAW]

Though the common-law concept of crime as constituted only from the concurrence of an evil-meaning mind with an evil-doing hand took deep and early root in this country, a completely different category of crimes has arisen under modern statutes, especially in the area of public welfare offenses.  These are crimes which depend on no mental element, but consist only of forbidden acts or omissions. 84  Where the legislature creates such an offense, criminal intent in any of its forms is not an element of the crime and need not be proved to justify a conviction, 85   although some courts reconcile this with the older law of crimes by saying that where a statute denounces the doing of an act as criminal, the law imputes criminal intent from the doing of the act. 86   The moral turpitude or purity of motive which prompted the act, and knowledge or ignorance of its criminal character, are immaterial on the question of guilt, and the only question is whether the prohibited act was done or the required act omitted. 87  In other words, it is immaterial that the defendant acted in good faith or did not know that he was violating the law, 88   since, in the interest of the public, the burden is placed upon the actor of ascertaining at his peril whether his deed is within the prohibition of any criminal statute. 89   

Footnotes

Footnote 84. Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240.

Footnote 85. People v McClennegen, 195 Cal 445, 234 P 91; People v Del Toro, 155 Colo 487, 395 P2d 357; People v Fernow, 286 Ill 627, 122 NE 155; State v Perkins, 143 Iowa 55, 120 NW 62; Hays v Schueler, 107 Kan 635, 193 P 311,  11 ALR 1433; Grand Rapids v Williams, 112 Mich 247, 70 NW 547; Haggerty v St. Louis Ice Mfg. & Storage Co., 143 Mo 238, 44 SW 1114; State v Hennessy, 114 Wash 351, 195 P 211.

Footnote 86. Hargrove v United States (CA5 Tex) 67 F2d 820; State v Zichfeld, 23 Nev 304, 46 P 802.

Where an act forbidden by law is intentionally done, the intent to do the act is the criminal intent necessary to be shown.  State v McLean, 121 NC 589, 28 SE 140.

Footnote 87. United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301; Rooney v North Dakota,  196 US 319,  49 L Ed 494,  25 S Ct 264; Borderland Constr. Co. v State, 49 Ariz 523, 68 P2d 207; People v Fernow, 286 Ill 627, 122 NE 155; Commonwealth v Anderson, 272 Mass 100, 172 NE 114; People v Snowberger, 113 Mich 86, 71 NW 497; State v Manos, 179 SC 45, 183 SE 582; Hunter v State, 158 Tenn 63, 12 SW2d 361; Boyd v State,  217 Wis 149, 258 NW 330.

While, in a certain sense, intent is essential to the commission of a crime and in some classes of cases it is necessary to show moral turpitude in order to make out a crime, there is a class of cases where purposely doing a thing prohibited by statute may amount to an offense, although the act does not involve turpitude or moral wrong.  Armour Packing Co. v United States,  209 US 56,  52 L Ed 681,  28 S Ct 428.

Footnote 88. United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301; State v Gaetano, 96 Conn 306, 114 A 82; Duncan v Commonwealth, 289 Ky 231, 158 SW2d 396; Commonwealth v Murphy, 165 Mass 66, 42 NE 504; State v Ryan, 70 NH 196, 46 A 49; State v Manos, 179 SC 45, 183 SE 582.

Although at common law crime, when committed by the individual, consists of acts done with an evil intent, in statutory offenses created in the exercise of the police power, unless a wrongful intent or guilty knowledge, commonly designated by the use of the word "wilfully" or "maliciously" is made an essential element of the prohibited act, the violator may be convicted and punished even if he had not designed to disobey the law. Commonwealth v New York C. & H. R. R. Co. 202 Mass 394, 88 NE 764.

Footnote 89. United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301; Troutner v State, 17 Ariz 506, 154 P 1048; State v Sterrett, 35 Idaho 580, 207 P 1071; People v Billardello, 319 Ill 124, 149 NE 781; State v Morton, 38 SD 504, 162 NW 155; Pappas v State, 135 Tenn 499, 188 SW 52; State v Hennessy, 114 Wash 351, 195 P 211.

§ 138  Constitutionality of statutes  [21 Am Jur 2d CRIMINAL LAW]

Generally speaking, it is within the power of the legislature to declare an act criminal irrespective of the intent or knowledge of the doer. 90   Due process is not violated by the fact that mens rea is not a required element of a crime, 91  or the fact that a person is punished for an act in violation of the law, though ignorant of the facts making it so. 92   However, the legislature's power in this respect is not without limitations. 93   It is sometimes said that the legislature may not declare that to be a crime which in its nature is and must be under all circumstances innocent. 94   And it has been held that there is no power to declare an act criminal which could not be avoided by the utmost care and circumspection, 95  or the nonperformance of which is impossible. 96  It has also been held unconstitutional to punish for an act committed by another without the defendant's knowledge or consent. 97  And due process is violated where a mere failure to act is punished as criminal despite the fact that defendant's conduct was wholly passive, that he did not know of the duty to act, and that no showing was made of the probability of such knowledge. 98          


§ 138  – Constitutionality of statutes [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Felony provisions of Migratory Bird Treaty Act (MBTA), 16 USCS §  707(b), are, because it is a strict liability offense, unconstitutional; in order to be convicted of felony under MBTA, a crime unknown to common law which carries substantial penalties, Congress must require prosecution to prove defendant acted with some degree of scienter. United States v Wulff (1985, CA6 Mich) 758 F2d 1121.

It is proper for legislatures to enact laws making violation thereof matter of strict criminal liability without culpability requirement and to impose fine or imprisonment for violation of offense without offending due process. State v McDowell (1981, ND) 312 NW2d 301.

Footnotes

Footnote 90. Chicago, B. & Q. R. Co. v United States,  220 US 559,  55 L Ed 582,  31 S Ct 612; People v Del Toro, 155 Colo 487, 395 P2d 357; People v Johnson, 288 Ill 442, 123 NE 543; State v Hales, 256 NC 27, 122 SE2d 768,  90 ALR2d 804; Commonwealth v Junkin, 170 Pa 194, 32 A 617; Hunter v State, 158 Tenn 63, 12 SW2d 361; State v Labonte, 120 Vt 465, 144 A2d 792.

It is not unconstitutional to define a crime in such a way that it may be committed by an innocent mistake.  State v Shevlin-Carpenter Co., 99 Minn 158, 108 NW 935.

It has been suggested that although the legislature can make acts misdemeanors without regard to intent or knowledge, a different question might be presented if they were made felonies. Hershorn v People, 108 Colo 43, 113 P2d 680,  139 ALR 297 (superseded by statute as stated in Romero v Liquor & Beer Licensing Board (Colo App) 540 P2d 1152).

Footnote 91. United States v Greenbaum (CA3 NJ) 138 F2d 437.

Footnote 92. Williams v North Carolina,  325 US 226,  89 L Ed 1577,  65 S Ct 1092, 31 Ohio Ops 83,  157 ALR 1366, reh den  325 US 895,  89 L Ed 2006,  65 S Ct 1560; United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301.

Where the crime is statutory, the legislature is free to require or omit guilty knowledge as an element.  State v De Meo, 20 NJ 1, 118 A2d 1,  56 ALR2d 905.

Scienter is not, under the Constitution, a necessary element of an offense which is malum prohibitum.  People v Johnson, 288 Ill 442, 123 NE 543.

Footnote 93. Smith v California,  361 US 147,  4 L Ed 2d 205,  80 S Ct 215, 14 Ohio Ops 2d 459, reh den  361 US 950,  4 L Ed 2d 383,  80 S Ct 399.

Footnote 94. Gillespie v People, 188 Ill 176, 58 NE 1007; Lawton v Steele, 119 NY 226, 23 NE 878, reh den (NY) 23 NE 1151 and affd  152 US 133,  38 L Ed 385,  14 S Ct 499.

The knowing possession of contraband, as distinguished from knowledge of its illegal character, is necessarily an element of the offense of possessing it, since otherwise seeming "possession" by accident or the design of another, without the knowledge of the accused, would suffice, and it is not within the competency of the lawgiver to render that criminal which in its very nature is innocent and essentially nonculpable.  State v Labato, 7 NJ 137, 80 A2d 617.

Footnote 95. State v Strasburg, 60 Wash 106, 110 P 1020.

Compare Hays v Schueler, 107 Kan 635, 193 P 311, holding an ordinance requiring a taillight on a vehicle at night valid although wilfulness or wrongful intent is not required and although the light might go out in spite of the utmost care.

A statute making it a misdemeanor to buy or receive fittings which have been unlawfully removed from railway tracks or cars, without knowledge of the facts, is unconstitutional.  Kilbourne v State, 84 Ohio St 247, 95 NE 824.

A statute prohibiting the possession of certain weapons by any person who had been charged with a crime of violence was unconstitutional, since the mere bringing of charges against a defendant rendered the defendant in violation of the statute even though the defendant had no knowledge that any criminal charge had been brought against him, and the defendant, exercising the utmost care and circumspection, would be unable to avoid commission of the proscribed offense.  Application of Markham, 178 Neb 544, 134 NW2d 84.

Footnote 96. Commonwealth v O'Harrah (Ky) 262 SW2d 385.

Footnote 97. Campellsburg v Odewalt, 24 Ky LR 1717, 72 SW 316 (city ordinance making person in possession of premises liable to fine when liquor unlawfully sold or furnished on premises).

Footnote 98. Lambert v California,  355 US 225,  2 L Ed 2d 228,  78 S Ct 240, reh den  355 US 937,  2 L Ed 2d 419,  78 S Ct 410.

Compare United States v Juzwiak (CA2 NY) 258 F2d 844, cert den  359 US 939,  3 L Ed 2d 639,  79 S Ct 652, holding the rule of Lambert case to be inapplicable where defendant's conduct was not merely passive, but also involved a positive act, and where a showing of the probability of his knowledge was made.


§ 139  Construction of statutes  [21 Am Jur 2d CRIMINAL LAW]

Criminal intent is sometimes held not essential to statutory offenses, 99  although in other cases it may be expressly 1  or impliedly 2   required. Where the statutory language does not clearly indicate whether intent is an element of the offense, the question is whether the legislature has made the act criminal without regard to criminal intent. 3    The law on this question is neither settled nor static. 4    In determining the question the general rules of statutory construction are followed, 5   and the controlling factor is the intent of the legislature. 6   Some authorities state that legislative intention to dispense with the requirement of criminal intent must clearly appear. 7   

Some cases find an intent requirement in a statutory offense by reading the statute in the light of the common law. 8  And where the statute codifies a common-law offense, the intent required at common law remains an element if the statute does not specifically eliminate it. 9  However, it has been pointed out that where the statute merely adopts a common-law concept of crime, silence as to intent may warrant inferences quite contrary to those warranted by the same silence in creating an offense new to the general law, for whose definition courts have no guidance except the statute. 10    In the latter situation, it has been held that the legislature's silence as to the mental element of the offense indicates an intention that none should be required. 11    

Some cases take the view that a criminal intent not expressed in the statute will not be required where the offense is merely malum prohibitum, 12   or in case of misdemeanors created under the police power. 13    On the other hand, a criminal intent requirement will be implied, or is at least more likely to be implied, in the case of a statutory offense which is malum in se. 14    At least one case, however, has denied that interpretation of legislative intent as dispensing with knowledge and wilfulness is limited to minor or police offenses, differentiable by their relative lack of turpitude. 15

It has been said that intent requirements are omitted as a matter of policy in the case of "public welfare offenses." 16   Other factors which have been noted as favoring a strict-liability construction of statutory offenses are that the offense is capable of inflicting widespread injury, 17  or creates a danger or probability of injury which will be the same without regard to intent; 18    that an intent or scienter requirement would obstruct the purpose of the statute 19   or make it difficult of enforcement; 20  and that the accused, even if he does not will the violation, is usually in a position to prevent it with no more care than society might reasonably expect. 21     
   
Another distinction which has been suggested is that where the means of knowledge are available to the accused, or the act is such as to impose a duty on the actor to ascertain the facts at his peril, knowledge is not an essential element of the statutory offense unless the statute so provides, but that otherwise, proof of scienter is necessary even though the statute does not in terms require it. 22


§ 139  – Construction of statutes [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

In a prosecution for cruelty of animals against a landowner who purchased cattle but failed to provide them with adequate food and water, the trial court erred in instructing the jury that the crime of animal cruelty pursuant to RC § 959.13 was a strict liability crime which did not require a showing of intentional or reckless activity because; although RC § 959.13 does not specify a degree of culpability, and in such situations, RC § 2901.21(B) becomes relevant (which provides that if an offense does not specify a degree of culpability, then culpability is not required for conviction), prior case law has addressed the issue of animal cruelty and it has been determined that the requisite mens rea to sustain a conviction is recklessness. State v Lapping (1991, Trumbull Co) 75 Ohio App 3d 354, 599 NE2d 416, motion overr 63 Ohio St 3d 1441, 589 NE2d 45.

Footnotes

Footnote 99. United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301; Dill v People, 94 Colo 230, 29 P2d 1035, cert den and app dismd  292 US 609,  78 L Ed 1470,  54 S Ct 781; State ex rel. Lanz v Dowling, 92 Fla 848, 110 So 522; Mitchell v Black, 72 Mass 100; People v Sybisloo, 216 Mich 1, 184 NW 410,  19 ALR 133; State v Ryan, 70 NH 196, 46 A 49; State v Southern R. Co., 122 NC 1052, 30 SE 133.

Footnote 1. Noble v State, 248 Ind 101, 223 NE2d 755 (crime of false attestation as notary requires criminal intent); State v McLarty (Mo) 414 SW2d 315; State v Huffman, 131 Ohio St 27, 5 Ohio Ops 325, 1 NE2d 313.

Footnote 2. People v Welch, 71 Mich 548, 39 NW 747.

In some cases, when the prohibition in a statute against doing a certain act or series of acts is couched in general terms, courts have imported into the statute a proviso that the denoted act shall be done from a guilty mind. Burnam v Commonwealth, 228 Ky 410, 15 SW2d 256; State v Swett, 87 Me 99, 32 A 806; Faulks v People, 39 Mich 200; Pappas v State, 135 Tenn 499, 188 SW 52.

In the interpretation of federal criminal statutes courts attempt to discover by implication a requirement of scienter, where there is no reason to suppose that the Congress, by deliberate choice, omitted such a requirement.  Delaney v United States (CA1 Mass) 199 F2d 107,  39 ALR2d 1300.

It has been stated that ordinarily a criminal intent is essential to a statutory offense, even when not in terms required. State v Hefflin, 338 Mo 236, 89 SW2d 938; State v Shedoudy, 45 NM 516, 118 P2d 280.

Footnote 3. State v De Meo, 20 NJ 1, 118 A2d 1,  56 ALR2d 905.

Footnote 4. Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240.

Footnote 5. Halsted v State, 41 NJL 552.

Whether a criminal intent or guilty knowledge is a necessary element of a statutory offense is a matter of construction to be determined from the language of the statute in view of its manifest purpose and design.  People v McClennegen, 195 Cal 445, 234 P 91; State v Fulco, 194 La 545, 194 So 14; State v Hales, 256 NC 27, 122 SE2d 768,  90 ALR2d 804; Commonwealth use of Allegheny County v Weiss, 139 Pa 247, 21 A 10; State v Hennessy, 114 Wash 351, 195 P 211.

Footnote 6. Troutner v State, 17 Ariz 506, 154 P 1048; State v Tabasso Homes, Inc., 42 Del 110, 28 A2d 248.

Footnote 7. Masters v United States, 42 App DC 350; State v Shedoudy, 45 NM 516, 118 P2d 280.

In some jurisdictions it is the rule by statute that intent or criminal negligence is an invariable element of every crime, unless excluded expressly or by necessary implication.  People v Stuart, 47 Cal 2d 167, 302 P2d 5,  55 ALR2d 705.

Footnote 8. Masters v United States, 42 App DC 350; State v Shedoudy, 45 NM 516, 118 P2d 280.

Footnote 9. Seattle v Gordon, 54 Wash 2d 516, 342 P2d 604.

Footnote 10. Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240.

Footnote 11. Razete v United States (CA6 Ohio) 199 F2d 44, cert den  344 US 904,  97 L Ed 698,  73 S Ct 284.

Footnote 12. Kirkham v North Little Rock, 227 Ark 789, 301 SW2d 559,  64 ALR2d 1032; Duncan v Commonwealth, 289 Ky 231, 158 SW2d 396; State v Fulco, 194 La 545, 194 So 14; People v Sybisloo, 216 Mich 1, 184 NW 410; People v Treen,  33 Misc 2d 571, 225 NYS2d 787; Pappas v State, 135 Tenn 499, 188 SW 52; Seattle v Gordon, 54 Wash 2d 516, 342 P2d 604; State v Chesapeake & Potomac Tel. Co., 121 W Va 420, 4 SE2d 257.

Footnote 13. Kirkham v North Little Rock, 227 Ark 789, 301 SW2d 559,  64 ALR2d 1032; State v Striggles, 202 Iowa 1318, 210 NW 137; Duncan v Commonwealth, 289 Ky 231, 158 SW2d 396; Commonwealth v Closson, 229 Mass 329, 118 NE 653 (traffic ordinance).

Footnote 14. State v Shedoudy, 45 NM 516, 118 P2d 280; People v Treen,  33 Misc 2d 571, 225 NYS2d 787; Seattle v Gordon, 54 Wash 2d 516, 342 P2d 604.

Footnote 15. United States v Greenbaum (CA3 NJ) 138 F2d 437 (three months' imprisonment for introduction of adulterated food in interstate commerce upheld, although guilty knowledge was neither alleged nor proved).

Footnote 16. Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240.

Many instances of strict liability are to be found in regulatory measures where the emphasis of the statute is evidently upon the achievement of some social betterment rather than the punishment of crimes, as in cases of offenses mala in se.  United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301.

Footnote 17. United States v Greenbaum (CA3 NJ) 138 F2d 437.

Footnote 18. Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240.

Footnote 19. United States v Balint,  258 US 250,  66 L Ed 604,  42 S Ct 301; United States v Juzwiak (CA2 NY) 258 F2d 844, cert den  359 US 939,  3 L Ed 2d 639,  79 S Ct 652.

Compare Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240, stating that the purpose of every statute would be "obstructed" by requiring a finding of intent, if we assume that it had a purpose to convict without it, and that therefore the obstruction rationale does not help us to learn the purpose of the omission.

Footnote 20. United States v Greenbaum (CA3 NJ) 138 F2d 437; Hays v Schueler, 107 Kan 635, 193 P 311.

Footnote 21. Morissette v United States,  342 US 246,  96 L Ed 288,  72 S Ct 240.

In the interest of the larger good, such legislation puts the burden of acting at hazard upon a person otherwise innocent but standing in a responsible relation to a public danger.  United States v Dotterweich,  320 US 277,  88 L Ed 48,  64 S Ct 134, reh den  320 US 815,  88 L Ed 492,  64 S Ct 367.

The penalty for violating a police regulation enacted for the protection of the public health is imposed without regard to wrongful intention, in order to insure such diligence as will render a violation of the law virtually impossible.  State v Burnam, 71 Wash 199, 128 P 218.

Footnote 22. Toledo v Kohlhofer, 96 Ohio App 355, 54 Ohio Ops 360, 122 NE2d 20.


C.  Circumstances Tending to Negative Criminal State of Mind or Moral Responsibility [140-157]

1.  In General [140]


§ 140  Generally; religious belief  [21 Am Jur 2d CRIMINAL LAW]

As a general rule, religious belief cannot be accepted as a justification of an act made criminal by the law of the land. 23    For example, acts which would otherwise constitute bigamy cannot be justified on the ground that they were sanctioned or required by the defendant's religious beliefs. 24   And the same is generally regarded as the rule in prosecutions growing out of failure to furnish medical attention where the defendant was under a duty to provide such attention or a statute made it an offense not to do so. 25   But where the crime is one in which representations as to religious beliefs were charged to have been fraudulent, it has been held that all questions as to the truth or falsity of such beliefs should be withheld from the jury. 26    


§ 140  – Generally; religious belief [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: The Cultural Defense in the Criminal Law. 99 Harv LR 1293, April, 1986.

Footnotes

Footnote 23. Reynolds v United States,  98 US 145,  25 L Ed 244; State v Cox, 138 Me 151, 23 A2d 634; Copeland v Donovan, 124 Misc 553, 208 NYS 765; Commonwealth v Palms, 141 Pa Super 430, 15 A2d 481.

As to acts committed under delusion of Divine command, see  § 41, supra.

Footnote 24. See 10 Am Jur 2d,  Bigamy § 24.

Footnote 25. Craig v State, 220 Md 590, 155 A2d 684; People v Pierson, 176 NY 201, 68 NE 243; Rex v Lewis, 6 Ont L 132, 7 Can Crim Cas 261; Rex v Brooks, 9 Brit Col 13.

Annotation:  100 ALR2d 514, § 24.

As to prosecutions for homicide, see 40 Am Jur 2d,  Homicide §§ 90,  118.

Footnote 26. United States v Ballard,  322 US 78,  88 L Ed 1148,  64 S Ct 882.


2.  Ignorance or Mistake of Fact [141]


§ 141  Generally  [21 Am Jur 2d CRIMINAL LAW]

Ignorance or mistake of fact, at least if reasonable, and not due to carelessness or negligence, is a defense if it negatives a mental state required as an element of the offense charged. 27   Since a guilty mind is a requisite of common-law crime, and even of most statutory offenses, at least those mala in se, 28   it is also the general rule that where criminal mind or intent is dependent on a knowledge of particular facts, ignorance or mistake as to these facts, honest and real, not superinduced by the fault or negligence of the party doing the wrongful act, absolves from criminal responsibility. 29   It has even been held that the necessary specific intent can be negatived by a showing of mistake, despite want of proper care. 30

It is said that ignorance or mistake of fact, guarded by an honest purpose, affords at common law a sufficient excuse for a supposed criminal act. 31   To put it conversely, at common law an honest and reasonable belief in the existence of circumstances which, if true, would have made the act done innocent, is a good defense. 32   And it has been held that the same applies to statutory offenses unless excluded expressly or by necessary implication. 33  However, the extent to which this is true seems to depend on the elements of the offense charged.  Thus, mistake of fact has been regarded as of no significance where the crime charged requires neither intent nor knowledge. 34   And an act malum prohibitum is not excused by ignorance or mistake of fact where the specific act is made punishable irrespective of motive or intent. 35    Moreover, despite some authorities to the contrary, 36  it appears to be the general rule that if a statute commands an act to be done or omitted which, in the absence of the statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute will not excuse its violation. 37    But the rule is otherwise where the statute makes the act punishable only if knowingly done. 38  

In a large class of cases where it is deemed necessary, for the protection of the public, to require everyone to ascertain the facts at his peril, ignorance or mistake of fact is not a defense. 39  A familiar example, in the realm of the more serious offenses, is the age of the female in cases of prostitution 40   or statutory rape, although judicial opinion is not unanimous with respect to the latter. 41   One court has explained cases of this type on the ground that there was a measure of wrong in the act, even as defendant understood it, and has refused to apply the same principle where the act, as defendant understood it, was completely innocent and proper. 42   However, this qualification is by no means universally accepted, as may be seen from the fact that there is a split of authority as to whether an honest and reasonable belief that a prior marriage has been terminated by divorce, or by the death of the former spouse, is a defense to a bigamy charge. 43    Ignorance or mistake of fact will not avail in the case of strict-liability offenses. 44   Statutes providing for strict criminal liability may be regarded as putting the actor under a strict duty to ascertain the facts in order to guard against a possible violation. 45    For example, a seller of food is generally held to be under a duty to ascertain at his peril whether what he sells conforms to the standards fixed by law. 46  


§ 141  – Generally [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Fletcher, mistake in the Model Penal Code: A False Problem. 19 Rut LJ 649, Spring, 1988.

Fact that gun was unloaded as affecting criminal responsibility.  68 ALR4th 507.

Propriety of instruction of jury on "conscious avoidance" of knowledge of nature of substance or transaction in prosection for possession or distribution of drugs.  109 ALR Fed 710.

Case authorities:

In prosecution under 18 USCS §  2241, trial court is not required to give instruction on affirmative defense of reasonable mistake unless and until defendant introduces some evidence, direct or circumstantial, of reasonable basis for having made mistake. United States v Norquay (1993, CA8 Minn) 987 F2d 475.

Although persons incapable of committing a crime include those who commit an act under an ignorance or mistake of fact, which disproves any criminal intent (Pen. Code, § 26, subd. 3), a defendant charged with assault with a deadly weapon on an Amtrak conductor (Pen. Code, § 245.2) could not assert the defense predicated on his alleged belief he was being followed by enemies and that he assaulted the conductor on the train in order to be publicly arrested and thus shielded from his enemies. As a matter of law, defendant could not establish that his conduct was legally justified under the doctrine of necessity; even if the circumstances which confronted defendant entitled him under the doctrine of necessity to resort to some criminal act for his own protection, he was obligated to utilize the least costly alternative. Because he selected an inappropriate means for attaining safety, defendant was foreclosed from taking shelter in the doctrine of necessity. People v Raszler (1985, 3d Dist) 169 Cal App 3d 1160, 215 Cal Rptr 770.

One accused of intimidation in violation of RC § 2921.03(A) was properly convicted of same upon evidence that sanitation facility inspector was assaulted and threatened by accused while inspecting an improperly installed facility on accused's property, according to accused because he mistook the inspector for a peeping tom. State v Troutman (1991, Lorain Co) 71 Ohio App 3d 755, 595 NE2d 414, motion overr 62 Ohio St 3d 1408, 577 NE2d 361.

Footnotes

Footnote 27. Gordon v State, 52 Ala 308; People v Wells, 33 Cal 2d 330, 202 P2d 53, cert den  338 US 836,  94 L Ed 510,  70 S Ct 43 (by statute); State v O'Neil, 147 Iowa 513, 126 NW 454.

The principle of the criminal law, "Ignorantia facti excusat," applies with great force where a business is recognized as lawful. Haynes v State, 118 Tenn 709, 105 SW 251.

In a prosecution for injury to a child based on defendant's burning of her granddaughter in hot bath water, defendant's testimony that she mistakenly believed that the temperature of the bath water was normal, was sufficient to entitle her to an instruction on the defense of mistake of fact; the trial court's refusal to give a charge that applied the law of mistake of fact to the very facts of the case, over defendant's objection and in the face of a properly requested charge, was reversible error. Beggs v State (Tex Crim) 597 SW2d 375.

An honest mistake of the defendant as to his title to property is a defense to an indictment for unlawfully taking it, but not to a civil action for converting it.  Stone v United States,  167 US 178,  42 L Ed 127,  17 S Ct 778.

Footnote 28.  §§ 129 et seq., supra.

Footnote 29. Dotson v State, 62 Ala 141; State v Welch, 73 Mo 284; Reg. v Tolson (Eng) LR 23 QB Div 168.

The rule allowing a defense to a crime considered malum in se because of a mistake of fact is subject to the qualification that the mistake must not be due to the negligence or carelessness of the defendant.  State v Dizon 47 Hawaii 444, 390 P2d 759.

Footnote 30. One who takes another's property under the honest belief that it is his own does not commit larceny, even though he may have acted carelessly.  People v Devine, 95 Cal 227, 30 P 378; Green v State, 153 Tex Crim 442, 221 SW2d 612.

Footnote 31. State v Powell, 141 NC 780, 53 SE 515; Farrell v State, 32 Ohio St 456.

Footnote 32. People v Vogel, 46 Cal 2d 798, 299 P2d 850; People v Cohn, 358 Ill 326, 193 NE 150; Commonwealth v Bollinger, 197 Pa Super 492, 179 A2d 253.

Footnote 33. People v Vogel, 46 Cal 2d 798, 299 P2d 850.

Footnote 34. People v Young,  11 NY2d 274, 229 NYS2d 1, 183 NE2d 319.

Footnote 35. People v Treen,  33 Misc 2d 571, 225 NYS2d 787.

Footnote 36. Stern v State, 53 Ga 229; State v Powell, 141 NC 780, 53 SE 515; Farrell v State, 32 Ohio St 456.

Footnote 37. Ford v State, 85 Md 465, 37 A 172; State v Cornish, 66 NH 329, 21 A 180; Haynes v State, 118 Tenn 709, 105 SW 251; State v Gilmore, 80 Vt 514, 68 A 658; State v Welch,  145 Wis 86, 129 NW 656.

It is no defense to a prosecution under a statute making criminal an act unobjectionable from a moral point of view that the accused acted honestly and in good faith under a mistake of fact. State v Cornish, 66 NH 329, 21 A 180.

Knowledge of the age of the person named in the complaint is not essential to the violation of a statute forbidding the owner, keeper, or manager of a dance house to permit any person under 21 years of age to be or remain therein, when not so provided by the statute.  State v Rosenfield, 111 Minn 301, 126 NW 1068.

Footnote 38. People v Flumerfelt, 35 Cal App 2d 495, 96 P2d 190 (defendant not guilty of knowingly selling stocks without permit if she relied in good faith on erroneous information that permit had been obtained); State v Welch,  145 Wis 86, 129 NW 656.

Footnote 39. Redmond v State, 36 Ark 58; Brown v State (Sup) 23 Del 159, 74 A 836; Nies v District Court, 179 Iowa 326, 161 NW 316; Commonwealth v Murphy, 165 Mass 66, 42 NE 504; State v Welch, 73 Mo 284; Territory v Harwood, 15 NM 424, 110 P 556 (not followed State v Bazan (App) 90 NM 209, 561 P2d 482, cert den 90 NM 254, 561 P2d 1347); State v Sasse, 6 SD 212, 60 NW 853.

The principle that ignorance of the law is no defense applies whether the law is a statute or a duly promulgated and published regulation.  United States v International Minerals & Chemical Corp.,  402 US 558,  29 L Ed 2d 178,  91 S Ct 1697.

Footnote 40. See 63 Am Jur 2d,  Prostitution § 1.

Footnote 41. See People v Hernandez, 61 Cal 2d 529, 39 Cal Rptr 361, 393 P2d 673,  8 ALR3d 1092, holding that reasonable belief that a girl had reached the age of consent was a defense to statutory rape, and overruling prior cases.  The traditional view, however, has been to the contrary.  See 65 Am Jur 2d Rape § 36.

Footnote 42. State v Audette, 81 Vt 400, 70 A 833.

See also 2 Am Jur 2d,  Adultery and Fornication §§ 4,  14,  15.

Footnote 43. See 10 Am Jur 2d,  Bigamy §§ 18-20.

Footnote 44.  § 137, supra.

Footnote 45. State v Welch,  145 Wis 86, 129 NW 656.

Footnote 46. See 35 Am Jur 2d,  Food § 77.


3.  Ignorance or Mistake of Law [142-145]

§ 142  Generally  [21 Am Jur 2d CRIMINAL LAW]

That ignorance or mistake of law will not excuse an act in violation of the criminal laws is a principle so universally accepted as to be axiomatic. 47  It has been said that chaos and impossibility of law enforcement would ensue without this rule. 48   The law, in this respect, makes a sharp distinction between honest mistakes of fact, which generally excuse, and honest mistakes of law, which generally do not. 49    However, there are crimes which require a particular evil condition of the mind, existing in actual fact.  Ignorance or mistake of law, if it makes that particular state of mind impossible, takes away the offense. 50    Thus a bona fide mistake of law may negative wilfulness 51   or malice 52  where these are required elements of the particular offense.  On the other hand, where the statute punishes only one who "intentionally" violates its provision, it has been held that a mistake of law is not a defense. 53     Mistake of law may also negative specific criminal intent. 54  Thus, one who takes property under a bona fide but erroneous claim of right does not commit larceny, although his error may have been one of law. 55    And one jurisdiction has held that a person who, before doing the act for which he was ultimately prosecuted, made a diligent effort to ascertain the law relevant to that act and to abide by it, adopting the best means available to him for that purpose, ought not to be convicted of an offense which requires general criminal intent. 56   And a person's reasonable belief that his conduct does not constitute an offense is a defense if the offense is defined by an administrative regulation or order which is not known to him and has not been published or otherwise made reasonably available to him, and he could not have acquired such knowledge by the exercise of due diligence pursuant to facts known to him. 57  

The hardship which may arise from enforcing against innocent parties general laws so long in disuse as to be no longer known to exist has been pronounced only an ameliorating factor in their enforcement which does not bear on the continuing validity of such laws. 58   


§ 142  – Generally [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

In prosecution for violation of 18 USCS §  1001 court is not obliged to give instruction on ignorance of law where court concludes that no evidence was presented to warrant such type of instruction inasmuch as defendant did not contend that he was not required to state material on form which form specifically requested. United States v Cox (1983, CA11 Ga) 696 F2d 1294.

It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof. Of course, it is based on a fiction, because no man can know all of the law, but it is a maxim that the law itself does not permit anyone to gainsay. It is expected that where it is shown that the defendant actually was ignorant of the law and innocent of any intention to violate it, the jury and the court will give the defendant the benefit of the fact, and will impose only a light penalty. The rule rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement. People v Costa (1991, 6th Dist) 1 Cal App 4th 1201, 2 Cal Rptr 2d 720, 91 CDOS 10011, 91 Daily Journal DAR 15766.

Footnotes

Footnote 47. Lambert v California,  355 US 225,  2 L Ed 2d 228,  78 S Ct 240, reh den  355 US 937,  2 L Ed 2d 419,  78 S Ct 410; Hunter v State, 158 Tenn 63, 12 SW2d 361,  61 ALR 1148; Medrano v State, 32 Tex Crim 214, 22 SW 684.

An intention of the accused to keep within the law, but to get as near the line as possible, will not help him if in fact he violates the law.  Horning v District of Columbia,  254 US 135,  65 L Ed 185,  41 S Ct 53.

As to failure to take affirmative action, required under criminal sanctions, where defendant has no knowledge of the requirement, see  § 6, supra.

As to ignorance of law as defense in case of child charged with simple misdemeanor, see  § 28, supra.

Footnote 48. State v De Meo, 20 NJ 1, 118 A2d 1,  56 ALR2d 905.

Footnote 49. People v Flumerfelt, 35 Cal App 2d 495, 96 P2d 190 (reliance on attorney's misstatement of fact); People v McCalla, 63 Cal App 783, 220 P 436, error dismd  267 US 585,  69 L Ed 799,  45 S Ct 461 (reliance on attorneys misstatement of law), and (disapproved on other grounds People v Elliot 54 Cal 2d 498, 6 Cal Rptr 753, 354 P2d 225 (ovrld on other grounds People v Pompa-Ortiz 27 Cal 3d 519, 165 Cal Rptr 851, 612 P2d 941)); People v Cohn, 358 Ill 326, 193 NE 150; Hunter v State, 158 Tenn 63, 12 SW2d 361.

Footnote 50. People v Goodin, 136 Cal 455, 69 P 85.

As to belief that actions are legal as defense to kidnapping, see 1 Am Jur 2d,  Abduction and Kidnapping § 27.

Footnote 51. United States v Murdock,  290 US 389,  78 L Ed 381,  54 S Ct 223.

Footnote 52. A public officer, in obeying a regulation which has not been tested in the courts, does not act "maliciously," even if the regulation is illegal.  Fears v State, 33 Ariz 432, 265 P 600.

Footnote 53. If one intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent.  Ellis v United States,  206 US 246,  51 L Ed 1047,  27 S Ct 600; Borderland Constr. Co. v State, 49 Ariz 523, 68 P2d 207.

Footnote 54. Long v State (Sup) 44 Del 262, 65 A2d 489.

Footnote 55. See 50 Am Jur 2d,  Larceny § 41.

Footnote 56. Long v State (Sup) 44 Del 262, 65 A2d 489.

Footnote 57. 1962 Ford Thunderbird v Division of Narcotic Control of Dept. of Public Safety, 49 Ill App 2d 8, 198 NE2d 155,  10 ALR3d 554.

Footnote 58. District of Columbia v John R. Thompson Co.,  346 US 100,  97 L Ed 1480,  73 S Ct 1007, on remand 93 App DC 373, 214 F2d 210.


§ 143  Mistaken belief as to constitutionality of statute  [21 Am Jur 2d CRIMINAL LAW]

Violation of a valid criminal statute cannot be excused on the ground that the defendant believed in good faith that the statute was unconstitutional, 59   even though he acted on advice of counsel.  A claim of belief in the unconstitutionality of a statute is a plea of ignorance of the law and therefore inadmissible. 60   On the other hand, despite the general theory that an unconstitutional statute is void and hence affords no protection, 61  reliance on a statute later held unconstitutional is frequently held to be a good defense. 62   The theory is that a legislative act is presumptively valid and entitled to obedience until held unconstitutional by competent authority. 63   Thus a public officer cannot be criminally punished for obeying a statute later held invalid. 64   And, on the ground that a veto is also a legislative act and presumptively valid, it has been held that one cannot be penalized for failing to obey a vetoed statute in reliance on the constitutionality of the veto, even though it is later held that the veto was invalid and that the statute took effect. 65   And where a criminal statute has been repealed and the repealing act has been upheld by an intermediate court, it has been held unjust to punish a citizen for violating the original statute in reliance on the repealer, even if the latter should be deemed unconstitutional and therefore ineffective to repeal the original act. 66   On the other hand, it has been held that prosecution under a general criminal statute is not precluded by the fact that defendant's act would have been authorized under a later amendment, which the court held void. 67

Footnotes

Footnote 59. Warren v United States (CA10 Kan) 177 F2d 596, cert den  338 US 947,  94 L Ed 584,  70 S Ct 485; Hunter v State, 158 Tenn 63, 12 SW2d 361.

Footnote 60. Hunter v State, 158 Tenn 63, 12 SW2d 361.

Footnote 61. See 16 Am Jur 2d (Rev) Constitutional Law § 256.

Footnote 62. Texas Co. v State, 31 Ariz 485, 254 P 1060; State v Godwin, 123 NC 697, 31 SE 221.

Footnote 63. Texas Co. v State, 31 Ariz 485, 254 P 1060.

Footnote 64. State v Godwin, 123 NC 697, 31 SE 221.

Footnote 65. Texas Co. v State, 31 Ariz 485, 254 P 1060.

Footnote 66. East Lake Lot Owners Asso. v Prince's Lakes, 246 Ind 333, 205 NE2d 821 (lack of saving clause in repealed criminal statute as terminating prosecutions thereunder); Lutwin v State, 97 NJL 67, 117 A 164.

Footnote 67. Commonwealth v Malco-Memphis Theatres, Inc., 293 Ky 531, 169 SW2d 596.  See also Carolina-Virginia Racing Asso. v Cahoon (CA4 NC) 214 F2d 830 (refusing to enjoin enforcement of criminal statute).


§ 144  Reliance on judicial decisions  [21 Am Jur 2d CRIMINAL LAW]

Where a criminal statute has been first held unconstitutional by the court of last resort and then later held constitutional, a person who committed the prohibited act during the interval between the two decisions is not liable to punishment. 68   And where a decision holding a criminal statute inapplicable has been overruled, the same rule is applied. 69  Some courts take the view that the opposite result would make the later decision, at least in substance, an ex post facto law, 70  or would amount, under the circumstances, to cruel and unusual punishment. 71    Others simply take the view that the court has exercised, and under such circumstances should exercise, the power to give its overruling decision a solely prospective effect. 72

There is some authority to the effect that reliance on a lower court decision is no defense. 73  It has been held, however, that one is entitled to rely on an express decision of unconstitutionality by any competent court of general jurisdiction having authority to decide that question, at least where the act would be only malum prohibitum should the statute subsequently be upheld by a higher court. 74  

Where an injunction against the enforcement of a criminal statute has been sought on the ground of its unconstitutionality, and a temporary injunction has been granted, it has been held that the purpose of the latter order is to preserve the status quo pending a decision on constitutionality, not to decide the rights of the parties.  Accordingly, one who violates the statute while the temporary injunction is in effect does so at his peril and he may be punished if the injunction is later dissolved and the statute upheld. 75 

Footnotes

Footnote 68. Chavers v Harrell, 122 Fla 669, 166 So 261, adhered to 122 Fla 670, 166 So 262 and reh den 122 Fla 700, 166 So 574; State v O'Neil, 147 Iowa 513, 126 NW 454; State v Stout, 90 Okla Crim 35, 210 P2d 199.

Footnote 69. Commonwealth v Trousdale, 297 Ky 724, 181 SW2d 254; State v Longino, 109 Miss 125, 67 So 902; State v Jones, 44 NM 623, 107 P2d 324.

Footnote 70. State v Longino, 109 Miss 125, 67 So 902.

Footnote 71. State v Longino, 109 Miss 125, 67 So 902.

As to what constitutes cruel and unusual punishment, see  §§ 625 et seq., infra.

Footnote 72. State v Jones, 44 NM 623, 107 P2d 324; State v Bell, 136 NC 674, 49 SE 163.

Footnote 73. Leon v United States (Mun Ct App Dist Col) 136 A2d 588; State v Striggles, 202 Iowa 1318, 210 NW 137.

Footnote 74. State ex rel. Williams v Whitman, 116 Fla 196, 150 So 136, later op 116 Fla 198, 156 So 705,  95 ALR 1416.

Footnote 75. State v Wadhams Oil Co.  149 Wis 58, 134 NW 1121.

Compare Marysville v Cities Service Oil Co., 133 Kan 692, 3 P2d 1060, holding injunction restraining enforcement of a city ordinance to be complete defense to prosecution for its violation during the life of the injunction suit where the ordinance was regulatory in its nature, where its validity depended on facts which could be established only through judicial inquiry, and where the injunction suit was prosecuted promptly and in good faith.


§ 145  Advice of counsel  [21 Am Jur 2d CRIMINAL LAW]

As a general rule, it is no defense to a criminal prosecution that the defendant acted in good faith, relying on the advice of counsel. 76  This situation is considered to fall within the general rule that ignorance or mistake of law will not excuse. 77    However, advice of counsel may be shown where it tends to disprove the intent requisite to the particular offense. 78   Thus, where the offense is one which requires a fraudulent intent, 79    an evil motive or bad purpose, 80  or malice, 81  the advice of reputable counsel, 82  given on full disclosure of the facts and followed in good faith, 83    though not an absolute defense, may be shown as tending to rebut the mental element requisite to the particular offense.  And one jurisdiction has gone so far as to hold that even general criminal intent may be rebutted by showing, not merely that defendant relied on advice of counsel, but that his conduct throughout in seeking to ascertain the law and relying on the advice received manifested good faith and diligence beyond reproach. 84   However, advice of counsel is of no avail where the statute forbids an act regardless of intent. 85

Footnotes

Footnote 76. Miller v United States (CA4 SC) 277 F 721; Barnett v State, 89 Ala 165, 7 So 414; Staley v State, 89 Neb 701, 131 NW 1028; Smith v State, 46 Tex Crim 267, 81 SW 936.

The fact that defendant public officers followed the official opinions of the state attorney general shows absence of wrongful intent, but does not excuse.  Lindquist v State, 213 Ark 903, 213 SW2d 895.

Belief, supported by advice of counsel, in the unconstitutionality of a statute, is no defense in a prosecution for its violation.  Hunter v State, 158 Tenn 63, 12 SW2d 361.

Footnote 77. People v McCalla, 63 Cal App 783, 220 P 436, error dismd  267 US 585,  69 L Ed 799,  45 S Ct 461 and (disapproved on other grounds People v Elliot 54 Cal 2d 498, 6 Cal Rptr 753, 354 P2d 225 (ovrld on other grounds People v Pompa-Ortiz 27 Cal 3d 519, 165 Cal Rptr 851, 612 P2d 941)); Staley v State, 89 Neb 701, 131 NW 1028.

Footnote 78. Reed v State, 248 Ala 196, 27 So 2d 25.

As to advice of counsel as defense to perjury charge, see 60 Am Jur 2d,  Perjury § 48.

Footnote 79. Bisno v United States (CA9 Cal) 299 F2d 711, cert den  370 US 952,  8 L Ed 2d 818,  82 S Ct 1602, reh den  371 US 855,  9 L Ed 2d 94,  83 S Ct 51; Shushan v United States (CA5 La) 117 F2d 110,  133 ALR 1040, cert den  313 US 574,  85 L Ed 1531,  61 S Ct 1085, reh den  314 US 706,  86 L Ed 564,  62 S Ct 53 and cert den  313 US 574,  85 L Ed 1532,  61 S Ct 1086 and (ovrld on other grounds United States v Cruz (CA5 Fla) 478 F2d 408, reh den (CA5 Fla) 478 F2d 1403 and cert den  414 US 910,  38 L Ed 2d 148,  94 S Ct 231,  94 S Ct 258,  94 S Ct 259); Wacksman v United States (Mun Ct App Dist Col) 175 A2d 789.

Footnote 80. United States v Phillips (CA7 Ill) 217 F2d 435 (income tax evasion).

Footnote 81. Krasner v State, 248 Ala 12, 26 So 2d 526 (criminal libel).

Footnote 82. Wacksman v United States (Mun Ct App Dist Col) 175 A2d 789.

Footnote 83. Shushan v United States (CA5 La) 117 F2d 110,  133 ALR 1040, cert den  313 US 574,  85 L Ed 1531,  61 S Ct 1085, reh den  314 US 706,  86 L Ed 564,  62 S Ct 53 and cert den  313 US 574,  85 L Ed 1532,  61 S Ct 1086 and (ovrld on other grounds United States v Cruz (CA5 Fla) 478 F2d 408, reh den (CA5 Fla) 478 F2d 1403 and cert den  414 US 910,  38 L Ed 2d 148,  94 S Ct 231,  94 S Ct 258,  94 S Ct 259).

Footnote 84. Long v State (Sup) 44 Del 262, 65 A2d 489.

Footnote 85. People v Aresen, 91 Cal App 2d 26, 204 P2d 389, reh den 91 Cal App 2d 38, 204 P2d 957.


4.  Absence of Choice or Volition [146-153]


§ 146  Generally  [21 Am Jur 2d CRIMINAL LAW]

Generally one does not commit a crime unless some feasible and lawful alternative was open to him.  Thus, nonperformance cannot be made a crime where performance is impossible. 86  And nonperformance should not be treated as criminal where performance would have violated some other law 87  or a court order. 88   And it has been held that one should not be penalized for following police instructions, though it later develops they had no legal basis. 89

The criminality of an act cannot be made to depend on the happening of a subsequent event which may not have been in the actor's contemplation at the time of the act and which may be brought about by others against his will. 90   


§ 146  – Generally [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Justification defenses and just convictions, 24 Pac LJ 1233 (1993).

Automobiles: necessity or emergency as defense in prosecution for driving without operator's license or while license is suspended,  7 ALR5th 73.

Footnotes

Footnote 86. Port Huron v Jenkinson, 77 Mich 414, 43 NW 923.

Footnote 87. People v Kent, 151 Mich 134, 114 NW 1012 (property owner cannot be held criminally liable for condition he had no right to abate).

Footnote 88. A litigant should not be exposed to punishment for not doing an act commanded by statute where a court, acting within its jurisdiction and authority, has issued an injunction commanding him to refrain from doing it.  State v Chicago, M. & St. P. R. Co. 130 Minn 144, 153 NW 320.

Footnote 89. Schiff v People, 111 Colo 333, 141 P2d 892.

Footnote 90. United States v Fox,  95 US 670,  24 L Ed 538, holding that the fact that fraudulently obtaining goods on credit occurs within three months before commencement of either voluntary or involuntary bankruptcy proceedings is not ground for making it a federal offense.


§ 147  Necessity  [21 Am Jur 2d CRIMINAL LAW]

There is some authority to the effect that an act done from compulsion or necessity is not a crime. 91   But the necessity or compulsion which will excuse a criminal act must be clear and conclusive and must arise without negligence or fault on the part of the defendant. 92   The case does not become one of necessity unless all other alternatives have been exhausted. 93   And in a prosecution for an offense not requiring intent, it has been held that the defense of necessity is not available, at least where the defendant could have avoided the emergency by taking advance precautions. 94   Specific aspects of the law of necessity, such as self-defense, 95  defense of other persons, 96  defense of habitation, 97  and defense of property 98  are treated elsewhere.  Economic necessity is not a justification for a positive criminal act, such as larceny, 99  but it has been held that failure to act cannot be made criminal where indigence would make compliance impossible. 1


§ 147  – Necessity [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Reeve, Necessity: The Right to Present a Recognized Defense. 21 N Eng LR 779, 1985-1986.

Commonwealth v. Hutchins [575 N.E.2d 741 (Mass. 1991)]: a defendant is denied the right to present a medical necessity defense, 27 New Eng LR 1101 (1993).

Bayles, Reconceptualizing Necessity and Duress. 33 Wayne LR 1191, Summer, 1987.

Levitin, Putting the Government on Trial: The necessity defense and social change. 33 Wayne LR 1221, Summer, 1987.

Ineffective assistance of counsel: compulsion, duress, necessity, or "hostage syndrome" defense,  8 ALR5th 713.

Driving while intoxicated: "choice of evils" defense that driving was necessary to protect life or property. (See also 7A Am Jur 2d, Automobiles and Highway Traffic § 296.)  64 ALR4th 298.

Trespass: state prosecution for unauthorized entry, or occupation, for public demonstration purposes, of business, industrial, or utility premises.  41 ALR4th 773.

Case authorities:

In a prosecution for trespass, the trial court did not err in barring the defense of necessity. Defendants' offer of proof, that they had no choice but to trespass on the premises of a defense contractor to distribute leaflets protesting the development of a certain missile, because they believed that their presence would bring about an end to the threat of nuclear holocaust, was legally insufficient, the most obvious deficiency being their failure to present legally sufficient evidence that they lacked an adequate alternative to criminal trespass. Defendants' theories that development of the missile violated international law, and that adequate alternatives did not exist in that defendants had tried lawful leafletting, political campaigning, and other courses of action without successfully averting the threat of nuclear war, were insufficient. In a free society, neither the political process nor the avenue of lawful protest is an exhaustible remedy for an unwise policy decision, and compliance with international law must be sought through the ballot box, or, where appropriate, by court action. Illegal conduct designed to influence policies cannot be considered necessary where such lawful avenues are available. In re Weller (1985, 1st Dist) 164 Cal App 3d 44, 210 Cal Rptr 130.

Although persons incapable of committing a crime include those who commit an act under an ignorance or mistake of fact, which disproves any criminal intent (Pen. Code, § 26, subd. 3), a defendant charged with assault with a deadly weapon on an Amtrak conductor (Pen. Code, § 245.2) could not assert the defense predicated on his alleged belief he was being followed by enemies and that he assaulted the conductor on the train in order to be publicly arrested and thus shielded from his enemies. As a matter of law, defendant could not establish that his conduct was legally justified under the doctrine of necessity; even if the circumstances which confronted defendant entitled him under the doctrine of necessity to resort to some criminal act for his own protection, he was obligated to utilize the least costly alternative. Because he selected an inappropriate means for attaining safety, defendant was foreclosed from taking shelter in the doctrine of necessity. People v Raszler (1985, 3d Dist) 169 Cal App 3d 1160, 215 Cal Rptr 770.

In a prosecution of three persons for engaging in criminal conduct while participating in antiabortion demonstrations outside a medical clinic, defendants were not entitled to have the jury instructed on the defense of necessity. There was no justification for defendants to commit crimes for the purpose of interfering with the exercise by others of their constitutional rights to an abortion, recognized by the state and federal constitutional rights to privacy. People v Garziano (1991, 2nd Dist) 230 Cal App 3d 241, 281 Cal Rptr 307, 91 CDOS 3669, 91 Daily Journal DAR 5869.

In prosecution for unlawful possession of knife by inmate, trial court did not err in finding that inmate failed to produce sufficient evidence to warrant instruction on affirmative defense of necessity, where unsubstantiated events about which inmate testified could have taken place any time between 1987 and discovery of knife in 1989, and thus did not support finding of specific and immediate threat. People v Kite (1992) 153 Ill 2d 40, 178 Ill Dec 769, 605 NE2d 563.

The defense of "necessity," which provides that where a person reasonably believes that he or she is in danger of physical harm he or she may be excused for some conduct which ordinarily would be criminal, would be recognized in Mississippi. Under the doctrine of necessity, the question is not whether an explicit threat was made, but whether a reasonable person under all of the circumstances would feel threatened for his or her personal safety. Knight v State (1992, Miss) 601 So 2d 403.

The trial court committed reversible error by refusing to instruct the jury on the defense of necessity where the defendant, charged with driving with a suspended license, testified that he did so because his 6-month pregnant wife had developed pains in her back and stomach, that he did not have a telephone, that the neighbor who did have a telephone was out, and that he was thus required to drive to the nearest telephone to call for assistance. State v Cole (1991) 304 SC 47, 403 SE2d 117.

Footnotes

Footnote 91. United States v Ashton (CC Mass) F Cas No 14470 (mutiny held justifiable where vessel was unseaworthy and captain refused to put into port); Browning v State, 31 Ala App 137, 13 So 2d 54 (motorist attempting to escape from officers who were shooting at him to make unlawful arrest not guilty of reckless driving).

The rule that a person voluntarily doing an act which the law forbids will be charged with criminal intent does not apply to acts done under compulsion or necessity.  Chesapeak & O. R. Co. v Commonwealth, 119 Ky 519, 84 SW 566.

A criminal statute ought not to be given an application which, though within its literal language, would take away a person's natural right of self-defense, or a parent's natural right to defend his child.  State v Jackson, 71 NH 552, 53 A 1021.

As to necessity as defense in homicide cases, see 40 Am Jur 2d,  Homicide § 112.

As to bad prison conditions or fear of illtreatment by custodian as defense to charge of escape, see 27 Am Jur 2d,  Escape, Prison Breaking, and Rescue § 16.

Practice Aids: Arnolds & Garland, Defense of Necessity in Criminal Law. 1974, 65 J Crim L & Criminology 289.

Tiffany & Anderson, Legislating the Necessity Defense in Criminal Law. 1975, 52 Denver L J 839.

Footnote 92. Ross v State, 169 Ind 388, 82 NE 781.

Footnote 93. United States v Holmes (CC Pa) F Cas No 15383; People v Whipple, 100 Cal App 261, 279 P 1008 (escape not justified by bad prison conditions and inhuman treatment, especially where no attempt has been made to obtain relief by lawful means).

State prison inmate, who was convicted of introducing contraband after he was found to be in possession of a knife, was properly denied an instruction on the choice of evils defense where he alleged only a general fear of injury as his reason for retaining the knife and could not point to definite, specific, and imminent threat to his person.  People v Robertson, 36 Colo App 367, 543 P2d 533.

Footnote 94. Commonwealth v New York C. & H. R. R. Co., 202 Mass 394, 88 NE 764.

But see Chesapeak & O. R. Co. v Commonwealth, 119 Ky 519, 84 SW 566, holding that the fact that precautions could have been taken is not determinative.

Footnote 95. See 6 Am Jur 2d,  Assault and Battery §§ 69-80; 40 Am Jur 2d,  Homicide §§ 139-141.

Footnote 96. See 6 Am Jur 2d,  Assault and Battery § 63; 40 Am Jur 2d,  Homicide §§ 170-173.

Footnote 97. See 6 Am Jur 2d,  Assault and Battery § 82; 40 Am Jur 2d,  Homicide §§ 174-179.

Footnote 98. See 6 Am Jur 2d,  Assault and Battery §§ 81-89; 40 Am Jur 2d,  Homicide §§ 180-182.

Footnote 99. State v Moe, 174 Wash 303, 24 P2d 638.

Footnote 1. Commonwealth v O'Harrah (Ky) 262 SW2d 385; Port Huron v Jenkinson, 77 Mich 414, 43 NW 923.


§ 148  Coercion, compulsion, or duress  [21 Am Jur 2d CRIMINAL LAW]

Though coercion does not excuse taking the life of an innocent person, 2   it does excuse most, if not all, other offenses. 3    In order to constitute a defense, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious personal bodily injury if the act is not done, 4    particularly where the defense is asserted by a participant in the offense. 5   Apprehension of loss of property, or of slight or remote personal injury, is no excuse. 6   Furthermore, the danger must be continuous throughout the time when the act is being committed and must be one from which the defendant cannot withdraw in safety. 7   The doctrine of coercion or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. 8    And threat or fear of future injury is not sufficient. 9  

In cases involving prosecutions for robbery, larceny, or related crimes, claims of coercion, compulsion, or duress have been raised in a variety of factual circumstances. 10    By far the largest number of cases have involved claims by defendants that they committed robberies, larcenies, or related crimes as a result of a threat or fear of personal injury or death.  Although not going so far as to hold that a threat or fear of personal injury or death excused the defendants from being held criminally liable, courts in a number of cases have determined that evidence of such a threat or fear was sufficient to raise a question as to the defense of coercion, compulsion, or duress. 11    However, the defense has been held not established under the circumstances of other cases involving claims by defendants that they committed robberies, larcenies, or related crimes as a result of a threat or fear of personal injury or death. 12   In a number of cases, defendants charged with robbery, larceny, or related crimes have sought to escape criminal liability by claiming that they acted out of fear based on a threat of injury or death to other persons, generally relatives or close friends. 13    Although it has been determined under the circumstances presented in a few cases that the defense of coercion, compulsion, or duress was properly raised by evidence of threats against persons other than the defendant, 14    the defense has been held not established under the circumstances of other cases involving claims by defendants that they were forced to commit robberies, larcenies, or related crimes because of threats against third persons. 15    Finally, the courts have rejected claims by defendants charged with robbery, larceny, or related crimes that they acted under coercion, compulsion, or duress resulting from miscellaneous facts or circumstances, 16     including an asserted threat to ruin a defendant's reputation, 17  a fear of prosecution for an earlier criminal act, 18  and a need to obtain money to provide for a drug habit 19  or family necessities. 20

The defense of coercion, compulsion, or duress is generally considered to be an affirmative defense, 21  and, therefore, once the defendant has properly raised it by presenting some evidence, the state must overcome it by proof beyond a reasonable doubt to sustain a conviction; the determination of the issue is a matter for the trier of fact alone. 22   But the defendant must establish the defense by a preponderance of the evidence to win an acquital. 23   The facts or circumstances that are sufficient to establish the defense of coercion, compulsion, or duress are for determination by the jury. 24   Since the essence of the jury question generally is whether the defendant reasonably believed, under all the circumstances present, that he was faced with imminent danger of death or bodily harm at the time he committed the criminal act, any evidence relevant to a resolution of that question is admissible. 25    In jurisdictions in which the defense of coercion, compulsion, or duress requires an objective test to determine whether the defendant felt that his life was in danger, evidence of the defendant's subjective mental state may not be admissible. 26


§ 148  – Coercion, compulsion, or duress [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Bakker, The Defense of Obedience to Superior Orders: The Mens Rea Requirement. 17 Am J Crim L 55, Fall, 1989.

Duress: A philosophical account of the defense in law, 37 Ariz LR 1:251 (1995).

Murder, attempted murder, and the defence of duress: some objections to the present state of the law, 25 Bracton LJ 15 (1993).

Hauhart, The Involuntary Action Defense to a Criminal Indictment. 11 No Ky LR 321, 1984.

Bayles, Reconceptualizing Necessity and Duress. 33 Wayne LR 1191, Summer, 1987.

Ineffective assistance of counsel: compulsion, duress, necessity, or "hostage syndrome" defense.  8 ALR5th 713.

"Choice of evils," necessity, duress, or similar defense to state or local criminal charges based on acts of public protest.  3 ALR5th 521.

Defense of necessity, duress, or coercion in prosecution for violation of state narcotics laws.  1 ALR5th 938.

Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime.  1 ALR4th 481.

Availability of defense of duress or coercion in prosecution for violation of federal narcotics laws.  75 ALR Fed 722.

Case authorities:

In prosecution for carrying weapon, court properly refused to instruct jury on defense of coercion or duress where defendant, working at store, leaped counter to confront three persons who had no apparent weapons, and then did not withdraw, holding persons captive at gunpoint; facts that court at defendant's first trial on same charge instructed jury on defense gave defendant no right to same instruction where, at second trial, there was no factual basis. United States v Agard (1979, CA2 NY) 605 F 2d 665.

Heroin distribution conspiracy defendant should have been provided with tape recording of his telephone conversation with informant but new trial was not required since record as whole belied defendant's claim of duress. United States v Stevens (1993, CA2 NY) 985 F2d 1175.

To extent charges against defendant require government to prove that criminal acts were one with criminal intent, government should from outset bear burden of disproving duress beyond reasonable doubt once defendant has introduced sufficient evidence concerning each element of defense; there is, however, no constitutional bar to placing burden upon defendant to prove affirmative defense of duress by preponderance of evidence where crime charged contains no requirement of mens rea. United States v Santos (1991, CA3 Pa) 932 F2d 244, cert den (US)  116 L Ed 2d 617,  112 S Ct 592.

Denial of motion to produce witnesses to support defense of duress was proper, since defense would not be available to bank-robbery defendants who claimed that they acted under mental defect resulting from pressure of threat from head of their prison gang that they would be killed if they did not escape from prison and commit crimes for gang's benefit, where neither defendant sought protection of law or tried to surrender once outside prison, where once outside prison threat of death was not imminent, and where defendants' testimony that they would kill one another if gang rules were disobeyed did not prove immediacy of threat or explain failure to surrender. United States v Campbell (1982, CA6 Tenn) 675 F2d 815, cert den (US)  74 L Ed 2d 99,  103 S Ct 112.

Once defendant presents evidence on defense of compulsion state must disprove defense beyond reasonable doubt, thus where defendant testified he took part in two murders upon threat of death, refusal of trial court to instruct on defense required reversal and retrial of both of defendant's convictions for murder, notwithstanding statute which provide that compulsion is not defense if defendant has been convicted of murdering two or more individuals, in view of fact that case interpreting statute to prohibit defense had not been decided at time of crime at issue. United States ex rel. Reed v Lane (1985, CA7 Ill) 759 F2d 618, cert den (US)  89 L Ed 2d 577,  106 S Ct 1268 and cert den (US)  89 L Ed 2d 589,  106 S Ct 1282.

Trial judge did not commit error in refusing to give coercion instruction where, although defendant claimed her sale of cocaine to undercover agent was motivated by threats from her brother, produced evidence of threats by her brother, and claimed that her brother had violent temper and was pressuring her to sell cocaine for him, defendant left and returned to rendezvous point several times before transaction was complete, demonstrating that she had ample opportunity to discontinue her criminal activity and avoid any feared injury. United States v Feldhacker (1987, CA8 Iowa) 820 F2d 279.

In prosecution for aiding and abetting armed bank robbery and aiding and abetting use of firearm in commission of violent felony, reasonable jury could have concluded that live-in girlfriend was not coerced, where she dropped her boyfriend off at hotel after bank robbery and returned to pick him up next day, and where she testified at trial to lying under oath concerning coercive nature of her relationship with her boyfriend at his pretrial detention hearing. United States v Simpson (1992, CA8 Minn) 979 F2d 1282, cert den (US)  122 L Ed 2d 727,  113 S Ct 1345.

Defendant in prosecution for participation in heroin distribution scheme was not entitled to duress instruction where record demonstrated he was nervous and depressed due to $4,000 extortion demand following involvement in accident, but defendant failed to use reasonable avenue of escaping his danger by reporting situation to police. United States v Hernandez (1979, CA9 Cal) 608 F 2d 741.

Jury could decline to accept defendant's story that he was intimidated into attempting bank robbery by threats from undercover agents where story was inconsistent, and was flatly contradicted by agent's testimony. United States v McQuin (1980, CA9 Cal) 612 F 2d 1193, cert den (US)  63 L Ed 2d 791,  100 S Ct 1607 and cert den (US)  63 L Ed 2d 791,  100 S Ct 1608.

In prosecution for conspiracy to commit armed bank robbery and for armed bank robbery, evidence that, even though defendant knew his accomplice to be vicious man, he rode around with him in van for six hours prior to bank robbery, belied defendant's coercion defense; evidence did not meet requirement that defendant acted under immediate threat of death or serious bodily injury, that defendant have well-grounded fear that threat would be carried out, and that defendant had no reasonable opportunity to escape threatened harm except by committing criminal act. United States v Morlan (1985, CA9 Cal) 756 F2d 1442, 18 Fed Rules Evid Serv 1209, cert den (US)  88 L Ed 2d 94,  106 S Ct 115.

In prosecution for knowingly and intentionally importing controlled substance, defense had burden to prove duress defense by preponderance of evidence, where defense did not negate element of intent, but rather justified defendant's conduct, if accepted by jury. United States v Meraz-Solomon (1992, SD Cal) 818 F Supp 1320, affd without op (CA9 Cal) 990 F2d 1263, reported in full (CA9 Cal) 3 F3d 298, 93 CDOS 5886, 93 Daily Journal DAR 10081.

In prosecution for possession of prohibited object, cocaine, while inmate in federal penitentiary, court did not err in refusing to instruct on coercion or duress, where inmate was aware that he could obtain protective custody and, after being placed in segegration, he did not indicate any fear for his safety, but rather threatened to kill another inmate "behind this," and where government presented evidence that inmate had opportunity to speak to prison guards and request protective custody when cocaine was delivered into prison. United States v Merchant (1993, CA10 Kan) 992 F2d 1091.

Trial court properly refused to delete language in pattern jury instruction denying defense of duress to one who recklessly placed himself in situation in which alleged duress was reasonably foreseeable where evidence supported inference that robbery defendant's drug dependency placed him in position to be forced by others to attempt robbery. Meador v State (1984) 10 Ark App 325, 664 SW2d 878.

Where defendant admitted committing robbery, but testified that codefendant had been wild, acted crazy, and waived gun around, pointing it at both him and victim, and that he had taken money from victim and thrown it into rear seat of car because he was afraid codefendant might shoot victim, trial judge erred in omitting any reference to third party from his instruction on defense of duress, thus preventing jury from giving any consideration to threatened imminent use of physical force on victim as motivation for defendant's participation in robbery, and in failing to instruct jury that State had burden to disprove duress beyond reasonable doubt. State v Fuller (1986) 199 Conn 273, 506 A2d 556.

Trial judge was obligated to submit issue of duress to jury under appropriate instructions in prosecution of defendant for driving getaway car after robbery by her husband and third defendant where third defendant testified that robbery was spontaneously suggested to him by defendant's husband just minutes before robbery and after those two had exited car driven by defendant to purchase beer in shopping center, that defendant's husband, armed with shotgun, returned to car driven by defendant and threatened to "whip her ass" unless she drove from scene, and that he continued to curse and direct her thereafter, while defendant was hysterical and crying during entire time. Morrison v State (1989, Fla App D4) 546 So 2d 102, 14 FLW 1611.

In prosecution for unarmed robbery, trial court properly denied jury instruction on defense of duress, although defendant said that he had not seen accomplice's gun before accomplice aimed it at victim and that he was stunned and intimidated when he saw it, where victim testified that he saw nothing to indicate that defendant was being forced or coerced into participating, where defendant called victim after robbery, apologized, and told victim that accomplice was schoolfriend whom he had grown up with, and where defendant did not tell investigator when he gave initial statement that he was forced to participate in robbery. Gahley v State (1990, Fla App D1) 567 So 2d 456, 15 FLW 2169, review den (Fla) 1991 Fla LEXIS 347.

Rule that defense of coercion was not available to person guilty of murder extended to unwilling accomplice even though accomplice did not actually kill victim. Thomas v State (1980) 246 Ga 484, 272 SE2d 68.

Where robbery defendant did not deny that he was present when robbery occurred, but testified that he was forced at gun point to lead robbers to victim's car, failure of defendant's attorney to tender instruction on defense of compulsion and on prosecution's burden of proof constituted ineffective assistance of counsel, and that critical omission so prejudiced defense as to deny right of accused to fair trial. People v Pegram (1988) 124 Ill 2d 166, 124 Ill Dec 525, 529 NE2d 506.

Defense of duress to crime against person is allowed only where prohibited conduct is compelled by threat of imminent bodily injury and where defendant did not have ability to form requisite mens rea, hence, it was not available to defendant charged with robbery where defendant's testimony alleged only that his accomplices badgered him, called him names, and told him he had no guts, and where defendant took part in planning robbery to raise money to purchase marijuana, called out before shooting victim, then proceeded to seriously injure him, victim's watch was found in defendant's possession, and defendant gave statement implicating himself. Early v State (1985, Ind) 482 NE2d 256.

Trial judge correctly ruled that expert testimony on battered woman syndrome and hostage syndrome was not relevant to facts of felony murder case and correctly denied defendant's request for funds to obtain expert witness where defendant, who accompanied her boyfriend and others on crime spree which resulted in charges against her of felony murder, aggravated kidnapping, aggravated robbery, aggravated battery on law enforcement officer, and aggravated battery, contended that acts of her boyfriend when she told him that she should return home, in threatening her with gun, warning her that he would harm her or her family if she left him, and later repeating warning, placed her under emotional and mental restraint of her boyfriend so that, although she had no intent to commit crimes, she was compelled by her boyfriend to be present when crimes were committed, that to show that her acts were compelled by her boyfriend, services of expert were necessary to investigate battered wife syndrome and hostage or captivity syndrome, evidence of which would bolster her claim that she acted under compulsion and, therefore, was not criminally responsible, but evidence showed that only physical threat was made before crime spree while parties were driving to Florida, that threats thereafter consisted of intermittent reminders of previous intimidation, that defendant had several opportunities to escape when boyfriend slept or when police officers were present, and where evidence was insufficient to make battered woman or hostage syndrome defenses applicable. State v Down (1988) 243 Kan 414, 758 P2d 718.

In prosecution of gang member for aggravated battery, assault, and kidnapping in connection with torture and beatings inflicted on new gang member, trial court did not err in refusing to instruct jury on compulsion defense on theory that defendant was compelled to participate due to his fear of gang leader upon whom he was financially and emotionally dependent, where evidence that defendant had ample opportunity to escape did not support contention that coercion was continuing or that defendant was in reasonable apprehension of death or serious injury, and where defendant had knowingly associated himself with selling of drugs and with gang noted for violence. State v Scott (1992) 250 Kan 350, 827 P2d 733.

Partially constructed nuclear power plant did not present kind of threat to life and health contemplated by compulsion statute so as to justify criminal action to prevent its operation. State v Greene (1981) 5 Kan App 2d 698, 623 P2d 933.

Evidence was insufficient to establish compulsion defense with respect to charge of driving while under influence of alcohol or drugs, where there was no evidence that defendant was followed and defendant drove vehicle for approximately 5 miles without stopping or otherwise seeking assistance; distance traveled and time involved provided defendant with ample opportunity to withdraw from criminal activity and seek aid. State v Riedl (1991) 15 Kan App 2d 326, 807 P2d 697.

Testimony that defendant's wife had received threatening phone calls including threats of death to herself and her children, and had contacted police but that caller, who defendant testified had been involved in crimes for which defendant had been imprisoned, had not been arrested, did not constitute sufficient evidence of duress to require court to instruct jury as to defense of duress to charge of escape from prison. People v Stephens (1981) 103 Mich App 640, 303 NW2d 51.

Under statutory changes effective January 1, 1979, defense of duress or coercion was affirmative defense placing burden of proof on defendant, rather than a special negative defense placing burden of proof on state. State v Wilkerson (1981, Mo) 616 SW2d 829.

Murder defendant was not entitled to instruction on statutory mitigating circumstance that he acted under extreme duress or under substantial domination of another person where there was no basis in record to support such instruction. State v Foster (1985, Mo) 700 SW2d 440, cert den (US)  90 L Ed 2d 993,  106 S Ct 2907.

Where defendant testified that he could have gotten away from persons he claimed coerced him into robbery at any time, defense of coercion would not apply. State v Hicks (1979, Mo App) 591 SW2d 184.

Defense of compulsion or duress to charge of escape from probation based on alleged coerced sexual relationship with male guardian was not available where probationer failed to report alleged sexual coercion to probation officer even though she had ample opportunity to do so and had developed close relationship with probation officer, failed to report to proper authorities once she had escaped, and was arrested in another state for prostitution. State v Ottwell (1989, Moat) 784 P2d 402.

In prosecution for driving while intoxicated, driver failed to establish that he acted under duress, where no one ordered defendant to get drunk and no one ordered defendant to drive drunk, where police did not coerce defendant into driving vehicle through use or threats of violence, and where police officer merely ordered defendant to get into his truck and leave scene of fight. State v Fogarty (1992) 128 NJ 59, 607 A2d 624.

In prosecution for assault against another inmate of county jail, instruction that, in determination of whether or not defendant would have been able to resist duress, time frame to look at was that at time of assault, did not impose more stringent standard than required by statute, since emphasis on defendant's situation at time of assault in no way precluded jury from considering all underlying circumstances leading up to that moment. People v Tenace (1983, 3d Dept)  97 App Div 2d 592, 468 NY S2d 215.

Jury properly rejected defendant's defense of duress in prosecution for robbery and criminal possession of stolen property where state's evidence indicated that defendant announced robbery using particularly vile curse, that he appeared calm throughout robbery, that he was only robber to display weapon, air pistol capable of causing death or serious physical injury, that he kept pistol pressed against one victim's side during incident, and that when arrested, defendant was found to have extra compressed gas cartridge and three spare pellets on his person in addition to proceeds of crime. People v Armstrong (1989, 2d Dept)  150 App Div 2d 589, 541 NY S2d 457.

The common law doctrine of duress does not recognize any duress, even the threat of imminent death, as sufficient to excuse the intentional killing of an innocent human being and does not apply if defendant had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. Therefore, defendant was not entitled to an instruction on duress in a prosecution for first-degree murder where all the evidence tended to show that defendant was either the actual killer of the victim or that he assisted another in killing the victim and where the evidence also showed that defendant had a reasonable opportunity to run away from the building in which the killing occurred and avoid any further aid to the other person involved in the killing without undue exposure to death or serious bodily harm when he left the building to talk with the driver of a vehicle which had driven up outside the building. State v Brock (1982) 305 NC 532,290 SE2d 566.

The trial court properly instructed the jury as to compulsion in accordance with State v Kearns (1975) 27 NC App 354, 219 SE2d 228, cert den (1976) 289 NC 300, 222 SE2d 700, where the defense initially requested that the judge instruct the jury as to coercion or duress and counsel for defendant withdrew the request after the State asked the court to give the instruction in accordance with Kearns. State v Barnes (1994) 116 NC App 311, 447 SE2d 478.

In prosecution for attempted aggravated murder and conspiracy to commit aggravated murder of girlfriend's ex-husband who threatened defendant, girlfriend, and girlfriend's daughter, failure of trial court to charge on duress was not error, where defendant's testimony that coconspirator stated that if defendant did not go along with plan defendant would be killed by hit man, and that defendant met with coconspirator and hit man on following day did not indicate immediate and continuous force compelling criminal conduct against will of defendant during time act was being committed. State v Dapice (1989, Summit Co) 57 Ohio App 3d 99, 566 NE2d 1261, motion overr 42 Ohio St 3d 710, 538 NE2d 119, motion den 47 Ohio St 3d 716, 549 NE2d 172 and later app (Ohio App, Summit Co) 1989 Ohio App LEXIS 3943, dismd, motion overr 49 Ohio St 3d 707, 551 NE2d 1301.

Trial court's instruction that to excuse any criminal act, degree of coercion must be present, imminent, and of such nature as to induce well-grounded apprehension of death or serious bodily harm if the act is not done, and that fear of injury must be reasonable, was accurate statement of law of coercion. State v Owens (1992, SC) 424 SE2d 473, cert den (US)  123 L Ed 2d 482,  113 S Ct 1861.

In prosecution for aggravated robbery, trial court did not err in shifting burden of production and persuasion to defendant who asserted affirmative defense of duress, where statute provided that affirmative defense shifted both burden of production and persuasion to defendant and where such shift did not violate substantive due process given that voluntariness was not element of offense. Alford v State (1991, Tex App Dallas) 806 SW2d 581, petition for discretionary review gr (Jul 3, 1991).

Defense of coercion, raised by driver who asserted that he was speeding to get away from another erratically-driven car and thereby protect his passenger sister and avoid confrontation with driver, would be available as defense to strict liability civil forfeiture defense (i.e., speeding), where defense did not seek to disprove culpable state of mind but rather raised legal justification of events, and where defendant's violation may have been caused by state itself, since other car was unmarked police car that eventually issued speeding citation. State v Brown (1982)  107 Wis 2d 44, 318 NW2d 370.

In prosecution for kidnapping and aggravated assault of 2 prison counselors, trial court did not abuse its discretion in refusing to permit physician/psychiatrist's testimony about inmate's subjective belief about danger, where testimony was irrelevant given that apprehension must be reasonable; trial court did not err in refusing inmate's instructions about duress and coercion, where inmate presented no evidence that (1) he was faced with specific threat of death, forcible sexual attack, or substantial bodily injury in immediate future, (2) there was not time for complaint to authorities, or that such complaint would have been futile, and (3) there was no opportunity to resort to courts to redress grievances. Amin v State (1991, Wyo) 811 P2d 255 (citing annotation).

Duress is usually taken to require present, immediate, and impending threat of such nature as to induce well founded fear of death or of serious bodily injury if criminal act is not done; actor must have been so positioned as to have no reasonable chance of escape; actor must have been put in condition of mind where neither he nor person of reasonable firmness could have acted otherwise in circumstances. Thus, in prosecution for murder, armed robbery, and assault by means of dangerous weapon, where record showed that defendant claimed he was afraid of his companion and his shotgun or else he would not have engaged in robbery, though there was controverting testimony, judge was obliged to instruct jury on duress; assuming that duress defense was available to meet charge of homicide, as well as other charged crimes, and that burden of disproving duress beyond reasonable doubt was upon Commonwealth as matter of constitutional law, instructions on duress and burden of proof were adequate, even though no explicit instruction was made that Commonwealth bore burden of negating duress beyond reasonable doubt, in that instructions required Commonwealth to prove voluntariness and critical nexus between elements of crime charged and absence of particular defense. Commonwealth v Robinson (1981, Mass) 1981 Adv Sheets 4, 415 NE2d 805.

Footnotes

Footnote 2. See 40 Am Jur 2d,  Homicide § 119.

Footnote 3. Koontz v State (Fla App D2) 204 So 2d 224; Nall v Commonwealth, 208 Ky 700, 271 SW 1059; State v Capaci, 179 La 462, 154 So 419; State v St. Clair (Mo) 262 SW2d 25,  40 ALR2d 903; State v Bromley, 72 Wash 2d 150, 432 P2d 568, later app 1 Wash App 325, 462 P2d 242 (kidnapping).

Defendant's testimony that he had been informed someone had a contract out on his life and that someone took a shot at him 3 days before the trial did not establish a defense of duress to excuse his failure to appear for trial, since defendant was not in danger because of the upcoming trial date, but rather for a matter not directly related to his appearance in court and there was no evidence that defendant had contacted the police, the court, or even his attorney about threats against his life.  United States v Atencio (1978, CA9 Cal) 586 F2d 744.

Rape has been suggested as another offense which possibly cannot be excused on the basis of coercion, even by one in peril of his life.  State v Dowell, 106 NC 722, 11 SE 525.

As to crime committed under military orders, see 53 Am Jur 2d,  Military, and Civil Defense.

As to coercion as defense in treason cases, see 70 Am Jur 2d,  Sedition, Subsersive Activities, and Treason § 52.

Practice Aids: Criminal Acts Committed Under Duress.   4 Am Jur Proof of Facts 2d 179.

Boyer, Constitutionality of Criminal Affirmative Defenses: Duress and Coercion.  1976, XI U San Francisco L Rev 123.

Wasik, Duress and criminal responsibility.  1977 Criminal L Rev 453, August 1977.

Footnote 4. R. I. Recreation Center, Inc. v Aetna Casualty & Surety Co. (CA1 RI) 177 F2d 603,  12 ALR2d 230; State v St. Clair (Mo) 262 SW2d 25,  40 ALR2d 903; State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr; State v Ellis, 232 Or 70, 374 P2d 461.

The defense of duress requires proof of a threat of imminent violence; fear of future bodily harm does not suffice.  People v Killman (4th Dist) 51 Cal App 3d 951, 124 Cal Rptr 673.

Claim by defendant that he committed robbery because he needed money to provide his family with food and shelter did not constitute claim of duress without any showing that defendant was under any physical compulsion or threat of physical harm from any source, person, or persons to commit crime. State v Gann (ND) 244 NW2d 746.

Footnote 5.
Annotation:  40 ALR2d 908, § 2.

In a prosecution of a man and three women for murder and conspiracy to commit murder arising out of two successive multiple homicides the trial court was not required to instruct the jury sua sponte on the defense of compulsion, where, though there was evidence that the male defendant gave the female defendants orders concerning the commission of the crimes, there was no evidence that such instructions were accompanied by any threat.  People v Manson (2d Dist) 61 Cal App 3d 102, 132 Cal Rptr 265, cert den  430 US 986,  52 L Ed 2d 382,  97 S Ct 1686 and later app (2d Dist) 113 Cal App 3d 280, 170 Cal Rptr 189.

In robbery prosecution, where no evidence showed that any threat was made by accomplice or defendant, and defendant made no explanation as to why he did not withdraw from crime at time when he had apparent opportunity to do so, there were no facts to show that defendant entertained reasonable fears of immediate violence being inflicted upon him, and therefore jury instruction which placed upon defendant burden of persuasion on issue of coercion was harmless error.  State v Moore, 237 Ga 269, 227 SE2d 241.

Compulsion to commit robbery was not shown where evidence indicated defendant participated fully and without direction in holdup of two victims, and later failed to claim defense of compulsion when caught by security guard or subsequently at police station.  People v Johnson, 42 Ill App 3d 194, 355 NE2d 577.

Coercion was not available as defense to defendant who was principal in second degree to armed robbery, where defendant had testified that accomplice had threatened to kill him if he did not participate in crime, but where defendant was left in control of car and had reasonable opportunity to leave scene and avoid aiding and abetting perpetrators.  State v Kearns, 27 NC App 354, 219 SE2d 228, cert den 289 NC 300, 222 SE2d 700.

Footnote 6. D'Aquino v United States (CA9 Cal) 192 F2d 338, reh den (CA9 Cal) 203 F2d 390 and cert den  343 US 935,  96 L Ed 1343,  72 S Ct 772, reh den  343 US 958,  96 L Ed 1358,  72 S Ct 1053 and reh den  345 US 931,  97 L Ed 1361,  73 S Ct 786; United States v Vigol (F CC Pa)  2 US 346,  1 L Ed 409.

Annotation:  40 ALR2d 908, § 2.

Defendant's testimony that codefendant, who had allegedly been harrassing him for six years, asked him to take photographs, saying if he refused some harm might come to his minor daughter and son, did not show that defendant was coerced in endeavoring to induce 17-year-old girl to pose for photographs in nude.  Mallicoat v State (Tenn Crim) 539 SW2d 54.

Footnote 7. State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr.

Duress is defense to crime other than murder if defendant was engaged in conduct because he was coerced to do so by use of, or threat to use, unlawful force against person or person of another, which person of reasonable firmness in defendant's situation would have been able to resist; although preliminary judicial determination that threat posed danger of "present, imminent and impending" harm to defendant or to another, trial judge in charging jury should advert to factor of immediacy, as well as gravity of harm threatened, seriousness of crime committed, identity of person endangered (whose conduct should be judged by standard of person of reasonable firmness in defendant's situation), possibilities for escape or resistence, and opportunities for seeking official assistance.  State v Toscano, 74 NJ 421, 378 A2d 755.

Footnote 8. R. I. Recreation Center, Inc. v Aetna Casualty & Surety Co. (CA1 RI) 177 F2d 603,  12 ALR2d 230; State v St. Clair (Mo) 262 SW2d 25,  40 ALR2d 903.

Annotation:  40 ALR2d 908, § 2.

In prosecution for carrying knife in federal prison, inmate, who had been threatened by other inmates, did not establish defense of duress where inmate neither sought administrative detention nor transfer to another institution to avoid threatened danger.  United States v Wood (CA9 Cal) 566 F2d 1108.

Footnote 9. People v Villegas, 29 Cal App 2d 658, 85 P2d 480; People v Merhige, 212 Mich 601, 180 NW 418; State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr.

Annotation:  40 ALR2d 908, § 2.

Footnote 10.
Annotation:  1 ALR4th 481.

Footnote 11. People v Graham (4th Dist) 57 Cal App 3d 238, 129 Cal Rptr 31; Koontz v State (Fla App D2) 204 So 2d 224; Hill v State, 239 Ga 278, 236 SE2d 626; People v Creach, 69 Ill App 3d 874, 25 Ill Dec 886, 387 NE2d 762, affd in part and revd in part on other grounds 79 Ill 2d 96, 37 Ill Dec 338, 402 NE2d 228, cert den (US)  66 L Ed 2d 467,  101 S Ct 564; Nall v Commonwealth, 208 Ky 700, 271 SW 1059; People v Merhige, 212 Mich 601, 180 NW 418; State v St. Clair (Mo) 262 SW2d 25,  40 ALR2d 903; White v State, 150 Tex Crim 546, 203 SW2d 222.

Annotation:  1 ALR4th 481, § 3[a].

See State v Milam, 108 Ohio App 254, 9 Ohio Ops 2d 252, 80 Ohio L Abs 449, 156 NE2d 840, motion overr, motion overr, involving a prosecution for murder committed in connection with a robbery, where the court said that under the circumstances presented at the time of the robbery, it was reasonable for the defendant to fear that he was in imminent danger of death or great bodily injury at the hands of his companions if he attempted to leave or to refuse to do anything that they told him to do, the court adding that the defense of coercion and duress to the commission of the robbery appeared to have been made.  The circumstances included, the court observed, the fact that the defendant's companions tricked him into accompanying them to the home of two acquaintances whom they intended to rob; the fact that the defendant, who was described as naive, did not suspect their intention and so agreed to accompany them; and the fact that when his companions undertook to rob the victims, the defendant was petrified with fear, placed his own safety uppermost in his mind, and did no more than what he believed was necessary to ward off any suspicion on the part of his companions that he was antagonistic to their purpose and unwilling to co-operate.

Footnote 12. Johnson v United States (CA9 Ariz) 370 F2d 495 (applying Arizona law); United States v Buchanan (CA7 Ill) 529 F2d 1148, cert den  425 US 950,  48 L Ed 2d 194,  96 S Ct 1725; United States v Campbell (CA8 Iowa) 609 F2d 922, cert den  445 US 918,  63 L Ed 2d 604,  100 S Ct 1282; United States v Saettele (CA8 Mo) 585 F2d 307, cert den  440 US 910,  59 L Ed 2d 458,  99 S Ct 1220; Ballou v State (Ala App) 365 So 2d 352; People v Killman (4th Dist) 51 Cal App 3d 951, 124 Cal Rptr 673; State v Moore, 237 Ga 269, 227 SE2d 241; People v Colone, 56 Ill App 3d 1018, 14 Ill Dec 592, 372 NE2d 871,  1 ALR4th 475; Love v State (Ind) 393 NE2d 178; State v Xanders, 215 Iowa 380, 245 NW 361; State v Wing (Me) 294 A2d 418; Darby v State, 3 Md App 407, 239 A2d 584, cert den  393 US 1105,  21 L Ed 2d 801,  89 S Ct 911; Commonwealth v Kennedy, 4 Mass App 772, 341 NE2d 697; People v Kelly, 51 Mich App 28, 214 NW2d 334; State v Rasmussen, 241 Minn 310, 63 NW2d 1; Brown v State (Miss) 252 So 2d 885; State v Hicks (Mo App) 591 SW2d 184; People v Irby (2d Dept)  61 App Div 2d 386, 402 NYS2d 847, mod on other grounds  47 NY2d 894, 419 NYS2d 477, 393 NE2d 472; State v Kearns, 27 NC App 354, 219 SE2d 228, cert den 289 NC 300, 222 SE2d 700; State v Sappienza, 84 Ohio St 63, 95 NE 381; State v Gibbs, 267 SC 365, 228 SE2d 104; Munsey v State (Tenn Crim) 496 SW2d 525; Thomas v State (Tex Crim) 530 SW2d 834; State v McKinney, 19 Wash App 23, 573 P2d 820.

Annotation:  1 ALR4th 481, § 3[b].

Describing as without merit the defendant's claim that he was acting solely under duress and fear in the presence of a deadly weapon, and that he therefore was not accountable for his participation in a robbery, the court in People v Sierra, 115 Cal App 2d 498, 252 P2d 394, affirmed his robbery conviction.  The defendant testified, and his testimony was generally substantiated by the victim of the crime, that he was driving the car in which his codefendant, the victim, and another person were passengers; that after placing a knife to the victim's throat, his codefendant ordered him to keep on driving and to keep quiet; and that his codefendant subsequently ordered him to stop the car, search the victim, and remove and throw away the victim's shoes.  In rejecting the defendant's claim that he acted under duress, the court said that the record showed that his codefendant neither attempted to use his knife on him nor threatened to harm him in any way; that the defendant stayed with his codefendant for some time after the robbery; and that the defendant was in contact with the police on the day of the robbery and made no mention of the crime to them. The evidence was clear, the court concluded, that the defendants jointly planned the robbery and shared in the money taken from the victim.

In People v Aldridge, 65 Ill App 3d 995, 22 Ill Dec 655, 383 NE2d 19, the court upheld the defendant's conviction for armed robbery even though he claimed that the evidence was sufficient to support his claim that he participated in the robbery of a liquor store only because he had been threatened by a man with a gun.  The court said that sufficient evidence was presented for the trial court to disbelieve the defendant and find that the claimed defense of compulsion had been overcome by the prosecution.  The defendant asserted that he took part in the robbery only because a man to whom he owed money threatened him with a gun and ordered him to hold up the liquor store in order to get the money that he owed. During the course of the robbery, the defendant said, the man kept the gun pointed at him.  Escape was impossible, the defendant added, because the door to the liquor store was guarded by an accomplice of the man.  In order to establish that he acted out of fear, the defendant testified that he had been shot in the leg on a previous occasion by the man.  The court noted, however, that an employee of the liquor store testified that the defendant was an active and apparently willing participant in the robbery.

Although the defendant claimed that he participated in the robbery of a market only because his two companions, one of whom was armed with a shotgun, threatened to kill him if he refused, the court held in Arendall v State (Tenn Crim) 509 SW2d 838, that there was evidence supporting a guilty verdict, and it accordingly affirmed the defendant's conviction for armed robbery.  The court pointed out that the defendant's contention that he acted under compulsion rested on his testimony alone, and it noted that in opposition to this contention, there was testimony from two employees of the market, one of whom recognized the defendant, that he took an active role in the robbery, including instructing his accomplice to shoot one of the employees.

Footnote 13.
Annotation:  1 ALR4th 481, § 4.

Footnote 14. People v Graham (4th Dist) 57 Cal App 3d 238, 129 Cal Rptr 31; Koontz v State (Fla App D2) 204 So 2d 224; State v St. Clair (Mo) 262 SW2d 25,  40 ALR2d 903.

Annotation:  1 ALR4th 481, § 4[a].

Footnote 15. United States v Buchanan (CA7 Ill) 529 F2d 1148, cert den  425 US 950,  48 L Ed 2d 194,  96 S Ct 1725; United States v Saettele (CA8 Mo) 585 F2d 307, cert den  440 US 910,  59 L Ed 2d 458,  99 S Ct 1220; People v Bryan (2d Dist) 3 Cal App 3d 327, 83 Cal Rptr 291; People v Byer, 75 Ill App 3d 658, 31 Ill Dec 430, 394 NE2d 632; Hood v State, 160 Ind App 667, 313 NE2d 546; State v Perry (Mo App) 565 SW2d 841; State v Fowler, 37 Or App 299, 587 P2d 104; Jackson v State (Tex Crim) 504 SW2d 488; State v McKinney, 19 Wash App 23, 573 P2d 820.

Annotation:  1 ALR4th 481, § 4[b].

In affirming a conviction for misapplying federally insured bank funds, despite the defendant's contention that as a result of her depressed state of mind over the death of a relative in Vietnam in 1967, she was compelled to misapply such funds in 1970 because of suicide threats made by her daughter, the court held in United States v Stevison (CA7 Ill) 471 F2d 143, cert den  411 US 950,  36 L Ed 2d 411,  93 S Ct 1933, that the trial court neither erroneously and unduly limited and curtailed development of the defense of coercion, nor incorrectly instructed the jury as to the defense.  The defendant, who was a bank cashier, permitted her daughter to cash checks against accounts which contained insufficient funds, and the defendant made payments on the checks from the bank's cash items, which she deducted from its undivided profits.  The court explained that the death of the defendant's relative in 1967 was not such an "immediate" limitation of her free choice of conduct in 1970 as to justify invoking the coercion defense.  Even if the defendant thought that her daughter's threat of suicide was serious, the court added, she failed to show that she did not have a full opportunity to avoid the threat by taking steps to have her daughter restrained.

Footnote 16.
Annotation:  1 ALR4th 481, § 5.

In People v Bevilacqua (2d Dept)  56 App Div 2d 605, 391 NYS2d 641, revd on other grounds  45 NY2d 508, 410 NYS2d 549, 382 NE2d 1326, a prosecution for, inter alia, robbery and grand larceny in which the defendant raised the defense of duress, the court affirmed, without describing the circumstances bearing upon the claim of duress, the defendant's convictions.

Footnote 17. In Hamilton v State, 205 Ind 26, 184 NE 170, a case in which the defendant contended that he took part in a burglary under duress and compulsion after threats were made to "ruin his reputation and close the doors of society against him from Maine to California," and because of force that was exerted against him by three fellow participants in the crime, the court affirmed his conviction without discussing the evidence assertedly bearing upon the defense of compulsion and duress.

Footnote 18. Although the defendant contended, in defense to a prosecution for larceny by embezzlement, that he had taken money from the bank for which he worked because of his fear that if he did not do so a prior act of embezzlement would be exposed and he would be prosecuted therefor, the court held in State v Patterson, 117 Or 153, 241 P 977, that the fear of a threat of prosecution for a former offense is not a sufficient compulsion to exonerate a defendant from prosecution for a subsequent offense.  The court thus determined that there was no error in the trial court's instruction to the jury that there was no evidence that the defendant was under such coercion as would constitute the defense of compulsion or duress, and it accordingly affirmed his conviction.  The defendant claimed that he embezzled the funds in question at the direction of a man from whom he had borrowed money to cover a previous act of embezzlement and who threatened to expose him if he refused to co-operate.  Pointing out that the defense of compulsion or duress requires evidence of present, imminent, and impending compulsion of such a nature as to induce a well-grounded apprehension of death or serious bodily harm, and noting that the compulsion must have arisen without the negligence or fault of the defendant, the court said that the defense was not available because the defendant himself was responsible for the prior act of embezzlement.

Footnote 19. Although the defendant claimed that she was not criminally responsible for her participation in an armed robbery because she needed money to buy heroin in order to prevent withdrawal, the court held in Love v State (Ind) 393 NE2d 178, that her claim of compulsion was without merit. Noting that the defendant did not claim that she was under any influence that prevented her from forming the requisite criminal intent, the court said that "pharmacological duress" does not constitute a legal defense to the commission of a crime.

Footnote 20. In State v Gann (ND) 244 NW2d 746, it was held that a claim by the defendant that he committed a robbery because he needed money to provide his family with food and shelter did not establish the defense of duress, since the defendant did not claim that he committed the crime under any physical compulsion or threat of physical harm.  The court explained that in order for the defense of duress or compulsion to be applicable, there must be a showing that the compulsion or duress was of such a nature as to induce a well-founded fear of immediate great bodily harm or death.  In the absence of such evidence, the court determined that the trial court correctly refused to instruct the jury as to the defense.

Footnote 21. State v Sappienza, 84 Ohio St 63, 95 NE 381.

See the Model Penal Code (U.L.A.) § 2.09.

Footnote 22. People v Nurse, 34 Ill App 3d 42, 339 NE2d 328; People v Johnson, 42 Ill App 3d 194, 355 NE2d 577.

Footnote 23. State v Toscana, 74 NJ 421, 378 A2d 755; People v Irby (2d Dept)  61 App Div 2d 386, 402 NYS2d 847, mod on other grounds  47 NY2d 894, 419 NYS2d 477, 393 NE2d 472; State v Sappienza, 84 Ohio St 63, 95 NE 381.

Footnote 24. White v State, 150 Tex Crim 546, 203 SW2d 222.

Footnote 25. See United States v Hearst (ND Cal) 412 F Supp 889, a case not within the scope of this discussion because it does not consider whether particular facts or circumstances were sufficient to establish the defense of coercion or duress, where it was held that expert psychiatric testimony was admissible to explain the effects that kidnapping, prolonged incarceration, and psychological and physical abuse may have had on the defendant's mental state at the time of a bank robbery, insofar as her mental state was relevant to the asserted defense of coercion or duress.  The court explained, in this notorious case involving the kidnapping of Patty Hearst by members of the Symbionese Liberation Army, that the question whether the defendant's initial status as a kidnap victim and her subsequent treatment by her captors could have deprived her of the requisite general intent to commit the offense charged was relevant to the asserted defense.  See also United States v Hearst (CA9 Cal) 563 F2d 1331, reh den (CA9 Cal) 573 F2d 579 and cert den  435 US 1000,  56 L Ed 2d 90,  98 S Ct 1656, where it was held that the trial court committed no error in permitting admission of evidence connecting the defendant with criminal activity which occurred approximately 1 month following the bank robbery, since such evidence was relevant to the question whether she was acting under duress at the time of the robbery.

Footnote 26. See, for example, State v Starks, 122 Ariz 531, 596 P2d 366, holding that proffered psychiatric testimony that the defendant, who was charged with armed robbery, was mentally retarded, as a result of which he was susceptible to threats against him, was inadmissible to prove that he acted under duress.  Explaining that the statute establishing the defense of duress required that a defendant's conduct be judged by an objective standard once it was established that he in fact believed that his life was endangered by "threats or menaces," the court reasoned that the proffered testimony was relevant only to the defendant's subjective mental state and therefore was inadmissible.


§ 149  Husband's coercion of wife  [21 Am Jur 2d CRIMINAL LAW]

Even under the common law, marriage does not affect the capacity of a woman to commit crimes.  The law deems a married woman to be as capable of committing crimes as if she were a feme sole.  If in committing a crime she acts of her own free will, and not under the coercion or presumed coercion of her husband, she is held to the same responsibility for criminal acts as any other person; her coverture is no defense. 27   At common law, however, a married woman was not criminally responsible for acts done under her husband's coercion, 28  and his coercion was frequently presumed. 29    Actual coercion may be a good defense, even where the common-law presumption is not recognized. 30   And under some statutes, a married woman is incapable of crime when acting under the threats, command, or coercion of her husband, except in the case of felonies. 31

A married woman is generally responsible for crimes committed by her in the absence of her husband, 32  although some cases have stated the rule more guardedly to the effect that a married woman is responsible for crimes committed by her in her husband's absence where there is no coercion by her husband. 33


§ 149  – Husband's coercion of wife [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Note, A Trend Emerges: A State Survey on the Admissibility of Expert Testimony Concerning the Battered Woman Syndrome. 25 J Fam L 373, 1986-87.

Battered women who act under duress, 28 New Eng LR 603 (1994).

Battered woman syndrome: does the "reasonable battered woman" exist? 19 New Engl J Crim&Civ Confin 329 (1993).

Coerced into crime: The application of battered woman syndrome to the defense of duress, 9 Wis Women's LJ 67-94 (1995).

Footnotes

Footnote 27. State v Renslow, 211 Iowa 642, 230 NW 316 (receiving stolen goods); State v Cleaves, 59 Me 298; Commonwealth v Hopkins, 133 Mass 381 (keeping house of ill fame); People v Wright, 38 Mich 744, (robbery); State v Miller, 162 Mo 253, 62 SW 692; State v Cauley, 244 NC 701, 94 SE2d 915, later app 245 NC 699, 97 SE2d 115; Sentell v State, 61 Okla Crim 229, 67 P2d 466; State v McDonie, 96 W Va 219, 123 SE 405 (assault and battery); Gill v State, 39 W Va 479, 20 SE 568.

Practice Aids: –Boyer, Constitutionality of Criminal Affirmative Defenses:  Duress and Coercion.  1976, XI U San Francisco L Rev 123.

Footnote 28. Mulvey v State, 43 Ala 316; Conner v State, 95 Fla 765, 117 So 852; State v Renslow, 211 Iowa 642, 230 NW 316; Anderson v Commonwealth, 211 Ky 726, 277 SW 1008; Commonwealth v Neal, 10 Mass 152; Davis v State, 15 Ohio 72 (arson).

Footnote 29.  §§ 150,  151, infra.

Footnote 30. People v Statley, 91 Cal App 2d Supp 943, 206 P2d 76 (by statute); Anderson v Commonwealth, 211 Ky 726, 277 SW 1008.

Footnote 31. Encinas v State, 32 Ariz 200, 256 P 1054; People v Statley, 91 Cal App 2d Supp 943, 206 P2d 76.

Footnote 32. Humble v State, 199 Ind 653, 160 NE 41; State v Halbrook, 311 Mo 664, 279 SW 395.

Footnote 33. Commonwealth v Tryon, 99 Mass 442.


§ 150  Presumption as to wife's coercion by husband  [21 Am Jur 2d CRIMINAL LAW]

At common law it was generally presumed, though not with relation to all offenses, that crimes committed by a married woman in her husband's presence were committed under his coercion. 34    However, the presumption does not arise from the mere fact of marriage; 35  nor does the presumption apply to acts committed in the husband's absence, and his bare command or procurement has been held not sufficient to raise the presumption. 36   According to some cases, the husband must be personally and physically present, 37  but others state that he need not be in sight and it is sufficient if he is near enough for the wife to be acting under his immediate influence and control. 38  

The presumption has been vigorously criticized as obsolete and inconsistent with present-day customs and conditions, 39   and some jurisdictions now refuse to apply it, on the ground that the rule must cease to operate when the reasons which gave rise to it no longer obtain. 40    Some jurisdictions regard the statutory emancipation of married women from the disabilities of coverture as sufficient to abolish the common-law presumption, 41  but in others this has been denied. 42  Despite these considerations, the common-law presumption continues to be applied from time to time in a number of jurisdictions, 43  and at least one has adopted it by statute, though with a number of specified offenses excepted from its operation. 44

Footnotes

Footnote 34. Strouse v Leipf, 101 Ala 433, 14 So 667; Wolf v Keagy, 33 Del 362, 136 A 520; State v Renslow, 211 Iowa 642, 230 NW 316; Cothron v State, 138 Md 101, 113 A 620; State v Ready (Mo) 251 SW2d 680; State v Asper, 35 NM 203, 292 P 225; Sentell v State, 61 Okla Crim 229, 67 P2d 466; Morton v State, 141 Tenn 357, 209 SW 644; State v Buchanan, 111 W Va 142, 160 SE 920.

As to application of presumption in liquor cases, see 45 Am Jur 2d,  Intoxicating Liquors § 303.

Footnote 35. State v Hollis, 163 La 952, 113 So 159; State v Halbrook, 311 Mo 664, 279 SW 395.

Footnote 36. Shannon v United States (CA10 Okla) 76 F2d 490; Haning v United States (CA8 Neb) 59 F2d 942.

The act of a wife in obtaining a revolver and conveying it to her husband in prison, at his request, has been ruled to be an act committed in his presence, and the presumption applies; the fact that the husband was in prison does not rebut the presumption of coercion.  State v Miller, 162 Mo 253, 62 SW 692.

Footnote 37. Emmons v State (Okla Crim) 291 P2d 838.

Footnote 38. Vukodonovich v State, 197 Ind 169, 150 NE 56; Commonwealth v Burk, 77 Mass 437.

Footnote 39. United States v Dege,  364 US 51,  4 L Ed 2d 1563,  80 S Ct 1589, reh den  364 US 854,  5 L Ed 2d 77,  81 S Ct 29; State v McDonie, 96 W Va 219, 123 SE 405.

Footnote 40. People v Statley, 91 Cal App 2d Supp 943, 206 P2d 76; State v Renslow, 211 Iowa 642, 230 NW 316; King v Owensboro, 187 Ky 21, 218 SW 297; State v Turnbow, 67 NM 241, 354 P2d 533,  89 ALR2d 461.

Footnote 41. Conyer v United States (CA6 Mich) 80 F2d 292; State v Renslow, 211 Iowa 642, 230 NW 316 (receiving stolen property from her husband); King v Owensboro, 187 Ky 21, 218 SW 297; Morton v State, 141 Tenn 357, 209 SW 644.

With respect to the disputable presumption that a married woman's acts in the presence of her husband were done under his coercion, the court announced that as to crimes hereafter committed by married women the same rules would be applied as to duress or coercion by a husband as would be applied to duress or coercion by anyone else.  Commonwealth v Barnes, 369 Mass 462, 340 NE2d 863.

Footnote 42. Braxton v State, 17 Ala App 167, 82 So 657.

Footnote 43. State v Cauley, 244 NC 701, 94 SE2d 915, later app 245 NC 699, 97 SE2d 115 (conviction reversed for failure to give instruction embodying presumption).

Footnote 44. O'Donnell v State, 73 Okla Crim 1, 117 P2d 139.


§ 151  – Offenses to which presumption applicable  [21 Am Jur 2d CRIMINAL LAW]

The authorities are not altogether uniform as to the offenses to which the common-law presumption applies.  It is usually held not to apply to murder 45  or treason, 46  on the ground that these crimes show so much malignity as to render it improbable that a wife would be constrained by her husband, without the separate operation of her will, into their commission. 47  Robbery, and occasionally manslaughter, are sometimes included in this statement, 48  although there have been robbery cases in which the presumption was applied. 49   Some authorities speak of the presumption as applicable only to offenses of a minor grade, or to those not particularly heinous, 50  but others have applied the presumption, or assumed it to be applicable, to such serious offenses as mayhem 51  and arson. 52

Offenses such as the keeping of a bawdy house, 53   and other offenses of a similar character, 54  have been regarded as constituting a special exception to the rule, on the ground that these are offenses in which the wife is more likely to have a managing, or at least an independent, role.  But there is some authority for the application of the presumption to such offenses, too. 55


§ 151  – Offenses to which presumption applicable [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

In a prosecution for involuntary manslaughter which arose when defendant was confronted by the husband of a woman with whom he had had an extramarital affair, the evidence did not establish as a matter of law that defendant acted in self-defense, where it was not shown that defendant's resort to deadly force was necessary or appeared to be necessary at the time. Although it was clear that the victim intended to assault defendant, thus giving defendant the right to defend himself, the victim was not armed and defendant did not testify that he believed the victim intended to use a weapon against him. Accordingly, a reasonable jury could have found beyond a reasonable doubt that defendant's use of deadly force at the time and place was not justified. People v Clark (1982, 3d Dist) 130 Cal App 3d 371, 181 Cal Rptr 682.

Footnotes

Footnote 45. Cothron v State, 138 Md 101, 113 A 620; Martin v Commonwealth, 143 Va 479, 129 SE 348.

Footnote 46. Bibb v State, 94 Ala 31, 10 So 506; Conner v State, 95 Fla 765, 117 So 852; McGregor v State, 200 Ind 496, 163 NE 596; State v Renslow, 211 Iowa 642, 230 NW 316 (citing other authority to the effect it does no apply to murder); Morton v State, 141 Tenn 357, 209 SW 644; Martin v Commonwealth, 143 Va 479, 129 SE 348.

Footnote 47. State v McDonie, 96 W Va 219, 123 SE 405.

Footnote 48. State v McDonie, 96 W Va 219, 123 SE 405.

Footnote 49. People v Wright, 38 Mich 744 (presumption rebutted); O'Donnell v State, 73 Okla Crim 1, 117 P2d 139 (under statute listing express exceptions, which did not include robbery).

Footnote 50. State v Shee, 13 RI 535.

The presumption that a wife who commits certain crimes in the presence of her husband does so under his coercion was not applicable in prosecution for breaking and entering and larceny where there was no request for instructions with respect to the presumption, and the feme defendant testified in her own behalf denying any participation by her or her husband in the planning or accomplishment of the crime.  State v Smith, 33 NC App 511, 235 SE2d 860, cert den  434 US 1076,  55 L Ed 2d 782,  98 S Ct 1267.

Footnote 51. State v Baker, 110 Mo 7, 19 SW 222 (presumption assumed to apply to mayhem in instruction to jury, and decided on appeal on ground there was evidence to rebut presumption).

Footnote 52. Davis v State, 15 Ohio 72 (application denied because woman found not to be wife).

Footnote 53. State v Gill, 150 Iowa 210, 129 NW 821; State v Grossman, 95 NJL 497, 112 A 892; Haffner v State,  176 Wis 471, 187 NW 173.

Footnote 54. State v Nowell, 156 NC 648, 72 SE 590 (abducting women by solicitation for immoral purposes).

Footnote 55. Commonwealth v Hill, 145 Mass 305, 14 NE 124.


§ 152  – Rebuttal of presumption  [21 Am Jur 2d CRIMINAL LAW]

The presumption that a wife's crimes committed in her husband's presence are committed under his coercion is rebuttable. 56   The presumption is often said to be a weak one, rebuttable by slight circumstances, 57  although, on the other hand, it has also been said that it puts on the prosecution the burden of proving beyond a reasonable doubt that the wife acted of her own free will. 58   The evidence which is sufficient to rebut the presumption depends, of course, upon the facts of the individual case. 59   It is sufficient if it is apparent on all the evidence that the wife was acting freely 60  or if her own conduct was inconsistent with the coercion hypothesis. 61   However, where evidence to rebut the presumption is lacking, the wife's conviction cannot be sustained. 62

Footnotes

Footnote 56. State v Ready (Mo) 251 SW2d 680; Sentell v State, 61 Okla Crim 229, 67 P2d 466; State v Minor, 171 SC 120, 171 SE 737; Morton v State, 141 Tenn 357, 209 SW 644; State v McDonie, 96 W Va 219, 123 SE 405.

Footnote 57. Sanders v State (Okla Crim) 287 P2d 458; Morton v State, 141 Tenn 357, 209 SW 644; Brown v Commonwealth, 135 Va 480, 115 SE 542; State v McDonie, 96 W Va 219, 123 SE 405.

Footnote 58. State v Cauley, 244 NC 701, 94 SE2d 915, later app 245 NC 699, 97 SE2d 115.

Footnote 59. O'Donnell v State, 73 Okla Crim 1, 117 P2d 139.

Footnote 60. State v Ready (Mo) 251 SW2d 680; Doyle v State (Okla Crim) 317 P2d 289.

It is not necessary to show that the husband disapproved the wife's crime. State v Baker, 110 Mo 7, 19 SW 222.

Footnote 61. People v Wright, 38 Mich 744.

In a prosecution for robbery, evidence that the wife took the victim by the throat and told him to keep still, while her husband rifled his pockets, is sufficient to authorize a finding that she was not acting under the coercion of her husband in the commission of the offense charged.  People v Wright, 38 Mich 744.

In reference to a charge against a wife of illegally possessing narcotics, it has been held that testimony, in effect, that a wife freely and boldly assisted in an attempt to dispose of such goods at a time when search was being made of the premises, is sufficient evidence of free action on her part to sustain a conviction against her.  Winer v State, 36 Okla Crim 316, 253 P 1025.

Footnote 62. State v Miller, 162 Mo 253, 62 SW 692; State v Cauley, 244 NC 701, 94 SE2d 915, later app 245 NC 699, 97 SE2d 115; Kelso v State, 96 Okla Crim 367, 255 P2d 284.


§ 153  Child acting under parent's command  [21 Am Jur 2d CRIMINAL LAW]

Unless the child has not yet reached the age of criminal responsibility, 63   or is of such immature years or mind as to be entirely under the parent's domination, direction, and control, 64  a criminal act will not be excused on the ground that it was committed under parental command. 65   And it seems that even the fact that the child acted in fear of a parent or person standing in loco parentis will excuse only under extreme circumstances comparable to those in which an adult would be excused on the ground of coercion or duress. 66  However, there is some authority to the effect that in the case of a child under 14, obedience to express parental command may be proved as having some tendency to show that the child did not understand that the act was wrong. 67


§ 153  – Child acting under parent's command [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Criminal responsibility of parent for act of child. (See also 59 Am Jur 2d, Parent and Child § 138 and 68 Am Jur 2d, Schools § 233.)  12 ALR4th 673.

Footnotes

Footnote 63.  § 28, supra.

Footnote 64. Kelley v State, 79 Fla 182, 83 So 909.

Footnote 65. People v Richmond, 29 Cal 414; Kelley v State, 79 Fla 182, 83 So 909; State v Thrailkill, 73 SC 314, 53 SE 482; McDaniel v State, 5 Tex App 475.

Footnote 66. A dynamiting by a 16-year-old boy under the command of a woman who, though not his mother, had raised him from infancy, was not excused by her threats and his fear of her where these were not of immediate death, but of death at some remote time and place. People v Martin, 13 Cal App 96, 108 P 1034, later app 19 Cal App 295, 125 P 919.

Where defendant, aged 20 and of ordinary intelligence, committed homicide on his father's command, evidence that the father ruled the family with fear and that defendant had been trained to give him unquestioning obedience was properly excluded.  Rainey v Commonwealth, 19 Ky LR 390, 40 SW 682.

Footnote 67. Commonwealth v Mead, 92 Mass 398


6.  Intoxication or Narcosis [155-157]

§ 155  Intoxication – voluntary  [21 Am Jur 2d CRIMINAL LAW]

Despite extensive developments in psychiatric research, widespread changes in social, medical, and legal attitudes toward alcoholism, and intense debate as to legal tests of mental responsibility of those charged with crime, the law with respect to the effect of voluntary intoxication upon criminal responsibility has shown little tendency to change or develop.  The legal rules governing the question were early settled and may be briefly stated:  intoxication, if voluntarily incurred, is ordinarily no defense to a charge of crime based upon acts committed while intoxicated. 75    This is true, no matter how gross and long-continued the drunkenness may have been. 76   And it applies, at least according to some authorities, even to one so drunk as not to know what he is doing 77  or afflicted with delusions and hallucinations. 78   The rule is frequently stated very broadly and without qualification. 79   Thus, the courts in considering the question have taken little or no notice of modern medical attitudes toward alcoholism as a disease, but have usually assumed that the intoxication must be treated as voluntary for purposes of determining criminal guilt, no matter how compulsive the accused's addiction to alcohol may have been. 80   It is apparently only when the alcoholism produces a permanent and settled insanity distinct from the alcoholic compulsion itself that the law will accept it as an excuse. 81   The discussion which has accompanied the attack upon the M'Naghten tests of mental responsibility for crime 82   has apparently had no repercussions in the area of law here discussed although it would seem that the underlying considerations of logic and policy would be very closely related. 83  

The rule has been explained on the ground that one who has voluntarily cast off the restraints of reason and conscience is not wronged by being held responsible for any injury he may do while in that state. 84   It has also been suggested that the defendant must be held to have intended the consequences springing from his voluntary act of becoming intoxicated, 85  and that the intent to get drunk is itself a wrongful intent which can take the place of the ordinary criminal intent, if the latter is missing. 86   The view has also been taken that insofar as the crime charged involves only a general criminal intent (mens rea), such intent is presumed from the doing of the forbidden acts, without more. 87   The policy of the rule against considering intoxication as a defense to criminal charges has sometimes been based upon the fear that such a defense could be so easily simulated as to make prosecutions too difficult. 88    Some of the opinions indicate that moral indignation at the drunkenness may have affected the court's attitude. 89    According to what seems to have been the common-law view, intoxication not only did not excuse or palliate, but was an aggravation of, the wrong committed. 90   However, as will appear below, the rigor of the common-law rule has now been modified in many jurisdictions where a particular mental state is a requisite element of the offense charged.  In a number of jurisdictions, the effect of voluntary intoxication on criminal responsibility is governed by statute. 91  

The courts of most jurisdictions 92   are in agreement that although voluntary intoxication may not be shown for the purpose of negativing general criminal intent, where the offense is one requiring a specific intent, evidence of voluntary intoxication is admissible and may be considered in determining whether such specific intent was actually present, 93   As stated by some authorities, where a certain mental state is a necessary element of the particular offense charged, or of a particular degree thereof, intoxication, though it is voluntary, can be shown for its bearing on whether the accused had that state of mind at the time of his act. 94    The theory is that intoxication is being shown, not to excuse or mitigate a crime, but to prove that a particular offense was not committed, since one of its necessary elements was lacking. 95   In some jurisdictions, it is provided by statute that intoxication may be considered in determining purpose, motive, or intent, where these are requisite elements of any particular species or degree of crime. 96   There is also authority that intoxication may be considered as bearing on such issues as malice 97  or deliberation and premeditation 98    where these are required elements of a particular offense.  Similarly, intoxication may bear on the issue of knowledge or scienter requisite to some offenses. 99    It has also been recognized that voluntary intoxication can be considered for the purpose of determining whether or not the alleged criminal act was accidental and excusable. 1   The defendant has the burden of showing that he was so intoxicated that he was robbed of his mental faculties, 2  and whether he was drunk to such an extent is a question for the trier of the facts to decide, 3  under proper instructions. 4    An instruction to the effect that the jury should apply with caution the law as to the defense of intoxication has been approved. 5    The foregoing principles, permitting voluntary intoxication to be shown as a defense in prosecutions for crimes involving the element of specific intent, have been applied or recognized in cases involving a number of different offenses, 6   including first-degree murder, 7  second-degree murder, 8   and manslaughter, 9  assault; 10   assault with intent to commit murder, 11  manslaughter, 12  or rape; 13   kidnapping or abduction; 14   rape; 15  lewd or indecent conduct or liberties with a child; 16  robbery; 17   larceny; 18   burglary 19    or breaking and entering; 20   forgery; 21  and various other crimes. 22      

Of course, intoxication itself does not preclude a finding that the requisite mental element was present, 23  unless it was so extreme as to render the accused entirely incapable of the state of mind required. 24   Stated another way, intoxication acts as a defense or excuse only where the degree of intoxication is such as to render the accused incapable of entertaining the specific intent. 25    

Ordinarily, where intoxication is established as a defense to a specific intent crime, the result may be not acquittal but conviction of a lower degree of the offense as to which no proof of specific intent is necessary. 26   However, taking the view that the malice necessary to a conviction of murder could be found from the act of voluntarily becoming intoxicated, some courts have refused to entertain the argument that voluntary drunkenness precluded a conviction of murder and limited the state to a charge of manslaughter. 27    If a person becomes intoxicated to nerve or brace himself to commit a crime, the intoxication, of course, will be of no avail even to mitigate the degree of the crime. 28   And where the distinctions between the degrees of murder have been abolished, it has been held that voluntary intoxication is no excuse for murder. 29 


§ 155  – Intoxication – voluntary [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Intoxicants and diminished responsibility, 1994 Crim LR 156 (1994).

Voluntary intoxication and the insanity defense, 20 J Psych&Law 4:439 (1993).

Evidence of a criminal defendant's voluntary intoxication is admissible at trial, 22 Pepp LR 2:835 (1995).

Case authorities:

Voluntary intoxication was not defense to violation of statute providing punishment for assault within special maritime and territorial jurisdiction of United States, where statute did not explicitly require showing of specific intent. United States v Lewis (1986, CA4 Md) 780 F2d 1140, 19 Fed Rules Evid Serv 1403.

In prosecution for murder, attempted murder, and related offenses, prosecutor properly asked defendant whether he became violent when intoxicated, as question was directly relevant to intent of accused and in countering claim of accident. United States v Shaw (1983, CA5 Miss) 714 F2d 544.

In prosecution for interstate transportation of stolen property and stolen motor vehicle, trial court did not err in denying defendant's motion for acquittal after jury returned verdict convicting defendant; although intoxication may preclude formation of specific intent and thus serve to negate essential element of certain crimes, and although defendant presented considerable testimony, including opinion of medical expert, that he was intoxicated at time of crimes, evidence supported jury's verdict where it showed defendant was oriented as to time, place, and identity, and was able to perform delicate manual and mental tasks such as connecting Peterbilt tractor to trailer, driving rig over 300 miles, and negotiating with men he hired to unload trailer. United States v Newman (1989, GA6 Ohio) 889 F2d 88, cert den (US)  109 L Ed 2d 748,  110 S Ct 2566.

Court properly denied instruction on intoxication defense for general intent crime of possession of firearm by convicted felon under 18 USCS §  922, since there was no authority for proposition that degree of intoxication negates general intent crime, and no authority for argument that such possession is specific intent crime. United States v Bennett (1992, CA6 Ky) 975 F2d 305.

In prosecution for assaulting federal officer, trial court correctly refused to give jury instruction of defense of intoxication, since crime is one of general intent to which voluntary intoxication as defense is unavailable. United States v Hanson (1980, CA8 Minn) 618 F 2d 1261.

It is true that voluntary intoxication instruction should not ordinarily be given in rape case, because rape is crime of general intent. However, in cases involving general-intent crimes in which considerable evidence has been introduced about intoxicated state of defendant, trial court instruction, even over defendant's objection, to make clear to jury that voluntary intoxication is not defense, is not unfairly prejudicial. United States v Norquay (1993, CA8 Minn) 987 F2d 475 (criticized on other grounds by United States v Falesbork (CA4 Va) S F3d 715).

In prosecution for specific intent crime, intoxication that precludes formation of requisite intent may be established as defense, even if intoxication was voluntary. United States v Echeverry (1985, CA9 Wash) 759 F2d 1451, 18 Fed Rules Evid Serv 62.

Trial court's instruction that degree of intoxication necessary to negate specific intent must amount to insanity was proper. Ex parte Bankhead (1991, Ala) 585 So 2d 112, on remand, remanded (Ala App) 585 So 2d 133.

Voluntary intoxication can never justify or excuse commission of crime, but excessive intoxication may render individual incapable of forming specific intent. Latimore v State (1988, Ala App) 534 So 2d 665.

Defendant's voluntary intoxication combined with schizophrenia did not constitute defense to charge of intentionally causing serious injury by means of dangerous instrument where evidence indicated defendant was able to appreciate wrongfulness of his actions on night in question. Ware v State (1991, Ala App) 584 So 2d 939, reh den, without op (Ala App) 1991 Ala Crim App LEXIS 1116 and cert den, without op (Ala) 1991 Ala LEXIS 825.

Trial court properly refused to give requested instruction on voluntary intoxication in trial for rape, robbery, and theft, where instruction as requested provided that defendant was required only to raise reasonable doubt and also that defendant had burden of proving affirmative defense by preponderance of evidence, thus giving contradictory burden of proof and misleading jury. Mosier v State (1985) 285 Ark 67, 684 SW2d 810.

Although voluntary intoxication is common law defense to crimes which require formation of specific intent, in incest prosecution state need only prove that defendant knew that person he was having sex with was his daughter; trial court, therefore, properly instructed jury as to voluntary intoxication defense, where there was nothing in record which suggested defendant did not have such knowledge. Johnson v State (1986) 288 Ark 101,702 SW2d 2.

In prosecution for interfering with law officer in violation of statute providing that no person shall "knowingly employ ... physical force against a law enforcement officer," trial court properly refused to instruct jury that self-induced intoxication was affirmative defense, since mental state of "knowingly" did not require specific intent. Bowen v State (1980, Ark App) 598 SW2d 447.

Court properly refused to instruct jury that voluntary intoxication could negate express malice so as to reduce murder to voluntary manslaughter. People v Saille (1991) 54 Cal 3d 1103, 2 Cal Rptr 2d 364, 820 P2d 588, 91 Daily Journal DAR 15308, reh den.

The elimination of diminished capacity as a defense removed a defendant's intoxication from the realm of defenses to a crime. Intoxication is now relevant only to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state. People v Lopez (1992, 5th Dist) 11 Cal App 4th 1115, 14 Cal Rptr 2d 692, 92 CDOS 10368, 92 Daily Journal DAR 17355.

Voluntary intoxication was no defense to charge of second-degree kidnapping or first-degree sexual assault where mental culpability required for both offenses was a knowing participation in the crimes. People v Vigil (1979, Colo App) 602 P2d 884.

Trial court in burglary prosecution erred in denying defendant's request for instruction on defense of intoxication, where court-appointed psychiatrist testified that defendant was significantly impaired by long-term and short-term substance abuse at time of offense. Smith v State (1988, Fla App D3) 532 So 2d 78, 13 FLW 2346.

In prosecution for burglary, grand theft by unauthorized control, and malicious injury to property, issue was not whether defendant was under influence of alcohol at time of events, but whether he was so intoxicated that he was unable to form specific intent necessary to commit offenses charged. This was question of fact for jury to decide. State v Tucker (1993, App) 123 Idaho 374, 848 P2d 432.

In robbery prosecution, trial court correctly excluded opinion testimony by prosecution witness as to whether defendant was drunk, where clear evidence indicated that defendant's possible intoxication was not so extreme as to negate requisite criminal mental state; merely being drunk or intoxicated is insufficient to create defense of intoxication. People v Wing Cheung (1980) 83 Ill App 3d 1048, 39 Ill Dec 174, 404 NE2d 558.

Murder defendant failed to establish sufficient degree of intoxication to support instruction that intoxication might negate criminal intent, where defendant testified as to many details of robbery and murder with clarity that was inconsistent with extreme intoxication. People v Riddle (1988, 1st Dist) 175 Ill App 3d 85, 124 Ill Dec 732, 529 NE2d 713.

Defendant's battery conviction would be reversed where prosecutor's non-pattern jury instruction on defense of voluntary intoxication, stating that level of intoxication must be so extreme as to suspend all power of reason and render defendant incapable of "any mental action," misstated law by redefining the defense. Contrary to instruction given, Illinois law states that once defendant introduces evidence to show that intoxicated condition reasonably might have negated existence of requisite mental state, prosecution must then overcome affirmative defense of voluntary intoxication; defendant is not required to make extreme showing that he was devoid of any mental activity in order to successfully invoke voluntary intoxication defense. People v Baczkowski (1989, 2d Dist) 180 Ill App 3d 17, 535 NE2d 484.

Failure of trial counsel in prosecution for attempted murder and assault to explore and present available evidence on sole defense of voluntary intoxication negating specific intent to kill was ineffective assistance of counsel, where defendant had 0.20 percent blood alcohol level immediately after crime and had long history of alcoholism including blackouts. People v Popoca (1993, 2d Dist) 245 Ill App 3d 948, 185 Ill Dec 908, 615 NE2d 778.

There was sufficient evidence to support trial court's finding that defendant who was convicted of rape and criminal deviate conduct was capable of forming intent necessary for commission of those crimes as charged where, even though he might have been intoxicated, there was ample expert medical testimony that he was not suffering from mental disease at time of crimes, and where there was evidence that at time of incident in question defendant did not slur his words when talking, did not stumble when he walked, and did not appear to be drunk. Duffy v State (1981, Ind) 415 NE2d 715.

Rape, which included requirement of "knowing" intercourse, was specific intent crime to which intoxication could be defense. Ives v State (1981, Ind) 418 NE2d 220.

In prosecution for attempted murder, battery, resisting arrest and possession of controlled substance, where defendant pleaded temporary insanity at trial, specific intent required for attempted murder was established despite defendant's drug intoxication; court held specific intent for attempted murder was question of fact for jury and one on which defendant bore burden of proof; mere intoxication, absent incapacity to think deliberately and meditate rationally in forming guilty design or intent, cannot be regarded as sufficient. Norris v State (1981, Ind) 419 NE2d 129.

Evidence, in trial for robbery and burglary, that although defendant had consumed large amount of alcoholic beverages just prior to crime, witness who observed him shortly after crime indicated he showed no signs of intoxication, was able to communicate rationally, and appeared and acted normal, was sufficient to support jury finding that defendant was not intoxicated to such degree as to deprive him of power to deliberate or to form necessary design or guilty intent. Wagner v State (1985, Ind) 474 NE2d 476.

Evidence, in prosecution for robbery, did not support assertion that defendant was too intoxicated to form necessary intent, where rock had been used to break into building, outside light bulb had been unscrewed to avoid being seen, and defendant had been seen earlier rummaging through cash register of bakery which was broken into. Coble v State (1985, lnd) 476 NE2d 102.

Voluntary intoxication can be offered as defense to any crime. Johnson v State (1992, Ind) 584 NE2d 1092.

In criminal prosecution resulting in defendant's conviction of aggravated robbery and involuntary manslaughter, instruction that specifically set forth intent required of one who aids or abets and that specifically advised jurors that "when a particular intent ... is a necessary element ... intoxication may be taken into consideration ... "were not effective and did not have result of removing from jurors' consideration defense of involuntary intoxication. State v Knoxsah (1981) 229 Kan 36, 622 P2d 140.

In prosecution for rape and sodomy, trial court properly refused to instruct jury that voluntary intoxication was defense to crimes, since defense applied only to intentional and knowing offenses to negate existence of intent element of offense, and statutes defining forceable rape and sodomy contained no requirement of culpable mental state, but only that prohibited act be done by forcible compulsion. Malone v Commonwealth (1982, Ky) 636 SW2d 647.

In prosecution for attempt to obstruct justice, trial court correctly refused to instruct jury as to defense of self-intoxication, notwithstanding that any attempt to commit crime requires specific intent as to which intoxication is relevant, where evidence was insufficient to show that defendant was so drunk that he was unable to formulate requisite mens tea. Mayne v State (1980) 45 Md App 483, 414 A2d 1.

Assault with intent to maim and assault with intent to disable are specific intent crimes and defendant was entitled to instruction as to possible defense based upon his voluntary intoxication. Bryant v State (1990) 83 Md App 237, 574 A2d 29.

In attempted murder trial, evidence from defendant that his mental condition, combined with his prescription drug consumption and use of alcohol on day of crime, affected his capacity to form specific intent to murder did not warrant instruction telling jury to consider defendant's mental condition in determining whether state had proved requisite specific intent; judge properly gave instruction that in deciding whether defendant had specific intent jury could consider evidence that defendant was under influence of alcohol, prescription drugs, or both. Commonwealth v Beattie (1991) 409 Mass 458, 567 NE2d 206.

In a trial for first-degree murder, the court correctly charged the jury that it should consider the voluntary intoxication of the defendant when deciding whether he had the capacity to premeditate and deliberate, whether he committed murder with extreme atrocity or cruelty and whether he possessed malice aforethought as evidenced by a specific intent to kill or a specific intent to cause grievous bodily harm; however, the court erred in refusing to permit the jury to consider the voluntary intoxication of the defendant when deriding whether he "knew" for purposes of finding malice aforethought under the third prong of malice. Commonwealth v Sama (1991) 411 Mass 293, 582 NE2d 498.

In a prosecution for manslaughter arising from the beating death of a 3 year old child, on the evidence most favorable to the defendant, he was entitled to a jury instruction concerning lack of criminal responsibility where (1) the child was beaten to death with an electrical cord while the defendant was under the influence of cocaine, (2) a medical expert testified that he believed the defendant to be suffering from cocaine paranoid psychosis based in part on defendant's recitation of his history of cocaine use and his reaction to it, which included delusions of seeing nonexistent worms, bugs and snakes and hearing voices, and (3) the defendant's mother and wife and the mother of the deceased child all testified to observing similar symptoms. Commonwealth v Herd (1992) 413 Mass 834, 604 NE2d 1294.

In a prosecution for manslaughter arising from the beating death of a 3 year old child while the defendant was under the influence of cocaine, the court properly instructed the jury that it was required to find the defendant criminally responsible for his actions if the Commonwealth proved that the defendant knew or had reason to know that his consumption of cocaine would activate a mental disease or defect since, even though there was evidence that the defendant suffered from cocaine paranoid delusion, he had told a firefighter at the scene of the crime and a defense expert that he knew that he engaged in beatings while he was high on cocaine. Commonwealth v Herd (1992) 413 Mass 834, 604 NE2d 1294.

Court properly declined to give intoxication instruction, even though defendant had been drinking beer and cherry brandy, and smoking either marihuana or "angel dust," or both, prior to robbery of grocery store and assault on owner, where there was no evidence that he was intoxicated at time of crimes or that his mental capacity was diminished, and defendant himself testified that he knew what he was doing and claimed to be "immuned" to large quantities of alcohol. People v Rios (1989, 2d Dept)  150 AD2d 620, 541 NYS2d 489, app den  74 NY2d 899, 548 NYS2d 432, 547 NE2d 959 and (disapproved by People v Rodriguez,  76 NY2d 918, 563 NYS2d 48, 564 NE2d 658).

Intoxication is defense only to crime of specific intent, and general intent cannot be negated by evidence actor was intoxicated at time crime was committed; thus voluntary intoxication was no defense to charges that defendant had committed crimes of sexual misconduct in first and second-degree that did not require specific intent for their commission. People v Bell (1980) 101 Mich App 779, 300 NW2d 691.

Where person, when sober, was capable of distinguishing between right and wrong and voluntarily intoxicated or drugged himself to extent that he did not know or understand his actions, he would be responsible and could be convicted and sentenced for crime. Smith v State (1984, Miss) 445 So 2d 227.

Even though all evidence shows that defendant was voluntarily intoxicated when crime was committed, defendant shall not be entitled to directed verdict due to failure to prove necessary mental state. Neither shall defendant be entitled to instruction that jury may consider evidence of voluntary intoxication in determining if defendant had requisite mental state. This does not relieve prosecution of its burden of proof of requisite mental state. Further, jury may not consider intoxication on issue of defendant's mental state. Exclusion from consideration of evidence of voluntary intoxication in no way relieves state of its burden of proof. State is still obliged to prove all elements of offense, including mental state, beyond reasonable doubt. Rule merely treats sober persons and voluntarily intoxicated persons as equally responsible for conduct, and does not violate due process. State v Erwin (1993, Mo) 848 SW2d 476, cert den (US)  126 L Ed 2d 56,  114 S Ct 88.

In prosecution for leaving scene of accident involving personal injuries where defendant's only defense was to element of knowledge, and was based on inability to form that mental state because of combination of intoxication and head injury, failure to fully instruct jury on effect that intoxication may have on mental state was prejudicial. State v Stafford (1984, Mont) 678 P2d 644.

Defendant charged with attempted burglary was entitled to have jury instructed as to defense of voluntary intoxication as applied to specific intent of crime charged, and failure of court to give instruction was reversible error. Vincent v State (1981, Nev) 625 P2d 1172.

While defendant may offer evidence of his intoxication whenever it is relevant to negative element of crime charged, even inebriated individual may be capable of forming intent. People v Lang (1988, 2d Dept)  143 App Div 2d 685, 532 NY S2d 927.

Alleged lack of intent by reason of lack of motive and voluntary intoxication is irrelevant to determination of recklessness as defined in CLS Penal §  15.05(3). People v Acton (1989, 3d Dept)  149 AD2d 839, 540 NYS2d 544.

Court did not err in failing to charge jury on intoxication where no reasonable jury could have inferred that defendant's capacity to form intent had been affected by ingestion of alcohol or drugs. People v Kruger (1992, 4th Dept)  184 AD2d 1031, 586 NYS2d 916, app den  80 NY2d 931, 589 NYS2d 858, 603 NE2d 963.

In trial for second-degree vehicular manslaughter, negligent homicide, and driving while intoxicated, court erred in denying defendant's request for 1-hour continuance to allow testimony of expert concerning whether intoxication played role in causing accident and death. People v Osburn (1989, 4th Dept)  155 AD2d 926, 547 NYS2d 749, app den  75 NY2d 816, 552 NYS2d 566, 551 NE2d 1244.

In prosecution for first-degree manslaughter, attempted first-degree manslaughter, and second-degree assault, evidence was sufficient to establish that defendant acted with intent to kill his girlfriend and to seriously injure her mother, despite his intoxication, where he took large butcher knife from kitchen and began stabbing his girlfriend, first in leg and then in various other parts of her body, inflicting 8 stab wounds in all, and then stabbed mother 3 times. People v Angel (1992, 2d Dept)  185 AD2d 356, 586 NYS2d 622, app den  80 NY2d 1025, 592 NYS2d 674, 607 NE2d 821.

In a prosecution for second-degree murder, defendant's evidence that on the evening of the shooting he drank a cup of rum and two cups of wine, that he usually did not drink because his doctor had told him, after an operation on his head, not to drink any liquor because it affects his mind, that one witness testified his mind was "coming and going," and that he heard "all kinds of things, noise" and "flipped out" was insufficient evidence of intoxication to require the trial judge to instruct the jury on the defense of voluntary intoxication. State v Gerald (1981) 304 NC 511,284 SE2d 312.

Instructions in murder prosecution constituted reversible error, where instructions imposed on defendant burden of proving that he was totally incapable of forming intent, whereas proper burden is that of raising reasonable doubt as to capacity. State v Mash (1988) 323 NC 359, 372 SE2d 532.

The offense of discharging a firearm into an occupied vehicle is a general intent crime that does not require the State to prove any specific intent but only that the defendant performed the act which is forbidden by statute. Therefore, the trial court properly charged the jury that the law does not require any specific intent for the defendant to be guilty of the crime of discharging a firearm into occupied property and, since intoxication does not negate a general intent, also properly charged that the defendant's intoxication can have no bearing upon the determination of his guilt or innocence of this crime. State v Jones (1994) 339 NC 114, 451 SE2d 826, reconsideration den (NC) 453 SE2d 188.

The trial court in an armed robbery prosecution erred in failing to instruct the jury on the defense of automatism or unconsciousness where defendant's evidence tended to show that she had no independent recollection of the robbery or of that day's events because of the large amount of drugs and alcohol she had taken for several days. State v Smith (1982) 59 NC App 227, 296 SE2d 315.

Though evidence of a defendant's intoxication at the time of a burglary may require an instruction on the lesser-included offense of misdemeanor breaking and entering, which requires no specific intent, evidence in this case, consisting of the testimony of defendant and his family and friends that he was an alcoholic and that he had been drinking on the dates in question and the fact that police on a later date found beer in his car, was insufficient to require an instruction on misdemeanor breaking and entering, particularly where the evidence tended to show that defendant, in order to commit the crimes in question, had to plan his actions by watching the victims use their ATM cards, attempting to memorize their access numbers, following the victims home, and, at an opportune moment, stealing their purses. State v Howie (1994) 116 NC App 609, 448 SE2d 867.

In prosecution for gross sexual imposition, where evidence had been overwhelming and uncontradicted that defendant had overpowered victim in her home and had sexual intercourse with her by force and against her will, where general rule stated that voluntary intoxication would not be defense to crime of general intent but that evidence of intoxication would be admissible whenever it would be relevant to negate or establish element of offense charged, where trial court had appropriately admitted evidence relating to defendant's intoxicated condition, which he had offered in his defense, and where court had instructed jury more favorably to defendant than he had been entitled to under state law, court did not err in refusing to instruct jury as to definition of "knowingly" or "intentionally." State v Cummins (1984, ND) 347 NW2d 571.

Court did not err in failing to charge jury on intoxication where no reasonable jury could have inferred that defendant's capacity to form intent had been affected by ingestion of alcohol or drugs. People v Kruger (1992, 4th Dept)  184 AD2d 1031, 586 NYS2d 916, app den  80 NY2d 931, 589 NYS2d 858, 603 NE2d 963.

Where a criminal defendant's testimony indicated that he was fully aware of the facts and circumstances occurring around him and further indicated that he was properly oriented regarding his location and the passage of time, a trial court's decision not to instruct the jury on the possibility of voluntary intoxication negating the defendant's specific intent was not unreasonable, arbitrary, or unconscionable. State v Davis (1992, Wash) 81 Ohio App 3d 706, 612 NE2d 343, motion overr 65 Ohio St 3d 1466, 602 NE2d 1174.

In murder prosecution in which State claimed that defendant was intoxicated at the time of the offense but defendant claimed he was sober, trial court erred by instructing jury at guilt stage on law of voluntary intoxication. PC § 8.04. The instruction constituted a comment on the evidence because the jury could only have concluded that judge agreed with State on this contested issue. Gonzales v State (1992, Tex App Houston (1st Dist)) 838 SW2d 848.

In prosecution for manslaughter, evidence of blackout produced by alcohol, was immaterial and properly excluded, since blackout was nothing more than effect of severe intoxication, and voluntary intoxication is not defense to crime with mens rea of recklessness. State v Bryan (1985, Utah) 709 P2d 257.

In prosecution of defendant for third-degree assault, voluntary intoxication was not affirmative defense requiring state to disprove defendant's voluntary intoxication beyond a reasonable doubt, though evidence of intoxication would be admissible on the issue of whether defendant had requisite mental state in committing offense. State v Coates (1987) 107 Wash 2d 882, 735 P2d 64.

Voluntary intoxication was not defense to charge of unauthorized use of automobile, where state of mind described as element of offense was "willfully, wantonly, or maliciously." Matlack v State (1985, Wyo) 695 P2d 635, cert den (US)  87 L Ed 2d 638,  105 S Ct 3508.

In prosecution for child molestation, trial court did not err in charging jury on voluntary intoxication as defense even though defendant did not raise voluntary intoxication as defense, where evidence indicated defendant was voluntarily intoxicated at time he molested victim. Adams v State (1989) 193 Gst App 628, 388 SE2d 747.

Footnotes

Footnote 75. Hopt v People,  104 US 631,  26 L Ed 873; Brimhall v State, 31 Ariz 522, 255 P 165 (ovrld on other grounds State v Balderrama 97 Ariz 134, 397 P2d 632); People v Strader, 23 Ill 2d 13, 177 NE2d 126; State v Rumble, 81 Kan 16, 105 P 1; Martin v State, 228 Md 311, 179 A2d 865; Commonwealth v Taylor, 263 Mass 356, 161 NE 245, later app 265 Mass 133, 163 NE 865; Kendall v State, 244 Miss 618, 145 So 2d 924; State v Pinski (Mo) 163 SW2d 785; State v Trott, 190 NC 674, 130 SE 627; Commonwealth v McGowan, 189 Pa 641, 42 A 365; Bradford v State, 208 Tenn 500, 347 SW2d 33.

Annotation:  8 ALR3d 1236.

In State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den  366 US 973,  6 L Ed 2d 1263,  81 S Ct 1941, the court stated that it is so generally accepted as to be a truism that voluntary intoxication is neither an excuse for the commission of a crime nor a defense to a prosecution for it.

Voluntary drunkenness, as distinguished from settled insanity produced by drink, affords no excuse for crime except that where premeditation is a material question, the intoxication of the accused may be considered by the jury.  Johnson v Commonwealth, 135 Va 524, 115 SE 673.

Practice Aids: –Wald, Alcohol, Drugs, and Criminal Responsibility.  1974, 63 Georgetown L J 69.

Murphy, The Defense of Voluntary Intoxication.  1972, Law Notes 7.

Footnote 76. Latimer v State, 55 Neb 609, 76 NW 207; State v Peterson, 129 NC 556, 40 SE 9; Pigman v State, 14 Ohio 555; Commonwealth v Eyler, 217 Pa 512, 66 A 746; State v Kidwell, 62 W Va 466, 59 SE 494.

Holding that chronic alcoholism is not defense to charge of intoxication in public place does not violate Eighth and Fourteenth Amendments to United States Constitution.  Powell v Texas,  392 US 514,  20 L Ed 2d 1254.   88 S Ct 2145.

Chronic Alcoholism as a Defense to Crime.  1977, 61 Minn L Rev 901.

Footnote 77. State v Kraemer, 49 La Ann 766, 22 So 254; State v Kidwell, 62 W Va 466, 59 SE 494.

Offenses in which specific intent to do the forbidden act is not an essential element are never excused, at common law, by mere drunkenness of the perpetrator of the act, even though it was so extreme as wholly to deprive him of his reason.  State v Phillips, 80 W Va 748, 93 SE 828.

In applying the basic rules that voluntary intoxication is no defense to a criminal charge (except to the extent that it prevents the formulation of the specific intent necessary to some offenses), the courts have not generally given any special consideration to possible degrees of intoxication.  In most of the cases where the question has been raised, the defense contention has been that the accused was so drunk as not to know or realize what he was doing, that is, was unconscious as to the particular acts.  In some cases the courts have explicitly indicated that drunkenness to the point of unconsciousness was immaterial, if accused did in fact carry out the physical acts constituting the crime.  See, for example, People v McNichol, 100 Cal App 2d 554, 224 P2d 21; People v Mead, 126 Cal App 2d 164, 271 P2d 619; People v Morrow (5th Dist) 268 Cal App 2d 939, 74 Cal Rptr 551; Lewis v State, 196 Ga 755, 27 SE2d 659.

In a few instances, however, the courts have indicated that a state of unconsciousness would operate to reduce the degree of the offense.  See, for example, Adams v Stone (ND Cal) 378 F Supp 315; People v Graham, 71 Cal 2d 303, 78 Cal Rptr 217, 455 P2d 153.

Annotation:  8 ALR3d 1236, § 5.

Footnote 78. State v Kidwell, 62 W Va 466, 59 SE 494.

Footnote 79. See, for example, Martin v State, 228 Md 311, 179 A2d 865 (murder); Clark v State, 236 Md 648, 207 A2d 94 (breaking and entering with intent to steal goods).

Footnote 80.
Annotation:  8 ALR3d 1236, § 6[a].

For a comprehensive discussion of the nature and incidence of alcoholism, see  16 Am Jur Proof of Facts 569, Alcoholism.

Footnote 81.
Annotation:  8 ALR3d 1236, § 6[a].

As to insanity caused by intoxication, generally, see  § 54, supra.

Footnote 82. See  §§ 57 et seq., supra.

Footnote 83.
Annotation:  8 ALR3d 1236, § 2.

Footnote 84. Couch v State (Okla Crim) 375 P2d 978.

Footnote 85. Evers v State, 31 Tex Crim 318, 20 SW 744.

In People v Rogers, 18 NY 9, speaking of the duty each man owes to preserve in himself the inestimable gift of reason, the court said that if by a voluntary act he casts off the restraints of reason and conscience, no wrong is done him by holding him answerable for any injury he may do while in that state.

Footnote 86. State v Kraemer, 49 La Ann 766, 22 So 254.

Footnote 87. United States ex rel. Rucker v Myers (CA3 Pa) 311 F2d 311, cert den  374 US 844,  10 L Ed 2d 1064,  83 S Ct 1901; Clayton v State, 36 Ala App 175, 54 So 2d 719, cert den 256 Ala 378, 54 So 2d 723 (manslaughter); Comer v State, 212 Ark 66, 204 SW2d 875 (involuntary manslaughter); People v Corson (3d Dist) 221 Cal App 2d 579, 34 Cal Rptr 584 (assault with deadly weapon; intent inferred); State v Dennis, 150 Conn 245, 188 A2d 65 (impairment of morals of child); Proctor v United States, 85 App DC 341, 177 F2d 656 (automobile used without owner's consent; general intent presumed); Askew v State (Fla) 118 So 2d 219 (rape, intent inferred from act); People v Bray, 52 Ill App 2d 384, 202 NE2d 152 (armed robbery); Minton v State, 244 Ind 636, 195 NE2d 355 (involuntary manslaughter); State v Wharff, 257 Iowa 871, 134 NW2d 922 (escape); Murphy v Commonwealth (Ky) 279 SW2d 767 (operating motor vehicle without consent of owner); State v Johnston, 207 La 161, 20 So 2d 741 (assault with dangerous weapon); State v Anderson, 270 Minn 411, 134 NW2d 12 (sodomy); State v Hairston, 222 NC 455, 23 SE2d 885 (rape; intent inferred from commission of act); Commonwealth v Simmons, 361 Pa 391, 65 A2d 353, cert den  338 US 862,  94 L Ed 528,  70 S Ct 96, reh den  338 US 888,  94 L Ed 546,  70 S Ct 181 (murder in perpetration of robbery or burglary); Bostock v State, 210 Tenn 620, 360 SW2d 472 (involuntary manslaughter); State v Turner, 3 Utah 2d 285, 282 P2d 1045 (sodomy); State v Huey, 14 Wash 2d 387, 128 P2d 314 (taking indecent liberties with female under age of 15).

Annotation:  8 ALR3d 1236, § 3[b].

Voluntary intoxication was not defense to crime of robbery where specific intent was not element of offense.  People v White, 40 Ill App 3d 455, 352 NE2d 243, affd 67 Ill 2d 107, 8 Ill Dec 99, 365 NE2d 337 (ovrld on other grounds People v Banks 75 Ill 2d 383, 27 Ill Dec 195, 388 NE2d 1244).

Footnote 88.
Annotation:  8 ALR3d 1236, § 3[b].

The rule regarding the defense of insanity should never be extended to apply to voluntary intoxication in a murder case, since this would not only open wide the door to defenses built on frauds and perjuries, but would build a broad, easy turnpike for escape–all that the crafty criminal would require for a well-planned murder would be a revolver in one hand to commit the deed, and a quart of intoxicating liquor in the other with which to build his excusable defense, said the court in State v Arsenault, 152 Me 121, 124 A2d 741.  The defendant took exception to the instructions to the jury and to the court's failure to give requested instructions to the effect that if the jury found that the defendant was intoxicated to the extent that he had so far lost his intelligence and his reason and faculties that there was doubt as to whether he was able to form and have a purpose to kill or to know what he was doing, then he should be found not guilty of the charge of murder. Overruling the exceptions, the court also pointed out that there was no evidence of an insane state.

In Kendall v State, 244 Miss 618, 145 So 2d 924, the court stated that voluntary drunkenness of an accused at the time a crime was committed is said to be no defense, especially where no particular motive or intent is a necessary element of the crime charged, as when the crime consists only of the doing of acts which are prohibited.  The court stated that the rule was based on moral and ethical reasons since it is one's duty to abstain from getting himself into an intoxicated condition.  Otherwise, said the court, one planning to commit a crime could always plan for his intoxication at the time of the commission in order to avoid his responsibility.

Footnote 89.
Annotation:  8 ALR3d 1236, § 3[b].

So, speaking of drunkenness as a "gross vice," and itself a crime under some laws, the court in United States v Cornell (1820, CC RI) 2 Mason 91, F Cas No. 14868, speaks of the incongruity of considering one crime to be a defense to another.

Footnote 90. Shannahan v Commonwealth, 71 Ky 463; Director of Public Prosecutions v Beard (Eng) [1920] AC 479 (HL).

Footnote 91.
Annotation:  8 ALR3d 1236, §§ 3, 4.

For example, see People v Corson (3d Dist) 221 Cal App 2d 579, 34 Cal Rptr 584, noting a Penal Code provision to the effect that no act committed by a person while in the state of intoxication is less criminal by reason of his having been in such condition.

Footnote 92. Some jurisdictions do not permit intoxication to be considered, even on the issue of specific intent.  Hardy v State 242 Ga 702, 251 SE2d 289; Young v State, 239 Ga 53, 236 SE2d 1, cert den  434 US 1002,  54 L Ed 2d 499,  98 S Ct 648, reh den  434 US 1051,  54 L Ed 2d 805,  98 S Ct 904; State v Cornwall, 95 Idaho 680, 518 P2d 863 (by statute); People v Hawkins, 14 Ill App 3d 549, 302 NE2d 128; People v Isenberg, 60 Ill App 3d 325, 17 Ill Dec 632, 376 NE2d 778; State v Shipman, 354 Mo 265, 189 SW2d 273; State v Garrett (Mo) 391 SW2d 235 (ovrld on other grounds State v Anderson (Mo) 515 SW2d 534); State v Maggitt (Mo) 517 SW2d 105; State v Kinlaw, 150 NJ Super 70, 374 A2d 1233; Commonwealth v England, 474 Pa 1, 375 A2d 1292; State v Vaughn, 268 SC 119, 232 SE2d 328; Pyburn v State (Tenn Crim) 539 SW2d 835; Kincaid v State, 150 Tex Crim 45, 198 SW2d 899; Dubois v State, 164 Tex Crim 557, 301 SW2d 97, cert den  356 US 921,  2 L Ed 2d 717,  78 S Ct 705; Tijerina v State (Tex Crim) 578 SW2d 415; State v Frotten, 114 Vt 410, 46 A2d 921; Brenan v Commonwealth, 183 Va 846, 33 SE2d 639; State v Bailey (W Va) 220 SE2d 432.

Annotation:  8 ALR3d 1236, § 3[a].

Under a statute providing that intoxication shall not excuse crime or mitigate the degree or penalty, but that temporary insanity resulting therefrom may be shown in mitigation of the penalty, evidence of intoxication cannot be considered on the question of intent.  Stoudenmire v State, 58 Tex Crim 258, 125 SW 399.

Voluntary intoxication would not mitigate and could not be invoked as defense to crime of assault and battery with intent to commit rape.  Cherry v State (Tenn Crim) 539 SW2d 51.

Footnote 93. Clark v State (Ala App) 333 So 2d 885, cert den (Ala) 333 So 2d 890; McIntyre v State (Alaska) 379 P2d 615,  8 ALR3d 1231 (recognizing rule); Kimoktoak v State (Alaska) 584 P2d 25; State v Skaggs, 120 Ariz 467, 586 P2d 1279; Olles v State, 260 Ark 571, 542 SW2d 755; People v Stevenson (2d Dist) 79 Cal App 3d 976, 145 Cal Rptr 301; People v Montez, 197 Colo 126, 589 P2d 1368; State v Crawford, 172 Conn 65, 372 A2d 154; People v Jacobs, 44 Ill App 3d 290, 2 Ill Dec 601, 357 NE2d 821; People v Miner, 46 Ill App 3d 273, 4 Ill Dec 766, 360 NE2d 1141; Yarber v State, 242 Ind 616, 179 NE2d 882; Hooker v State (Ind App) 387 NE2d 1354; State v Watts (Iowa) 244 NW2d 586; Commonwealth v Podlaski (Mass) 1979 Adv Sheets 427, 385 NE2d 1379; People v Garcia, 398 Mich 250, 247 NW2d 547; People v Maynard, 84 Mich App 437, 269 NW2d 631; McDaniel v State (Miss) 356 So 2d 1151; State v Lukus, 149 Mont 45, 423 P2d 49; State v Coleman, 196 Neb 721, 246 NW2d 61; Tucker v State, 92 Nev 486, 553 P2d 951; State v Sinclair, 49 NJ 525, 231 A2d 565, later app 57 NJ 39, 269 A2d 153; State v Atkins, 151 NJ Super 555, 377 A2d 718, revd on other grounds 78 NJ 454, 396 A2d 1122; State v Rayos, 77 NM 204, 420 P2d 314; People v Jackson,  14 NY 2d 5, 247 NYS2d 481, 196 NE2d 887; State v Simmons, 286 NC 681, 213 SE2d 280, vacated, in part on other grounds  428 US 903,  49 L Ed 2d 1208,  96 S Ct 3207; State v Salmon, 10 Ohio App 2d 175, 39 Ohio Ops 2d 336, 226 NE2d 784; Weimar v State (Okla Crim) 555 P2d 1304; Commonwealth v Colbert, 476 Pa 531, 383 A2d 490; Danahey v State (RI) 373 A2d 489; State v Lambert, 266 SC 574, 225 SE2d 340; State v White (SD) 269 NW2d 781; Frazier v State (Tenn Crim) 566 SW2d 545; State v Standrod (Utah) 547 P2d 215; Waye v Commonwealth, 219 Va 683, 251 SE2d 202, cert den  442 US 924,  61 L Ed 2d 292,  99 S Ct 2850; State v Mriglot, 88 Wash 2d 573, 564 P2d 784; State v Johnnies,  76 Wis 2d 578, 251 NW2d 807.

Annotation:  8 ALR3d 1236, § 4[a].

On a plea of not guilty to an offense involving specific intent, evidence of drunkenness can be considered, not for the purpose of acquitting defendant altogether, but for the purpose of ascertaining whether his condition rendered him capable of harboring that intent.  Brown v State, 39 Ala App 149, 96 So 2d 197.

Whether the defendant was so intoxicated as to preclude the existence of the specific intent to commit rape was properly a question for the jury. People v Cheary, 48 Cal 2d 301, 309 P2d 431.

One must have an intent to pass a bogus check or to commit forgery and one might be so intoxicated as to not know what he was doing and a jury might conclude he either could or could not have or form the requisite intention to constitute the offenses. Woodard v People, 154 Colo 162, 389 P2d 411 (affirming conviction).

In a prosecution for murder committed during the perpetration or attempted perpetration of a robbery, defendant was not entitled to instruction sua sponte on the defense of diminished capacity by reason of voluntary intoxication, where there was no evidence that defendant's drinking had any substantial effect on him or that he was so intoxicated that he could not harbour the intent to rob, where defendant's defense was that death was accidental, and where defendant's own testimony negated any possibility that the capacity to intend to commit robbery was diminished in any way.  People v Obie (1st Dist) 41 Cal App 3d 744, 116 Cal Rptr 283 (disapproved on other grounds People v Rollo 20 Cal 3d 109, 141 Cal Rptr 177, 569 P2d 771).

Where a necessary element of the offense charged was that the accused knew or reasonably should have known of the victim's identity as a peace officer, the court erred in failing to give an instruction on intoxication.  People v Garcia (3d Dist) 250 Cal App 2d 15, 58 Cal Rptr 186.

Drunkenness, if so extreme as to make the existence of a definite purpose impossible, may be a defense to any crime of which a specific design is an essential element.  State v Rumble, 81 Kan 16, 105 P 1.

Practice Aids: –Lack of Capacity to Form Specific Intent–Voluntary Intoxication.   5 Am Jur Proof of Facts 2d 189.

Footnote 94. Kane v United States (CA9 Ariz) 399 F2d 730, cert den  393 US 1057,  21 L Ed 2d 699,  89 S Ct 698; People v Sanchez, 35 Cal 2d 522, 219 P2d 9; Blackburn v Commonwealth, 200 Ky 638, 255 SW 99; State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den  366 US 973,  6 L Ed 2d 1263,  81 S Ct 1941; Bradford v State, 208 Tenn 500, 347 SW2d 33.

In a prosecution for aggravated robbery, simple robbery, and assault, defendant who testified to being intoxicated at the time of the robbery had the right to use mental condition as a defense on the merits of whether or not defendant had requisite intent. People v Scheidt, 186 Colo 142, 526 P2d 300.

Where the essence of a crime depends upon the intent with which an act was done or where an essential ingredient of the crime consists in the doing of an unlawful act with a deliberate and premeditated purpose, the mental condition of the accused, whether that condition is occasioned by voluntary intoxication or otherwise, is an important factor to be considered.  Booher v State, 156 Ind 435, 60 NE 156.

Evidence is admissible as to the possible effect of a defendant's consumption of alcohol and ingestion of drugs upon his capacity to form the requisite intent required in the charges of robbery and burglary. Commonwealth v Graves, 461 Pa 118, 334 A2d 661 (superseded by statute as stated in Commonwealth v Pickett 244 Pa Super 433, 368 A2d 799) and later app 484 Pa 29, 398 A2d 644.

Footnote 95. People v Arriola (1st Dist) 164 Cal App 2d 430, 330 P2d 683; State v Wheeler, 195 Kan 84, 403 P2d 1015; People v Guillet, 342 Mich 1, 69 NW2d 140.

While it is true that drunkenness cannot excuse crime, it is also true that where a certain intent is a necessary element of a crime, defendant did not commit that crime if, because of intoxication, or for any reason whatsoever, he did not have that intent.  People v Guillett, 342 Mich 1, 69 NW2d 140.

Intoxication is to be considered by the jury in a prosecution for murder in which a premeditated design to effect death is essential, with reference to its effect upon the ability of the defendant at the time to form and entertain such a design, not because, per se, it either excuses or mitigates the crime, but because, in connection with other facts, an absence of malice or premeditation may appear.  Collier v State, 17 Okla Crim 139, 186 P 963.

Footnote 96. People v Sameniego, 118 Cal App 165, 4 P2d 809, reh den 118 Cal App 174, 5 P2d 653; State v Koerner, 8 ND 292, 78 NW 981; State v Stenback, 78 Utah 350, 2 P2d 1050.

Under a statute permitting the showing of intoxication to negate intent, it is error to instruct that no act is less criminal by reason of voluntary intoxication, without adding that intoxication can be considered in determining whether defendant had any specific motive, purpose, or intent which constitutes an element of the crime charged or of a particular species or degree thereof.  People v Baker, 42 Cal 2d 550, 268 P2d 705.

Footnote 97. People v Strader, 23 Ill 2d 13, 177 NE2d 126; Dawson v State, 16 Ind 428; Cummins v Commonwealth (Ky) 344 SW2d 611; Cheadle v State, 11 Okla Crim 566, 149 P 919.

Voluntary drunkenness is no excuse for the perpetration of a criminal act, and it may be used to negative the essential elements of intent and malice only where the intoxication is so extreme as to entirely suspend the power of reason.  Merely being drunk or intoxicated is no defense, even though the condition may have lasted for several days.  People v Lion, 10 Ill 2d 208, 139 NE2d 757.

Footnote 98. State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den  366 US 973,  6 L Ed 2d 1263,  81 S Ct 1941; Johnson v Commonwealth, 135 Va 524, 115 SE 673.

See also Chisley v State, 202 Md 87, 95 A2d 577, which recognizes that voluntary intoxication may be considered by the jury as it bears on the question of wilfulness, deliberation, and premeditation, in order to reduce first-degree murder to second-degree murder.

Footnote 99.
Annotation:  8 ALR3d 1236, § 4[c].

Although knowledge is not identical with intent, it is nevertheless mental state, and since intoxication has obvious relevance to question of awareness, familiarity, understanding, and ability to recognize and comprehend, it follows that where knowledge is requisite element of crime, court must instruct, on its own motion, that in determining evidence of such knowledge, jury may take into consideration fact that accused was intoxicated at time he committed act charged.  People v Foster (1st Dist) 19 Cal App 3d 649, 97 Cal Rptr 94.

In prosecution for receiving stolen vehicle, instruction on intoxication should have been given, whether or not it was raised as defense, if evidence warranted issue being presented for jury determination, where statute provided that state prove that defendant received vehicle "knowing it had been stolen".  State v Ghaul, 132 NJ Super 438, 334 A2d 65.

Footnote 1. In Long v Commonwealth (Ky) 262 SW2d 809, the court recognized that while drunkenness is not an excuse for crime, the condition of drunkenness may be considered in determining whether or not the alleged criminal act was accidental and excusable.  In regard to the defendant's contention that the court should have confined its instructions to murder in self-defense and that an instruction on voluntary manslaughter, in a murder prosecution, was unauthorized and tended to confuse the jury to his prejudice, the court stated that where the circumstances indicated possible lack of malice aforethought, coupled with the grossly careless or reckless use of a firearm, an instruction on voluntary manslaughter is proper.  The court also stated that the jury doubtless considered the testimony as to the drunken condition of the defendant, and unquestionably a voluntary manslaughter instruction was not only proper under the evidence but the defendant could not possibly have been prejudiced by it.  The court affirmed a conviction of voluntary manslaughter.

Footnote 2. State v Christie, 243 Iowa 1199, 53 NW2d 887, mod on other grounds (Iowa) 54 NW2d 927; State v Linzmeyer, 248 Iowa 31, 79 NW2d 206; Beall v State, 203 Md 380, 101 A2d 233.

In State v Arnold, 264 NC 348, 141 SE2d 473, the court stated that drunkenness is an affirmative defense and when interposed by the accused the burden is on him to satisfy the jury that at the time of the commission of a crime, he was so intoxicated that he did not know what he was doing or attempting to do and was incapable of forming a criminal intent.

Footnote 3. People v Houghton (3d Dist) 212 Cal App 2d 864, 28 Cal Rptr 351; State v Christie, 243 Iowa 1199, 53 NW2d 887, mod on other grounds (Iowa) 54 NW2d 927; State v Linzmeyer, 248 Iowa 31, 79 NW2d 206.

Footnote 4. State v Christie, 243 Iowa 1199, 53 NW2d 887, mod on other grounds (Iowa) 54 NW2d 927.

Instruction was inadequate and required reversal of defendant's two convictions of specific intent crime of assault with intent to commit great bodily harm less than murder, where although the court instructed the jury that voluntary intoxication was a defense to specific intent crime, it failed to tell the jury which of the charged offenses of kidnapping, second degree murder, and assault with intent to do great bodily harm less than murder were specific intent crimes.  People v Widgren, 53 Mich App 375, 220 NW2d 130.

The trial court's refusal to give a requested instruction to the effect that although intoxication is no defense to first-degree murder, the defendant may have been so intoxicated as to be unable to form the specific intent to commit the crime charged, was prejudicial error.  People v Jackson,  14 NY2d 5, 247 NYS2d 481, 196 NE2d 887.

An instruction that "[i]f you should determine that the defendant was intoxicated and that such intoxication prevented the presence of an intent to kill, then you must acquit defendant of the crime of murder in the second degree.  On the other hand, if you are satisfied beyond a reasonable doubt that the defendant was not intoxicated or that, if intoxicated, his state of intoxication did not prevent the presence of an intent to kill, then you may consider whether or not you are satisfied beyond a reasonable doubt that the defendant had an intent to kill the deceased in connection with your consideration of the crime of murder in the second degree," was held proper in People v Davis (1st Dept)  18 App Div 2d 644, 235 NYS2d 282, affd  13 NY2d 1151, 247 NYS2d 140, 196 NE2d 569.  Affirming a conviction of second-degree murder, the court stated that the instruction did not present the jury with the dilemma of either acquitting the defendant or finding him guilty of murder in the second degree.  The court stated that the plain meaning of the charge was that intoxication, if found, could support a finding of absence of an intent to kill, enabling the jury to acquit defendant of second-degree murder.  The court also stated that the trial court expressly charged the elements of manslaughter, first degree, and emphasized that it differed from murder in the second degree in that the intent to kill may not be present, and throughout the instruction reference was made repeatedly to the alternative verdict of manslaughter first degree.

An instruction that the burden of proof was on the defendant to prove by a preponderance of evidence incapacity resulting from intoxication was held to be proper in State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den  366 US 973,  6 L Ed 2d 1263,  81 S Ct 1941.  Affirming a conviction of breaking and entering with intent to commit a felony and rape, the court stated that the raising of the question of intoxication as a defense to a charge of a crime involving a physical act, such as rape, goes to the question of the physical capacity of the defendant to have committed the crime charged.  In regard to the defendant's contention that evidence of intoxication was introduced merely to support the defense that the defendant did not commit the acts with which he was charged, and that he did not raise the separate defense of intoxication as to which he would have the burden of proof, the court stated that since there is no recognized plea of not guilty by reason of intoxication, it can appear defensively only under a general plea of not guilty, and any evidence on that subject introduced by the defendant must necessarily be a defense, whether it is called simply a defense or an affirmative defense, and if the defendant would escape the consequences of a prima facie case made by the state through proof of the essential elements of the crime, he must assume the burden of so doing.

Footnote 5.
Annotation:  8 ALR3d 1236, § 4[a].

Where the trial court gave a cautionary instruction stating that the jury was to apply the law as to intoxication with caution because the court cannot countenance assault with intent to murder by mere intoxication unless the intoxication carries a man to the extent that he is helpless in mind and incapable of forming the intent to take a life, the court in Leach v State, 245 Ala 539, 18 So 2d 289, held that the court's charge was not reversible error. The court stated that the trial court did not in any sense reflect upon the offense of intoxication or cast suspicion upon it and it was not improper to caution the jury or admonish them or state to them that they should observe carefully the exact nature of the defense, and not apply it improperly.  The court, however, upheld a reversal of the conviction on other grounds.

Where an instruction was given to the effect that the jury should use caution not to give immunity to persons who commit crime when they are inflamed by intoxicating drink, and that they must discriminate between the conditions of mind of being merely excited by intoxicating drink, and yet capable of forming a specific intent to commit a crime, and of such a prostration of the faculties as renders a man incapable of forming the intent, and that if an intoxicated person has the capacity to form an intent to commit the crime charged and conceives and executes such intent, it is no defense that he was induced to conceive it, or to conceive it more suddenly by reason of his intoxication, the court in State v Runnells, 64 Wash 2d 995, 390 P2d 1003, stated that such instruction did not take from the jury its right to consider the defense of intoxication as claimed by the defendant. The court affirmed a conviction for first-degree forgery.

However, an instruction that the defense of drunkenness is one which is dangerous in its application and that the evidence as to intoxication should be carefully scrutinized and weighed with great caution, but if the jury finds from the evidence that by reason of intoxication the defendant was incapable of forming a deliberate and premeditated intent to kill, it would be the jury's duty to acquit the defendant of the charge of murder in the first degree, was held erroneous in State v Oakes, 249 NC 282, 106 SE2d 206. Reversing a conviction of murder in the first degree in remanding, the court stated that the error was in the expression that the defense of drunkenness is one which is dangerous in its application.  The court stated that such expression is clearly an expression of opinion by a judge and as such is prohibited by statute.

Footnote 6. In the majority of cases cited, the evidence was held insufficient to show that the accused did not possess the requisite intent or motive at the time of the commission of the crime, and a conviction of the crime charged was upheld.

Annotation:  8 ALR3d 1236, § 4[a].

It should be noted that whether a particular offense is one requiring specific, rather than only general, intent depends usually upon the language of the statute in a particular jurisdiction, and consequently what may be a general intent crime in one state is a specific intent crime in another.

Footnote 7. Lawrence v State (Ala App) 341 So 2d 188; State v Melendez, 121 Ariz 1, 588 P2d 294; Kagebein v State, 254 Ark 904, 496 SW2d 435; People v Ford, 60 Cal 2d 772, 36 Cal Rptr 620, 388 P2d 892, cert den  377 US 940,  12 L Ed 2d 303,  84 S Ct 1342 and (ovrld on other grounds People v Satchell 6 Cal 3d 28, 98 Cal Rptr 33, 489 P2d 1361,  50 ALR3d 383) and later app 65 Cal 2d 41, 52 Cal Rptr 228, 416 P2d 132, cert den  385 US 1018,  17 L Ed 2d 554,  87 S Ct 737 and on remand (2d Dist) 253 Cal App 2d 390, 61 Cal Rptr 329; People v Conley, 64 Cal 2d 310, 49 Cal Rptr 815, 411 P2d 911; Dolan v People, 168 Colo 19, 449 P2d 828; State v Dortch, 139 Conn 317, 93 A2d 490; Cirack v State (Fla) 201 So 2d 706; Carey v State, 91 Idaho 706, 429 P2d 836; People v Walsh, 28 Ill 2d 405, 192 NE2d 843 (murder while robbing); State v Christie, 243 Iowa 1199, 53 NW2d 887, mod on other grounds (Iowa) 54 NW2d 927; Long v Commonwealth (Ky) 262 SW2d 809; State v Youngblood, 235 La 1087, 106 So 2d 689; Dubs v State, 2 Md App 524, 235 A2d 764; Commonwealth v Whipple (Mass) 1979 Adv Sheets 907, 387 NE2d 575; State v Palen, 119 Mont 600, 178 P2d 862; King v State, 80 Nev 269, 392 P2d 310; State v King, 37 NJ 285, 181 A2d 158,  2 ALR3d 1278; People v Lynch,  23 NY2d 262, 296 NYS2d 327, 244 NE2d 29; State v Propst, 274 NC 62, 161 SE2d 560; State v Braley, 224 Or 1, 355 P2d 467; Commonwealth v Johnson, 410 Pa 605, 190 A2d 146; Commonwealth v Fostar, 455 Pa 216, 317 A2d 188; State v Thompson, 110 Utah 113, 170 P2d 153; State v Hartley, 25 Wash 2d 211, 170 P2d 333; State v Rio, 38 Wash 2d 446, 230 P2d 308, cert den  342 US 867,  96 L Ed 652,  72 S Ct 106 (recognizing rule); State v Bragg, 140 W Va 585, 87 SE2d 689; State v Johnnies,  76 Wis 2d 578, 251 NW2d 807.

Although recognizing that if the defendant was so intoxicated that he did not have the specific intent to rape, he was not guilty of murder in the first degree, the court in People v Cheary, 48 Cal 2d 301, 309 P2d 431, affirmed the conviction of murder in the first degree. The court stated that whether the defendant was so intoxicated as to preclude the existence of the specific intent was a question for the jury, and, since the jury was properly instructed on the effect of intoxication, its verdict necessarily implied that they found that the defendant was not so intoxicated that he did not have the specific intent to rape.  Such determination was amply supported by the evidence even though the testimony regarding the extent of the defendant's intoxication was conflicting, said the court.

Affirming a conviction of murder, the court in People v Lion, 10 Ill 2d 208, 139 NE2d 757, stated that it is the rule that voluntary drunkenness is no excuse for the perpetration of a criminal act, and it may be used to negative the essential elements of intent and malice only where the intoxication is so extreme as to entirely suspend the power of reason. Merely being drunk or intoxicated is no defense, said the court, even though the condition may have lasted for several days.  The court stated that the facts of the case and the conduct of the defendant showed that his intoxication was not so extreme as to render him incapable of having the malice and intent necessary to commit the crime of murder.

Generally, as to intoxication as a defense in homicide cases, see 40 Am Jur 2d,  Homicide §§ 130-132.

Footnote 8. State v Saunders, 102 Ariz 565, 435 P2d 39; People v Curry (4th Dist) 192 Cal App 2d 664, 13 Cal Rptr 596; Nicholson v United States (Dist Col App) 368 A2d 561; State v Linn, 93 Idaho 430, 462 P2d 729; De Boor v State, 243 Ind 87, 182 NE2d 250, cert den  371 US 848,  9 L Ed 2d 83,  83 S Ct 83; Taylor v State, 260 Ind 264, 295 NE2d 600, cert den  414 US 1012,  38 L Ed 2d 250,  94 S Ct 377; State v Mart (La) 352 So 2d 678; People v De Mino, 277 App Div 1121, 100 NYS2d 982; People v Davis (1st Dept)  18 App Div 2d 644, 235 NYS2d 282, affd  13 NY2d 1151, 247 NYS2d 140, 196 NE2d 569; State v Turley, 113 RI 104, 318 A2d 455.

On the basis that the evidence was sufficient to support a finding that the defendant was in full command of all his faculties and fully capable of maliciously intending the consequences of his act in shooting his stepson, the court in De Boor v State, 243 Ind 87, 182 NE2d 250, cert den  371 US 848,  9 L ed 2d 83,  83 S Ct 83, affirmed a conviction of second-degree murder. While evidence of intoxication is admissible and may be considered in behalf of a person on trial for a crime involving specific intent, said the court, it acts as a complete and effective defense only when its degree is such as to render the accused incapable of entertaining the specific intent.  The court stated that there was evidence in the record that the defendant did not stagger, that he walked normally and spoke understandingly, and that his actions were the same shortly before and after the shooting.  The court also stated that the degree of intoxication and the effect of alcohol upon the defendant were questions of fact to be determined by the jury.

Footnote 9. People v Hammock, 68 Ill App 3d 34, 24 Ill Dec 655, 385 NE2d (voluntary manslaughter); Brown v Commonwealth (Ky) 575 SW2d 451 (first-degree manslaughter); Cowling v State (Okla Crim) 327 P2d 500 (manslaughter in first degree); Dodge v State (Wyo) 562 P2d 303.

Footnote 10. Nicholson v United States (Dist Col App) 368 A2d 561; People v Counts, 318 Mich 45, 27 NW2d 338; People v Crane, 27 Mich App 201, 183 NW2d 307 (disagreed with on other grounds People v Rohr 45 Mich App 535, 206 NW2d 788) as stated in People v Starghill 99 Mich App 790, 298 NW2d 641 (felonious assault); State v Crespin (App) 86 NM 689, 526 P2d 1282 (aggravated battery); People v Lane (3rd Dept)  9 App Div 2d 979, 194 NYS2d 846 (second-degree assault arising from alleged acts of incest); State v Bunn, 283 NC 444, 196 SE2d 777 (felonious assault); Dodge v State (Wyo) 562 P2d 303 (assault and battery with dangerous weapon).

Footnote 11. Leach v State, 245 Ala 539, 18 So 2d 289; Myrick v State, 244 Ark 1156, 428 SW2d 241; People v Mathews (3d Dist) 163 Cal App 2d 795, 329 P2d 983; Eastin v State, 233 Ind 101, 117 NE2d 124; Avey v State, 249 Md 385, 240 A2d 107, later app 9 Md App 227, 263 A2d 609.

Footnote 12. Britts v State, 158 Fla 839, 30 So 2d 363.

Footnote 13. Moran v State, 34 Ala App 238, 39 So 2d 419, cert den 252 Ala 60, 39 So 2d 421; People v Peckham (2d Dist) 249 Cal App 2d 941, 57 Cal Rptr 922; Claxton v People, 164 Colo 283, 434 P2d 407; People v Cozzie, 397 Ill 620, 74 NE2d 685; Shipman v State, 243 Ind 245, 183 NE2d 823, cert den  371 US 958,  9 L Ed 2d 504,  83 S Ct 515 (assault and battery with intent to gratify sexual desires); Charles v State, 164 Ind App 260, 328 NE2d 455; State v Holl, 238 Iowa 130, 25 NW2d 853; Michael v State, 1 Md App 243, 229 A2d 145 (assault with intent to have carnal knowledge of female child under 14 years of age); State v Johnson, 243 Minn 296, 67 NW2d 639; Commonwealth v Heatter, 177 Pa Super 374, 111 A2d 371.

The crime of assault with intent to rape involves a specific intent and while it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist, said the court in People v Guillett, 342 Mich 1, 69 NW2d 140, reversing a conviction of assault with intent to rape and remanding for a new trial.  It was held that an instruction by the trial judge that voluntary drunkenness is not a defense to the crime and that a man who puts himself in a position to have no control over his actions must be held to intend the consequences was erroneous, despite the fact that the defendant failed to request the appropriate instructions.

Footnote 14. Wheatley v United States (CA4 W Va) 159 F2d 599; People v Wilson (2d Dist) 261 Cal App 2d 12, 67 Cal Rptr 678; Claxton v People, 164 Colo 283, 434 P2d 407; People v Savage, 5 Ill 2d 296, 125 NE2d 449 (abduction of infant); Shipman v State, 243 Ind 245, 183 NE2d 823, cert den  371 US 958,  9 L Ed 2d 504,  83 S Ct 515.

Footnote 15. People v Cheary, 48 Cal 2d 301, 309 P2d 431; State v Gailey, 69 Idaho 146, 204 P2d 254; State v Evenson, 237 Iowa 1214, 24 NW2d 762; Kahafer v Commonwealth (Ky) 284 SW2d 678 (apparently recognizing rule).

Footnote 16. People v Oliver, 55 Cal 2d 761, 12 Cal Rptr 865, 361 P2d 593 (lewd conduct with child); State v Johnson, 74 Idaho 269, 261 P2d 638 (lewd and lascivious conduct with 9-year-old); People v Freedman, 4 Ill 2d 414, 123 NE2d 317 (immoral, improper, and indecent liberties with a female child); People v Evrard, 55 Ill App 2d 270, 204 NE2d 777 (taking indecent liberties with child under 16); State v Haines (Iowa) 259 NW2d 806 (committing lascivious acts upon person of female child under age of 16 years); Kendall v State, 244 Miss 618, 145 So 2d 924 (indecent assault upon female child).

Footnote 17. Caples v United States (CA5 Miss) 391 F2d 1018 (armed robbery of federally insured bank); United States v Lemon (CA9 Cal) 550 F2d 467 (bank robbery); United States v Williams (DC Md) 332 F Supp 1 (bank robbery); Brown v State, 39 Ala App 149, 96 So 2d 197; People v Spencer, 60 Cal 2d 64, 31 Cal Rptr 782, 383 P2d 134, cert den  377 US 1007,  12 L Ed 2d 1055,  84 S Ct 1924 (robbing murdered taxicab driver); People v Garcia (1st Dist) 169 Cal App 2d 368, 337 P2d 100 (armed robbery); Womack v United States, 119 App DC 40, 336 F2d 959; People v White, 67 Ill 2d 107, 8 Ill Dec 99, 365 NE2d 337 (ovrld on other grounds People v Banks 75 Ill 2d 383, 27 Ill Dec 195, 388 NE2d 1244; armed robbery); Payton v State, 246 Ind 401, 206 NE2d 143; Johnson v Commonwealth (Ky) 302 SW2d 585 (armed robbery); McPherson v State, 208 Miss 784, 45 So 2d 589; State v Brown, 174 Neb 393, 118 NW2d 332; State v Reposa, 99 RI 147, 206 A2d 213; State v Haynes, 58 Wash 2d 716, 364 P2d 935, vacated on other grounds  373 US 503,  10 L Ed 2d 513,  83 S Ct 1336.

Footnote 18. Schwab v United States (CA8 Minn) 327 F2d 11 (Motor Vehicle Theft Act); Alden v Montana (DC Mont) 234 F Supp 661, affd (CA9) 345 F2d 530 (grand larceny, depriving owner of automobile); Green v State (Ala App) 342 So 2d 419 (grand larceny); State v Parsons, 70 Ariz 399, 222 P2d 637; People v Wilson (1st Dist) 160 Cal App 2d 606, 325 P2d 106 (petit theft); People v Arriola (1st Dist) 164 Cal App 2d 430, 330 P2d 683 (grand theft); Edwards v United States, 85 App DC 310, 172 F2d 884; People v Reynolds, 27 Ill 2d 523, 190 NE2d 301; People v Jones, 99 Ill App 2d 364, 240 NE2d 776; State v Estrella, 257 Iowa 462, 133 NW2d 97 (shoplifting); McVey v Commonwealth (Ky) 272 SW2d 33 (grand larceny of money); Hazel v Commonwealth (Ky) 371 SW2d 635 (grand larceny); Brown v State, 6 Md App 631, 252 A2d 887; Best v State, 235 Miss 318, 108 So 2d 840; King v State (Miss) 210 So 2d 887 (grand larceny); Daugherty v State, 154 Neb 376, 48 NW2d 76 (grand larceny); State v Roybal, 66 NM 416, 349 P2d 332; State v Lucero, 70 NM 268, 372 P2d 837; People v Burley, 282 App Div 408, 122 NYS2d 760; State v Koerner, 8 ND 292, 78 NW 981; Phillips v State, (Okla Crim) 321 P2d 724 (larceny of automobile); Thomas v State, 201 Tenn 645, 301 SW2d 358.

As to intoxication as negating specific intent in larceny cases, generally, see 50 Am Jur 2d,  Larceny § 42.

Footnote 19. Goings v United States (CA8 SD) 377 F2d 753, later app (CA8 SD) 393 F2d 884, cert den  393 US 883,  21 L Ed 2d 158,  89 S Ct 191 (applying South Dakota law); Green v State (Ala App) 342 So 2d 419; State v Parsons, 70 Ariz 399, 222 P2d 637; State v Roqueni, 94 Ariz 72, 381 P2d 757, cert den  375 US 948,  11 L Ed 2d 278,  84 S Ct 359 (recognizing rule); People v Wilson (1st Dist) 160 Cal App 2d 606, 325 P2d 106; People v Romero, 182 Colo 50, 511 P2d 466; State v Rutten, 73 Idaho 25, 245 P2d 778 (burglary in first degree); People v Iannaco, 11 Ill 2d 55, 142 NE2d 8; People v Reynolds, 27 Ill 2d 523, 190 NE2d 301; People v Garrett, 46 Ill App 3d 592, 360 NE2d 1231; Hunter v State 246 Ind 494, 207 NE2d 207 (second-degree burglary); Watson v State (Ind App) 386 NE2d 1015 (first-degree burglary); State v Lentz (La) 306 So 2d 683; McFarland v State, 212 Miss 802, 55 So 2d 457; State v Ostwald (Mont) 591 P2d 646; Commonwealth v Bable, 248 Pa Super 496, 375 A2d 350; Bradford v State, 208 Tenn 500, 347 SW2d 33; State v Hartley, 16 Utah 2d 123, 396 P2d 749 (second-degree burglary).

Footnote 20. Young v State (Fla App D3) 162 So 2d 297 (breaking and entering with intent to commit a misdemeanor); State v Linzmeyer, 248 Iowa 31, 79 NW2d 206; Hall v Commonwealth, 310 Ky 718, 221 SW2d 652 (storehouse breaking); Ray v Commonwealth (Ky) 284 SW2d 76; State v Del Vecchio, 142 NJ Super 359, 361 A2d 579 (breaking and entering with intent to steal); State v French, 171 Ohio St 501, 14 Ohio Ops 2d 437, 172 NE2d 613, cert den  366 US 973,  6 L Ed 2d 1263,  81 S Ct 1941 (breaking and entering with intent to commit felony); State v Murphy, 107 RI 737, 271 A2d 310 (breaking and entering with intent to commit larceny).

Footnote 21. United States v MacLeod (DC Pa) 83 F Supp 372; Woodard v People, 154 Colo 162, 389 P2d 411; State v Baldwin, 69 Idaho 459, 208 P2d 161; State v O'Donnell, 280 Minn 213, 158 NW2d 699 (aggravated forgery); Andrade v State, 87 Nev 144, 483 P2d 208; State v Conklin, 79 Wash 2d 805, 489 P2d 1130 (first-degree forgery).

Footnote 22. United States v Nix (CA7 Ill) 501 F2d 516 (escape from prison); Gallegos v People, 159 Colo 379, 411 P2d 956 (felonious escape); People v Haines, 37 Colo App 302, 549 P2d 786; People v Lundborg, 39 Colo App 498, 570 P2d 1303 (felony menacing); Jenkins v United States (Dist Col App) 242 A2d 214 (possession of prohibited weapon); State v Crocker (Me) 387 A2d 26 (unlawful sexual contact); Brown v State, 6 Md App 631, 252 A2d 887 (obtaining money by false pretenses); People v Cesare (2d Dept)  68 App Div 2d 938, 414 NYS2d 585 (criminal possession of stolen property, and possession of burglar's tools); State v Arnold, 264 NC 348, 141 SE2d 473 (attempting to burn a dwelling house); State v Smith (App) 32 Ohio Ops 2d 130, 198 NE2d 89 (coconspirator or aider and abettor to firing of pistol fatal to victim); Commonwealth ex rel. Dunbar v Keenan, 196 Pa Super 592, 176 A2d 135, cert den  371 US 839,  9 L Ed 2d 74,  83 S Ct 65 (apparently recognizing rule; fraudulent pretenses); Commonwealth v Pickett, 244 Pa Super 433, 368 A2d 799 (conspiracy); Commonwealth v Hart (Pa) 101 Pittsb Leg J 449 (carrying concealed weapons).

Footnote 23. Booher v State, 156 Ind 435, 60 NE 156; State v Heinz, 223 Iowa 1241, 275 NW 10; State v Butner, 66 Nev 127, 206 P2d 253, reh den 67 Nev 436, 220 P2d 631 and cert den  338 US 950,  94 L Ed 586,  70 S Ct 479 and cert den  340 US 913,  95 L Ed 660,  71 S Ct 285 and (ovrld on other grounds Poirier v Board of Dental Examiners 81 Nev 384, 404 P2d 1); State v Phillips, 80 W Va 748, 93 SE 828.

Footnote 24. Stenzel v United States (CA8 Iowa) 261 F 161; Chrisman v State, 54 Ark 283, 15 SW 889; Garner v State, 28 Fla 113, 9 So 835; People v Strader, 23 Ill 2d 13, 177 NE2d 126; Booher v State, 156 Ind 435, 60 NE 156; Latimer v State, 55 Neb 609, 76 NW 207; Warner v State, 56 NJL 686, 29 A 505; State v Koerner, 8 ND 292, 78 NW 981; Pigman v State, 14 Ohio 555; State v Stenback, 78 Utah 350, 2 P2d 1050; State v Phillips, 80 W Va 748, 93 SE 828; Director of Public Prosecutions v Beard (Eng) [1920] AC 479 (HL).

In Johnson v State, 32 Ala App 217, 24 So 2d 228, a conviction was reversed where the evidence affirmatively showed that the defendant's mind was so impaired by drugs taken medicinally, plus liquor, as to render him incapable of forming the required specific intent.

In Murphy v Commonwealth (Ky) 279 SW2d 767, the court, reversing a conviction of operating an automobile without the consent of the owner, ordered the trial court to enter a directed verdict for the defendant.  The court stated that the evidence clearly established that at the time the automobile was taken, the defendant was drunk to the point of being physically incapable of committing or participating in the crime charged.

Footnote 25. Yarber v State, 242 Ind 616, 179 NE2d 882.

Where the offense can be completed only by doing a particular thing with a specific intent, it may be shown that the accused was so drunk that he was incapable of entertaining the intent necessary to constitute the crime. Hankins v State, 206 Ark 881, 178 SW2d 56 (murder).

Evidence of intoxication is admissible and may be considered in behalf of a person on trial for a crime involving specific intent. However, intoxication acts as a complete and effective defense only when its degree is such as to render the accused incapable of entertaining the specific intent. De Boor v State, 243 Ind 87, 182 NE2d 250, cert den  371 US 848,  9 L Ed 2d 83,  83 S Ct 83 (affirming conviction of second-degree murder).

Intoxication to the extent of deprivation of reason and willpower precludes a finding of guilt of the breaking and entering of a building with intent to steal, where the proof shows only a breaking and entering, but not an actual taking or any attempt to take.  State v Phillips, 80 W Va 748, 93 SE 828.

Footnote 26. Kane v United States (CA9 Ariz) 399 F2d 730, cert den  393 US 1057,  21 L Ed 2d 699,  89 S Ct 698 (first degree murder reduced to voluntary manslaughter); Wheatley v United States (CA4 W Va) 159 F2d 599 (kidnapping); United States ex rel. Thompson v Dye (CA3 Pa) 221 F2d 763, cert den  350 US 875,  100 L Ed 773,  76 S Ct 120 (murder in the first degree to murder in the second degree); Government of Virgin Islands v Downey (DC VI) 396 F Supp 349, affd without op (CA3 VI) 529 F2d 511; Gosa v State, 273 Ala 346, 139 So 2d 321 (murder in first degree to manslaughter or murder in second degree); Lewis v State, 42 Ala App 166, 157 So 2d 38 (drunkenness may reduce degree of homicide from murder to manslaughter but is no defense as to either degree of manslaughter); State v Magby, 113 Ariz 345, 554 P2d 1272 (first-degree murder to second-degree murder or manslaughter); People v Horn, 12 Cal 3d 290, 115 Cal Rptr 516, 524 P2d 1300 (conspiracy to commit first degree murder to conspiracy to commit manslaughter); People v Reyes, 12 Cal 3d 486, 116 Cal Rptr 217, 526 P2d 225 (murder in first degree to involuntary manslaughter); People v Matta (5th Dist) 57 Cal App 3d 472, 129 Cal Rptr 205 (murder to involuntary manslaughter); State v Dortch, 139 Conn 317, 93 A2d 490 (first-degree murder to second-degree murder); Bantum v State (Sup) 46 Del 487, 85 A2d 741 (first-degree murder); Dashiell v State (Sup) 52 Del 189, 154 A2d 688 (recognizing rule; murder in first degree to murder in second degree); Harris v United States (Dist Col App) 375 A2d 505; State ex rel. Goepel v Kelly (Fla) 68 So 2d 351 (first-degree murder); Griffin v State (Fla App) 96 So 2d 424 (recognizing rule; murder in first degree); People v Johnson, 32 Ill App 3d 36, 335 NE2d 144; People v Proper, 68 Ill App 3d 250, 24 Ill Dec 741, 385 NE2d 882 (murder to voluntary manslaughter); Hooker v State (Ind App) 387 NE2d 1354; State v Gramenz, 256 Iowa 134, 126 NW2d 285 (dictum recognizing rule; homicide to manslaughter); State v Anderson, 172 Kan 402, 241 P2d 742 (murder to manslaughter); State v Gee, 194 Kan 443, 399 P2d 880 (recognizing rule); Rose v Commonwealth (Ky) 408 SW 2d 621 (maliciously cutting and wounding to cutting and wounding in sudden affray or in sudden heat and passion, without previous malice); Geary v Commonwealth (Ky) 503 SW2d 505; Chisley v State, 202 Md 87, 95 A2d 577 (first-degree murder to second-degree murder); Commonwealth v Dellechiaie, 323 Mass 615, 84 NE2d 7 (murder in first degree to murder in second degree); People v Engle, 61 Mich App 628, 233 NW2d 116; Thurmond v State, 212 Miss 36, 53 So 2d 44 (murder to manslaughter); State v Palen, 119 Mont 600, 178 P2d 862 (first-degree murder reduced to second-degree murder); Tvrz v State, 154 Neb 641, 48 NW2d 761 (first-degree murder); Thompson v State, 159 Neb 685, 68 NW2d 267 (recognizing rule; malicious shooting with intent to kill); State v Butner, 66 Nev 127, 206 P2d 253, reh den 67 Nev 436, 220 P2d 631 and cert den  338 US 950,  94 L Ed 586,  70 S Ct 479 and cert den  340 US 913,  95 L Ed 660,  71 S Ct 285 and (ovrld on other grounds Poirier v Board of Dental Examiners 81 Nev 384, 404 P2d 1; first-degree murder to second-degree murder); Kuk v State, 80 Nev 291, 392 P2d 630 (apparently recognizing rule; first-degree murder); State v Hudson, 38 NJ 364, 185 A2d 1 (first-degree murder may be reduced to second-degree murder); State v Trantino, 44 NJ 358, 209 A2d 117, cert den  382 US 993,  15 L Ed 2d 479,  86 S Ct 573, reh den  383 US 922,  15 L Ed 2d 679,  86 S Ct 901 (first-degree murder may be reduced to second-degree murder); State v Padilla, 66 NM 289, 347 P2d 312,  78 ALR2d 908 (first-degree murder to second-degree murder); People v Caverio, 286 App Div 369, 143 NYS2d 309, settled 286 App Div 972, 144 NYS2d 1, app den 309 NY 913, 131 NE2d 910 and affd  1 NY2d 657, 150 NYS2d 24, 133 NE2d 512 (recognizing rule; first-degree murder); People v Cook (3d Dept)  51 App Div 2d 1072, 380 NYS2d 792; People v Isrile (1st Dept)  64 App Div 2d 536, 406 NYS2d 491; State v Fowler, 285 NC 90, 203 SE2d 803, vacated, in part on other grounds  428 US 904,  49 L Ed 2d 1212,  96 S Ct 3212 (first-degree murder to second-degree murder); State v Bock, 288 NC 145, 217 SE2d 513, vacated, in part on other grounds  428 US 903,  49 L Ed 2d 1209,  96 S Ct 3208; Oxendine v State (Okla Crim) 335 P2d 940 (murder to manslaughter in the first degree); Williams v State (Okla Crim) 513 P2d 335 (murder); State v Braley, 224 Or 1, 355 P2d 467 (first-degree murder may be reduced to second-degree murder); Commonwealth v Reid, 432 Pa 319, 247 A2d 783; Commonwealth v Haywood, 464 Pa 226, 346 A2d 298; Commonwealth v England, 474 Pa 1, 375 A2d 1292; Commonwealth v Wilson, 224 Pa Super 515, 307 A2d 351; Long v State, 187 Tenn 139, 213 SW2d 37 (first-degree murder to second-degree murder); State v Bullington (Tenn) 532 SW2d 556; Cody v Commonwealth, 180 Va 449, 23 SE2d 122 (as between murder in the first degree and murder in the second degree, voluntary drunkenness may be a legitimate subject of inquiry, but as between murder in the second degree and manslaughter, it is never material and cannot be considered); State v Painter, 135 W Va 106, 63 SE2d 86 (murder in first degree to murder in second degree); State v Burdette, 135 W Va 312, 63 SE2d 69 (murder in first degree); Smith v State,  248 Wis 399, 21 NW2d 662 (murder in first degree).

Annotation:  8 ALR3d 1236, § 4[b].

As to intoxication as affecting degree of homicide, generally, see 40 Am Jur 2d,  Homicide §§ 128,  129.

Footnote 27. Newsome v State, 214 Ark 48, 214 SW2d 778; Robertson v State, 212 Ark 301, 206 SW2d 748; Dashiell v State (Sup) 52 Del 189, 154 A2d 688; State v Painter, 135 W Va 106, 63 SE2d 86.

Annotation:  8 ALR3d 1236, § 4[b].

Footnote 28. Marshall v Commonwealth, 141 Ky 222, 132 SW 139; State v Butner, 66 Nev 127, 206 P2d 253, reh den 67 Nev 436, 220 P2d 631 and cert den  338 US 950,  94 L Ed 586,  70 S Ct 479 and cert den  340 US 913,  95 L Ed 660,  71 S Ct 285 and (ovrld on other grounds Poirier v Board of Dental Examiners 81 Nev 384, 404 P2d 1).

For application of rule to homicide, see 40 Am Jur 2d,  Homicide § 138.

Footnote 29.
Annotation:  8 ALR3d 1236, § 4[b].

In State v Arsenault, 152 Me 121, 124 A2d 741, overruling exceptions to instructions of the defendant, who had been convicted of murder, the court stated that voluntary intoxication is no excuse for murder and is not an excuse or justification for, or an extenuation of, a crime.  Maine had abolished the distinction between the degrees of murder and the defendant had requested instructions which would render him not guilty of the crime if the jury found that he was so intoxicated as to have lost his intelligence and his reason and faculties.  The court recognized that where there are statutory degrees of murder, as formerly in Maine, intoxication may sometimes reduce first-degree murder to second-degree murder.

And see Stokes v State, 240 Miss 453, 128 So 2d 341, in which the court, affirming a conviction of murder, stated that voluntary intoxication is no defense in a murder case and that murder cannot be reduced to manslaughter.


§ 156  – Involuntary  [21 Am Jur 2d CRIMINAL LAW]

Though occasions for its application have not been frequent, the rule appears to be settled that involuntary intoxication relieves the criminality of an act committed under its influence. 30   Involuntary intoxication is said to result from or be induced by the force, duress, fraud, or contrivance of another, 31  but this rule has been given a rather narrow reading in at least one jurisdiction 32  and it has been said that the rule is recognized only under strict limitations. 33  It is not involuntary intoxication where an accused voluntarily consumed liquor given or furnished him by another or by his ultimate victim. 34

The test of involuntary drunkenness is whether there was an absence of an exercise of independent judgment and volition on the part of the accused in taking the intoxicant. 35   And this has been held true despite considerable insistence on the part of the latter, unless there was coercion and abuse to the extent of duress. 36   Although intoxication resulting from drugs taken or administered for medicinal purposes has been regarded as involuntary, 37   intoxication resulting from taking whiskey, without the advice of a physican, to relieve a toothache, has been held not involuntary. 38    On the other hand, "pathological intoxication," described as an acute condition of short duration resulting from the ingestion of alcohol, has been accepted as involuntary intoxication. 39  


§ 156  – Involuntary [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Failure to give notice of insanity defense precluded defendant's raising defense of involuntary intoxication. People v Wilkins (1990) 184 Mich App 443, 459 NW2d 57, app den 439 Mich 863; 478 NW2d 90, reconsideration den 482 NW2d 715.

Where defendant voluntarily ingested large amounts of illegal intoxicants and intentionally overdosed on legal drugs, he could not claim involuntary intoxication based upon alleged unexpectedly violent reaction to those drugs due to unknown underlying pathological condition caused by exposure to pesticides. State v Sette (1992) 259 NJ Super 156, 611 A2d 1129, certif den (NJ) 617 A2d 1219.

Since alcoholism may not be the basis for a defense of involuntary intoxication, the trial court did not err in excluding evidence bearing on defendant's intoxication at the guilt-innocence level of defendant's trial on a theft charge; however, the tendered evidence raised the issue of temporary insanity by reason of intoxication and should have been admitted by way of mitigation of punishment. Shurbet v State (1982, Tex App 3d Dist) 652 SW2d 425.

Footnotes

Footnote 30. Bartholomew v People, 104 Ill 601 (ovrld on other grounds People v Montgomery 47 Ill 2d 510, 268 NE2d 695,  67 ALR3d 816 (superseded by statute as stated in People v Ray 54 Ill 2d 377, 297 NE2d 168)) as stated in Charlton v Baker 36 Ill App 3d 427, 344 NE2d 25; Saldiveri v State, 217 Md 412, 143 A2d 70; Carter v State, 12 Tex 500; Johnson v Commonwealth, 135 Va 524, 115 SE 673.

Annotation:  73 ALR3d 195.

Footnote 31. United States v Jewett (CA8 SD) 438 F2d 495, cert den  402 US 947,  29 L Ed 2d 117,  91 S Ct 1640; People v Carlo (1st Dept)  46 App Div 2d 764, 361 NYS2d 168; State v Bunn, 283 NC 444, 196 SE2d 777.

Intoxication occasioned by the fraud, artifice, contrivance, or force of another for the purpose of causing the perpetration of a crime, is involuntary intoxication.  Grimes v Burch, 223 Ga 856, 159 SE2d 69; State v Bevins, 187 Neb 785, 194 NW2d 181.

It is only when alcohol has been introduced into a person's system without his knowledge or by "force majeure" that his intoxication will be regarded as involuntary.  State v Bunn, 283 NC 444, 196 SE2d 777.

Intoxication caused by drinking beer which had been "drugged" without the accused's knowledge is involuntary intoxication. People v White, 131 Ill App 2d 652, 264 NE2d 228.

Footnote 32. To establish a defense of involuntary intoxication, the intoxication must be induced by acts amounting in effect to duress or fraud and it must go to such an extent that the mind of the defendant was incapable of understanding the criminal nature of his act.  Burrows v State, 38 Ariz 99, 297 P 1029 (disapproved on other grounds State v Hernandez 83 Ariz 279, 320 P2d 467).

Footnote 33. Johnson v Commonwealth, 135 Va 524, 115 SE 673.

Footnote 34. Commonwealth v Dudash, 204 Pa 124, 53 A 756.

Footnote 35. Johnson v Commonwealth, 135 Va 524, 115 SE 673.

Annotation:  73 ALR3d 195.

Involuntary intoxication is a defense to criminal culpability when it is shown that the accused has exercised no independent judgment or volition in taking the intoxicant and, as a result of his intoxication, the accused did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.  Torres v State (Tex Crim) 585 SW2d 746.

Where a defendant had received head injuries that lowered his tolerance to alcohol so that intoxication occurred from a relatively small amount of alcohol, and that caused him to become legally insane while so intoxicated, and where there was evidence that the defendant was aware of this weakness, the defendant's intoxication was voluntary intoxication.  Kane v United States (CA9 Ariz) 399 F2d 730, cert den  393 US 1057,  21 L Ed 2d 699,  89 S Ct 698.

Footnote 36. Burrows v State, 38 Ariz 99, 297 P 1029 (disapproved on other grounds State v Hernandez 83 Ariz 279, 320 P2d 467).

Footnote 37.  § 157, infra.

Footnote 38. Flanigan v People, 86 NY 554; Johnson v Commonwealth, 135 Va 524, 115 SE 673.

Annotation:  40 ALR3d 321.

Chronic alcoholism is not per se sufficient to raise the issue of criminal responsibility, except in a charge of drunkenness. Salzman v United States, 131 App DC 393, 405 F2d 358.

When on a given occasion, a person takes his first drink by choice and afterwards drinks successively and finally gets drunk, that is voluntary intoxication, even though he may be an alcoholic. People v Morrow (5th Dist) 268 Cal App 2d 939, 74 Cal Rptr 551.

Footnote 39. Hurley v Commonwealth (Ky) 451 SW2d 838.

In State v Matthews, 20 Or App 466, 532 P2d 250, the testimony of a psychiatrist that a defendant suffered from an "organic brain disease" which made his excessive drinking of alcoholic beverages an "automatic" an "involuntary process," was sufficient to support a finding that the defendant, convicted of manslaughter, was involuntarily intoxicated.

As to the effect that a drug addict is not acting voluntarily in the continued use of the drug, see  § 157, infra.


§ 157  Narcosis  [21 Am Jur 2d CRIMINAL LAW]

What little authority has been found indicates that the rules as to criminal responsibility where an act is committed under the influence of drugs are the same as when it is committed under the influence of intoxicating liquor. 40  Thus, the voluntary nonmedicinal use of narcotics is no defense to a crime committed under their influence, 41  although it may lead to acquittal where it excludes the required specific intent. 42

Involuntary narcosis, however, like involuntary alcoholic intoxication, may negative criminal responsibility. 43    Intoxication resulting from drugs medicinally administered is considered as involuntary. 44   Apparently it may be so considered even where the drug was self-administered. 45   And although the rule seems to be the other way in the case of chronic alcoholism, 46   it has been held that a person who has become addicted to a narcotic and is unable to resist the craving for it cannot be said to act voluntarily in its continued use. 47  


§ 157  – Narcosis [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Benton et al., Drugs and Criminal Responsibility. 33 Vand L R 1145, October, 1980.

Case authorities:

Fact that defendant had injected three bags of heroin about hour before robbery did not entitle him to have court instruct jury as to defense of involuntary intoxication; fact that defendant was addicted to heroin did not render use of drug involuntary. Tacorante v People (1981, Colo) 624 P2d 1324.

Court properly excluded evidence, at trial on charges of attempted first-degree assault, first-degree reckless endangerment and third-degree possession of weapon, that defendant (diabetic) had been hospitalized for lack of insulin shortly after incident in which he accosted woman in parking lot and fired 2 shotgun blasts at her vehicle as she drove away, despite defendant's claim that he was unable to form requisite intent as result of undermedication of insulin, where no expert testimony was offered to explain what effect lack of insulin would have on individual or how long it would take for defendant's condition to develop. People v Philipson (1989, 2d Dept)  150 AD2d 615, 541 NYS2d 483, app den  74 NY2d 817, 546 NYS2d 575, 545 NE2d 889.

The trial court in a prosecution for attempted first-degree rape and first-degree sexual offense correctly refused to instruct the jury on the defense of unconsciousness or automatism where all the evidence tended to show that defendant's mental state was caused by his voluntary smoking of the drug characterized as "angel dust." State v Boone (1982) 307 NC 198, 297 SE2d 585.

Footnotes

Footnote 40. People v Sameniego, 118 Cal App 165, 4 P2d 809, reh den 118 Cal App 174, 5 P2d 653 (statute dealing with effect of voluntary intoxication includes all forms of voluntary intoxication, not just those caused by alcohol); De Berry v Commonwealth (Ky) 289 SW2d 495, cert den  352 US 881,  1 L Ed 2d 81,  77 S Ct 105; State v White, 27 NJ 158, 142 A2d 65; Couch v State (Okla Crim) 375 P2d 978; State v Roisland, 1 Or App 68, 459 P2d 555.

Annotation:  73 ALR3d 16.

Intoxication which resulted from the taking of a pill in order to feel "groovy" or to get "a little sunshine" was held to constitute voluntary intoxication.  State v Hall (Iowa) 214 NW2d 205,  73 ALR3d 85.

Compare Saldiveri v State, 217 Md 412, 143 A2d 70, discussing testimony that sodium amytal has no intoxicating effect.

See 40 Am Jur 2d,  Homicide § 133.

Practice Aids: –Wald, Alcohol, Drugs, and Criminal Responsibility.  1974, 63 Georgetown LJ 69.

Fingarette, Addiction and Criminal Responsibility.  1975, 84 Yale L J 413.

Footnote 41. State v White, 27 NJ 158, 142 A2d 65; Couch v State (Okla Crim) 375 P2d 978; State v Blassingame, 221 SC 169, 69 SE2d 601.

Uncontroverted evidence that a defendant, accused of murder, had been voluntarily taking librium tranquilizers for several months prior to the offense, and that during that period, he had consumed large quantities of alcohol as well, was held to be sufficient to permit the trial court to determine that the defendant was aware of the effects of such a combination and willingly assumed the risk.  People v Mahle (1st Dist) 273 Cal App 2d 309, 78 Cal Rptr 360.

In a prosecution of a man and three women for murder and conspiracy to commit murder arising out of two successive multiple homicides, the trial court properly refused defendants' requested jury instructions on diminished capacity, where, though there was evidence that hallucinogenic drugs were available and were used by the communal "family" to which defendants belonged, no evidence suggested that anyone ingested any drugs at any time proximate to the murders, and where there was no evidence concerning the effect of prior usage of drugs on any defendant, or that any of them suffered from undisputed mental illness or from incapacity to materially and meaningfully reflect on the gravity of contemplated acts.  People v Manson (2d Dist) 61 Cal App 3d 102, 132 Cal Rptr 265, cert den  430 US 986,  52 L Ed 2d 382,  97 S Ct 1686 and later app (2d Dist) 113 Cal App 3d 280, 170 Cal Rptr 189.

Footnote 42. State v White, 27 NJ 158, 142 A2d 65.

Footnote 43. State v Rippy, 104 NC 752, 10 SE 259, holding it to be a complete defense that a crime was committed in a frenzy produced by an overdose of morphine administered as medicine.

A defense of involuntary intoxication due to ingestion of a prescribed drug is available if the defendant did not know or have reason to know that the prescribed drug was likely to have an intoxicating effect, if the prescribed drug and not some other intoxicant was in fact the cause of defendant's intoxication, and if the defendant, due to involuntary intoxication, was temporarily insane at the time of his alleged criminal conduct.  Minneapolis v Altimus (Minn) 238 NW2d 851.

Intoxication induced by coffee which had been drugged (presumably by LSD) without the accused's knowledge is involuntary intoxication.  Commonwealth v McAlister 365 Mass 454 313 NE2d 113, cert den  419 US 1115,  42 L Ed 2d 814,  95 S Ct 794.

Footnote 44. Saldiveri v State, 217 Md 412, 143 A2d 70; State v Rippy, 104 NC 752, 10 SE 259.

Intoxication resulting from medicine which has been prescribed (and taken as prescribed) or administered by a physician, is involuntary intoxication. Dubs v State, 2 Md App 524, 235 A2d 764; State v Bunn, 283 NC 444, 196 SE2d 777.

As to insanity brought on by use of drugs, see  § 55, supra.

Footnote 45. Where a defendant took intoxicating pills to ward off an attack of epilepsy, it was a question for the jury whether this was sufficient to render his intoxication involuntary.  People v Baker, 42 Cal 2d 550, 268 P2d 705.

Footnote 46.  § 156, supra.

Footnote 47. Prather v Commonwealth, 215 Ky 714, 287 SW 559.

Under a statute governing the defense of involuntary intoxication and associating it with intoxication through force, fraud or mistake, drug addiction would not be considered as a basis for "involuntariness":  an addict could not have consumed drugs the first time without an exercise of will and still retains some ability to extricate himself from his addiction; it would be difficult for a jury to decide whether an accused was one of those so addicted that he had lost self-control in taking drugs; and to deny the addict the involuntariness defense still leaves him able to pursue a voluntary intoxication defense.  Loveday v State,  74 Wis 2d 503, 247 NW2d 116.


IV.  ATTEMPTS AND SOLICITATION [158-162]

§ 158  Attempts  [21 Am Jur 2d CRIMINAL LAW]

An attempt to commit a crime was itself an indictable offense at common law. 48  The question as to what constitutes an attempt is often intricate and difficult to determine, and no general rule can be laid down which will serve as a test in all cases.  Each case must be determined on its own facts, but there are certain well-established principles which may be applied. 49     An attempt has been defined as any overt act done with the intent to commit the crime, and which, except for the interference of some cause preventing the carrying out of the intent, would have resulted in the commission of the crime. 50   However, as will appear below, an attempt is sometimes held to be complete though some further voluntary act on the part of the attempter is necessary to accomplish the intended result.

An attempt has two elements:  a specific intent to commit a particular crime, and a direct ineffectual act toward its commission. 51  In other words, there must be unity of intent and overt act. 52       

According to some authorities, failure to consummate the ultimate crime intended is as much an element of the crime of attempt as the intent and the overt act; hence there can be no conviction for attempt where the substantive offense is complete. 53    It seems, however, that partial accomplishment of the purpose intended does not always prevent a prosecution. 54   Some jurisdictions, moreover, do not accept the view that there can be no conviction for an attempt where the evidence shows that the crime attempted was consummated. 55   And in others, attempt convictions under such circumstances are specifically authorized by statute. 56

According to a number of authorities, where the substantive offense is in the nature of an attempt, there can be no conviction for an attempt to commit it, since this would be merely an attempt to attempt. 57    This doctrine, however, is not universally accepted. 58   

Once the elements of a criminal attempt are complete, abandonment of the criminal purpose will not constitute a defense to a charge of attempt. 59   


§ 158  – Attempts [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Hoeber, The Abandonment Defense to Criminal Attempt and Other Problems of Temporal Individuation. 74 Cal LR 377, March, 1986.

Davis, Why Attempts Deserve Less Punishment Than Complete Crimes. 5 Law & Philosophy 1, April, 1986.

Ashworth, Criminal Attempts and the Role of Resulting Harm Under the Code and in the Common Law. 19 Rut LJ 725, Spring, 1988.

Case authorities:

Trial court properly instructed jury that malice and specific intent to kill are elements of attempted murder. People v Visciotti (1992) 2 Cal 4th 1, 5 Cal Rptr 2d 495, 825 P2d 388, 92 CDOS 2199, 92 Daily Journal DAR 3468, reh den (Cal) 1992 Cal LEXIS 2132, stay gr (Cal) 1992 Cal LEXIS 3498 and petition for certiorari filed (Jul 24, 1992).

Evidence that defendant said he was going to kill victim, then loaded firearm and went to victim's home, where he crouched outside door, was sufficient to support conviction for attempted murder. People v Morales (1992, 1st Dist) 5 Cal App 4th 917, 7 Cal Rptr 2d 358, 92 CDOS 3524, 92 Daily Journal DAR 5433, reh den (Cal App 5th Dist) 92 CDOS 3775, 92 Daily Journal DAR 5935, review den (Cal) 1992 Cal LEXIS 3673.

A defendant is guilty of an attempt when he or she harbors a specific intent to commit the crime and does a direct but ineffectual act toward its commission. The act need not be an element of the substantive offense, but need only indicate a certain intent to commit the crime and constitute an immediate step in the present execution of the criminal design. No bright line distinguishes when an act crosses into commencement of the criminal scheme. The more clearly the intent to commit the offense is shown, the less proximate the acts need be to final consummation of the crime. People v Burus (1992, 4th Dist) 8 Cal App 4th 715, 10 Cal Rptr 2d 483, 92 CDOS 6756, 92 Daily Journal DAR 10713, review den, op withdrawn by order of ct (Cal) 92 CDOS 8704, 92 Daily Journal DAR 14438 and review den (Oct 22, 1992).

An attempt to commit a crime consists of two essential elements: a specific intent to commit the crime and an overt act, beyond mere preparation, done towards its commission; the intent and the act must be such that they would have resulted, except for the interference of some cause preventing the carrying out of the intent, in the completed comission of the crime. Adams v Murphy (1981, Fla) 394 So 2d 411.

When the definition of a criminal offense includes an attempt to commit such offense, there can be no separate crime of attempt. Thus the offense of attempted resisting arrest with violence does not exist since the applicable state statute, defining the offense of resisting arrest with violence, extends to both doing violence to the person of an arresting officer and to offering to do such violence, and since the legislature's use of the word "offering" in such statute is equivalent to the use of the word "attempting." McAbee v State (1980, Fla App D2) 391 So 2d 373.

For renunciation to be "voluntary" under CLS Penal §  40.10, abandonment must reflect change in actor's purpose or change of heart that is not influenced by outside circumstances, and abandonment cannot be motivated in whole or in part by belief that circumstances exist that increase possibility of detection or apprehension or make more difficult the completion of crime; to be "complete," abandonment must be permanent, not temporary or contingent, and not simply decision to postpone criminal conduct until another time or to transfer criminal effort to another victim. People v Taylor (1992)  80 NY2d 1, 586 NYS2d 545, 598 NE2d 693.

An order dismissing the indictment of a defendant for criminal sale of a controlled substance in the third-degree and petit larceny was reversed and permission to resubmit was granted where the evidence before the Grand Jury was sufficient, if uncontradicted, to establish an attempt to sell a controlled substance, notwithstanding the fact that the substance actually transferred was aspirin, since the defendant may have believed the substance was cocaine and therefore have been guilty of any attempt to sell a controlled substance; furthermore, the indictment charging petit larceny was sufficient even without allegations of the manner by which the larceny was committed or various elements of that method of committing the crime. People v Culligan (1980, 4th Dept)  79 App Div 2d 875, 484 NY S2d 546.

In a prosecution for first-degree robbery and attempted robbery, the conviction for attempted robbery was proper despite the fact that defendant did not take any money from the victim after demanding money at gunpoint, since renunciation does not negate the commission of the inchoate crime of attempt. People v Johnston (1982, 3d Dept)  87 App Div 2d 703, 448 NY S2d 902.

In a prosecution for criminal solicitation and criminal attempt based on a reverse sting operation in which undercover officers arranged to sell 100 pounds of marijuana to the defendant, the court would reject the defendant's contention that police involvement in the reverse sting operation was so outrageous that the prosecution would be barred on due process grounds. The defendant's due process rights were not violated by the fact that the police used an untrained informant who was permitted to make the initial contact without police supervision, by the fact that the police provided the defendant with a marijuana sample and offered him an opportunity to make a substantial profit or by the fact that the police used an informant who was paid a contingency fee. Commonwealth v Mance (1995, Pa) 652 A2d 299.

Footnotes

Footnote 48. State v Batson, 220 NC 411, 17 SE2d 511.

Attempts which, if successful, would have resulted in an indictable offense, are indictable.  Commonwealth v Tolman, 149 Mass 229, 21 NE 377.

Practice Aids: Enker, Mens Rea and Criminal Attempt.  1977, ABF Res J 845.

Footnote 49. McDowell v State, 19 Ala App 532, 98 So 701; People v Miller, 2 Cal 2d 527, 42 P2d 308; State v Thompson, 118 Kan 256, 234 P 980; Nider v Commonwealth, 140 Ky 684, 131 SW 1024; Stokes v State, 92 Miss 415, 46 So 627; People v Rizzo, 246 NY 334, 158 NE 888,  55 ALR 711; State v Taylor, 47 Or 455, 84 P 82; Hicks v Commonwealth, 86 Va 223, 9 SE 1024.

Whether an attempt has been made to commit a crime depends on the condition of the actor's mind and his conduct in the circumstances.  People v Moran, 123 NY 254, 25 NE 412.

For application to particular crimes, see particular titles, for example, 40 Am Jur 2d,  Homicide §§ 565-567.

Footnote 50. People v Mayen, 188 Cal 237, 205 P 435,  24 ALR 1383 (ovrld on other grounds People v Cahan 44 Cal 2d 434, 282 P2d 905,  50 ALR2d 513) and (ovrld on other grounds People v Matteson 61 Cal 2d 466, 39 Cal Rptr 1, 393 P2d 161); Gustine v State, 86 Fla 24, 97 So 207; People v Lardner, 300 Ill 264, 133 NE 375; State v Roby, 194 Iowa 1032, 188 NW 709; State v Mitchell, 170 Mo 633, 71 SW 175; People v Rizzo, 246 NY 334, 158 NE 888; State v Taylor, 47 Or 455, 84 P 82; State v Hurley, 79 Vt 28, 64 A 78; State v Butler, 8 Wash 194, 35 P 1093.

A "criminal attempt" is when one purposely does or omits to do anything which is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.  To constitute a substantial step, the conduct must be strongly corroborative of the actor's criminal purpose.  State v Woods, 48 Ohio St 2d 127, 2 Ohio Ops 3d 289, 357 NE2d 1059 (ovrld on other grounds State v Downs 51 Ohio St 2d 47, 5 Ohio Ops 3d 30, 364 NE2d 1140, vacated, in part  438 US 909,  57 L Ed 2d 1153,  98 S Ct 3133) and vacated, in part on other grounds  438 US 910,  57 L Ed 2d 1153,  98 S Ct 3133.

Whenever a person's acts have gone to the extent of placing it in his power to commit the offense unless interrupted, and nothing except such interruption prevents his commission of it, he is guilty of an attempt to commit the offense.  People v Sullivan, 173 NY 122, 65 NE 989.

The common-law rule as to what constitutes an attempt to commit an offense is not changed by a statute providing for punishment of every person who shall attempt to commit a crime and do any act toward its commission, but shall fail in the perpetration or shall be intercepted or prevented in the execution of the same.  People v Youngs, 122 Mich 292, 81 NW 114.

Footnote 51. Hill v State, 27 Ala App 160, 167 So 606; State v Westbrook, 79 Ariz 116, 285 P2d 161,  53 ALR2d 619; People v Buffum, 40 Cal 2d 709, 256 P2d 317; King v State, 85 Fla 257, 95 So 567; People v Lardner, 300 Ill 264, 133 NE 375,  19 ALR 721; State v Western, 210 Iowa 745, 231 NW 657; State v McCarthy, 115 Kan 583, 224 P 44; Nider v Commonwealth, 140 Ky 684, 131 SW 1024; Nemecek v State, 72 Okla Crim 195, 114 P2d 492; State v Harvey, 119 Or 512, 249 P 172; Commonwealth v Johnson, 312 Pa 140, 167 A 344; Hicks v Commonwealth, 86 Va 223, 9 SE 1024.

Footnote 52. People v Anderson, 1 Cal 2d 687, 37 P2d 67; State v Wright, 74 Wash 2d 355, 444 P2d 676, cert den  394 US 961,  22 L Ed 2d 562,  89 S Ct 1305.

Where acts are not sufficient in themselves to produce a result which the law seeks to prevent, but require further acts in addition to the mere forces of nature to bring that result to pass, an intent to bring it to pass is necessary in order to produce a dangerous probability that it will happen; but when that intent and the consequent dangerous probability exist, the law directs itself against that dangerous probability as well as against the completed result.  Swift & Co. v United States,  196 US 375,  49 L Ed 518,  25 S Ct 276.

Footnote 53. United States v Quincy,  31 US 445,  8 L Ed 458; Hill v State, 27 Ala App 160, 167 So 606; People v Lardner, 300 Ill 264, 133 NE 375; State v Harvey, 119 Or 512, 249 P 172; Commonwealth v Johnson, 312 Pa 140, 167 A 344.

A statute punishing persons who attempt to commit an offense but fail or are prevented from doing so has been held to make failure or prevention of the ultimate crime as much an element of the offense of attempt as the intent and overt act.  State v Franklin, 139 W Va 43, 79 SE2d 692.

Footnote 54. One may be convicted of attempting to obtain money by false pretenses even though he received part of the money which he sought to obtain.  Commonwealth v Johnson, 312 Pa 140, 167 A 344.

Footnote 55. State v Fox, ---- (Iowa) ----, 159 NW2d 492; People v Baxter, 245 Mich 229, 222 NW 149; Nielson v State (Tex Crim) 437 SW2d 862.

As to conviction of attempt under indictment charging specific crime, see 41 Am Jur 2d,  Indictments and Informations § 306.

Footnote 56. State v Braathen, 77 ND 309, 43 NW2d 202.

Ownership of premises described in the allegation of an attempt to discharge a destructive device with intent to damage a structure, is not an element of the alleged crime.  In a prosecution of a defendant accused of an attempt to place or throw a destructive device, it is not error to charge under the destructive device statute and also under the general attempt statute notwithstanding that the destructive device statute refers to "attempt to discharge," since the destructive device statute refers also to the throwing or placing of a destructive device without referring to an attempt to do so.  A state statute proscribes as a single crime the possession of dynamite but authorizes two levels of punishment depending on whether intent to harm is present; thus, there can be only one sentence even though a defendant is convicted of both the the charge of possession and the charge of possession with intent to harm.  De La Cova v State (Fla App D3) 355 So 2d 1227, cert den (Fla) 361 So 2d 831.

Footnote 57. Wiseman v Commonwealth, 143 Va 631, 130 SE 249.

Annotation:  79 ALR2d 597, §§ 1, 2.

See authorities collected in State v Wilson, 218 Or 575, 346 P2d 115,  79 ALR2d 587.

Footnote 58. State v Wilson, 218 Or 575, 346 P2d 116,  78 ALR2d 587.

Annotation:  79 ALR2d 597, § 3.

Footnote 59. People v Robinson (2d Dist) 180 Cal App 2d 745, 4 Cal Rptr 679.

Where a criminal intent had been formed, and where such intent had been coupled with an overt act toward the commission of the contemplated offense, abandonment of the criminal purpose could not be raised as a defense to a charge of attempting to commit the crime and an instruction on abandonment was not required.  State v Cooper, 52 Ohio St 2d 163, 6 Ohio Ops 3d 377, 370 NE2d 725, vacated, in part on other grounds  438 US 911,  57 L Ed 2d 1157,  98 S Ct 3137.


§ 159  – Requirement and sufficiency of overt act; preparation  [21 Am Jur 2d CRIMINAL LAW]

Mere intention to commit a specified crime does not amount to an attempt. 60   It is also essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission thereof. 61   However, not every act that may be done with intent to produce an unlawful result is unlawful or constitutes an attempt; it is a question of proximity and degree. 62    

According to many authorities, mere acts of preparation, not proximately leading to the consummation of the intended crime, will not suffice to establish an attempt to commit it, 63   especially when made at a distance from the place where the substantive offense is to be committed, 64  for there must be some act moving directly toward the commission of the offense after the preparations are made. 65   However, while there is sometimes a wide difference between preparation for an attempt and the attempt itself, 66  it has been found difficult, if not impossible, to formulate legal rules which will distinguish between them in close cases. 67  And it has been said that no definite line can be drawn and that the question is one of degree. 68    In a general way it may be said that preparation consists in devising or arranging the means or measures necessary for the commission of the offense and that the attempt is the direct movement toward the commission after the preparations are made. 69   It has been held that even though a person actually intends to commit a crime, his procurement of the instrumentalities adapted to that end will not constitute an attempt to commit the crime in the absence of some further overt act. 70   But it has been suggested that if preparation comes very near the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor, though there is still a locus penitentiae in the need of a further exertion of the will to complete the crime. 71     

It is difficult to formulate any precise rule about how close the overt act must come to the accomplishment of the ultimate criminal result. 72   If the accused expected his acts to accomplish that result without further effort on his part, this will usually be enough, unless his expectation was very absurd. 73   And some formulations of the rule appear to require this before the attempt will be considered complete. 74  However, it has been said that this requirement is no longer generally the law in this country, since the accused is frequently held to have passed beyond preparation, though interrupted before the last of his intended steps. 75  Other cases state that while the act need not be the last proximate act to the consummation of the offense, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement toward the commission of the offense after the preparations are made. 76  It has been said that some appreciable fragment of the crime must have been committed. 77  Some cases emphasize the immediate and direct tendency to bring about the principal crime, and the power of defendant to carry his intention into execution. 78

Some formulations of the rule would apparently be satisfied by any effort to bring about the forbidden result. 79   

It has been suggested that the degree of danger that the result will be accomplished is determinative 80      and that when the evil threatened is especially grave, liability for criminal attempt may begin at a point more remote from its accomplishment than in the case of lighter offenses. 81   However, it has also been held that the reason for requiring an overt act is that without it there is too much uncertainty as to what the intent actually was. 82    From this point of view, what is needed is an act which makes the intent unequivocal. 83   Some confirmation of the latter view may be found in holdings that whenever the design of a person to commit a crime is clearly shown, slight acts in furtherance of the design will constitute an attempt. 84

§ 159  -- Requirement and sufficiency of overt act; preparation [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Attempt instruction without "substantial step" language did not constitute plain error since evidence that defendant had taken substantial step strongly corroborative of his criminal intent was so strong that any error from omission of "substantial step" language was not plain error since it could not have meant difference between acquittal and conviction. United States v Contreras (1991, CA5 Tex) 950 F2d 232, cert den (US)  119 L Ed 2d 202,  1125 S Ct 2276.

In a prosecution of defendant for violating FS § 893.13(3)(a)1, making it unlawful for any person to attempt to acquire or obtain possession of a controlled substance by fraud, the trial court improperly dismissed the information on the asserted grounds that the undisputed facts failed to establish a prima facie case of guilt where defendant had gone to the doctor's office, requesting a new prescription on the basis that his mother had washed and destroyed the original prescription, which was untruthful, and the doctor had refused to issue a new prescription; the allegations of defendant's motion to dismiss and the state's traverse established the necessary intent, and the defendant's untruthfulness with reference to the destruction of the prescription, made for the express purpose of obtaining another prescription, constituted an overt act done toward the commission of the crime. State v Coker (1984, Fla App D2) 452 So 2d 1135.

Charge of completed crime which alleges no overt act except completed crime does not charge attempt to commit completed crime. Commonwealth v Foley (1987) 24 Mass App 114, 506 NE2d 1160.

One of the purposes of the criminal law is to protect society from those who intend to injure it. When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime. Accordingly, the requisite overt act need not be the last proximate or ultimate step towards commission of the substantive crime. People v Dillon (1983) 84 Cal 3d 441.

Footnotes

Footnote 60. People v Miller, 2 Cal 2d 527, 42 P2d 308; People v Mills, 178 NY 274, 70 NE 786.

Footnote 61. Jackson v State, 91 Ala 55, 8 So 773; State v Doran, 99 Me 329, 59 A 440; People v Youngs, 122 Mich 292, 81 NW 114; Stokes v State, 92 Miss 415, 46 So 627; State v Howell, 318 Mo 772, 300 SW 807; State v Rains, 53 Mont 424, 164 P 540; State v Lung, 21 Nev 209, 28 P 235 (ovrld on other grounds Darnell v State 92 Nev 680, 558 P2d 624); People v Mills, 178 NY 274, 70 NE 786; State v Addor, 183 NC 687, 110 SE 650; State v Hurley, 79 Vt 28, 64 A 78; 78; Hicks v Commonwealth, 86 Va 223, 9 SE 1024.

Footnote 62. Swift & Co. v United States,  196 US 375,  49 L Ed 518,  25 S Ct 276.

Footnote 63. People v Camodeca, 52 Cal 2d, 142, 338 P2d 903; Groves v State, 116 Ga 516, 42 SE 755; People v Woods, 24 Ill 2d 154, 180 NE2d 475, cert den  371 US 819,  9 L Ed 2d 59,  83 S Ct 34; State v Roby, 194 Iowa 1032, 188 NW 709; State v Thompson, 118 Kan 256, 234 P 980; People v Rizzo, 246 NY 334, 158 NE 888; State v Addor, 183 NC 687, 110 SE 650; State v Taylor, 47 Or 455, 84 P 82; Hicks v Commonwealth, 86 Va 223, 9 SE 1024.

Persons who procure firearms and an automobile and go upon the streets with intent to rob a messenger carrying a payroll are not guilty of violating a statute making an attempt to commit robbery an act done with intent to commit the crime, and tending, but failing, to effect its commission, where they have not found the one whom they intend to rob and the money has not yet been drawn from the bank to meet the payroll.  People v Rizzo, 246 NY 334, 158 NE 888.

Where defendant drove to a still with 12 empty half-gallon jars in his car, intending to buy, transport, and resell whisky, but the still was raided while he was waiting for his order to be filled, the court was unanimously of the opinion that the evidence did not show an attempt to sell ardent spirits, and the majority opinion was that it was insufficient to convict of an attempt to transport. Andrews v Commonwealth, 135 Va 451, 115 SE 558.

Footnote 64. Groves v State, 116 Ga 516, 42 SE 755; State v Roby, 194 Iowa 1032, 188 NW 709; People v Rizzo, 246 NY 334, 158 NE 888; State v Hurley, 79 Vt 28, 64 A 78.

Footnote 65. State v Roby, 194 Iowa 1032, 188 NW 709; State v Doran, 99 Me 329, 59 A 440; State v Lung, 21 Nev 209, 28 P 235 (ovrld on other grounds Darnell v State 92 Nev 680, 558 P2d 624); McEwing v State, 134 Tenn 649, 185 SW 688.

An attempt to break and enter a dwelling house is not made by the fact that a person left his home with revolver and slippers and traveled nine miles toward the place where he intended to commit the crime, where he met a person with whom he had planned to commit the crime, and then provided himself with chloroform and loaded his revolver, but was prevented from committing the crime by being arrested.  People v Youngs, 122 Mich 292, 81 NW 114.

Footnote 66. Vogel v State, 124 Fla 409, 168 So 539.

Footnote 67. Cornwell v Fraternal Acc. Ass'n. 6 ND 201, 69 NW 191; McEwing v State, 134 Tenn 649, 185 SW 688.

Footnote 68. United States v Coplon (CA2 NY) 185 F2d 629,  28 ALR2d 1041, cert den  342 US 920,  96 L Ed 688,  72 S Ct 362.

Footnote 69. People v Anderson, 1 Cal 2d 687, 37 P2d 67; People v Youngs, 122 Mich 292, 81 NW 114; State v Hurley, 79 Vt 28, 64 A 78.

Footnote 70. The procurement by a prisoner of tools adapted to jail breaking does not render him guilty of an attempt to break jail.  State v Hurley, 79 Vt 28, 64 A 78.

Footnote 71. United States v Coplon (CA2 NY) 185 F2d 629,  28 ALR2d 1041, cert den  342 US 920,  96 L Ed 688,  72 S Ct 362; Commonwealth v Peaslee, 177 Mass 267, 59 NE 55.

Footnote 72. Jenkins v State, 53 Ga 33; State v Roby, 194 Iowa 1032, 188 NW 709; Stokes v State, 92 Miss 415, 46 So 627; State v Mitchell, 170 Mo 633, 71 SW 175; People v Sullivan, 173 NY 122, 65 NE 989; State v Taylor, 47 Or 455, 84 P 82; State v Hurley, 79 Vt 28, 64 A 78.

Footnote 73. Commonwealth v Kennedy, 170 Mass 18, 48 NE 770.

Footnote 74. The crime must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.  People v Camodeca, 52 Cal 2d 142, 338 P2d 903.

An overt act essential to an attempt to commit a crime is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause.  People v Mills, 178 NY 274, 70 NE 786.

The act must be one which will apparently result in commission of the crime itself in the usual and normal course of events, if not hindered by extraneous causes.  Nemecek v State, 72 Okla Crim 195, 114 P2d 492.

Footnote 75. United States v Coplon (CA2 NY) 185 F2d 629,  28 ALR2d 1041, cert den  342 US 920,  96 L Ed 688,  72 S Ct 362.

Footnote 76. McDowell v State, 19 Ala App 532, 98 So 701; People v Fulton (2d Dist) 188 Cal App 2d 105, 10 Cal Rptr 319; People v Staples (2d Dist) 6 Cal App 3d 61, 85 Cal Rptr 589; State v Roby, 194 Iowa 1032, 188 NW 709; State v Rains, 53 Mont 424, 164 P 540; People v Sullivan, 173 NY 122, 65 NE 989; State v Addor, 183 NC 687, 110 SE 650; Nemecek v State, 72 Okla Crim 195, 114 P2d 492; State v Taylor, 47 Or 455, 84 P 82; Hicks v Commonwealth, 86 Va 223, 9 SE 1024.

To constitute an attempt, the act need not be the ultimate step toward, or the last proximate, or the last possible, act to the consummation of the crime attempted to be perpetrated.  State v Thomas (Mo) 438 SW2d 441.

Footnote 77. People v Camodeca, 52 Cal 2d 142, 338 P2d 903.

Footnote 78. People v Youngs, 122 Mich 292, 81 NW 114.

Footnote 79. Howard v Commonwealth, 207 Va 222, 148 SE2d 800.

To attempt to do an act does not, either in law or in common parlance, imply a completion of the act or any definite progress toward it.  An effort or endeavor to effect it will satisfy the term of the law.  United States v Quincy,  31 US 445,  8 L Ed 458.

Footnote 80. United States v Coplon (CA2 NY) 185 F2d 629,  28 ALR2d 1041, cert den  342 US 920,  96 L Ed 688,  72 S Ct 362.

Since the aim of the law is not to punish sins but to prevent certain external results, the act done must come pretty near accomplishing that result before the law will notice it. Commonwealth v Kennedy, 170 Mass 18, 48 NE 770.

Footnote 81. Commonwealth v Kennedy, 170 Mass 18, 48 NE 770.

An attempt to commit a crime is an act done with intent to commit that crime, and forming a part of a series of acts which would constitute its actual commission if it were not interrupted. All acts done in preparation are, in a sense, acts done toward the accomplishment of the thing contemplated.  State v Davis, 199 Kan 33, 427 P2d 606.

Footnote 82. State v Mandel, 78 Ariz 226, 278 P2d 413; People v Bowlby (2d Dist) 135 Cal App 2d 519, 287 P2d 547,  53 ALR2d 1147.

Footnote 83. People v Buffum, 40 Cal 2d 709, 256 P2d 317; State v Damms,  9 Wis 2d 183, 100 NW2d 592,  79 ALR2d 1402 (by statute).

Footnote 84. People v Anderson, 1 Cal 2d 687, 37 P2d 67; State v Roby, 194 Iowa 1032, 188 NW 709; Stokes v State, 92 Miss 415, 46 So 627.


§ 160  – Effect of prevention or impossibility  [21 Am Jur 2d CRIMINAL LAW]

Whenever the law makes it a crime to take one step toward the accomplishment of an unlawful object with the intent or purpose of accomplishing it, a person taking that step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that by reason of some fact unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance. 85     Thus, one who thrusts his hand into another's pocket, intending to steal what he finds there, may be guilty of attempted larceny, though the pocket was empty. 86   And one who, believing a gun to be loaded, points it at another and pulls the trigger, may be convicted of attempted murder, though the gun was not loaded. 87  The theory is that one whose intent and conduct are consistent with criminal attempt should not escape responsibility merely because, due to some fortuitous circumstance not apparent to him when he acted, he could not effectuate the intended result. 88   It is frequently said that the thing attempted must not be an impossibility, but it seems that this rule refers only to inherent impossibility, 89  not to impossibility due to outside interference, or miscalculation as to a supposed opportunity which failed to materialize; in short, it has no application where the impossibility grows out of extraneous facts not within the party's control. 90   It is sufficient if, looking at the facts as they were understood by the accused at the time he acted, the crime appeared to be possible. 91   But the crime must be at least apparently possible to the reasonable apprehension of the accused. 92   And it seems to make a difference whether the impossibility of committing the offense is legal or merely factual. 93    Where the impossibility is legal, it is usually held that there can be no attempt.  Thus, where the accused is legally incapable of committing the substantive offense, he cannot be convicted of attempting it. 94   And the act attempted must be a crime. 95  Where, as a matter of law, the act if accomplished would not constitute a crime, the attempt is not criminal. 96   This has been held to be the case even where the act was done with the belief that it was a crime and with intent to commit that crime. 97    However, there is a split of authority as to whether one who believes property is stolen, when in fact it has lost that status through being recovered by police or the owner, can be guilty of a criminal attempt to receive it. 98    And it may be noted that some jurisdictions punish attempted suicide without regarding suicide itself as a crime. 99  


§ 160  – Effect of prevention or impossibility [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Friedman, Impossibility, Subjective Probability, And Punishment For Attempts, 20 J Legal St 179, 1991.

Fact that gun was unloaded as affecting criminal responsibility.  68 ALR4th 507.

Construction and application of state statute governing impossibility of consummation as defense to prosecution for attempt to commit crime.  41 ALR4th 588.

Case authorities:

As to the difference between legal and factual impossibility as it applies to commission of the crime with which defendant in a criminal prosecution is charged, the hypothesis of the rule established in this state is that the defendant must have the specific intent to commit the substantive offense, and that under the circumstances as he reasonably sees them, he does the acts necessary to consummate the substantive offense; but because of circumstances unknown to him, essential elements of the substantive crime are lacking. It is only when the results intended by the actor, if they happened as envisaged by him, would still not be a crime, then and only then, can he not be guilty of an attempt. People v Meyer (1985, 5th Dist) 169 Cal App 3d 496, 215 Cal Rptr 352.

Sufficient evidence supported defendant's conviction for attempted violations of Pen. Code, 288 (child molestation), and Pen. Code, 311.4 (use of minor in photograph of sexual conduct), even though the intended victims were fictitious children invented for a police "sting" operation. A defendant is guilty of "attempt" if he or she harbors the requisite intent and commits the acts, even though unknown circumstances render completion of the target crime factually impossible. People v Burns (1992, 4th Dist) 8 Cal App 4th 715, 10 Cal Rptr 2d 483, 92 CDOS 6756, 92 Daily Journal DAR 10713, review den, op withdrawn by order of ct (Cal) 92 CDOS 8704, 92 Daily Journal DAR 14438 and review den (Oct 22, 1992).

In prosecution for attempted murder, evidence tending to prove that explosion of pipe bomb on ground floor of house in which intended victim was asleep in upstairs room could not have resulted in intended victim's death, was of no weight since Indiana's criminal attempt statute provided it was no defense that, because of misapprehension of circumstances, it would have been impossible for accused person to commit crime attempted. Armstrong v State (1982, Ind) 429 NE2d 647.

A defendant's voluntary abandonment may negate a crime of attempt. Abandonment occurs where, through the verbal urging of the victim, but with no physical resistance or external intervention, the perpetrator changes his or her mind. A perpetrator cannot claim that he or she abandoned his or her attempt when, in fact, the perpetrator ceased his or her efforts because the victim or a third party intervened or prevented the perpetrator from furthering the attempt. Ross v State (1992, Miss) 601 So 2d 872.

Defense of legal impossibility was not available to defendant charged with attempted theft where defendant accepted goods purported to be stolen that were offered to defendant by police informant, even though alleged stolen goods were in police custody prior to time of alleged offense and therefore were not actually "stolen." Commonwealth v Henley (1984) 504 Pa 408, 474 A2d 1115,  41 ALR4th 579.

Footnotes

Footnote 85. Hamilton v State, 36 Ind 280; State v Fitzgerald, 49 Iowa 260; State v Broadnax, 216 La 1003, 45 So 2d 604 (by statute); State v Doran, 99 Me 329, 59 A 440; Commonwealth v Kennedy, 170 Mass 18, 48 NE 770; State v Mitchell, 170 Mo 633, 71 SW 175; State v Davis, 108 NH 158, 229 A2d 842 (active prevention by intended rape victim); State v Bowers, 35 SC 262, 14 SE 488; Collins v Radford, 134 Va 518, 113 SE 735 (disapproved on other grounds Sisk v Shenandoah 200 Va 277, 105 SE2d 169); State v Damms,  9 Wis 2d 183, 100 NW2d 592,  79 ALR2d 1402.

Annotation:  37 ALR3d 375 (impossibility as defense in criminal prosecution for attempt to commit crime).

The fact that a crime for some reason unknown to an intending perpetrator is impossible of accomplishment will not prevent his being guilty of an attempt to commit it.  People v Moran, 123 NY 254, 25 NE 412.

If there is an intent to commit the crime, and an overt act is accomplished, the result may be ineffectual because of a physical or mental obstruction on the part of the intended victim, but the crime of attempt is complete if the bar to fulfilment of the object is unknown to the perpetrator at the time the overt act is performed.  People v Fulton (2d Dist) 188 Cal 2d 105, 10 Cal Rptr 319.

Practice Aids: Inker, Impossibility in Criminal Attempts–Legality and the Legal Process.  1969, 53 Minn L Rev 665.

Footnote 86. State v Mitchell, 170 Mo 633, 71 SW 175; State v Meisch, 86 NJ Super 279, 206 A2d 763 (defendant opening empty drawer and thrusting hand into drawer to remove contents was guilty of attempted larceny); People v Gardner, 144 NY 119, 38 NE 1003.

Footnote 87. See 40 Am Jur 2d,  Homicide § 566.

As to present ability to injure as element of assault with intent to kill, see 40 Am Jur 2d,  Homicide § 574.

Footnote 88. People v Moran, 123 NY 254, 25 NE 412; State v Olsen, 138 Or 666, 7 P2d 792.

Emphasis upon the dangerous propensities of the actor as shown by his conduct, rather than upon how close he came to succeeding, is more appropriate to the purposes of the criminal law to protect society and reform offenders or render them temporarily harmless. State v Damms,  9 Wis 2d 183, 100 NW2d 592,  79 ALR2d 1402.

Footnote 89. State v Olsen, 138 Or 666, 7 P2d 792; Andrews v Commonwealth, 135 Va 451, 115 SE 558.

Footnote 90. Stokes v State, 92 Miss 415, 46 So 627.

Husband was guilty of rape when he pushed wife on bed, hit her, and held her legs while another man had intercourse with her even though that man was acquitted of crime.  Rozell v State (Tex Crim) 502 SW2d 16.

Footnote 91. State v Mandel, 78 Ariz 226, 278 P2d 413; Collins v Radford, 134 Va 518, 113 SE 735 (disapproved on other grounds Sisk v Shenandoah, 200 Va 277, 105 SE2d 169).

By reason of a statute providing that it was no defense to prosecution for attempts that the attempted crime was factually or legally impossible to commit, a defendant was guilty of attempted murder where, with the belief that the victim was alive although he had been shot several times in the chest five minutes earlier by another person and may in fact have already been dead, the defendant shot the victim in the head.  People v Dlugash,  41 NY2d 725, 395 NYS2d 419, 363 NE2d 1155, on remand (2d Dept)  59 App Div 2d 745, 398 NYS2d 560.

Footnote 92. State v Addor, 183 NC 687, 110 SE 650.

Footnote 93. People v Camodeca, 52 Cal 2d 142, 338 P2d 903.

Annotation:  37 ALR3d 375, §§ 3, 4.

Footnote 94. Foster v Commonwealth, 96 Va 306, 31 SE 503 (boy under 14, conclusively presumed incapable of rape, cannot be convicted of attempted rape).

Footnote 95. State v Willis, 255 NC 473, 121 SE2d 854.

Footnote 96. Nemecek v State, 72 Okla Crim 195, 114 P2d 492 (inclusion of false items in report of fire loss is not attempt to obtain money by false pretenses where insured sustained actual loss entitling him to full amount of policy).

Footnote 97. Commonwealth v Tolman, 149 Mass 229, 21 NE 377.

If all that an accused person intends to do would not constitute a crime if done, it cannot be a crime to attempt to do with the same purpose a part of the thing intended.  People v Jaffe, 185 NY 497, 78 NE 169, reh den 186 NY 560, 79 NE 1113 and (superseded by statute as stated in People v Leichtweis (2d Dept)  59 App Div 2d 383, 399 NYS2d 439).

Footnote 98. See 66 Am Jur 2d,  Receiving and Transporting Stolen Property § 2.

Footnote 99. See 40 Am Jur 2d,  Homicide § 584.


§ 161  Solicitation as attempt  [21 Am Jur 2d CRIMINAL LAW]

Though solicitation may constitute an element in some attempts, 1  the usual view seems to be that soliciting another to commit a crime is not, by itself, sufficient to constitute an attempt to commit that crime. 2   This has been explained on the ground that the offenses of solicitation and attempt are analytically distinct in their elements and that there is no overt act, since solicitation is in the nature of preparation, rather than perpetration. 3   Some cases, however, take the view that even though a solicitation to commit a misdemeanor does not constitute an attempt to commit the misdemeanor, a solicitation to commit a felony may be punished as an attempt. 4


§ 161  – Solicitation as attempt [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Legislative revision of penal code was intended to make solicitation punishable as attempt, based on revision commission's expressed desire to change common-law notion that solicitation constituted substantive crime in itself and was not abortive attempt to perpetrate crime solicited; thus, criminal attempt to commit arson occurred where owner solicited undercover detective to burn his building and then engaged in certain conduct in furtherance of scheme. State v Jovanovic (1980) 174 NJ Super 435, 416 A2d 961.

Solicitation to commit a crime against nature cannot be construed as an attempt to commit a crime against nature; solicitation to commit a crime against nature is therefore not an "infamous misdemeanor" under G.S. 14-3; and the superior court therefore did not have original jurisdiction of such a charge. State v Tyner, 50 NC App 206, 272 SE2d 626, cert den (NC) 302 NC 633, 280 SE2d 451.

Evidence that defendant solicited murder of her boyfriend's wife and child, hired killer, gave him money for weapon and advance on murder contract, drew map of residence of planned victims, and instructed killer as to how to shoot victims, supported conviction for attempted murder. State v Burd (1991, W Va) 419 SE2d 676.

Footnotes

Footnote 1. State v Mandel, 78 Ariz 226, 278 P2d 413; Gervin v State, 212 Tenn 653, 371 SW2d 449.

Where solicitation proceeds to the point of some overt act in the commission of the crime, it becomes an attempt.  Wiseman v Commonwealth, 143 Va 631, 130 SE 249.

Footnote 2. Graham v People, 181 Ill 477, 55 NE 179; State v Bowles, 70 Kan 821, 79 P 726; State v Lampe, 131 Minn 65, 154 NW 737; State v Davis, 319 Mo 1222, 6 SW2d 609; State v Blechman, 135 NJL 99, 50 A2d 152; Stabler v Commonwealth, 95 Pa 318; Gervin v State, 212 Tenn 653, 371 SW2d 449; State v Butler, 8 Wash 194, 35 P 1093.

See also titles dealing with particular crimes, for example, 2 Am Jur 2d,  Adultery and Fornication § 7; 5 Am Jur 2d,  Arson and Related Offenses § 15; 40 Am Jur 2d,  Homicide § 567; 50 Am Jur 2d,  Larceny § 41.

Footnote 3. Gervin v State, 212 Tenn 653, 371 SW2d 449.

Footnote 4. State v Avery, 7 Conn 266; State v Taylor, 47 Or 455, 84 P 82 (stating the rule, but holding otherwise); Stabler v Commonwealth, 95 Pa 318 (stating the rule, but holding otherwise).


§ 162  Solicitation as substantive offense  [21 Am Jur 2d CRIMINAL LAW]

At common law, one who incites or solicits another to commit a crime which, either by common law or by statute, is a felony, himself commits the substantive crime of solicitation. 5   Although a minority view tends to support the proposition that solicitation to commit a misdemeanor is not indictable, 6  the majority view is to the contrary, at least where the crime solicited is one tending to the disturbance of the peace or harmful to the public welfare. 7   Where the crime is one which tends to defeat public justice, solicitation to commit it is indictable at common law. 8   It has been suggested that solicitation to commit an offense should itself be a crime wherever attempt to commit that offense would be. 9  Solicitation is also a substantive offense by statute in some states, though such statutes are sometimes regarded as declaratory of the common law. 10  

Solicitation is a substantive crime in itself, not an abortive effort to commit the crime solicited. 11   The solicitor is guilty even though his solicitation was of no effect and the crime counseled was not committed. 12    Indeed, the crime is complete when the solicitation is made; it is not necessary that any further steps be taken toward the consummation of the offense solicited. 13    If the solicitor believes the act can be committed, it is immaterial that the crime urged is not possible of fulfilment at the time the words are spoken, or becomes impossible later. 14

There is some authority to the effect that the crime of solicitation does not require a personal communication to a particular individual, but may be committed by a public utterance. 15

Solicitation has been characterized as a lesser offense than attempt, since there is not such dangerous proximity to success. 16


§ 162  – Solicitation as substantive offense [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

To convict for solicitation under federal law, prosecution must prove that defendant intended for another person to engage in conduct which violated Title 18, and that defendant induced or tried to persuade that other person to commit crime; evidence supported convictions for solicitation, conspiracy, and aiding and abetting in murder-for-hire conspiracy, where defendant telephoned another and asked him to travel from Chicago to Houston to kill victim, where defendant paid or offered to pay hit man for murder, where defendant provided weapon and automobile for hit man to use in murder, and where defendant helped hit man locate victim's home. United States v Razo-Leora (1992, CA5 Tex) 961 F2d 1140, reh den (CA5) 1992 US App LEXIS 13936.

Pen. Code, § 653f, making it a crime to ask another to commit a specified crime, has a twofold purpose: to protect individuals from being exposed to inducement to commit or join in the commission of crimes, and to prevent solicitations from resulting in the commission of the crimes solicited. People v Cook (1984, 1st Dist) 151 Cal App 3d 1142, 199 Cal Rptr 269.

In a prosecution for solicitation of murder (Pen. Code, § 653f, subd. (b)), the evidence was sufficient to justify a finding of two crimes of solicitation. Defendant asked an undercover police officer to kill, individually, two different specified victims, possibly at different times and places and by different means. The death of each victim was important to defendant's purpose. And, defendant agreed to pay a separate consideration for each murder. People v Davis (1989, 1st Dist) 211 Cal App 3d 317, 259 Cal Rptr 348.

Intent to solicit act of arson was proved by facts and circumstances surrounding defendant's conduct, including tape recordings of conversation with persons solicited, and proof of requisite criminal intent removed defendant's conduct from protection of First Amendment. People v Lewis (1980) 84 Ill App 3d 556, 40 Ill Dec 310, 406 NE2d 11.

Defendant, who provided third party with camera and gun to photograph and shoot intended victim, was properly convicted of solicitation to commit murder where uncorroborated testimony of accomplice was sufficient to support criminal conviction and where crime of solicitation was completed when request was made with requisite intent to commit offense; defendant, therefore, could not have withdrawn from offense that had already been completed. People v Harvey (1981) 95 Ill App 3d 992, 51 Ill Dec 231, 420 NE2d 645.

To "procure" act of gross indecency encompassed only acquisition of something on behalf of another and not for oneself, as contrasted to solicitation statute in which one party, through words or conduct, invites another to perform immoral act between themselves. People v Mabry (1980) 102 Mich App 336, 301 NW2d 528.

The superior court did not err in dismissing an indictment against defendant for lack of subject matter jurisdiction where the indictment alleged that defendant solicited three others to possess and deliver more than one ounce of marijuana, which was not in itself an infamous offense, and the indictment did not charge elements of secrecy, deceit and intent to defraud. State v Jarvis, 50 NC App 679, 274 SE2d 852.

Conviction of defendant under city ordinance which prohibited the solicitation of a child under the age of 14 to enter an automobile or to coax or entice a child to do so was affirmed where the evidence was such that the jury could reasonably find that defendant solicited 2 girls to get in his automobile and "have fun" with him, in return for which he would give them food, because it was the act of solicitation, coaxing or enticing the children to enter the automobile that constituted the crime; the purpose of the person doing the solicitation was not relevant. Reynoldsburg v Johnson (1992, Franklin Co) 78 Ohio App 3d 641, 605 NE2d 996.

The trial court, sitting as the trier of fact did not "clearly lose its way" and create such a manifest miscarriage of justice that a conviction under RC § 2907.07(B) should be reversed where the court held that the solicitation in the context it was made and by virtue of the words used most certainly was grossly offensive and emotionally disturbing and further it was likely the average person would be provoked to a breach of the peace by such words in a similar context. State v Presley (1992, Warren Co) 81 Ohio App 3d 721, 612 NE2d 353.

In a prosecution for criminal solicitation and criminal attempt based on a reverse sting operation in which undercover officers arranged to sell 100 pounds of marijuana to the defendant, the court would reject the defendant's contention that police involvement in the reverse sting operation was so outrageous that the prosecution would be barred on due process grounds. The defendant's due process rights were not violated by the fact that the police used an untrained informant who was permitted to make the initial contact without police supervision, by the fact that the police provided the defendant with a marijuana sample and offered him an opportunity to make a substantial profit or by the fact that the police used an informant who was paid a contingency fee. Commonwealth v Mance (1995, Pa) 652 A2d 299.

The defendant was properly found to be guilty of criminal solicitation for involuntary deviate sexual intercourse even though the person solicited was under 14 years of age and, therefore, would have been protected from criminal culpability in such an act; the fact that the person solicited was protected from criminal culpability had no applicability to the defendant's culpability. Commonwealth v Morales (1992) 411 Pa Super 471,601 A2d 1263.

Footnotes

Footnote 5. State v Schleifer, 99 Conn 432, 121 A 805,  35 ALR 952; Walsh v People, 65 Ill 58 (opinion of Le Blanc, J.); State v Bowles, 70 Kan 821, 79 P 726; State v Beckwith, 135 Me 423, 198 A 739; Commonwealth v Randolph, 146 Pa 83, 23 A 388; State v Bowers, 35 SC 262, 14 SE 488; Gervin v State, 212 Tenn 653, 371 SW2d 449; State v Baller, 26 W Va 90 (obiter); Rudolph v State,  128 Wis 222, 107 NW 466.

Where an intention is expressed in the form of a solicitation, or incitement, or command to another to commit a felony or a high crime and misdemeanor akin to felony, it is a crime under the common law.  State v Schleifer, 99 Conn 432, 121 A 805.

But see 45 Am Jur 2d,  Intoxicating Liquors § 299 (rule held inapplicable to soliciting illegal liquor sales).

For application to particular offenses see the particular title, for example, 2 Am Jur 2d,  Adultery and Fornication § 7; 12 Am Jur 2d,  Bribery § 11; 40 Am Jur 2d,  Homicide § 564; 50 Am Jur 2d,  Larceny § 91.

Footnote 6. Reed v Maley, 115 Ky 816, 74 SW 1079; Smith v Commonwealth, 54 Pa 209.

Footnote 7. Lott v United States (CA9 Alaska) 205 F 28; State v Blechman, 135 NJL 99, 50 A2d 152; State v Baller, 26 W Va 90 (obiter).

Solicitation to commit a felony or to commit a serious misdemeanor harmful to the public peace or the public welfare or economy is a common-law offense. Only such misdemeanors as by their nature make it illogical to treat them as separate crimes are excluded as objects of solicitation.  Commonwealth v Wiswesser, 134 Pa Super 488, 3 A2d 983.

Footnote 8. Wiseman v Commonwealth, 143 Va 631, 130 SE 249 (embracery); State v Baller, 26 W Va 90 (procuring witness to absent himself from court to avoid testifying when summoned to do so).

Footnote 9. State v Schleifer, 99 Conn 432, 121 A 805.  Compare Wiseman v Commonwealth, 143 Va 631, 130 SE 249 (soliciting another to commit embracery held an offense, though attempt to commit it would not be, since embracery is itself an attempt).

Footnote 10. State v Schleifer, 99 Conn 432, 121 A 805; State v Blechman, 135 NJL 99, 50 A2d 152.

Annotation:  51 ALR2d 953, § 2[a].

Footnote 11. State v Bowles, 70 Kan 821, 79 P 726; State v Blechman, 135 NJL 99, 50 A2d 152.  See also People v Burt, 45 Cal 2d 311, 288 P2d 503,  51 ALR2d 948 (solicitation conviction upheld, though crime solicited was to have been committed in foreign country).

Footnote 12. State v Bowles, 70 Kan 821, 79 P 726; State v Beckwith, 135 Me 423, 198 A 739; State v Blechman, 135 NJL 99, 50 A2d 152; State v Hampton, 210 NC 283, 186 SE 251; Commonwealth v Randolph, 146 Pa 83, 23 A 388; State v Bowers, 35 SC 262, 14 SE 488.

Annotation:  51 ALR2d 953, § 3.

The fortuity that the person solicited does not agree to commit the crime should not relieve the solicitor of liability.  Benson v Superior Court of Los Angeles County, 57 Cal 2d 240, 18 Cal Rptr 516, 368 P2d 116.

Footnote 13. People v Burt, 45 Cal 2d 311, 288 P2d 503,  51 ALR2d 948 (construing statute making solicitation to commit certain specified felonies a substantive offense); State v Blechman, 135 NJL 99, 50 A2d 152.

Footnote 14. Benson v Superior Court of Los Angeles County, 57 Cal 2d 240, 18 Cal Rptr 516, 368 P2d 116.

Footnote 15. State v Schleifer, 99 Conn 432, 121 A 805.

Footnote 16. Gervin v State, 212 Tenn 653, 371 SW2d 449. Compare State v Schleifer, 99 Conn 432, 121 A 805 (regarding solicitation as more dangerous than attempt).


V.  PARTICIPATION IN CRIME [163-182]

A.  In General [163-167]


§ 163  Generally  [21 Am Jur 2d CRIMINAL LAW]

At common law participants in crime were either principals or accessories. Principals were usually divided into principals in the first degree and principals in the second degree.  Persons concerned in the offense either before or after its commission were accessories before or after the fact. 17


§ 163  – Generally [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Where defendant, in Montana, hired woman ostensibly as film courier, but in reality to transport drugs from Peru to Los Angeles, and woman was unaware that she was being hired for drug transportation, all evidence was properly admitted although many of acts took place outside of Montana; statute providing that one is guilty of solicitation when one "facilitates the commission of" an event was not unconstitutionally vague, although it did expand crime of solicitation beyond common law, and knowledge of person solicited that she was being solicited for crime was not necessary under "facilitate" language. State v Bush (1981, Mont) 636 P2d 849.

Evidence was sufficient to establish that the defendant had joint constructive possession of cocaine found in a bedroom of her apartment where (1) the defendant was the lessee of the apartment, (2) although she subleased the bedroom in question to her sister and brother-in-law, the bedroom was not locked and she had access to it, (3) on the day before the search, an informant witnessed a brick of cocaine being cut up in the kitchen of the apartment, and (4) a surveillance of the apartment disclosed several occasions in which people walked into the apartment with small packages and exited within a few seconds without the packages. Commonwealth v Aviles (1992, Super Ct) 615 A2d 398.

Footnotes

Footnote 17. Pierce v State, 130 Tenn 24, 168 SW 851.


§ 164  Participation in offense one is incapable of committing personally  [21 Am Jur 2d CRIMINAL LAW]

There are some offenses which are so defined by statute or by the common law that they may be committed only by certain persons or classes of persons. 18   But a person not within the class of those by whom the crime may be personally perpetrated may, by aiding and abetting the commission of the offense, also render himself criminally liable. 19   Thus, a woman may be punished for aiding or abetting the commission of rape, 20  a husband may be an accessory to the crime of rape upon his own wife, 21   and a person who aids and assists the owner of property in burning it may be convicted under a statute making it an offense for the owner of property to burn it with the intent to defraud an insurer. 22  Similar rules prevail as to the commission of embezzlement 23  and other crimes. 24      

Under the federal aiding and abetting statute, 25   individuals aiding and abetting a federal offense may be punished as principals. 26  And under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 27   the operators of a drug distribution network may be prosecuted either as principals or as aiders and abettors for substantive manufacturing, distribution, and possession offenses. 28    


§ 164  –  Participation in offense one is incapable of committing personally [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Prosecution of female as principal for rape. (See also 65 Am Jur 2d, Rape § 27.)  67 ALR4th 1127.

Criminal responsibility under 18 USCS §  2(b) of one who lacks capacity to commit an offense but who causes another to do so.  52 ALR Fed 769.

Case authorities:

Person incapable of personally committing specified crime because he was not officer, director, agent, or employee of agency receiving federal financial assistance was properly punished as principal under 18 USCS §  2(b) where he caused innocent agent meeting capacity requirements to engage in prescribed conduct. United States v Ruffin (1979, CA2 NY) 613 F2d 408,  52 ALR Fed 737.

Footnotes

Footnote 18. Garner v State, 26 Ala App 246, 158 So 543, cert den 229 Ala 600, 158 So 546; People v Young, 132 Cal App 770, 23 P2d 524; Dodd v State, 52 Okla Crim 385, 5 P2d 181.

Footnote 19. Gibbs v State, 37 Ariz 273, 293 P 976; State v Burns, 82 Conn 213, 72 A 1083; State v Nahoum, 172 La 83, 133 So 370; People v Chapman, 62 Mich 280, 28 NW 896; Quillin v State, 79 Tex Crim 497, 187 SW 199.

The aiding and abetting statute can even be applied where by statutory definition the defendant would be incapable of committing the substantive offense by himself.  Hutchins v Municipal Court for Santa Monica Judicial Dist. (2d Dist) 61 Cal App 3d 77, 132 Cal Rptr 158.

A person incapable of committing a specific crime may nevertheless be guilty of aiding and abetting its commission. State v Norman, 193 Neb 719, 229 NW2d 55.

Footnote 20. State v Pickel, 116 Wash 600, 200 P 316, different results reached on reh on other grounds 116 Wash 607, 204 P 184.

Footnote 21. People v Meli (Sup) 193 NYS 365.

Annotation:  84 ALR2d 1023, § 3.

Footnote 22. Haas v State, 103 Ohio St 1, 132 NE 158.

Footnote 23. Gibbs v State, 37 Ariz 273, 293 P 976.

Footnote 24. People v West, 3 Cal App 2d 568, 40 P2d 278 (fraud); Boggus v State, 34 Ga 275 (bigamy); Capshaw v State, 69 Okla Crim 440, 104 P2d 282 (bribery); Commonwealth ex rel. Giuffrida v Ashe, 137 Pa Super 528, 10 A2d 112 (arson).

Essential element of prosecution under 18 USCS §  2 is that a substantive offense was committed; however, defendant need not be legally capable of committing the specified offense himself; therefore, although the statute aimed at prohibition of receipt of illegal gratuities to a federal tax agent was aimed at a government agent, a private citizen could be liable as principal under 18 USCS §  2.  United States v Standefer (CA3 Pa) 610 F2d 1076, affd  447 US 10,  64 L Ed 2d 689,  100 S Ct 1999.

Footnote 25. 18 USCS §  2.

Footnote 26. Under 18 USCS §  2, aiders and abettors may be held vicariously liable regardless of the fact that they may be incapable of committing the specific violation which they are charged to have aided and abetted; once an aider and abettor has been treated as a principal, some of his lesser acts in furtherance of the central violation may merge into it, so that a decision to treat an aider and abettor as a principal may be inconsistent with prosecuting and punishing him for some individual acts of aiding and abetting.  Busic v United States,  446 US 398,  64 L Ed 2d 381,  100 S Ct 1747.

In the case of a criminal offense whose prohibition is directed at members of a specific class, such as federal employees, a person who is not himself a member of that class may nonetheless be punished as a principal under the federal aiding and abetting statute (18 USCS §  2) if he induces a person in that class to violate the prohibition.  Standefer v United States,  447 US 10,  64 L Ed 2d 689,  100 S Ct 1999.

In order to convict someone of the aiding and abetting violation of a certain federal statute, the government must first demonstrate that violation of the specific statute has occurred.  United States v Franklin (CA6 Ohio) 608 F2d 241.

Evidence was sufficient to convict defendant of aiding and abetting violation of 18 USCS §  113 despite defendant's contention that he did not share the criminal intent of his companions; the facts show that defendant and his companions had a community of intent to damage a car and do bodily damage to its occupants, one of whom was killed and the other injured, and defendant's participation was shown by his three visits to the parked car and his admitted actions of striking the car on the second visit; the fact that he was not shown to have physically injured any of the car's occupants does not detract from his voluntary involvement in the chain of events and by his own admissions he was more than a spectator. United States v Palmer (CA10 NM) 604 F2d 64.

It was not necessary that one charged as aider and abettor commit an overt act that served to accomplish the offense or that he had knowledge of the particular means his principals employed to carry out the criminal activity; criminal liability under 18 USCS §  2 resulted from the existence of the community of unlawful intent between the aider and abettor and the principal. United States v Austin (CA5 Miss) 585 F2d 1271.

One is no less aider and abettor because one's efforts, while diligent, are not successful in every way; success which is controlling is the actual consummation of the transaction.  United States v Pino (CA4 NC) 608 F2d 1001.

Former paramour of defendant could not have been convicted for aiding and abetting robbery when although she initially afforded hospitality to defendant and companions, she did not participate in the planning or execution of the robbery and when she later readmitted defendant and companions to use the basement, she was not told that the robbery had occurred.  United States v Jones (CA4 Md) 608 F2d 1004, cert den  444 US 1086,  62 L Ed 2d 773,  100 S Ct 1046.

Although conspiracy requires proof of agreement, the offense of aiding and abetting does not.  United States v Beck (CA7 Ill) 615 F2d 441.

In a prosecution for violation of 18 USCS §§  2 and  1001 by filing a false customs export declaration, aiding and abetting is proved if defendant voluntarily gave the false information or participated in the plan such that it was foreseeable that the false information would be used in statements made to government agencies in furtherance of the plan. United States v Beck (CA7 Ill) 615 F2d 441.

Aider and abettor of illegal export of firearms need not know that the principal needs or lacks an export license, but only that there be legal duty not to export the articles.  United States v Beck (CA7 Ill) 615 F2d 441.

Purchaser of stolen goods is not liable as an aider and abettor of a theft because he enters the plan too late.  United States v Beck (CA7 Ill) 615 F2d 441.

Defendant charged with violation of 18 USCS §  2(a) need not have knowledge of the particular means the principal in crime uses to carry out the criminal activity.  United States v Beck (CA7 Ill) 615 F2d 441.

No violation of 18 USCS §  2 occurs unless there has been completion of a substantive offense.  United States v Alvarez (CA5 Fla) 610 F2d 1250, on reh (CA5 Fla) 625 F2d 1196.

Evidence showing that defendant negotiated and participated in several narcotics sales with undercover officers and that defendant knew she was part of a larger narcotics operation was sufficient to establish defendant as an active participant and not a mere associate of the drug ring.  United States v Williams (CA8 Mo) 604 F2d 1102.

Individual can be convicted as principal even though the evidence establishes that he is only aided and abetted.  United States v Cook (CA5 Tex) 586 F2d 572, reh den (CA5 Tex) 589 F2d 1114 and cert den  442 US 909,  61 L Ed 2d 274,  99 S Ct 2821.

In order to be liable as principal under 18 USCS §  2, defendant must willfully associate himself in some way with the criminal venture and willfully participate in it as something he wishes to bring about. United States v Indelicato (CA1 Mass) 611 F2d 376.

Person who lacks capacity to perform acts prohibited by federal law but "causes" another to perform acts is liable as principal under USCS § 2(b).  United States v Ruffin (CA2 NY) 613 F2d 408,  52 ALR Fed 737.

Footnote 27. 21 USCS §  841.

Footnote 28. Bifulco v United States,  447 US 381,  65 L Ed 2d 205,  100 S Ct 2247.


§ 165  Furnishing instrumentality used by another  [21 Am Jur 2d CRIMINAL LAW]

Different views have been expressed on the question of whether a person who furnishes an instrumentality ordinarily used for lawful purposes with knowledge that it is to be used for criminal purposes is criminally responsible.  It has been said, for example, that persons who furnish telephone service to an establishment knowing that the telephone facilities will be used for gambling purposes are not chargeable with aiding in maintaining a gambling house. 29   On the other hand, persons who furnished material, ordinarily used for legal purposes, with knowledge that the material was to be used for the unlawful manufacture of liquor, have been held guilty of aiding and abetting or conspiring to violate prohibition laws. 30

Footnotes

Footnote 29. State ex rel. Dooley v Coleman, 126 Fla 203, 170 So 722.

Footnote 30. United States v Wilson (DC Wash) 59 F2d 97; Brown v Commonwealth, 156 Va 947, 157 SE 567.


§ 166  Accomplices  [21 Am Jur 2d CRIMINAL LAW]

An accomplice is said to be one who knowingly, voluntarily, and with a common interest with others participates in the commission of a crime either as a principal or as an accessory before the fact. 31    Thus, it has been stated that persons connected with the commission of an offense are referred to as principals, accessories, or aiders or abettors, but if, in the course of the trial, any of these persons is put on the witness stand and a question arises as to the necessity of corroborating his testimony, he is spoken of as an accomplice, 32  whose testimony is viewed with caution in both misdemeanors and felonies. 33  And under a statutory definition of an accomplice as a person liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given, the witness must have guilty knowledge and intent with regard to commission of the crime.  Where the facts are in dispute as to the asserted accomplice's knowledge and intent, his liability for prosecution, as contemplated by that statute, is a question for the trier of fact. 34   However, it has also been suggested that what is meant by the "accomplice rule" is that one who testifies while he is faced with criminal charges may be influenced to testify falsely by the hope of leniency, and ordinarily the defendant, on request, is entitled to have the jury so advised by an appropriate charge, and it makes no difference that the witness was not an accomplice of the defendant, or, indeed, that defendant had no connection with the transaction which led to the charges against the witness. 35

The federal statute 36   does not require a showing that an accomplice was innocent, but merely removes any requirement that an accomplice or an intermediary be guilty. 37        


§ 166  – Accomplices [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Limitations on Accomplice Liability. 6 Crim LJ 506, December 1982.

Dressier, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem. 37 Hast LJ 91, September, 1985.

Westerfield, The Mens REA Requirement of Accomplice Liability in American Criminal Law–Knowledge or Intent. 51 Miss LJ 155, June-September, 1980.

Case authorities:

See Skillern v Estelle (1983, CA5 Tex) 720 F2d 839, § 628.

Indictment language charging defendant with "causing" something to be done need not be removed as surplusage, where indictment charges defendant as manager of medical corporation charged with Medicare fraud, because 18 USCS §  2, accomplice liability statute, applies generally to all federal criminal statutes and prohibits one from causing another to do any act that would be illegal if one did it personally. United States v Calhoon (1994, MD Ga) 859 F Supp 1496.

The trial court in a robbery prosecution erred in failing to give Standard Jury Instruction 2.04(b) pertaining to accomplices, where the defense requested the instruction in connection with the chief prosecution witness, who the defense claimed was an accomplice but who himself denied any involvement, where the witness had been seen fleeing the getaway car shortly following the robbery, and where the evidence revealed that the witness had been arrested and charged with attempted murder, robbery, theft, and possession of a firearm, and had agreed to testify in exchange for a reduced sentence; however, the error was harmless in light of the abundant evidence both of defendant's guilt and the witness' status as an accomplice. Taylor v State (1983, Fla App D1) 429 So 2d 1258.

The evidence was sufficient to prove that the defendant had the requisite knowledge and intent to be a joint venturer in a murder where (1) the defendant and the coperpetrator were seen together several times in the hours before the murder driving in the defendant's car near the victim's residence, (2) earlier in the morning, the coperpetrator shot and killed a cat from the passenger side window of the defendant's car while the defendant drove, (3) immediately after the murder, the coperpetrator ran directly to and entered the defendant's car which had been parked discreetly on a one-way street near the victim's residence, (4) the car instantly pulled away at high speed without any apparent conversation between the defendant and the coperpetrator, and (5) the defendant lied to a police officer at the scene of an accident that occurred as he and the coperpetrator attempted to flee by telling the officer that no one else had been in the car with him. Commonwealth v Stewart (1991) 411 Mass 345, 582 NE2d 514.

The evidence was insufficient to support a conviction for trafficking in cocaine on the basis of a joint venture where (1) the defendant and a bartender were arrested at a bar after the execution of a search warrant, (2) the bartender was found to be carrying over 39 grams of cocaine, and (3) the defendant was carrying no cocaine, but was in possession of $317 in cash, a piece of paper with a list of names and dollar amounts; although the evidence might have established that the defendant was involved in drug dealing, the Commonwealth failed to prove a nexus between the defendant and the bartender as the only evidence of a nexus was that a police officer had seen the defendant and bartender have 3 private conversations during a one hour period. Commonwealth v Meehan (1992) 33 Mass App 262, 597 NE2d 1384.

Lookout who stood outside beauty parlor with second lookout as defendant killed rival drug dealer inside should not be deemed defendant's accomplice as matter of law with regard to defendant's attempted murder of lookout and murder of second lookout as defendant left scene and sought to kill all witnesses, since defendant's attempted murder of lookout severed lookout's initial accomplice relationship to him, and was legally discrete for accomplice corroboration purposes from killings inside parlor. People v Breland (1994)  83 NY2d 286, 609 NYS2d 571, 631 NE2d 577.

Accomplice's presence directly behind robbery victim during attack by codefendant, which was sufficient to discourage her escape or resistance, constituted sufficient evidence of accessorial conduct to render accomplice culpable for robbery in second-degree. People v Crutchfield (1989, 3d Dept)  149 AD2d 857, 540 NYS2d 366, app den  74 NY2d 738, 545 NYS2d 112, 543 NE2d 755.

Court's use of phrase "defendant or an accomplice" in connection with elements of crimes charged was not error where court's charge repeatedly stressed that People had absolute burden of proving beyond reasonable doubt "that each person intended the unlawful act," and that burden applied to all submitted counts, thus conveying appropriate legal standard. People v Johnson (1992, 1st Dept)  181 AD2d 509, 580 NYS2d 357, app den  80 NY2d 833, 587 NYS2d 917, 600 NE2d 644 and app den  81 NY2d 763, 594 NYS2d 725, 610 NE2d 398.

Court did not err by failing to charge jury that 2 of People's witnesses were accomplices as matter of law, even though they were admittedly part of group that planned robbery, since they either voluntarily left group or were excluded when plans escalated to include kidnapping and murder. People v Rivera (1989, 2d Dept)  154 AD2d 630, 546 NYS2d 641, app den  76 NY2d 741, 558 NYS2d 903, 557 NE2d 1199 and app den  76 NY2d 742, 558 NYS2d 904, 557 NE2d 1200.

Trial court should have submitted to jury issue of whether accomplice's mother was also accomplice, despite her contention that she went with others only because her son was involved and she was concerned for him, where mother accompanied defendant, codefendant, her son, and another accomplice to victim's home knowing that they intended to harm him, she left son and accomplice in lobby and followed defendant and codefendant to apartment where others cornered victim and shoved him down stairs, and she watched as all 4 men beat him, she told her son to "whip" him, and she told victim that beating was consequence of stealing from her. People v Smith (1992, 2d Dept)  181 AD2d 803, 581 NYS2d 238.

Defendant's contention that trial court should have given accomplice charge sua sponte was without merit since, in order for witness to be deemed accomplice, it must be shown that jury could reach no other conclusion than that witness participated in offense charged or offense based on same or some of same facts constituting offense charged, and evidence adduced at defendant's trial did not establish such requirements. People v Albury (1989, 2d Dept)  156 AD2d 370, 548 NYS2d 325, app den  75 NY2d 866, 553 NYS2d 298, 552 NE2d 877 and app den  75 NY2d 963, 556 NYS2d 248, 555 NE2d 620.

Footnotes

Footnote 31.
Annotation:  74 ALR3d 560.

Government of Virgin Islands v Rivera Solis (CA3 Virgin Islands) 359 F2d 518 (misprision of a felony is a separate offense distinct from complicity in crime of murder).

In the absence of a statute granting immunity, a person of competent age who voluntarily participates in an act which without his participation could not be accomplished, which can be committed only by two persons, which is denounced as a crime by a law that declares both participants to be equally guilty without requiring specific intent, is as to that particular act an accomplice. People v Brocklehurst (4th Dist) 14 Cal App 3d 473, 92 Cal Rptr 340 (officer who participated with defendant in act of oral copulation was an accomplice).

Where defendant's first connection with an offense is after its commission, he may be an accessory after the fact, but he cannot be an accomplice.  Lucchesi v State, 232 Md 465, 194 A2d 266, cert den  376 US 932,  11 L Ed 2d 651,  84 S Ct 700.

The mere fact that the defendant was present at the scene in the company of those who committed the crime is insufficient to establish that he was an accomplice.  State v Martin (Mo) 428 SW2d 489.

The defendant who was merely present at the scene of the crime and did not report the incident until he was arrested some months later was not an accomplice.  State v Caldwell (Mo) 428 SW2d 727.

As to what constitutes principals and accessories, generally, see  §§ 168 et seq., infra.

Footnote 32. Levering v Commonwealth, 132 Ky 666, 117 SW 253; State v Helmenstein (ND) 163 NW2d 85.

Footnote 33. Guthrie v Commonwealth, 171 Va 461, 198 SE 481.

Footnote 34. People v Gordon, 10 Cal 3d 460, 110 Cal Rptr 906, 516 P2d 298.

Footnote 35. State v Mangrella, 86 NJ Super 404, 207 A2d 175. Compare State v Jennings (Iowa), 195 NW2d 351, holding that an accomplice is a person who wilfully unites in, or is in some way concerned in the commission of a crime.  The general rule for determining whether a witness is an accomplice is if he could be charged with and convicted of the specific offense for which an accused is on trial.

Footnote 36. 18 USCS §  2(b).

Footnote 37. United States v Rapoport (CA2 NY) 545 F2d 802, cert den  430 US 931,  51 L Ed 2d 775,  97 S Ct 1551.


§ 167  Aiders and abettors  [21 Am Jur 2d CRIMINAL LAW]

An aider or abettor is one who advises, counsels, procures, or encourages another to commit a crime. 38    A person is an aider and abettor if he or she actively assists in planning and preparing for the perpetration of a crime and assumes a station with the knowledge of the perpetrators where he or she may be able to assist either in the commission of the crime or in the escape immediately following in the perpetration of the crime. 39   And an aider and abettor need not know that the activity constitutes a crime.  It is enough that they know facts that are essential to constitute the activity as a crime.  Thus, a seller cannot be criminally liable as an aider and abettor for a buyer's use of pesticide which is inconsistent with this label simply because of the sale itself. 40

The mere presence and consent of the defendant are not sufficient to constitute him an aider and abetter in the commission of a crime. 41   On the other hand, an aider and abettor need not know every last detail of the substantive offense, but he must at least share in the principal's essential criminal intent. 42   The involvement of an aider and abettor may be shown circumstantially, and an act of slight importance may warrant a jury's finding of participation in the crime. 43  A person cannot aid and abet the commission of a crime unless another commits the offense; one cannot aid and abet himself in the commission of an offense. 44   Furthermore, one cannot be held criminally responsible for aiding and abetting, within the forum state, an act done in another state and not criminal by the laws of that state, though the act would have been criminal if done in the state where the aiding and abetting took place. 45

In at least one jurisdiction, a statute providing that whoever aids, abets or procures another to commit any offense may be prosecuted and punished as if he were the principal offender, is no longer limited in its application to felonies but covers all offenses, including misdemeanors. 46


§ 167  – Aiders and abettors [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: A Seville standard for aiders and abettors: The logic and implications of the Supreme Court's decision, 45 Case W Res LR 2:661 (1995).

Comment: Aider and Abettor Liability, The Continuing Criminal Enterprise, and Street Gangs: A New Twist in an Old War on Drugs. 81 J Crim L 348, Summer, 1990.

Case authorities:

Criminal aiding and abetting liability under 18 USCS §  2 requires proof that the defendants in some way associated themselves with the venture, that they participated in the venture as something that they wished to bring about, and that they sought by their actions to make the venture succeed. Central Bank, N. A. v First Interstate Bank, N. A. (US)  128 L Ed 2d 119,  114 S Ct 1439.

Jury was entitled to find that defendant aided and abetted drug transaction, where it could properly conclude that his role was to monitor safe return of individual with money in order to assure that drug transaction was fully consummated, and that he assumed role knowingly, willfully, and intentionally, given accumulation of individual pieces of evidence insufficient in themselves. United States v O'Campo (1992, CA1) 973 F2d 1015.

Judge commits no error in failing to instruct jury on meaning of aiding and abetting where government contends only that defendant has caused bribe to be made. United States v Shulman (1980, CA2 NY) 624 F2d 384.

Conviction must be set aside, where it is not clear whether jury found defendant guilty as principal on erroneously charged theory of principal liability under 18 USCS §  894 or on correctly charged but more difficult to prove theory of aiding and abetting, where defendant's purpose was closely contested issue, whether he sought to aid in another's commission of crime or only to secure his broker's fee and provide individual with needed financing. United States v Scotti (1995, CA2 NY) 47 F3d 1237.

Conviction for aiding and abetting armed robbery of post office will not be disturbed, even though indictment failed to either track language of 18 USCS §  2 or charge aiding and abetting as separate count, because defendant may properly be convicted of aiding and abetting commission of crime even if indictment makes no reference whatsoever to his role as aider and abettor. Virella v United States (1990, SD NY) 750 F Supp 111.

Person is guilty of aiding and abetting where quite clearly, without such help, sales would have never taken place and such person participated in sales with manifest purposive attitude in making them succeed. United States v Reicherter (1981, CA3 Pa) 647 F2d 397.

Sentence of death imposed on recommendation of jury which has been erroneously instructed that death sentence may be recommended for defendant as aider and abettor whether or not he killed, attempted to kill or intended to kill, cannot be carried out, and defendant must be resentenced. Hyman v Aiken (1985, CA4 SC) 777 F2d 938.

Although 18 USCS §  2 does not establish separate crime of "aiding and abetting," it does allow jury to find person guilty of substantive crime even though that person did not commit all acts constituting elements of crime. United States v Pearson (1982, CA5 Ala) 667 F2d 12.

To aid and abet, defendant must share intent to commit offense as well as participate in some manner to assist its commission; defendant need not, however, commit all elements of substantive underlying offense as long as he aided and abetted each element. United States v Fischel (1982, CA5 Tex) 686 F2d 1082.

Person who is not only party to agreement to make false statements in acquisition of firearms, but who provides money to purchase firearms and ammunition, who asks other persons to accompany him to firearms dealer in order to sign government forms, who orders that guns be picked up, and who carries them to border may be convicted for aiding and abetting in falsification of forms required for sale of firearms; however, person assisting principal in acquiring weapon that is to be exported without license may not be convicted for aiding and abetting unless person shares principal's criminal intent. United States v Ortiz-Loya (1985, CA5 Tex) 777 F2d 973.

Defendant was liable as aider and abettor under 18 USCS §  2 for his role in murder of law enforcement officer under 21 USCS §  848, since statute does not apply only to "bosses" or "king pins." United States v Villarreal (1992, CA5 Tex) 963 F2d 725.

Real estate developers who agree to participate in loan transaction which would hide $5 million debt from federal bank regulators were guilty of bank fraud with requisite intent to defraud banks, even though they conspired with bank officials, since they aided and abetted officials' crime under 18 USCS §  2. United States v Saks (1992, CA5 Tex) 964 F2d 1514.

Although existence of stake or interest in outcome of transaction is factor to be considered in aiding and abetting prosecution, it is not controlling factor and moreover it is not necessary that defendant actually touched or possessed contraband drug; defendant has reckless intent to satisfy aiding and abetting in sale of drugs where he clearly knew what was going on, and he intended by his actions to make illegal venture succeed. United States v Winston (1982, CA6 Tenn) 687 F2d 832.

Evidence was sufficient that defendant aided and abetted individual's offense of carrying firearm during and in relation to drug offense in violation of 18 USCS §  924(c), where his act of wearing ski mask to protect himself, when combined with certainty that he must have observed weapon, led to reasonable inference that he likewise intended that weapon be used for protection, not from snakes, but from other individuals who might interfere with trafficking venture. United States v Morrow (1992, CA6 Tenn) 977 F2d 222.

Crime of aiding of abetting prosecribed by 18 USCS §  2 requires proof that defendant associates himself with criminal venture, participates in it as in something he wishes to bring about and seeks by his actions to make it succeed. United States v Garcia-Geronimo (1981, CA7 I11) 663 F2d 738.

Sports agent, acquitted of mail fraud, could not be found guilty under theory of aiding and abetting his own plot to circumvent NCAA rules by secretly signing up football players still in college, where indictment alleged scheme by agent, aiding and abetting was never argued to judge or jury, although "boilerplate 18 USCS §  2 instruction was given, and independent problems of proof would arise should indictment be so recast. United States v Penass (1993, CA7 Wis) 997 F2d 1227, cert den (US) 62 USLW 3335.

Evidence is sufficient to warrant finding of guilty on count of aiding and abetting delivery and sale of stolen securities where defendant met with other participants, he physically acted as lookout, both on street and in bank, and took substantial action to help venture succeed. United States v Miller (1982, ND Ill) 552 F Supp 827.

Intent to aid requirement of aiding and abetting is relaxed where defendant's physical participation in crime is substantial; absent such involvement, aiding and abetting requires either specific intent to aid or specific knowledge for crime charged. United States v Miller (1982, ND Ill) 552 F Supp 827.

In prosecution for aiding and abetting cocaine distribution, trial court's request that defendant rise, asking him, "Do you know of any reason why the court should not pronounce sentence? That is, are you ready to receive the Court's sentence?," to which defendant replied, "Yes, sir," satisfied right of allocution afforded under FRCP § 32(a)(1)(c). United States v Flores (1992, CA8 SD) 959 F2d 83, reh, en banc, den (CA8) 1992 US App LEXIS 7760 and petition for certiorari filed (Jul 23, 1992).

Evidence was sufficient that defendant aided and abetted drug conspiracy by going to train station to meet coconspirator who was bringing large quantity of cocaine with him, where he asked that coconspirator be paged under false name which he used, and defendant had $10,000 in his hotel room. United States v Thomas (1992, CA8 Mo) 971 F2d 147, reh den (CA8) 1992 US App LEXIS 20560.

Evidence was sufficient that defendant aided and abetted "use" during drug trafficking crime of gun which his brother, who was presumably guarding house, threw into pile of laundry in bedroom, which was defendant's by process of elimination, when arrest was imminent, where bullets in gun matched ammunition found under defendant's mattress. United States v Travis (1993, CA8) 993 F2d 1316, petition for certiorari filed (Jul 16, 1993) and petition for certiorari filed (Jul 26, 1993).

Participant in parachutist's jump from arch in federal park is guilty of violating 18 USCS §§  2 and  371, where federal regulations rather obviously prohibited unilateral climbing and jumping off monument from which previous jumper had died in 1980, because evidence that participant had operated radio transceiver, had videotaped jump, had transported equipment to site, and had run from park ranger afterwards proved that participant conspired in effort and aided and abetted unlawful jump. United States v Carroll (1993, ED Mo) 813 F Supp 698.

Judgment may validly incorporate 18 USCS §  2 by explicit reference to indictment in which aiding and abetting violation is specifically charged. United States v Allen (1980, CA9 Cal) 633 F2d 1282, rereported (CA9 Cal) 675 F2d 1373, cert den  454 US 833,  70 L Ed 2d 112,  102 S Ct 133.

Fact that alder and abettor's counsel and encouragement is not acted upon for long periods of time does not break actual connection between commission of crime and advice to commit it; encouraging and counseling another by providing specific information as to how to commit complex crime does not alone constitute aiding and abetting. United States v Barnett (1982, CA9 Cal) 667 F2d 835.

Kickbacks made by painting contractor to bank employee in return for low bid information in sealed bidding process did not aid and abet mail fraud scheme under 18 USCS §  1341, where contractor had been accused of violating 26 USCS §  7206(1) by deducting kickbacks on tax returns as costs of goods sold or as expense, because bank employee could not have been convicted of mail fraud under present law since the deceived party, the bank, did not have an interest in the proceeds from bribes. United States v Digirolamo (1992, ND Cal) 808 F Supp 1445.

Evidence showing more than presence at scene of crime is necessary in order to sustain conviction under 18 USCS §  2. United States v Sacks (1980, CAI0 Colo) 620 F 2d 239.

Defendant was properly convicted of aiding and abetting possession of methamphetamine, even though she may not have possessed or controlled drugs herself, since she willfully associated herself with offense in positive way. United States v Coyote (1992, CAI0 Okla) 963 F2d 1328.

Defendant who conceded that his trip to Houston to pick up cocaine which was eventually possessed by principal might support distribution of cocaine charge was guilty of aiding and abetting possession of cocaine with intent to distribute under 18 USCS §  2, since he gave purposeful support to another's endeavor. United States v Slater (1992, CA10 Kan) 971 F2d 626.

Although neither mere presence nor mere flight is sufficient to uphold conviction for aiding and abetting, presence or flight coupled with other evidence of guilt can be adequate to sustain conviction. United States v Bryant (1982, CA11 Fla) 671 F2d 450.

Evidence was insufficient to prove that defendant aided and abetted another defendant in using and carrying firearm during drug transaction in violation of 18 USCS §  924(c), where there was no evidence that he knew that codefendant carried gun, or that he was linked to gun in any way. United States v Thomas (1993, CA11 Ga) 987 F2d 697.

Evidence was insufficient that defendant aided and abetted codefendant's actual or constructive possession with intent to distribute cocaine, where, using false name, he traveled with codefendant, but said he didn't, the two split up after getting off bus, and there was expert testimony that drug couriers often travel with second person, since there was no proof that defendant knew that codefendant carried drugs, or that he actually participated in ensuring that codefendant's possession went undetected. United States v Teffera (1993, App DC) 985 F2d 1082.

An aider and abettor must share the specific intent of the perpetrator. "Share" does not mean that the aider and abettor is prepared to commit the offense by his or her own act should the perpetrator fail to do so, nor that the aider and abettor seeks to share the fruits of the crime. Rather, an aider and abettor will share the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime. The aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act that is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. People v Beardslee (1991) 53 Cal 3d 68, 279 Cal Rptr 276, 806 P2d 1311, 91 CDOS 2101, 91 Daily Journal DAR 3490, mod, reh den, 53 Cal 3d 1179a, 91 Daily Journal DAR 6607 and stay gr (Cal) and cert den (US) 1991 US LEXIS 6718, 60 USLW 3374.

The liability of an aider and abettor is not limited to the target crime which he or she knowingly and intentionally aids and encourages, but can include crimes committed by the perpetrator that are natural and reasonable consequences of the criminal course of conduct the aider and abettor knowingly aids and encourages. It is a question of fact whether the charged offense was a natural and reasonable consequence of the target offense knowingly encouraged, and the jury should be instructed of its responsibility to determine this factual issue. People v Godinez (1992, 4th Dist) 2 Cal App 4th 492, 3 Cal Rptr 2d 325, 92 CDOS 257, 92 Daily Journal DAR 241.

In homicide prosecution arising from gang attack, there was sufficient evidence from which jury could find that homicide was natural and reasonable consequence of gang attack in order to support defendant's conviction of involuntary manslaughter as aider and abettor, even though defendant did not actually participate in stabbing; however, trial court erred prejudicially in instructing jury that it must find homicide to be such a natural consequence, where jury could have believed defendant's testimony that he did not know his associates were carrying knives. People v Godinez (1992, 4th Dist) 2 Cal App 4th 492, 3 Cal Rptr 2d 325.

For a defendant to be convicted as an aider and abettor, there must be proof the defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing or of encouraging or facilitating commission of the offense. People v Glenos (1992, 5th Dist) 7 Cal App 4th 1201, 10 Cal Rptr 2d 363, 92 CDOS 5828, 92 Daily Journal DAR 9145.

The continuing viability of the common law rule of aider and abettor liability for reasonably foreseeable consequences of the criminal act originally contemplated compels the conclusion that, in enacting Pen. Code, § 31 (governing aider and abettor liability), the Legislature intended that an aider and abettor may be found guilty of a lesser crime or lesser degree of crime than the ultimate offense the perpetrator is found to have committed, depending on which of the perpetrator's criminal acts were reasonably foreseeable under the circumstances and which were not. The fact that the perpetrator cannot be found guilty of both a greater and a necessarily included offense does not preclude an aider and abettor from being found guilty of an uncharged, necessarily included offense when the lesser, but not the greater, offense is a reasonably foreseeable consequence of the crime originally aided and abetted. People v Woods (1992, 3rd Dist) 8 Cal App 4th 1570, 11 Cal Rptr 2d 231, 92 CDOS 7287, 92 Daily Journal DAR 11740, review den (Cal) 1992 Cal LEXIS 5931.

When an alder and abettor is charged with the crime originally contemplated by the perpetrator as well as other crimes alleged to be reasonably foreseeable consequences of the original crime, the jury must employ a four-part analysis to determine aider and abettor liability. While the perpetrator and the aider and abettor need not be tried jointly, the jury first must determine the crimes and degrees of crimes originally contemplated and committed by the perpetrator. Next, it must decide whether the aider and abettor knew of the perpetrator's intent to commit those criminal acts and intended to encourage or facilitate their commission so as to render him or her vicariously liable for them. Then the jury must determine whether other crimes and degrees of crimes charged against the alder and abettor were committed by the perpetrator. If so, it must determine whether those crimes, though not necessarily contemplated at the outset, were reasonably foreseeable consequences of the original criminal acts, so as to make the alder and abettor vicariously liable for them. People v Woods (1992, 3rd Dist) 8 Cal App 4th 1570, 11 Cal Rptr 2d 231, 92 CDOS 7287, 92 Daily Journal DAR 11740, review den (Cal) 1992 Cal LEXIS 59J 1.

In enacting Pen. Code, § 31, governing aider and abettor liability, the Legislature abolished the common law distinctions between principals of the first and second-degree and between principals and accessories before the fact. However, a common law rule of aider and abettor liability that has survived in California is the doctrine that one who incites the commission of a crime can be liable not only for the crime incited, but also for any incidental consequences that reasonably might be expected to result from the intended wrong. Therefore, an aider and abettor is guilty of any reasonably foreseeable offense committed by the person he or she aids and abets. An aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator; knowledge that a criminal act was intended, and action intended to encourage or facilitate that act, are sufficient to make him or her liable for any reasonably foreseeable offense committed as a consequence by the perpetrator. People v Woods (1992, 3rd Dist) 8 Cal App 4th 1570, 11 Cal Rptr 2d 231, 92 CDOS 7287, 92 Daily Journal DAR 11740, review den (Cal) 1992 Cal LEXIS 5931.

Victim injury points were properly assessed, regardless of whether victim's injuries were inflicted by accused or a codefendant, where victim was struck in the face when she tried to escape and sustained other injuries during the sexual battery, and victim injury points were assessed against accused upon his conviction for false imprisonment, sexual battery, and aiding and abetting sexual battery despite his contention that the injuries were inflicted by codefendant, because one who aids and abets is a principal in the first-degree. Taylor v State (1993, Fla App D5) 619 So 2d 1017, 18 FLW D 1327.

An aider or abettor is a person who is actually or constructively present at the scene of the crime and who aids, advises, counsels, instigates or encourages another to commit the offense. Even though not actually present during the commission of the crime, a person may be an aider and abettor if he shares the criminal intent of the perpetrator and if, during the commission of the crime, he is in a position to render any necessary aid to the perpetrator. State v Barnette (1981) 304 NC 447, 284 SE2d 298.

Defendant could properly be convicted of assault with a deadly weapon with intent to kill inflicting serious injury under the theory that he acted in concert with the codefendant even though the codefendant was acquitted of that crime since inconsistent verdicts in the same trial are permissible. State v Reid (1994) 335 NC 647, 440 SE2d 776.

A defendant who enters into a common design for a criminal purpose is equally deemed in law a party to every act done by others in furtherance of such design; therefore, where defendant knew that his companion was going to rob a store, it did not matter that he did not know his companion was going to use a firearm. State v Ferree (1981) 54 NC App 183, 282 SE2d 587.

Defendant Poe was properly found guilty of aiding and abetting the commission of the offense of assault with a deadly weapon inflicting serious injury and damage to personal property not only because he was present when the crimes were committed but because his actions in driving the car from which several items were thrown by his passengers at other cars and in throwing items at other cars himself showed his consent to the criminal purpose and contribution to its execution. State v Poe (1995) 119 NC App 266, 458 SE2d 242, stay gr 340 NC 571, 459 SE2d 515, petition den (NC) 1995 NC LEXIS 522.

In a prosecution for kidnapping, extortion, and aggravated murder, evidence showing the defendant's complicity, the defendant's awareness that handguns were to be employed to accomplish the kidnapping, and also that the kidnapping was reasonably likely to produce the victim's death was sufficient to sustain a finding that the defendant purposely aided and abetted the kidnapping victim's murder. State v Scott (1980) 61 Ohio St 2d 155, 15 Ohio Ops 3d 182, 400 NE2d 375.

Defendant was improperly convicted of being party to crimes of intentional and reckless physical abuse of his daughter by intentionally aiding and abetting physical abuse inflicted by defendant's wife as, where defendant was charged under aiding and abetting statute, state was required to prove that defendant undertook some affirmative action against child and jury acting reasonably could not have inferred that any of alleged conduct aided and abetted abuse of child since earlier acts of apparently reasonable discipline did not support inference that, over 18 months later, such acts aided or abetted wife to commit abusive acts that resulted in child's permanent injuries and evidence did not support inference that defendant engaged in overt conduct which aided abuse or that defendant dressed child inappropriately to conceal her bruises from discovery thus, while evidence showed that defendant might be guilty of offense of failure to act to prevent bodily harm to child, evidence was insufficient to establish guilt as aider and abettor to crimes as charged (Stats §§  939.05,  948.03(2), (3), (4)). State v Rundle (1993)  176 Wis 2d 985, 500 NW2d 916.

Footnotes

Footnote 38. State v Derosia, 94 NH 228, 50 A2d 231.

A person aids and abets the commission of a crime if he knowingly and with criminal intent aids, promotes, encourages or instigates by act or advice the commission of such crime.  State v Nelson 88 SD 348, 220 NW2d 2, cert den  419 US 1110,  42 L Ed 2d 807,  95 S Ct 784.

Footnote 39. United States v Peichev (CA9 Cal) 500 F2d 917, cert den  419 US 966,  42 L Ed 2d 182,  95 S Ct 229.

Aiding and abetting requires proof by government that defendant had "purposeful attitude" and in some manner participated in unlawful deed; this requires essentially existence of some affirmative participation which at least encourages perpetrator. United States v Crow Dog (CA8 Iowa) 532 F2d 1182, cert den  430 US 929,  51 L Ed 2d 772,  97 S Ct 1547.

Footnote 40. United States v Corbin Farm Service (ED Cal) 444 F Supp 510, affd (CA9 Cal) 578 F2d 259.

Footnote 41. Jones v Commonwealth, 208 Va 370, 157 SE2d 907.

In the absence of a conspiracy or some preceding connection with the transaction, one does not aid and abet if he merely sees a crime being committed; mere approval or acquiescence without expressed concurrence or the doing of something to contribute is not aiding or abetting.  Columbus v Russell, 39 Ohio App 2d 139, 68 Ohio Ops 2d 327, 316 NE2d 897.

To aid and abet means to assist perpetrator of crime while sharing in requisite criminal intent; crime consists of illegal assistance in criminal act and person may be convicted on basis of his overall participation in criminal venture; in order to sustain conviction for aiding and abetting, evidence must show that defendant was associated with criminal venture, participated in it as something he wished to bring about, and sought by his action to make it succeed.  United States v Martinez (CA5 Tex) 555 F2d 1269.

Proof that defendant was merely associated with criminal, or that defendant was present at scene of crime is not, without more, sufficient to sustain conviction for aiding and abetting criminal venture.  United States v Longoria (CA5 Tex) 569 F2d 422.

Footnote 42. United States v Sanborn (CA1 Mass) 563 F2d 488.

In prosecution for violation of 18 USCS §  656 and § 2 in that defendant aided and abetted in misapplication of bank funds by bank officer, evidence amply supported jury verdict where bank officer delivered $15,000 of bank's funds to defendant knowing that money was actually being channeled to third person, and that bank officer was able to so misapply funds through fiction of defendant's false application and statement of purpose, and which sham arrangement violated 18 USCS §  656.  United States v Kennedy (CA9 Cal) 564 F2d 1329, cert den  435 US 944,  55 L Ed 2d 541,  98 S Ct 1526.

In prosecution for aiding and abetting transporation of falsely made or counterfeit checks in interstate commerce, conviction did not require showing that defendant knew of interstate transportation of the checks, rather, all that had to be proven was the fact of interstate tranportation together with knowledge of the forgery or counterfeiting.  United States v Cowden (CA1 Mass) 545 F2d 257, cert den  430 US 909,  51 L Ed 2d 585,  97 S Ct 1181.

18 USCS §  2 rendered defendant criminally liable for violation of 15 USCS §  77x in connection with filing of SEC registration statements designed to conceal his status as true owner of certain stock although he did not sign statement, did not file it, and did not directly participate in its preparation since evidence sufficiently connected him with false filing of statement, by showing his knowledge of its existence and assistance in preparation, to support finding of his having aided and abetted filing. United States v Erb (CA2 NY) 543 F2d 438, cert den (US)  50 L Ed 2d 590,  97 S Ct 493.

In order to be convicted of aiding and abetting transporation of firearms in foreign commerce by convicted felon defendant must have assisted convicted felon in transportation of firearms knowing that convicted felon was in fact transporting firearms, thus, where jury asked judge during deliberations whether an individual could aid and abet crime without knowledge that crime was being committed it was improper for trial court to answer that question affirmatively on the assumption that jury was merely asking whether person could aid and abet without knowing that activity in question was criminal, since question could be interpreted as asking whether defendant could be guilty of aiding and abetting without knowing that principal was committing various forbidden elements of principal crime.  United States v McDaniel (CA9 Wash) 545 F2d 642.

Footnote 43. Shelton v United States (CA7 Ill) 292 F2d 346, cert den  369 US 877,  8 L Ed 2d 280,  82 S Ct 1149; Gans v Warden of Maryland Penitentiary, 233 Md 626, 196 A2d 632; Thomas v Warden, Maryland Penitentiary, 235 Md 636, 201 A2d 495; State v Clifford, 267 Minn 554, 126 NW2d 258.

In prosecution for conspiracy to intercept wire and oral communications and aiding and abetting such interception, in which defendant claimed that his lack of knowledge of illegality of his actions constituted circumstantial evidence tending to negate his active participation in conspiracy and as aider and abettor, jury should have been instructed as to relevance of defendant's ignorance and charged that although it was not excuse, they could consider it as bearing on credibility of claim that he was not knowing participant.  United States v Schilleci (CA5 La) 545 F2d 519.

Defendants, neither of whom were present at commission of substantive offense, were properly convicted of aiding and abetting as there was sufficient evidence to show they had associated themselves with, and participated in criminal undertaking with intent to make it successful; while mere association or knowledge of illegal activity is not sufficient for conviction, involvement may be shown circumstantially, and act of slight importance may warrant jury's finding of participation in crime.  United States v Rosa (WD Pa) 404 F Supp 602, affd without op (CA3 Pa) 535 F2d 1247 and affd without op (CA3 Pa) 535 F2d 1248, cert den  429 US 822,  50 L Ed 2d 83,  97 S Ct 71 and affd (CA3 Pa) 560 F2d 149, cert den  434 US 862,  54 L Ed 2d 135,  98 S Ct 191.

In prosecution for conspiracy to possess heroin with intent to distribute and with aiding and abetting distribution of heroin, in violation of 18 USCS §  2 and 21 USCS §§  841 and  846, accused need not have been present at actual sale to be convicted of aiding and abetting; conviction would be affirmed where evidence showed that sale was made by third person to police officer, and that negotiations leading to that sale were conducted over telephone registered in defendant's name, and defendant's role was that prior to sale he had conversation with officer focusing upon possible sale of "tires," which was private code name for "ounces of heroin," and defendant stated that while he would have to speak with other guy about cost, everything would be ready when officer called back, and evidence further showed that everything was indeed ready when officer called and third person informed officer that he was handling transaction for defendant and agreed to meet officer at very location officer and defendant had discussed, and completed sale shortly thereafter.  United States v Juarez (CA5 Tex) 566 F2d 511.

Conviction for violation of a statute making it a crime to place an obstruction upon the rails or track of any railroad, based on defendant's inciting or abetting of the placing of the obstructions by his antecedent speech and conduct, did not violate his First Amendment rights of freedom of speech; furthermore, the fact that he was not present and did not physically assist in the placement of the obstruction was irrelevant.  People v Bohmer (4th Dist) 46 Cal App 3d 185, 120 Cal Rptr 136, cert den  423 US 990,  46 L Ed 2d 308,  96 S Ct 402.

As to offense of aiding and abetting illegal possession of drugs or narcotics, see 25 Am Jur 2d,  Drugs, Narcotics, and Poisons § 21 supp.

Footnote 44. Morgan v United States (CA10 Okla) 159 F2d 85.

Footnote 45. State v Gruber, 116 Minn 221, 133 NW 571.

Footnote 46. State v Norman, 193 Neb 719, 229 NW2d 55.


B.  Principals and Accessories [168-174]

§ 168  Who are principals  [21 Am Jur 2d CRIMINAL LAW]

A principal in a crime must be actually or constructively present, aiding and abetting the commission of the offense. 47   It is not necessary that one do some act at the time in order to constitute him a principal, but he must encourage its commission by acts or gestures, either before or at the time of the commission of the offense, with full knowledge of the intent of the persons who commit the offense. 48   He must do some act at the time of the commission of the crime that is in furtherance of the offense. 49 

A person who encourages the commission of an unlawful act cannot escape responsibility by quietly withdrawing from the scene.  The influence and effect of his encouragement continue until he renounces the common purpose and makes it plain to the others that he has done so and that he does not intend to participate further. 50

The fact that person acts as the agent of another in the commission of an offense does not exonerate him from liability as a principal in the crime. 51

Under certain federal statutes, participants in an offense may be prosecuted either as principals or as aiders and abettors. 52  


§ 168  – Who are principals [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Defendant cannot have benefit of claim that he and corporation are same entity without accepting burden of that claim and where in transactions, if defendant as person is in essence corporation, then defendant as person is licensee and would be capable of violating statute as principle. United States v Spiezio (1981, ED Pa) 523 F Supp 264.

Defendant "caused" government agent to travel in interstate commerce to exchange cash for checks, where travel was at defendant's request, even though agent acted under government instruction, since "causes to act" in 18 USCS §  2 does not mean that defendant must be sole and proximate cause of performance of act. United States v Levy (1992, CA5 La) 969 F2d 136.

Participant in bank robbery in which dangerous weapon is used may be convicted as principal regardless of fact that it is another participant in robbery who actually possesses weapon. United States v Schultz (1985, CA7 Wis) 769 F2d 431.

Although an accomplice had actually robbed the store at gunpoint, defendant's guilt as a principal in the commission of the crime was clearly established by evidence that he had planned the crime, had cased the store prior to the robbery, had furnished the gun, had furnished camouflaged hat and coat worn by the accomplice while robbing the store, had supplied and driven the get-away car, and had taken the money bag when the accomplice got back into the car after the robbery. Walker v State (1986, Miss) 493 So 2d 1323.

In a prosecution of multiple defendants on various charges of possession, manufacturing, and sale and delivery of heroin, the trial court committed prejudicial error in giving the jury instructions which permitted the jurors to find a defendant guilty as a principal to a crime at which he was not actually or constructively present because he participated in a conspiracy to commit the crime. State v Overton (1982) 60 NC App 1, 298 SE2d 695, app dismd, petition den (NC) 299 SE2d 652 and app dismd, petition den (NC) 299 SE2d 652 and app dismd, petition den (NC) 299 SE2d 653.

Sufficient evidence was adduced to support reasonable trier of fact in conclusion beyond reasonable doubt that every reasonable hypothesis of innocence on part of defendant was excluded and that he was principal in crime, where circumstantial evidence placed defendant with victim and other alleged malefactors, and direct evidence corroborated jailhouse informant's testimony concerning two weapons mentioned by defendant and included testimony of witness who placed defendant and other malefactors and victim together in early evening on night of offense. State v Pierre (1993, La App 3d Cir) 614 So 2d 1309.

Footnotes

Footnote 47. State v Burbank, 156 Me 269, 163 A2d 639,  95 ALR2d 166.

As to what constitutes aiding and abetting, see  § 167, supra.

Footnote 48. People v Marx, 291 Ill 40, 125 NE 719.

Footnote 49. People v Marx, 291 Ill 40, 125 NE 719; State v Spears, 268 NC 303, 150 SE2d 499; State v O'Shields, 163 SC 408, 161 SE 692; McAlister v State, 45 Tex Crim 258, 76 SW 760.

Without regard to any previous confederation or design, when two or more persons aid and abet each other in the commission of a crime, all being present, all are principals and equally guilty. State v Keller, 268 NC 522, 151 SE2d 56.

Footnote 50. Karnes v State, 159 Ark 240, 252 SW 1; People v Wilson, 76 Cal App 688, 245 P 781; Powers v Commonwealth, 110 Ky 386, 61 SW 735, supp op 110 Ky 462, 63 SW 976.

Footnote 51. Alt v State, 88 Neb 259, 129 NW 432; Buchanan v State, 4 Okla Crim 645, 112 P 32; Thompson v State, 105 Tenn 177, 58 SW 213.

Defendant's quotation of the price and his bringing together of the buyers and the seller constitute sufficient involvement to implicate him as a principal in the commission of the offense of sale of marijuana.  State v Hubbard (Fla App D2) 328 So 2d 465.

The driver of a getaway car is present at the scene of the crime, and he is a principal rather than an accessory before the fact.  State v Lyles, 19 NC App 632, 199 SE2d 699, cert den 284 NC 426, 200 SE2d 662.

Footnote 52.  § 167, supra.


§ 169  Principals in first and second degrees  [21 Am Jur 2d CRIMINAL LAW]

At common law a principal in the first degree was one who did the act either in person or through an innocent agent. 53   A principal in the second degree was present at the time a crime was committed, lending countenance, aid, or encouragement, or keeping watch at some convenient distance while another person did the actual criminal act. 54   The immediate presence of a party was not necessary to qualify him for the role of a principal in the second degree. 55    It was sufficient if, pursuant to an agreement, he was in a position to give any necessary aid to the perpetration of the offense. 56   While a bystander, without more, was not deemed a principal, 57  his unexplained presence at the place of the commission of a crime might be considered as a circumstance tending to show complicity in the transaction. 58

Under many statutes, the distinction between principals of the first and second degree is not of much practical importance, and in some instances is entirely abolished.  The statutes in varying terms make all persons who are present and concerned in the commission of a crime guilty as principals. 59     


§ 169  – Principals in first and second-degrees [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

A person who actually commits an offense or who is present when another commits the offense and does some act in furtherance of the crime is a principal in the first-degree, while a person who is actually or constructively present when the crime is committed and who aids or abets another in its commission is a principal in the second-degree, and both are equally guilty. State v Davis, 301 NC 394, 271 SE2d 263.

A letter by defendant's counsel offering to waive the preliminary hearing and the grand jury indictment, and offering to have defendant plead guilty to third-degree burglary, did not prevent a subsequent prosecution for second-degree burglary, where the letter was sent to the district attorney at the time a complaint was issued, where although defendant could plead guilty to an information there was no authority for pleading guilty to a complaint, where the letter was insufficient to constitute either an effective waiver of the hearing or the proceeding or an effective plea of guilty, and where the purpose of allowing a guilty plea was to save defendant the expense and ordeal of trial, not to allow him to plead guilty to a charge less serious than was warranted by the facts. People v Montanye (1983, 3d Dept)  95 App Div 2d 959, 464 NY S2d 292.

Footnotes

Footnote 53. United States v Gooding,  25 US 460,  6 L ed 693; Johnson v State, 142 Ala 70, 38 So 182; State v Wilson, 235 Iowa 538, 17 NW2d 138; State v Minton, 234 NC 716, 68 SE2d 844;  31 ALR2d 682; Pierce v State, 130 Tenn 24, 168 SW 851; Red v State, 39 Tex Crim 667, 47 SW 1003.

Footnote 54. State ex rel. Dooley v Coleman, 126 Fla 203, 170 So 722; State v Wilson, 235 Iowa 538, 17 NW2d 138; State v Turner (Mo) 272 SW2d 266,  48 ALR2d 1008; State v Minton, 234 NC 716, 68 SE2d 844,  31 ALR2d 682; Pierce v State, 130 Tenn 24, 168 SW 851; Brown v Commonwealth, 130 Va 733, 107 SE 809.

To sustain a conviction of defendant as a principal in the second degree, the state's evidence was present, actually or constructively, with the intent to aid the perpetrator in the commission of the offense should his assistance become necessary and that such intent was communicated to the actual perpetrator. State v Rankin, 284 NC 219, 200 SE2d 182.

Footnote 55. Johnson v United States,  157 US 320,  39 L Ed 717,  15 S Ct 614; Pennington v State, 91 Fla 446, 107 So 331; State v Shon, 47 Hawaii 158, 385 P2d 830; Anarchists' Case, 122 Ill 1, 12 NE 865, error dismd  123 US 131,  31 L Ed 80,  8 S Ct 22; Commonwealth v Hollister, 157 Pa 13, 27 A 386.

An accused who waits at the scene of a crime to assist the actual perpetrators in getting away may properly be charged as a principal; presence of accused at the scene of the crime is to be determined not by mere spatial continguity but rather by the purpose to be served by waiting.  State v Raniello 113 RI 71 317 A2d 440.

Footnote 56. Pennington v State, 91 Fla 446, 107 So 331; State v Shon, 47 Hawaii 158, 385 P2d 830; Cavert v State, 158 Tenn 531, 14 SW2d 735.

Footnote 57. People v Woodward, 45 Cal 293; People v Cione, 293 Ill 321, 127 NE 646; People v Chapman, 62 Mich 280, 28 NW 896; State v Larkin, 250 Mo 218, 157 SW 600.

Mere presence of a nonparticipant when a criminal offense is committed does not constitute him a principal in the crime in the absence of evidence that he gave active encouragement to the actual perpetrator of the crime or made it known to the perpetrator that assistance was available if needed. State v Ham, 238 NC 94, 76 SE2d 346.

Footnote 58. People v Woodward, 45 Cal 293.

A person's presence at the scene of an offense may be considered in connection with other circumstances in determining whether he is a principal therein.  State v Cummings, 49 Hawaii 522, 423 P2d 438.

Proof that a person is present at the commission of a crime without disapproving or opposing it is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented, lent his countenance and approval to the act, and was thereby aiding and abetting. State v De Falco, 8 NJ Super 295, 74 A2d 338, certif den 5 NJ 483, 76 A2d 22.

Footnote 59. Ruthenberg v United States,  245 US 480,  62 L Ed 414,  38 S Ct 168; Kelly v United States (CA8 Neb) 61 F2d 843; 338; Pinson v Young, 100 Kan 452, 164 P 1102; State v Yohe, 203 Kan 855, 457 P2d 12; People v Galbo, 218 NY 283, 112 NE 1041,  2 ALR 1220; Haas v State, 103 Ohio St 1, 132 NE 158; Campbell v State, 63 Tex Crim 595, 141 SW 232.

A person not a fiduciary may be convicted of embezzlement if he has aided or abetted a fiduciary in the commission of the crime, where a statute provides that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet or advise and encourage its commission, are principals.  Gibbs v State, 37 Ariz 273, 293 P 976.

A federal statute provides that whoever directly commits any act of constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.  Kaufman v United States (CA2 NY) 212 F 613.

The distinction between principals in the first and second degree, in felony cases, has been abrogated in Idaho.  State v Oldham, 92 Idaho 124, 438 P2d 275.

One present when a forcible trespass is committed by another with a show of force, aiding and abetting the trespasser in what he does, is himself guilty of forcible trespass.  State v Tyndall, 192 NC 559, 135 SE 451.


§ 170  – Manner of aiding  [21 Am Jur 2d CRIMINAL LAW]

Advice or encouragement given by words, acts, or signs may make one a principal in a felony. 60  So, a person may be a principal who watches at a proper distance to prevent surprise while others commit the unlawful act. 61  


§ 170  – Manner of aiding [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Direct personal involvement constitutes violation of 18 USCS §  2 and 21 USCS §  841 where defendant came into room with gun, knowing that marijuana and cocaine would be present and deliberately gave gun to another defendant agreeing that it should be hidden along with measurable quantities of marijuana and along with cocaine that was intended for distribution. United States v Irizarry (1982, CA1 Puerto Rico) 673 F2d 554.

All persons participating in a crime are principals of the first or second-degree; the actual perpetrator is a principal of the first-degree, while a person who does not commit the crime with his own hands but is present, aiding or abetting the actual perpetrator, is a principal of the second-degree. State v Lowery (1982, Fla) 419 So 2d 621.

Footnotes

Footnote 60. Brennan v People, 15 Ill 511.

To aid and abet another in the commission of a crime means to assent to an act or to lend countenance or approval either by active participation in it or by in some other manner encouraging it.  State v Myers, ---- (Iowa) ----, 158 NW2d 717.

Footnote 61. State v Turner (Mo) 272 SW2d 266,  48 ALR2d 1008; State v Weekley, 40 Wyo 162, 275 P 122.


§ 170.5  -- Criminal Facilitation [NEW]  [21 Am Jur 2d CRIMINAL LAW]

Conviction for criminal facilitation in fourth-degree pursuant to CLS Penal §  115.00(1) would be reversed and indictment would be dismissed where defendant shouted "Police! Police!" outside door of apartment as police officers were about to execute search warrant to look for drugs and related paraphernalia, since statute clearly contemplated that facilitated crime must occur in future, after intervention of facilitator, and at time of defendant's warning, felony of drug and paraphernalia possession by occupants of apartment was complete. People v Llanos (1989, 1st Dept)  151 App Div 2d 128, 546 NY S2d 584, app gr  75 NY2d 870, 553 NYS2d 301, 552 NE2d 880 and app gr  75 NY2d 870, 553 NYS2d 301,552 NE2d 880 and motion to dismiss app den  76 NY2d 746, 558 NYS2d 485, 557 NE2d 778 and affd  77 NY2d 866, 568 NYS2d 723, 570 NE2d 1072.


§ 171  – Intent  [21 Am Jur 2d CRIMINAL LAW]

Where a crime requires the existence of a particular intent, an alleged aider or abettor cannot be held as a principal unless it is established that the aider knew that the perpetrator of the act had the required intent, 62  or that the aider himself possessed the required felonious intent. 63    If the intent of the aider is different from that of the perpetrator, the aider's guilt is measured by the intent that actuated him, though this may result in making him liable for a graver offense. 64

To prove a violation of the federal aiding and abetting statute, 65   the government must show that the defendant associated himself with the venture, participated in it as in something he wished to bring about, and sought by his action to make it succeed; and to prove association with the venture, there must be evidence that the defendant shared the state of mind required for the statutory offense, although defendant need not have the exact intent as the principal; but such criminal intent, often difficult to demonstrate by direct proof, may be inferred from the surrounding circumstances. 66

If one with felonious intent aids another in an act that the aider believes to be a crime, but the person aided had no criminal intent and was merely giving others an opportunity to catch the aider in the commission of an offense, the aider is not guilty of a crime unless in rendering his aid he has committed every overt act necessary to the commission of a crime. 67


§ 171  – Intent [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Individual with requisite criminal intent may be liable as principal if he is cause in fact in commission of crime, notwithstanding that proscribed conduct is achieved through actions of innocent intermediaries. United States v Margiotta (1982, CA2 NY) 688 F2d 108.

In prosecution for aiding and abetting sale of narcotics defendant satisfies intent requirement where he was catalyst who put transaction together, he clearly knew what was going on, and he intended by his actions to make illegal venture succeed. United States v Winston (1982, CA6 Tenn) 687 F2d 832.

In a robbery prosecution against the man who drove the perpetrators from the scene of the crime, the trial court's instructional error in not requiring the jury to find that defendant intended to aid the perpetrators was harmless error beyond a reasonable doubt, where the jury found, pursuant to the instruction given, that defendant had knowledge of the perpetrators' intent to commit a robbery and where all of defendant's behavior after the robbery took place was consistent only with that conclusion. From such knowledge, an inference that defendant intended to aid the perpetrators followed of necessity. Further, automatic reversal was not required, even though the error was of federal constitutional proportions, since, in the setting of the instant case, the error was both unimportant and insignificant. People v Benson (1982, 1st Dist) 130 Cal App 3d 1000, 180 Cal Rptr 921.

In a prosecution for attempted murder and other crimes arising out of the robbery of a jewelry store, in which defendant's only participation was as an aider and abettor by his driving the getaway car, it was not essential that it be proved that defendant harbored the specific intent to kill or that he intended to facilitate the offense of attempted murder, since all that was necessary for defendant to share in the perpetrator's intent was that defendant knowingly intended to assist the perpetrator in committing the planned crime which was shown by his agreement to drive the getaway car. Once that intent is formed, the liability of an aider and abettor then extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aided and encouraged and the perpetrator's commission of an attempted murder in the robbery was foreseeable from his possession of a gun and a pillow to use as a silencer. People v Hammond (1986, 1st Dist) 181 Cal App 3d 463, 226 Cal Rptr 475.

In a prosecution for burglary (Pen. Code, § 459), robbery (Pen. Code, § 211), and mayhem (Pen. Code, § 203), the trial court's error in failing to instruct that an aider and abettor must act with the intent to further the perpetrator's criminal purpose was harmless, where the necessary intent was established as a matter of law and no contrary evidence worthy of consideration existed. Defendant's fingerprint was found on the weapon used to beat the victim, the defense consisted primarily of attempts to impeach a witness who testified that defendant beat the victim and to establish that defendant's confession was involuntary, and the jury specifically found that defendant had personally inflicted great bodily harm in the commission of the crimes. People v Barker (1986, 5th Dist) 182 Cal App 3d 921, 227 Cal Rptr 578.

Pattern jury instructions on aiding and abetting are flawed if they fail to advise the jury not only that the defendant must have had knowledge of the criminal purpose of the perpetrator of the offense but also that he must have shared that purpose or intended to commit, encourage, or facilitate the commission of the crime. People v Johnson (1986, 2d Dist) 190 Cal App 3d 187, 237 Cal Rptr 479.

In order to be convicted of a crime on a theory of aiding and abetting, there must be proof that the defendant acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. When the definition of the offense includes the intent to do some act or achieve some consequence beyond the actus reus of the crime, the aider and abettor must share the specific intent of the perpetrator. That is, an aider and abettor must know the full extent of the perpetrator's criminal purpose and give aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime. The liability of an aider and abettor also extends to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages. People v Beeman (1984) 35 Cal 3d 547; 199 Cal Rptr 60, 674 P2d 1318.

Footnotes

Footnote 62. Chapman v State, 43 Tex Crim 328, 65 SW 1098.

The evidence was sufficient to convict the defendant as an aider and abettor in the delivery of marijuana and cocaine, where the defendant told the prospective purchaser where to go and whom to contact, where the defendant himself tried to locate the seller, and where there was adequate proof of a sale, notwithstanding that the purchaser did not buy from the individual the defendant had instructed her to contact; criminal intent could not be found lacking on the basis that the defendant's accomplice was a law enforcement agent, where the evidence established that the defendant's accomplice was a confidential informant with a law enforcement agency, but had no authority to deal in drugs.  Beasley v State (Fla App D4) 360 So 2d 1275.

Although the word "aid" does not imply guilty knowledge or felonious intent, the word "abet" includes knowledge of the wrongful purpose of the perpetrator as well as counsel and encouragement in the crime.  State v Hinkley, 52 Wash 2d 415, 325 P2d 889.

Footnote 63. Coffin v United States,  162 US 664,  40 L Ed 1109,  16 S Ct 943; Woolweaver v State, 50 Ohio St 277, 34 NE 352.

Intent is seldom capable of direct proof.  It is usually inferred from the proved surrounding circumstances.  State v Kneedy, 232 Iowa 21, 3 NW2d 611.

Participation in criminal intent may be inferred from one's presence in and near the scene of the crime, and his conduct before or after the offense is committed.  State v Myers, ---- (Iowa) ----, 158 NW2d 717.

Footnote 64. Red v State, 39 Tex Crim 667, 47 SW 1003.

Footnote 65. 18 USCS §  2.

Footnote 66. United States v Beck (CA7 Ill) 615 F2d 441.

Footnote 67. State v Hayes, 105 Mo 76, 16 SW 514 (ovrld on other grounds State v Barton 142 Mo 450, 44 SW 239); State v Currie, 13 ND 655, 102 NW 875.


§ 172  Accessories before the fact  [21 Am Jur 2d CRIMINAL LAW]

An accessory before the fact is a person whose will contributes to a felony committed by another as principal, and yet who is too far away to aid in the felonious act. 68   A statute may abolish the common-law distinction between an accessory before the fact and a principal, 69  and provide that an accessory may be indicted, tried, and convicted as a principal. 70    

Either advising or encouraging the commission of a criminal offense is sufficient to constitute one an accessory before the fact. 71   Mere concealment of knowledge that a felony is to be committed does not, however, make the party concealing it an accessory before the fact. 72

Practically all felonies except treason admit of accessories before the fact. 73  

In cases of misdemeanors, all who aid and abet, as well as those who perpetrate the acts, are principals. 74    In other words, there are no accessories at common law in the commission of misdemeanors. 75   It is said that the reason for this rule is that the law does not distinguish the different shades of petty offenses. 76


§ 172  – Accessories before the fact [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Reindictment after defendant's successful exercise of procedural right which reformulates charges to increase chance of conviction does not penalize defendant for exercise of his procedural rights since only "penalty" is normal risk of conviction faced by all litigants if prosecution decides to retry case after procedural motions. United States v Motley (1981, CA9 Cal) 655 F2d 186.

The defendant, who was convicted as an accessory before the fact to first-degree murder, was a capital defendant as that term is used in ALM GL ch 278 § 33E, which vests exclusive appellate jurisdiction in capital cases in the Supreme Judicial Court. Commonwealth v Angiulo (1993) 415 Mass 502, 615 NE2d 155, summary op at (Mass) 21 M.L.W. 2881.

Jury verdict finding defendant guilty of armed robbery as an accessory before the fact was amply supported by testimony of state's principal witness, the person who actually assaulted and wrestled jewels from the victim, that defendant masterminded the crime, which testimony was corroborated by another witness, and by testimony of the defendant placing himself with the co-defendants before the fact and with the stolen jewels on the evening of the crime. Malone v State (1986, Miss) 486 So 2d 360, later proceeding (Miss) 486 So 2d 367.

A jury instruction on accessory before the fact was inadequate where it did not instruct the jury to find beyond a reasonable doubt that the crime was actually committed, but only instructed the jury to determine whether the defendant was an accessory before the fact, leaving them to assume that the occurrence of the crime was an established fact. Wilson v State (1991, Miss) 592 So 2d 993.

In a prosecution for accessory after the fact to voluntary manslaughter where the trial court stated that if defendant "knowing Horne and Lagree or Horne or Lagree could have committed the crime of voluntary manslaughter, assisted Horne or Lagree in escaping or attempting to escape detection, arrest or punishment by concocting a story which was not true ... ," then he should be found guilty, the trial court committed prejudicial error. One item of proof of the crime of accessory after the fact is that the accused knew that the felony had been committed by the person assisted, and "considering all of the circumstances of the case" the error was prejudicial. G.S. 15A-1232. State v Earnhardt (1982) 307 NC 62, 296 SE2d 649.

There was substantial evidence of each of the three elements of accessory before the fact of murder where (1) there was testimony that defendant agreed to pay the principal $30,000.00 out of the insurance proceeds on her husband's life if the principal would kill defendant's husband, (2) the jury could reasonably infer that defendant was not present when the principal shot her husband, and (3) the principal admitted that he was the one who shot defendant's husband after lying in wait for him. Defendant's life sentence was proper in that the Legislature abolished the difference in guilt and sentencing treatment between the principal to the felony and an accessory by repealing G.S. 14-5, G.S. 14-5.1 and G.S. 14-6 and replacing them with G.S. 14-5.2. State v Woods (1982) 307 NC 213, 297 SE2d 574.

The trial court did not err by denying defendant's motions to dismiss charges of accessory before the fact to first-degree murder, first-degree burglary, armed robbery, and first-degree arson where an accomplice testified that the only purpose in going to the property was to steal items and there was no murder, arson, or robbery planned. Once an accessory before the fact has counseled, procured or planned a criminal event, he or she must answer for all crimes flowing from the accomplished event. State v Marr (1994) 113 NC App 774, 440 SE2d 275.

Footnotes

Footnote 68. Kaufman v United States (CA2 NY) 212 F 613; Moore v Lowe, 116 W Va 165, 180 SE 1, cert den  296 US 574,  80 L Ed 406,  56 S Ct 130 and (disapproved on other grounds State ex rel. Muldrew v Boles 151 W Va 1033, 159 SE2d 36).

At common law an "accessory before the fact" is one who, though not the chief actor in the offense or present at its performance, is in some way concerned therewith before the fact; one who, though absent at the time of the offense, yet procures, counsels, or commands another to commit it. Pierce v State, 130 Tenn 24, 168 SW 851.

At common law an accessory before the fact was one who was not actually or constructively present at the commission of the crime, but who procured, counseled, or commanded another to commit it. State v Wilson, 235 Iowa 538, 17 NW2d 138.

An accessory before the fact is distinguishable from an aider and abettor by the fact that the latter must be present at the commission of the offense. Sams v Commonwealth, 294 Ky 393, 171 SW2d 989.

Defendant was properly convicted of selling more than one kilogram of marijuana to an undercover agent, even though he did not personally deliver the marijuana to the agent, where the proof showed his participation as an accessory before the fact, thus rendering him subject to indictment and punishment as a principal. McGowan v State (Miss) 375 So 2d 987.

Footnote 69. Von Patzoll v United States (CA10 Okla) 163 F2d 216, cert den  332 US 809,  92 L Ed 386, 387,  68 S Ct 110, 111.

The distinction between an accessory before the fact and a principal in felony cases, has been abrogated in Idaho.  State v Oldham, 92 Idaho 124, 438 P2d 275.

Footnote 70. Burnett v People, 204 Ill 208, 68 NE 505; Commonwealth v Hicks, 118 Ky 637, 82 SW 265; State v Whitman, 103 Minn 92, 114 NW 363; People v Galbo, 218 NY 283, 112 NE 1041; State v Hopkins, 147 Wash 198, 265 P 481; cert den  278 US 617,  73 L Ed 540,  49 S Ct 21; State v Weekley, 40 Wyo 162, 275 P 122.

See State ex rel. Muldrew v Boles, 151 W Va 1033, 159 SE2d 36, holding that the West Virginia statute providing that every accessory before the fact shall be punishable as if a principal in the first degree, does not dispense with the need to indict, prosecute, and punish an accessory before the fact as such, and does not allow him to be indicted or convicted as a principal.

Footnote 71. Powell v State, 177 Ark 938, 9 SW2d 583.

Footnote 72. Smith v State, 23 Tex App 357, 5 SW 219.

Footnote 73. Kaufman v United States (CA2 NY) 212 F 613; State v Burns, 82 Conn 213, 72 A 1083; People v Bliven, 112 NY 79, 19 NE 638.

That all persons participating in or contributing to treasonable acts are principals, see 70 Am Jur 2d,  Sedition, Subversive Activities, and Treason § 13.

Footnote 74. United States v Mills  32 US 138  8 L Ed 636; Kaufman v United States (CA2 NY) 212 F 613; Slaughter v State, 113 Ga 284, 38 SE 854; State v Stark, 63 Kan 529, 66 P 243; Commonwealth v Brown, 154 Mass 55, 27 NE 776; Kansas City v Lane (Mo App) 391 SW2d 955; People v Bliven, 112 NY 79, 19 NE 638; State v Jones, 83 NC 605.

Footnote 75. Smith v State, 221 Miss 184, 72 So 2d 215; State v De Falco, 8 NJ Super 295, 74 A 2d 338, certif dismd 5 NJ 483, 76 A2d 22.

Footnote 76. State v Buzzell, 58 NH 257.


§ 173  – Effect of withdrawal of aid and advice  [21 Am Jur 2d CRIMINAL LAW]

If the accessory withdraws his aid and advice before the crime is committed and communicates that fact to the person he previously inspired to commit the offense, he will not be liable if the crime is committed as the result of some new and intervening cause.  But a mere change of mind will not of itself exonerate the accessory. 77  

Footnotes

Footnote 77. Karnes v State, 159 Ark 240, 252 SW 1.

Practice Aids: Withdrawal from or Abandonment of Criminal Enterprise.   8 Am Jur Proof of Facts 2d 231.


§ 174  Accessories after the fact  [21 Am Jur 2d CRIMINAL LAW]

At common law, an accessory after the fact is one who, knowing that a felony has been committed by another, receives, relieves, comforts, or assists the felon, or in any manner aids him to escape arrest or punishment. 78    This is similar to statutory definitions. 79   Under one statute an accessory after the fact is a person who, after full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime. 80   

To be guilty as an accessory after the fact one must have known that a completed 81  felony was committed 82  and that the person aided was the guilty party, 83  and the person charged must have had an intention to shield the felon from the law. 84   

It is deemed that an accessory after the fact commits an offense separate and distinct from the crime of the principal. 85  Thus, the accessory must be charged and prosecuted for an offense not included in the criminal act of the principal. 86


§ 174  – Accessories after the fact [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Defendant's perjured testimony that was intended to persuade district court to grant drug distribution conspirators new trial was in respect to criminal offense of drug conspiracy within meaning of § 2J1.3(c)(1) and thus cross-reference to accessory after the fact § 2X3.1 applied, even though defendant, an unindicted coconspirator, was never convicted of underlying offense. United States v Colbert (1992, CA6 Mich) 977 F2d 203.

Post-offense aid that is not accompanied by an intent that the principal may avoid or escape from arrest, trial, conviction, or punishment is either not criminal or is culpable only under a statute pertaining to particular conduct, such as receiving stolen property. People v Brady (1987, 3d Dist) 190 Cal App 3d 124, 235 Cal Rptr 248.

In interest of justice, fact that accessory may not be principal in commission of substantive felony is no longer element in crime of accessory after fact, and thus conviction of murder was not inconsistent with verdict of guilty of accessory after fact. State v Hawkins (1992) 326 Md 270, 604 A2d 489.

FS 777.03, which permits certain family members to aid a related fugitive without fear of criminal prosecution, is neither unintelligibly vague in violation of the due process clause, nor irrationally conceived in violation of the equal protection clause; the terms "consanguinity" and "affinity" as used in such statute are synonymous with "blood" and "marriage," and the list of protected relatives in the statute is thus sufficiently definite so that people of common understanding and intelligence need not guess at its meaning. State v H. (1982, Fla App D4) 421 So 2d 62.

Footnotes

Footnote 78. Skelly v United States (CA10 Okla) 76 F2d 483, cert den  295 US 757,  79 L Ed 1699,  55 S Ct 914; Higgins v State, 136 Ark 284, 206 SW 440; Levering v Commonwealth, 132 Ky 666, 117 SW 253.

Footnote 79. State v Jones, 91 Ark 5, 120 SW 154; Reynolds v People, 83 Ill 479; State v Young, 7 Ohio App 2d 194, 36 Ohio Ops 2d 335, 220 NE2d 146; Blakely v State, 24 Tex App 616, 7 SW 233.

Footnote 80. Lowe v People, 135 Colo 209, 309 P2d 601.

Defendant was properly convicted of being accessory after the fact to homicide in violation of 18 USCS §  3, as sufficient evidence existed that felony had been committed, that defendant had actual knowledge of participants in crime, and that with such knowledge defendant in some way assisted participants in order to hinder or prevent their apprehension, trial, or punishment; it was not error for trial court to deny defendant's motion to require government to proceed either on count charging homicide in violation of 18 USCS §  1111(a) or count charging accessory after the fact since there was acquittal on homicide count and no prejudice was shown. United States v Day (CA10 Okla) 533 F2d 524.

Footnote 81. Reynolds v People, 83 Ill 479; Harrel v State, 39 Miss 702.

Footnote 82. Harris v State (Miss) 290 So 2d 924; State v Williams, 229 NC 348, 49 SE2d 617.

Footnote 83. Roberts v People, 103 Colo 250, 87 P2d 251; Harris v State (Miss) 290 So 2d 924.

Footnote 84. Harris v State (Miss) 290 So 2d 924; State v Potter, 221 NC 153, 19 SE2d 257.

Statement made by the sister of a bank robber to FBI agents in the course of admitting complicity in a robbery to the effect that the brother had told her he had not been photographed by a bank surveillance camera would be admissible against her for acting as accessory after the fact in a bank robbery in violation of 18 USCS §  3; although the sister had originally told the FBI agents in search of the brother that she did not know how to contact the brother, after the agents left her she met the brother at a certain place, and the brother's statements were made at that occasion; her statement shows that she concealed from the FBI that she knew how to contact the brother whom she knew had committed the offense.  United States v Garris (CA2 NY) 616 F2d 626, cert den  447 US 926,  65 L Ed 2d 1119,  100 S Ct 3021.

Footnote 85. Chambers v State, 194 Ga 773, 22 SE2d 487, ans conformed to 68 Ga App 338, 23 SE2d 545; People v Zierlion, 16 Ill 2d 217, 157 NE2d 72; State v Sullivan, 77 NJ Super 81, 185 A2d 410.

The statutory accessory "during the fact" cannot be charged as a principal.  Martinez v People, 166 Colo 524, 444 P2d 641.

Footnote 86. State v Key (Mo) 411 SW2d 100.


C.  Trial and Punishment of Joint Offenders [175-178]

§ 175  Trial of aider and abettor – necessity that principal be first convicted  [21 Am Jur 2d CRIMINAL LAW]

An aider and abettor before the fact is fully responsible for the acts of the actual perpetrator of an offense, 87  and he may be indicted or tried separately or jointly with the principal. 88   At common law, however, the aider and abettor could not, unless he consented, be tried before the principal, 89  and conviction of the principal was necessary before the conviction of an aider or abettor could be sustained. 90   Under this rule a mere conviction by the verdict of a jury was not sufficient. 91

A statute may provide that an aider or abettor may be prosecuted and punished as if he were the principal offender, 92  or that he may be tried separately, notwithstanding the fact that the principal has not been tried. 93  Under such provisions an aider or abettor may be tried before the principal offender, 94  and a conviction may be sustained without showing the conviction of the principal. 95       
    

§ 175  – Trial of aider and abettor–necessity that principal be first convicted [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Criminal procedure–the availability of severance based on the claim of antagonistic defenses– Commonwealth v Chester, 587 A2d 1367 (Pa. 1991), 65 Temp LR 1025 (1992).

Propriety of use of multiple juries at joint trial of multiple defendants in state criminal prosecution. (See also 75 Am Jur 2d, Trial § 24.5.)  41 ALR4th 1189.

Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor;  9 ALR4th 972. superseding  24 ALR 603.

Case authorities:

Rule 14 of the Federal Rules of Criminal Procedure, which permits a Federal District Court to grant a severance of defendants if it appears that a defendant or the prosecution is prejudiced by a joinder, does not require severance as a matter of law where codefendants present mutually antagonistic defenses, given that (1) such defenses are not prejudicial per se, and (2) Rule 14 does not require severance even if prejudice is shown, but Rule 14 leaves the determination of risk of prejudice and the tailoring of the relief to be granted, if any, to the District Court's sound discretion. Zafiro v United States (1993, US)  122 L Ed 2d 317,  113 S Ct 933, 93 CDOS 535, 93 Daily Journal DAR 1049, 6 FLW Fed S 861.

Aider can be convicted even where principal is acquitted in light of 18 USCS §  2 which treats aiders and abettors as principals for purposes of federal law. United States v Brunson (1981, CA7 Ind) 657 F2d 110.

In prosecution for aiding and abetting employee of federally-insured savings and loan institution to fraudulently misapply funds, conviction of aider and abettor was proper, even after employee was acquitted on grounds of insufficient evidence, since apparent inconsistency in verdicts alone did not upset jury conviction of aider and abettor, in view of fact that there was reasonable possibility of legitimate explanation for apparent inconsistency, and fact that there was sufficient evidence otherwise to support conviction. United States v Upshaw (1982, CA9 Cal) 685 F2d 1202.

Accessory after fact may be tried and convicted, notwithstanding fact that principal felon may not have been arrested, tried, convicted, or amenable to justice, but accessory after fact cannot be convicted or punished where principal felon has been acquitted. State v Chism (1983, La) 436 So 2d 464.

Under statute allowing prosecution of accomplice even if principal has been acquitted, conviction of wife who pleaded guilty to accomplice role in murder of husband would not be reversed even though principal, alleged contract killer, was acquitted. State v Kaplan (1983) 124 NH 382, 469 A2d 1354.

Where evidence was insufficient to sustain conviction of municipal agency chairman for having unlawful interest in public contract, convictions of his wife and a property grantor as aiders and abettors were also reversed. State v Jacobozzi (1983) 6 Ohio St 3d 59, 6 Ohio BR 103, 451 NE2d 744.

Footnotes

Footnote 87. State v Shon, 47 Hawaii 158, 385 P2d 830.

Footnote 88. Christie v Commonwealth, 193 Ky 799, 237 SW 660.

Footnote 89. State v Wilson, 235 Iowa 538, 17 NW2d 138.

Footnote 90. Daughtrey v State, 46 Fla 109, 35 So 397; McCarty v State, 44 Ind 214; Commonwealth v Minnich, 250 Pa 363, 95 A 565; State v Hess,  233 Wis 4, 288 NW 275.

State v Jackson, 270 NC 773, 155 SE2d 236 (in separate trial of defendant as aider and abettor, state must prove guilt of principals independent of prior plea of guilty).

Footnote 91. Daughtrey v State, 46 Fla 109, 35 So 397; Commonwealth v Minnich, 250 Pa 363, 95 A 565.

Footnote 92. United States v Mimee (DC Mich) 89 F Supp 148; Hanoff v State, 37 Ohio St 178; Pierce v State, 130 Tenn 24, 168 SW 851.

Footnote 93. Commonwealth v Hicks, 118 Ky 637, 82 SW 265.

Footnote 94. State v Fley, 4 SCL 338.

Although an accessory may be tried before the principal is tried, the accessory may defend on the ground that the commonwealth has failed to prove the commission by the principal of the felony charged.  Commonwealth v Di Stasio, 298 Mass 562, 11 NE2d 799.

Footnote 95. Von Patzoll v United States (CA10 Okla) 163 F2d 216, cert den  332 US 809,  92 L Ed 386,  68 S Ct 110; State v Jones, 91 Ark 5, 120 SW 154; Lowe v People, 135 Colo 209, 309 P2d 601; Stone v State, 118 Ga 705, 45 SE 630; Levering v Commonwealth, 132 Ky 666, 117 SW 253; State v Gleim, 17 Mont 17, 41 P 998; Cody v State (Okla Crim) 361 P2d 307,  84 ALR2d 997.

An aider and abettor constitutes a principal in the first degree, and a conviction of the original offender is not a predicate to conviction of the aider and abettor.  Blackburn v State (Fla App D4) 314 So 2d 634, cert den (Fla) 334 So 2d 603 and cert den  429 US 864,  50 L Ed 2d 142,  97 S Ct 170, reh den  429 US 933,  50 L Ed 2d 303,  97 S Ct 342.

Aiding and abetting the commission of a crime is a substantive and independent offense for which aiders and abettors may be prosecuted and convicted as principals without the trial or conviction of the principal offender.  Prosecution of an aider or abettor does not require proof beyond a reasonable doubt that the principal violated the law.  State v Graven, 52 Ohio St 2d 112, 6 Ohio Ops 3d 334, 369 NE2d 1205.


§ 176  – Effect of principal's acquittal or conviction of lesser offense  [21 Am Jur 2d CRIMINAL LAW]

The acquittal of the principal is no impediment to the trial and conviction of a person charged with aiding and abetting the commission of the crime, 96   unless a statute forbids conviction of an accessory after the principal has been tried and acquitted. 97  Neither the double jeopardy clause nor the due process clause of the Fifth Amendment forecloses putting a federal criminal defendant on trial as an aider and abettor simply because another jury has determined that his principal was not guilty of the offenses charged. 98   Likewise, an aider or abettor may be convicted of a felony although the principal has been convicted of a mere misdemeanor. 99   But if, in fact, no crime has been committed, no one can be convicted as an aider and abettor. 1   Thus, if the act alleged to be an offense is found on trial of the principal to have been justified–for instance, by the fact that the principal was acting in self-defense–no one can be convicted of being an aider and abettor of the act. 2


§ 176  – Effect of principal's acquittal or conviction of lesser offense [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor;  9 ALR4th 972. superseding  24 ALR 603.

Case authorities:

Under FS § 777.011, which provides that whoever aids or abets in the commission or attempted commission of a criminal offense is a principle in the first-degree, defendant was properly convicted as an aidor and abettor of aggravated burglary notwithstanding the fact that the actual perpetrator of the crime had been convicted only of simple burglary, in that the statute does not require evidence that the principal perpetrator has been convicted of any crime, much less the same crime for which the aidor-abettor is ultimately convicted. Moreover, to require consistency in the judgments meted out to defendant and his partner in crime would invade the province of the jury, and accordingly the judgments and sentences, although inconsistent, would be deemed independent and would stand or fall on their own merits. Potts v State (1982, Fla) 430 So 2d 900.

Where defendant, who was charged as accessory before fact, and principal were placed on trial in separate proceedings in connection with beating death of robbery victim, defendant's conviction of first-degree murder was improper since principal, who was also charged with murder, was convicted only of assault and battery. Davis v State (1977) 267 Ind 152, 368 NE2d 1149.

Subsequent acquittal of principal in first-degree does not affect trial or conviction of principal in second-degree. Jeter v State (1971) 261 Md 221,274 A2d 337.

Fact that triggerman was convicted of first-degree manslaughter did not preclude first-degree murder conviction of 15-year-old defendant tried as co-principal in ambush killing by gunshots. Daugherty v State (1982, Okla Crim) 640 P2d 558.

A defendant could bc convicted as an aider and abettor of violating FS § 847.012(1), (2), which prohibits selling harmful material depicting sexual conduct to a juvenile, if the evidence established that he had authorized, instructed, induced or otherwise caused an employee to sell the material to a juvenile notwithstanding the fact that the employee charged with personally making the sale had been acquitted in her criminal trial on the same charge. State v Glassman (1982, Fla App D4) 414 So 2d 204.

On remand in prosecution of two defendants for murder, trial court properly denied motion of defendant who was accessory to reduce charge against him to second-degree murder since the jury was only allowed to find, on double jeopardy grounds, and did find, that defendant who was principal was guilty of second-degree murder, and since alder and abettor can be tried and convicted of higher degree of crime than principal if facts support conviction. State v Wilder (1980) 25 Wash App 568, 608 P2d 270,  9 ALR4th 965.

Footnotes

Footnote 96. Roberts v People, 103 Colo 250, 87 P2d 251; Christie v Commonwealth, 193 Ky 799, 237 SW 660; State v Thompkins, 220 SC 523, 68 SE2d 465.

A criminal defendant accused of aiding and abetting in the commission of a federal offense in violation of 18 USCS §  2 may properly be convicted after the named principal has been acquitted of that offense, the enactment of § 2 rendering all participants in conduct violating a federal criminal statute "principals" and, as such, punishable for their criminal conduct regardless of the fate of the other participants; accordingly, a federal criminal defendant may properly be convicted on all counts of an indictment charging him with aiding and abetting an agent of the Internal Revenue Service in accepting unlawful compensation in violation of 26 USCS §  7214(a)(2) and 18 USCS §  2, despite the fact that the agent, the only named principal, was previously acquitted on certain of the § 7214(a)(2) violations which the defendant was accused of aiding and abetting, the defendant being entitled to no more than a fair trial at which the government bears the burden of proving beyond a reasonable doubt that the agent violated § 7214(a)(2) and that the defendant aided and abetted him in that venture.  Standefer v United States,  447 US 10,  64 L Ed 2d 689,  100 S Ct 1999.

Under a statute abolishing the distinction between an accessory before the fact and a principal, a judgment in a separate trial acquitting the actual perpetrator of the crime is neither res judicata nor a bar to the prosecution of accused of the charge against him.  State v Young (Iowa) 211 NW2d 352.

Practice Aids: Conviction of Accessory Before Fact After Acquittal of Principal.  24 Marq L Rev 164.

Footnote 97. McCarty v State, 44 Ind 214; Pierce v State, 130 Tenn 24, 168 SW 851.

Footnote 98. Standefer v United States,  447 US 10,  64 L Ed 2d 689,  100 S Ct 1999.

Footnote 99. Christie v Commonwealth, 193 Ky 799, 237 SW 660.

Footnote 1. Bowen v State, 25 Fla 645, 6 So 459; Mulligan v Commonwealth, 84 Ky 229, 1 SW 417; Goucher v State, 113 Neb 352, 204 NW 967.

In prosecution for aiding and abetting exportation of firearms without license, burden is on government to prove that someone committed crime of exporting without license, thus where evidence was that:  (1) weapons were purchased by defendants or coconspirators, (2) weapons came into hands of authorities in Northern Ireland, (3) there were overt and clandestine meetings and discussions concerning lawful and unlawful purchase of weapons; but Government failed to produce one scintilla of evidence concerning the illegal exportation of weapons described in indictment, evidence was insufficient for jury to find beyond reasonable doubt that offense had been committed by anyone and thus conviction for aiding and abetting would be reversed.  United States v Byrne (ED Pa) 422 F Supp 147, affd in part and vacated in part on other grounds (CA3 Pa) 560 F2d 601, cert den  434 US 1045,  54 L Ed 2d 796,  98 S Ct 890.

To aid and abet commission of crime, there must be actual crime committed. United States v Hyatt (CA2 NY) 565 F2d 229.

Trial court properly instructed the jury that in order to convict someone on the basis of aiding and abetting, the criminal actions must have been committed by someone, even though defendant did not personally commit the criminal act.  United States v Gleason (CA2 NY) 616 F2d 2, cert den  444 US 1082,  62 L Ed 2d 767,  100 S Ct 1037 and cert den  445 US 931,  63 L Ed 2d 764,  100 S Ct 1320.

Other individual must have violated substantive federal law in order for defendant to be convicted under 18 USCS §  2(b).  United States v Ruffin (CA2 NY) 613 F2d 408,  52 ALR Fed 737.

Aider and abettor may be convicted under 18 USCS §  2(b) even though principal has not been prosecuted.  United States v Ruffin (CA2 NY) 613 F2d 408,  52 ALR Fed 737.

Instructions in prosecution for violation of 18 USCS §  2 while appropriate in instructing the jury primarily on the theory that defendant was charged under subsection (a) was incorrect in addition of phrase "otherwise you must acquit" since evidence permitted conviction of defendant as "causer" under subsection (b) which was also charged; however, the error did not preclude a finding that defendant was guilty under subsection (b), since the government had sought conviction under either subsection.  United States v Ruffin (CA2 NY) 613 F2d 408,  52 ALR Fed 737.

The proof must establish that the offense was committed by someone and that the person charged as an aider and abettor did aid and abet its commission.  However, it is not necessary to identify the actual perpetrator of the crime.  He may be unknown.  The fact that one mistakenly supposed to have committed a crime was tried therefor and acquitted does not affect the guilt of one proven to have been present aiding and abetting, so long as it is established that the crime was committed by someone.  Von Patzoll v United States (CA10 Okla) 163 F2d 216, cert den  332 US 809,  92 L Ed 386,  68 S Ct 110.

One cannot be criminally liable as an aider and abettor in the commission of an act which is not in fact criminal.  United States v Zerbst (DC SC) 111 F Supp 807.

Footnote 2. Kelley v State, 79 Fla 182, 83 So 909.


§ 177  Jurisdiction and venue where offense in one jurisdiction is aided and abetted in another  [21 Am Jur 2d CRIMINAL LAW]

Unless a statute otherwise provides, an accessory before the fact operating solely from a foreign jurisdiction to abet a felonious act in another state is not triable in the state of the crime 3  if he does no act sufficient to establish actual or constructive presence in the jurisdiction where the crime is committed. 4   If, however, the jurisdiction in which the crime is committed has a statute providing that an aider or abettor shall be deemed a principal, an aider in one state who procures the commission of a crime in another state may be prosecuted and punished in the state of the crime as a principal. 5

There is a holding that the jurisdiction where the incitement to a crime originates may not punish for a crime committed in another state; 6  but a statute may provide for punishment of one who abets the commission in another state of an act that is a felony under the laws of the other state. 7

A state may provide by statute for the prosecution of an accessory before the fact in the county where the accessory acted or in the county where the principal offense was committed. 8

In misdemeanors there are no accessories and all who in any manner participate in the commission of the crime are regarded as principals. 9    Hence, if a person in one state procures the commission of a misdemeanor in another state, he is regarded as a principal in the offense and as being present at the place where it is committed and as answerable there for the crime. 10


§ 177  – Jurisdiction and venue where offense in one jurisdiction is aided and abetted in another [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

In prosecution for violation of 18 USCS §  2, government is not required to offer direct evidence of venue where circumstantial evidence as whole supports inference that crime was committed in trial district; since prior actions of coconspirators in furtherance of conspiracy are attributable to one who later joins conspiracy, conversations between defendant and codefendant and defendant's drive through particular district on way to obtain contraband are attributable to third party who later joins conspiracy outside of such district and therefore venue is properly established with respect to third party in district in which conspiracy began. United States v Davis (1982, CA5 Ga) 666 F2d 195.

Footnotes

Footnote 3. State v Sigh, 38 Del 362, 192 A 682; Johns v State, 19 Ind 421.

Footnote 4. State v Sigh, 38 Del 362, 192 A 682.

Footnote 5. Newton v People, 96 Colo 246, 41 P2d 300; State v Grady, 34 Conn 118; People v Werblow, 241 NY 55, 148 NE 786.

Footnote 6. People v Werblow, 241 NY 55, 148 NE 786.

Footnote 7. Cruthers v State, 161 Ind 139, 67 NE 930.

Footnote 8. State v Sigh, 38 Del 362, 192 A 682; State v Moore, 26 NH 448.

An aider and abettor may be tried in the district in which the principal committed the substantive crime.  United States v Buckhanon (CA8 Minn) 505 F2d 1079.

Footnote 9.  § 172, supra.

Footnote 10. State v Chapin, 17 Ark 561.


§ 178  Punishment of joint offenders  [21 Am Jur 2d CRIMINAL LAW]

Although joint actors in the commission of a crime are jointly tried and convicted, each must be separately punished as if he had committed the offense alone and each must respond in full to his own separate sentence. 11

At common law and under statutes an accessory before the fact is considered as guilty as the principal and is punished accordingly. 12    

Footnotes

Footnote 11. State v White, 125 Tenn 143, 140 SW 1059; Thompson v State, 105 Tenn 177, 58 SW 213.

Footnote 12. Warford v State, 214 Ark 423, 216 SW2d 781,  8 ALR2d 996; Chambers v State, 194 Ga 773, 22 SE2d 487, ans conformed to 68 Ga App 338, 23 SE2d 545; Spies v People, 122 Ill 1, 12 NE 865, error dismd  123 US 131,  31 L Ed 80,  8 S Ct 22; State v Wilson, 235 Iowa 538, 17 NW2d 138; Sams v Commonwealth, 294 Ky 393, 171 SW2d 989; Pierce v State, 130 Tenn 24, 168 SW 851.


D.  Criminal Responsibility for Acts of Another [179-182]

§ 179  Generally  [21 Am Jur 2d CRIMINAL LAW]

The criminal acts of one person cannot be charged to another without a showing that the other participated directly or constructively in the acts, 13   or a showing that the acts were done in furtherance of a common design or in prosecution of a common purpose for which the parties were combined. 14   But an instigator is responsible for acts done by an innocent or irresponsible person. 15

Ordinarily one person is not answerable for the misconduct of another who is not subject to contract of the first, 16  but a contractor has been held criminally liable for the act of an independent contractor. 17


§ 179  – Generally [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Circumstancial evidence was sufficient to support giving of ostrich instruction, where defendant claimed he lacked guilty knowledge of fact that check which he cashed for "Doris" for exorbitant fee was stolen, where, contrary to "Doris's" testimony, he claimed to have met her that day, but did nothing to confirm her identify; effort to avoid guilty knowledge need not be physical, but may be psychological, a cutting off of one's normal curiousity by effort of will. United States v Stone (1993, CA7 Ind) 987 F2d 469.

Person in position of "passive" defendant may be held criminally liable for failing to seek emergency medical aid for child seriously injured by "active" defendant where defendants, as adults other than parents, have undertaken by contract to provide 24-hour custodial care for child and they have physical capacity to take necessary steps to secure any required medical care. People v Wong (1993)  81 NY2d 600, 601 NYS2d 440, 619 NE2d 377.

In prosecution for aggravated kidnapping, jury was not required to accept defendant's version of facts relating to defense of duress, and could reasonably have decided that defendant voluntarily participated in kidnapping and sexual abuse of complainant where complainant testified that defendant never argued with accomplice concerning her abduction or molestation, that she never heard accomplice threaten defendant or saw him point gun at defendant, that defendant never acted afraid, mad, or upset during episode, and that defendant voluntarily engaged in and seemed to enjoy sexual activity. Thornburg v State (1985, Tex App Houston (1st Dist)) 699 SW2d 918ec.

Footnotes

Footnote 13. Partridge v State, 88 Ark 267, 114 SW 215; Louisville R. Co. v Commonwealth, 130 Ky 738, 114 SW 343; People v Joseph,  11 Misc 2d 219, 172 NYS2d 463.

Footnote 14. Butler v People, 125 Ill 641, 18 NE 338; Commonwealth v Moore, 121 Ky 97, 88 SW 1085.

Footnote 15. People v Adams (NY) 3 Denio 190, affd 1 NY 173; Red v State, 39 Tex Crim 667, 47 SW 1003.

Footnote 16. Blocker v Commonwealth, 153 Ky 304, 155 SW 723.

Footnote 17. Commonwealth v Hong, 261 Mass 226, 158 NE 759.


§ 180  Acts of confederates, coconspirators, and the like  [21 Am Jur 2d CRIMINAL LAW]

If one combines with others to accomplish an illegal purpose, he is liable criminally for everything that is done by his confederates incidental to the execution of the common design, as one of its probable and natural consequences, even though what was done was not intended as a part of the original design or common plan. 18  This is true though the defendant was not present when the act was committed. 19  This rule of criminal responsibility for the acts of others is subject to the reasonable limitation that the particular act must be shown to have been done in furtherance or in prosecution of the common object and design for which the parties were combined. 20   But if one of a number of conspirators commits a fresh and independent act, wholly outside and foreign to the common design, the others are not held equally guilty of that act. 21

Footnotes

Footnote 18. Boyd v United States,  142 US 450,  35 L Ed 1077,  12 S Ct 292; Crow v State, 52 Ga App 192, 182 SE 685; State v Shon 47 Hawaii 158, 385 P2d 830; Spies v People, 122 Ill 1, 12 NE 865, error dismd  123 US 131,  31 L Ed 80,  8 S Ct 22; Jenkins v Commonwealth, 167 Ky 544, 180 SW 961 (ovrld on other grounds Commonwealth v Barnett 196 Ky 731, 245 SW 874); People v Friedman, 205 NY 161, 98 NE 471; Conrad v State, 75 Ohio St 52, 78 NE 957.

It is not necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.  State v Joyner, 297 NC 349, 255 SE2d 390.

Footnote 19. Romero v State, 101 Neb 650, 164 SW 554; Parish v Commonwealth, 206 Va 627, 145 SE2d 192, cert den  384 US 942,  16 L Ed 2d 540,  86 S Ct 1463.

Hibernation of participant for few months did not necessarily constitute discontinuance of single criminal conspiracy, and conspiracy was not terminated simply by turnover in some of personnel absent indication that major participants viewed mutual dealings as terminated, where significant relationships in conspiracy remained intact.  United States v Panebianco (CA2 NY) 543 F2d 447, cert den  429 US 1103,  51 L Ed 2d 553,  97 S Ct 1128,  97 S Ct 1129.

Footnote 20. Butler v People, 125 Ill 641, 18 NE 338; State v Furney, 41 Kan 115, 21 P 213; Powers v Commonwealth, 110 Ky 386, 61 SW 735, supp op 110 Ky 462, 63 SW 976; State v Hickam, 95 Mo 322, 8 SW 252.

Robbery of guard during armed escape attempt was probable consequence of execution of escape plans, and all principals in attempted escape were liable for robbery.  Thompson v State (Tex Crim) 514 SW2d 275.

Footnote 21. Butler v People, 125 Ill 641, 18 NE 338; Powers v Commonwealth, 110 Ky 386, 61 SW 735, supp op 110 Ky 462, 63 SW 976; State v Darling, 216 Mo 450, 115 SW 1002.


§ 181  Acts of agents, servants, or employees  [21 Am Jur 2d CRIMINAL LAW]

Unless he in some way participates in, counsels, or approves of what the servant does, or, as it is sometimes put, unless he counsels, commands, aids, or abets, or procures the commission of, an act, 22  an employer or principal is not, in the absence of a statute, criminally liable for the acts of his employee or agent. 23   An employer is, of course, responsible if he participates with his agent or employee in the commission of a crime, 24  or if he causes the illegal act to be done, or requests, commands, or in any way authorizes it. 25  It has been said that if a servant with the consent or connivance of the master commits a felony, the servant is the principal and the employer an accessory, except that if the offense is a misdemeanor, both are principals. 26

A statute may in certain instances fix criminal responsibility on an employer or principal for an act committed by his employee or agent. 27     

Footnotes

Footnote 22. Hipp v State (Ind) 5 Blackf 149; Commonwealth v Stevens, 153 Mass 421, 26 NE 992.

Footnote 23. People v Doble, 203 Cal 510, 265 P 184; Commonwealth v Stevens, 153 Mass 421, 26 NE 992; Commonwealth v Jackson, 345 Pa 456, 28 A2d 894; Spokane v Patterson, 46 Wash 93, 89 P 402.

It is a settled rule of law that a principal is not criminally liable for the criminal act of his agent unless he authorized, consented to, advised, aided or encouraged the specific act.  An exception to this rule is the doctrine of criminal liability without fault which has been applied to criminal statutes enacted for the public morals, health, peace and safety. In general, such statutes deal with offenses of a regulatory nature and are enforceable irrespective of criminal intent or criminal negligence. People v Travers (1st Dist) 52 Cal App 3d 111, 124 Cal Rptr 728.

Footnote 24. Commonwealth v Nichols, 51 Mass 259; Commonwealth v Gillespie (Pa) 7 Serg & P 469.

Footnote 25. Commonwealth v Nichols, 51 Mass 259; State v Armstrong, 106 Mo 395, 16 SW 604; State v Baker, 199 NC 578, 155 SE 249.

Footnote 26. People v Adams, 3 Denio (NY) 190, affd 1 NY 173; State v Kittelle, 110 NC 560, 15 SE 103.

Footnote 27. Weeks v United States,  245 US 618,  62 L Ed 513,  38 S Ct 219; Knight v Commonwealth, 194 Ky 563, 240 SW 40; Commonwealth v Sacks, 214 Mass 72, 100 NE 1019; John Barth Co. v Brandy,  165 Wis 196, 161 NW 766.


§ 182  – Relation of act to employment  [21 Am Jur 2d CRIMINAL LAW]

An employer is not required to answer criminally for acts done outside the scope of the servant's authority. 28   He is not responsible unless the criminal act was the result of opportunity afforded the servant by employment in the employer's business. 29   But where the act is shown to have been one that the employee or agent was engaged to perform, the employer or principal may be held responsible. 30


§ 182  – Relation of act to employment [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

In trial for sale of controlled substance in third-degree, court erred in refusing to charge jury on agency defense where (1) undercover officer was sent to specified location to make buy of controlled substance after search warrant had been secured for specific apartment at location, (2) upon arriving at location, officer approached defendant and asked him "what's happening?" and defendant responded by asking if officer was "looking for some coke," and (3) after brief conversation, officer gave defendant $30, defendant went into building and returned with packet which he gave to officer, and officer gave defendant $1 tip; reasonable view of evidence would support inference that defendant was acting as agent of officer and receipt of tip did not, in and of itself, negate agency defense. People v Kirk (1988, 2d Dept)  143 App Div 2d 683, 532 NY S2d 925, app den  73 NY2d 856, 537 NYS2d 503, 534 NE2d 341.

Footnotes

Footnote 28. Locke v Stearns, 42 Mass 560.

Footnote 29. Hipp v State (Ind) 5 Blackf 149; Dezarn v Commonwealth, 195 Ky 686, 243 SW 921; Commonwealth v Riley, 196 Mass 60, 81 NE 881; Hall v Norfolk & W. R. Co., 44 W Va 36, 28 SE 754.

Footnote 30. Commonwealth v Gillespie (Pa) 7 Serg & R 469; Spokane v Patterson, 46 Wash 93, 89 P 402.


VI.  DEFENSES [183-335]

A.  In General [183-191]


§ 183  Generally; affirmative defenses  [21 Am Jur 2d CRIMINAL LAW]

The law sanctions many defenses in order that persons charged with crime may not be unjustly convicted or be prosecuted a second time for the same act. 31   It is the right of an accused to utilize any and all defenses in his behalf, 32  and to present as many defenses as he has or thinks he has. 33  

An affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse, or mitigate it, 34  or, as in former jeopardy, to invoke a bar arising out of facts dehors the record. 35    Every reason offered as justification or excuse for the commission of an act, however, is not accepted. 36  Although the law throws safeguards around an accused, it does not seek technical excuses to enable criminals to escape the consequences of their crimes. 37   For example, it is no defense to an indictment under one statute that the accused may also be punished under another. 38    Likewise, the death of a prosecuting witness has no effect upon the crime charged and cannot be set up as a bar to a criminal prosecution, even though it may impair the ability of the state to prove its case. 39   And, since a crime is viewed as a wrong against the state rather than an individual, it is immaterial whether a particular victim suffered physical harm, or whether there even was an individual victim of the defendant's criminal conduct. 40

Although the prosecution must prove beyond a reasonable doubt every element of the crime charged, 41   it need not disprove beyond a reasonable doubt every fact constituting an affirmative defense. Consistently with due process, a state may require a defendant to prove his affirmative defense by a preponderance of the evidence, so long as the prosecution is not thereby relieved of its burden of proving the facts constituting the crime. 42    
 

§ 183  – Generally; affirmative defenses [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Thorpe and Baumeister, The Death of Diminished Capacity and the Birth of Diminished Actuality: A Recent California Review. 8 Am J Foren Psych 21, 1990.

Fletcher, Self Defense As A Justification For Punishment, 12 Car LR 859, 1991.

Cultural conflicts in court: Should the American criminal justice system formally recognize a "cultural defense"? 99 Dick LR 1:141 (1994).

Note, The Availability of the Cultural Defense" as an Excuse for Criminal Behavior. 16 Ga J Int & Comp L 535, 1986.

Richards, The Jurisprudence of Prevention: The Right of Societal Self-Defense Against Dangerous Individuals. 16 Hast LJ 329, Spring, 1989.

Morawetz, Reconstructing the Criminal Defenses: The Significance of Justification. 77 J Crim L 277, Summer, 1986.

The Use of Necessity Defense by Abortion Clinic Protesters. 81 J Crim L 677, Fall, 1990. Moral reasoning and the criminal law: the example of self-defense, 30 Am Crim LR 97 (1992).

Battered woman syndrome evidence in the courtroom: A review of the literature. Special Issue: Expert evidence, 16 Law & Hum Behav 3:273 (1992).

Battered woman syndrome testimony: Justice is done by the expansion of the battered woman syndrome, 25 U Toledo LR 4:1039 (1995).

Trespass: state prosecution for unauthorized entry, or occupation, for public demonstration purposes, of business, industrial, or utility premises.  41 ALR4th 773.

As to religious beliefs as defense to crime; Constitutional Law § 475. 16A Am Jur Legal Forms 2d § 475.

Case authorities:

Defense contingent upon assumption of fact may not be determined upon pretrial motion. United States v Wecker (1985, DC Del) 620 F Supp 1002.

Court affirmed conviction for firearms offense, notwithstanding defendant's argument that government's conduct of undercover operation was "so outrageous as to shock the conscience of the court" and consequently violated his Fifth Amendment right to due process, where evidence revealed that defendant had not hesitated to violate law by providing automatic shotguns, but merely held out for advantageous financial arrangements, and that he had not been directly intimidated by government agents; further, confidential informant's contacts with one coconspirator and with defendant had been authorized by Internal Revenue Service as by-product of ongoing investigation of other coconspirator for money laundering. United States v Jones (1992, CA4) 976 F2d 176, cert den (US)  124 L Ed 2d 260,  113 S Ct 2351.

Court affirmed convictions for narcotics offenses, in spite of defendants' contention that reverse sting tactics used by police were unconstitutional, where police conduct had not been so outrageous as to deprive defendants of due process of law; government involvement in undercover operation may violate principles of due process only if so outrageous and shocking that it exceeds bounds of fundamental fairness. United States v Huff (1992, CA8 Minn) 959 F2d 731, 35 Fed Rules Evid Serv 414, cert den (US)  121 L Ed 2d 110,  11 S Ct 162 and cert den (US)  113 S Ct 162.

First Amendment does not provide defense to criminal charge simply because actor uses words to carry out his illegal purpose; crimes frequently involve use of speech as part of criminal transaction and use of speech in perpetrating crime does not immunize perpetrator from search or prosecution. United States v Barnett (1982, CA9 Cal) 667 F2d 835.

In prosecution under 18 USCS §  111, giving of jury instruction which would preclude acquittal based on excessive force theory of defense was not plain error, where defendants requested only general self-defense instruction and did not rely on this theory at trial, although defense asserted that instruction they offered was broad enough to encompass this theory, and they asserted it during conference in chambers; jury instruction on right of defendant to resist unlawful arrest not supported by probable cause was properly refused; instruction that told jury that officers were engaged in official duties was not reversible error, and did not foreclose acquittal based on excessive force theory of defense, although preferred course would have been to submit to jury question whether marshals were engaged in official duties. United States v Span (1992, CA9 Ariz) 970 F2d 573, 92 CDOS 6028, 92 Daily Journal DAR 9500.

Defendant's being charged with possession of marijuana and psilocybin did not violate his right to freedom of religion, although he claimed that he worshipped marijuana plants as gods and used marijuana and psilocybin in his religious practices, since religious creed is no defense to criminal charge. Rheuark v State (1992, Ala App) 601 So 2d 135, reh den, without op (Ala App) 1992 Ala Crim App LEXIS 309, cert den, without op (Ala) 1992 Ala LEXIS 945.

It is constitutional to place on a criminal defendant the burden of proving an affirmative defense. Constitutional requirements are satisfied if the prosecution is required to prove all of the essential elements of the offense. People v Tenner (1992, 2nd Dist) 10 Ca/App 4th 1251, 13 Cal Rptr 2d 200, 92 CDOS 9094, 92 Daily Journal DAR 15020.

An instruction estopping one from asserting self-defense is not proper except in the few rare cases where all the elements of estoppel are clearly present; the reason for permitting a self-defense theory to be decided by a jury far outweighs the reasons for estopping one from asserting this most basic right. Thompson v State (1992, Miss) 602 So 2d 1185.

Although defendant testified that he feared fight with decedent, he repeatedly stated that shooting was accidental; accordingly, he was not entitled to charge on self-defense. Koritta v State (1992) 206 Ga App 228, 424 SE2d 799, 92 Fulton County D R 2495, cert gr (Ga) 1993 Ga LEXIS 615.

The prevention of possible future harm does not excuse a current systematic violation of the law in anticipation of the eventual overall benefit to the public. Commonwealth v Leno (1993) 415 Mass 835, 616 NE2d 453, summary op at (Mass) 21 M.L.W. 3126.

The defendant participants in a needle exchange program to combat the spread of acquired immune deficiency syndrome could not defend in a prosecution for the distribution of hypodermic syringes without a prescription on the basis of justification by necessity since the prevention of possible future harm does not excuse a current systematic violation of the law in anticipation of the eventual overall benefit to the public. Commonwealth v Leno (1993) 415 Mass 835, 616 NE2d 453, summary op at (Mass) 21 M.L.W. 3126.

Aside from claim of mental disease or defect, defendant is under no obligation to inform state of his defense prior to trial; thus, in prosecution for robbery and kidnapping, prosecutor improperly told jury that state first learned of particular defense while case was being tried, implying defense counsel had suborned perjury or fabricated defense. State v Harris (1983, Mo App) 662 SW2d 276.

Although trial court did sufficiently instruct jury with respect to reasonable belief element of justification defense and failed to properly instruct jurors that they should consider both subjective and objective factors in determining whether defendant's conduct was reasonable, reversal of defendant's conviction in interest of justice was not warranted where there was strong evidence of guilt to rebut justification defense. People v Kopera (1992, 4th Dept)  184 AD2d 1007, 584 NYS2d 245.

Defense of justification is based on real emergency to avoid immediate public or private injury as determined by ordinary standards of morality and intelligence, and it cannot be used to legitimize unlawful action intended to limit advancement of ideas contrary to one's own. People v Scutari (1990)  148 Misc 2d 440, 560 NYS2d 943.

Where each defendant contended not only that other defendant had stabbed victim but that he himself was blameless eye-witness, defenses were irreconcilable. Woodruff v State (1992, Okla Crim) 825 P2d 273.

In a prosecution for criminal solicitation and criminal attempt based on a reverse sting operation in which undercover officers arranged to sell 100 pounds of marijuana to the defendant, the court would reject the defendant's contention that police involvement in the reverse sting operation was so outrageous that the prosecution would be barred on due process grounds. The defendant's due process rights were not violated by the fact that the police used an untrained informant who was permitted to make the initial contact without police supervision, by the fact that the police provided the defendant with a marijuana sample and offered him an opportunity to make a substantial profit or by the fact that the police used an informant who was paid a contingency fee. Commonwealth v Mance (1995, Pa) 652 A2d 299.

In a prosecution for, inter alia, recklessly endangering another person arising from the starvation death of the defendants' 14-year-old son and the malnutrition of their 12-year-old daughter, the court properly refused to instruct the jury that, if the jury found the children to be of sufficient intellect and maturity and to have voluntarily refrained from eating based on their religious beliefs, then they must conclude that the defendants did not have a legal duty to provide food to their children since the fact that the children might have been mature enough to assert a religious identity (1) had no bearing on whether they were mature enough to decide to refrain from eating for 42 consecutive days, and (2) did not dispel the defendants' duty to provide parental care, direction and sustenance. Commonwealth v Cottam (1992, Super Ct) 616 A2d 988.

In a prosecution for, inter alia, recklessly endangering another person arising from the starvation death of the defendants' 14-year-old son and the malnutrition of their 12-year-old daughter, although the defendants alleged a defense of mistake of fact in that they believed in divine intervention, they had no choice but to seek help, despite their religious beliefs, when they were faced with a condition which threatened the lives of their children. Commonwealth v Cottam (1992, Super Ct) 616 A2d 988.

In a prosecution for, inter alia, recklessly endangering another person arising from the starvation death of the defendants' 14-year-old son and the malnutrition of their 12 year-old-daughter while the defendants had about $3,000 at their disposal, the sincerity and validity of the defendants' religious beliefs were not unconstitutionally called into question by testimony that tithe money is given to a church to distribute, which contradicted the defendants' stated belief that tithe money must remain with the individual. Commonwealth v Cottam (1992, Super Ct) 616 A2d 988.

A defendant on trial for pointing and presenting a firearm was not entitled to a directed verdict based on self-defense where it was undisputed that he approached a Wildlife Officer's unmarked truck on a public road with his rifle in his hand, and the officer testified that the defendant then shouldered the gun and ordered him to stop under threat of death. State v Davis (1992, SC App) 419 SE2d 820.

Statute governing the renunciation defense, would be interpreted to mean that a person establishes the defense of renunciation if the person avoids committing the object offense and circumstances show voluntary and complete renunciation of the attempt to commit the object offense; thus, the fact that defendant's conduct constituted a completed attempt did not prevent invocation of the renunciation defense, though a rational trier of fact could have found that the evidence did not prove voluntary and complete renunciation by a preponderance. Thomas v State (1986, Tex Crim) 708 SW2d 861.

Footnotes

Footnote 31. Commonwealth v Hargreaves, 50 Pa D & C 641.

As to injunctions against criminal prosecutions and arrests, see 42 Am Jur 2d,  Injunctions §§ 188,  238-246.

Footnote 32. Tschuor v Meck, 72 Ariz 200, 232 P2d 848.

Footnote 33. People v De Rosa, 378 Ill 557, 39 NE2d 1.

Practice Aids: Clinton, The Right to Present a Defense:  An Emergent Constitutional Guarantee in Criminal Trials.  1976, 9 Ind L Rev 711.

 13 Am Jur Trials 465, Defending Minor Felony Cases.

Footnote 34. United States v Parr (CA5 Tex) 516 F2d 458; Halko v State (Sup) 54 Del 180, 175 A2d 42.

Footnote 35. As to defense of former jeopardy generally, see  §§ 243 et seq., infra.

Footnote 36. State v Swan, 55 Wash 97, 104 P 145.

Footnote 37. Ford v Commonwealth, 177 Va 889, 15 SE2d 50.

Footnote 38. State v Donahue, 75 Or 409, 144 P 755,  5 ALR 1121, adhered to 75 Or 420, 147 P 548.

Footnote 39. Commonwealth v Cunningham, 15 Ky 292

Practice Aids: Death of Prosecuting Witness.  1 Wharton's Criminal Law (14th ed) § 50.

Footnote 40. State v Forcier, 65 NH 42, 17 A 577

Practice Aids: Harm.  1 Wharton's Criminal Law (14th ed) § 75.

Footnote 41. 29 Am Jur 2d,  Evidence §§ 148, et seq.

Footnote 42. 29 Am Jur 2d,  Evidence § 156.

As to existence of affirmative defense as question for jury, see 75 Am Jur 2d,  Trial § 425.

Generally, as to weight and sufficiency of evidence and degree of proof required for defenses in criminal prosecutions, see 30 Am Jur 2d,  Evidence §§ 1160,  1176.

As to jury instructions on defenses in criminal prosecutions, see 75 Am Jur 2d,  Trial § 727.

Practice Aids: Defenses, in general.  1 Wharton's Criminal Law (14th ed) § 39.


§ 184  Good character or reputation of accused  [21 Am Jur 2d CRIMINAL LAW]

Good character or reputation of the accused is not a defense as a matter of law, but is a fact for the jury's consideration in connection with other facts. 43   The object of laying the good character of the accused before the jury is to induce them to believe, from the improbability that a person of good character would have conducted himself as alleged, that there is some mistake or misrepresentation in the evidence by the prosecution. 44    It is not a distinct, substantive defense. 45   If the evidence as a whole, including that relating to his good character, establishes his guilt beyond a reasonable doubt, the defendant should be convicted. 46 

Footnotes

Footnote 43. Hermansky v United States (CA8 Neb) 7 F2d 458; Springfield v State, 96 Ala 81, 11 So 250; State v McGuire, 84 Conn 470, 80 A 761; Greer v State, 159 Ga 85, 125 SE 52; People v Munday, 280 Ill 32, 117 NE 286; Dorsey v State, 179 Ind 531, 100 NE 369; State v Hillman, 203 Iowa 1008, 213 NW 603; Hallengren v State, 14 Md App 43, 286 A2d 213; State v Demaree (Mo) 362 SW2d 500,  17 ALR2d 312; People v Miller,  35 NY2d 65, 358 NYS2d 733, 315 NE2d 785; Heartsill v State (Okla Crim) 341 P2d 625; State v Totten, 72 Vt Cupps v State,  120 Wis 504, 97 NW 210, reh den, adhered to  120 Wis 532, 98 NW 546.

As to jury instructions on character of accused, see 75 Am Jur 2d,  Trial §§ 793-808.

As to good faith or beneficent intent of intervenor who comes to aid victim of struggle as excluding criminal liability for assault or assault and battery, see 6 Am Jur 2d,  Assault and Battery § 21.

Practice Aids: Weight and effect of character evidence.  1 Wharton's Criminal Evidence (13th ed) § 239.

Footnote 44. State v Baldwin (Mo) 349 SW2d 212; State v Barth, 25 SC 175.

As to admissibility of evidence of good character, see 29 Am Jur 2d,  Evidence §§ 339, et seq.

Footnote 45. David v State, 143 Ga App 500, 238 SE2d 557

But see Taylor v State, 13 Ga App 715, 79 SE 924, later app 17 Ga App 787, 88 SE 696, recognizing that proof of the accused's good character as a substantive fact may, in some cases, not merely raise a reasonable doubt of his guilt, but provide an absolute defense by discrediting the witness upon whose testimony the criminal charge rests.

Footnote 46. 29 Am Jur 2d,  Evidence § 1127.


§ 185  Custom or usage  [21 Am Jur 2d CRIMINAL LAW]

A custom or usage prevailing in a community or neighborhood cannot be set up as a defense to a prosecution for crime, even though such custom or usage may have been for a long time acquiesced in by the community in which it prevails. 47   It is said that custom and practice do not nullify or repeal criminal laws 48  and that the prohibited conduct is no less a crime merely because other persons in the locale customarily engage in it. 49  In other words, custom involving criminality cannot justify a criminal act, 50  and it is no defense that the accused believed that a custom permitted him to commit the crime with which he is charged. 51  Nevertheless, where public officers act in conformity with a long established local custom, there is authority for the view that an individual may assume that he will not be covertly prosecuted by such officials for accepting the validity of such custom.  Thus, the conviction of a defendant as an absconding witness has been reversed where his failure to appear before a petit jury had resulted from his being served only once with a grand jury subpoena, a procedure that was contrary to the established local custom of the public officers to issue two separate subpoenas for the attendance of witnesses before grand and petit juries. 52

Although it is generally not an excuse for the crime charged, proof of custom may be relevant to show that the accused lacked a requisite criminal intent to commit the offense. 53 


§ 185  –  Custom or usage [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Note, The Availability of the "Cultural Defense" as an Excuse for Criminal Behavior. 16 Ga J Int & Comp L 335, 1986.

Morawetz, Reconstructing the Criminal Defenses: The Significance of Justification. 77 J Crim L 277, Summer, 1986.

As to religious beliefs as defense to crime, Constitutional Law § 475. 16A Am Jur Legal Forms 2d § 475.

Case authorities:

Record established that defendant's counsel adequately warned him of penal consequences of guilty plea to charge of willful injury, and that defendant's plea had been entered voluntarily, knowingly, and intelligently, where record indicated that attorney had explained to defendant essentials of offense with which he had been charged, maximum penalty, and that previous conviction of forcible felony would render defendant ineligible for parole until he had served one-half maximum sentence, and where record indicated that defendant had attended one year of college in Panama and had served seven years in United States Army, negating his claim to difficulty with English language. Victor v State (1983, Iowa App) 339 NW2d 617.

Footnotes

Footnote 47. State v Evans (Fla App D3) 225 So 2d 548, cert den (Fla) 229 So 2d 261, cert den  397 US 1053,  25 L Ed 2d 668,  90 S Ct 1393; Bolln v State, 51 Neb 581, 71 NW 444, affd  176 US 83,  44 L Ed 382,  20 S Ct 287.

A custom by undertakers to conduct at their homes funerals of persons whose bodies they have prepared for burial at their business establishments does not justify an undertaker in doing so where he thereby violates a zoning ordinance excluding undertaking establishments from residential districts. Ullrich v State, 186 Md 353, 46 A2d 637.

Practice Aids: Custom.  1 Wharton's Criminal Law (14th ed) § 49.

Footnote 48. United States v Slapo (SD NY) 285 F Supp 513; State v Dabbs, 228 La 960, 84 So 2d 601.

Footnote 49. Reynolds v United States,  98 US 145,  25 L Ed 244; Barnes v District of Columbia, 27 App DC 101; Garrett v State, 28 Ala App 78, 178 So 825; Everhart v People, 54 Colo 272, 130 P 1076; Hendry v State, 39 Fla 235, 22 So 647; People v Klein, 305 Ill 141, 137 NE 145; Bankus v State, 4 Ind 114; Clark v Commonwealth, 111 Ky 443, 63 SW 740; Commonwealth v Perry, 139 Mass 198, 29 NE 656; State v Sugarman, 126 Minn 477, 148 NW 466; State v Welch, 73 Mo 284; Crockford v State, 73 Neb 1, 102 NW 70; Hopper v Sage, 112 NY 530, 20 NE 350; Columbus & H. Coal & Iron Co. v Tucker, 48 Ohio State 41, 26 NE 630; Jackson v National Bank of McMinnville, 92 Tenn 154, 20 SW 802; Vick v State (Tex Crim) 69 SW 156.

Footnote 50. Burnett v United States (CA6 Ky) 222 F2d 426; Smith v United States (CA9 Ariz) 188 F2d 969; State v Atkins, 205 SC 450, 32 SE2d 372 (custom of automobile dealers with reference to use of dealers' tags of license plates in violation of statute).

Footnote 51. Cain v State, 18 Ala App 624, 93 So 263 (custom for tenants of company to move improvements from any part of premises to any other part of company property without permission).

Footnote 52. Commonwealth v Wilson, 158 Pa Super 198, 44 A2d 520

Footnote 53. As to custom as proof of accused's lack of requisite fraudulent intent, see 29 Am Jur 2d,  Evidence § 304.


§ 186  Guilt of or agency for another  [21 Am Jur 2d CRIMINAL LAW]

A defendant may, by proper evidence, prove that another person committed the crime with which he is charged where the guilt of such other person is consistent with the defendant's innocence; 54   but the fact that persons other than the accused have also violated or are violating the law is no defense, 55  although the particular violation may be of long standing, 56  and although the other offenders have not been prosecuted. 57   An offender may be prosecuted under an unrepealed criminal statute that has been dormant for many years. 58   It has been said that the criminality of one person's act cannot rationally depend on whether the state decides to prosecute another, 59  and that uniform operation of criminal justice does not require the release of the guilty for failure to prosecute others equally guilty. 60   In other words, a defendant's conduct cannot be excused by showing that someone else equally guilty has not been prosecuted, but proof that another committed the crime charged is a proper defense where the other's guilt tends to prove the defendant's innocence. 61

The law of agency as applied to civil cases has no application in criminal prosecutions, 62  at least where it is specifically provided by statute that all persons concerned in the commission of a crime are principals. 63   Individuals are personally responsible for their violation of law even when committed in the course of representative action. 64   The criminal law does not recognize the doctrine of agency as a defense to a criminal charge; it deals with the person committing the overt act. 65  Accordingly, it is no defense or justification that the accused committed the alleged crime simply as an agent, 66  employee, 67     or servant 68  of another.


§ 186  – Guilt of or agency for another [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Bakker, The Defense of Obedience to Superior Orders: The Mens Rea Requirement. 17 Am J Crim L 55, Fall, 1989.

Admissibility of evidence of commission of similar crime by one other than accused  22 ALR5th 1.

Case authorities:

Where a trial court, at the defendant's request, had admitted testimony that another individual, during the course of plea negotiations for other similar offenses, had confessed to the murder and sex offense with which the defendant was charged and had stated that he acted alone, the court abused its discretion in refusing to admit corroboration of this defense claim in the form of evidence of those other offenses and the circumstances of his confession to them. People v Cruz (1994) 162 Ill 2d 314, 205 Ill Dec 345, 643 NE2d 636.

In a prosecution for sale of a controlled substance, Penal Law §§ 220.41, subd. 1 and 220.30, defendant, who had sold cocaine to an undercover agent in a transaction arranged by an informant and who, a few days later, communicated through the informant that she had a larger quantity for sale, sold the officer a larger quantity, and refused to bargain as to price on the ground that she would otherwise not make any money on the transaction, was not entitled to a charge on an agency defense where there was no evidence that defendant participated in the sale of narcotics out of a desire to accommodate a friend rather than for commercial purposes, and where, even assuming that because the first sale was based on an introduction by the informant, the jury could find that the defendant was merely acting as the informant's agent, this would not demonstrate that defendant was the buyer's agent or was acting as an extension of the buyer. People v Simpson (1982, 1st Dept)  85 App Div 2d 306, 448 N S2d 170.

Before agency charge is warranted, evidence must be indicative of relationship with buyer, not merely raise ambiguities about defendant's connection to seller. People v Herring (1994)  83 NY2d 780, 610 NYS2d 949, 632 NE2d 1272, on remand (App Div, 1st Dept) 611 NYS2d 517.

Footnotes

Footnote 54. The defense that the act was in fact done by another without the assistance or participation of the defendant is recognized.  State v Smith (Mo) 377 SW2d 241.

As to admissibility of evidence incriminating persons other than accused, see 29 Am Jur 2d,  Evidence § 441.

Footnote 55. Grell v United States (CA8 Mo) 112 F2d 861; Patterson v State, 18 Ala App 55, 88 So 360; Brown v State, 57 Ga App 838, 197 SE 77; Callan v State, 156 Md 459, 144 A 350; Caroli v Saxl, 192 Misc 887, 81 NYS2d 213; State v Stern, 64 ND 593, 254 NW 765; State v Tyler, 82 Okla Crim 112, 166 P2d 1015; McWhorter v Commonwealth, 191 Va 857, 63 SE2d 20.

Footnote 56. Caroli v Saxl, 192 Misc 887, 81 NYS2d 213

Footnote 57. United States v Rickenbacker (CA2 NY) 309 F2d 462, cert den  371 US 962,  9 L Ed 2d 509,  83 S Ct 542; United States v Manno (DC Ill) 118 F Supp 511; State v Haase, 97 Ohio App 377, 56 Ohio Ops 144, 68 Ohio L Abs 193, 116 NE2d 224: State v Mellenberger, 163 Or 233, 95 P2d 709; State v Carologos, 101 Vt 300, 143 A 284.

Practice Aids: Conviction or acquittal of another; failure to prosecute another.  1 Wharton's Criminal Law (14th ed) § 48.

Footnote 58. Everhart v People, 54 Colo 272, 130 P 1076

Footnote 59. Roy v State, 87 Nev 517, 489 P2d 1158.

Footnote 60. State v Smith (Mo) 422 SW2d 50, cert den  393 US 895,  21 L Ed 2d 176,  89 S Ct 150

Footnote 61. State v Krueger (ND) 124 NW2d 468.

Footnote 62. Medlock v State, 66 Okla Crim 27, 89 P2d 377.

Footnote 63. Beacham v State (Okla Crim) 289 P2d 397.

There can be no such thing as agency in the perpetration of a crime; all persons actively participating are principals.  Mo Yaen v State, 18 Ariz 491, 163 P 135.

Footnote 64. New York v Flynn, 140 Misc 497, 250 NYS 488.

Footnote 65. State v Chauvin, 231 Mo 31, 132 SW 243.

Footnote 66. Fisher v State, 161 Ark 586, 256 SW 858; Alt v State, 88 Neb 259, 129 NW 432; Commonwealth v Hansell, 185 Pa Super 443, 137 A2d 816; Thompson v State, 105 Tenn 177, 58 SW 213; State v Ferry Line Auto Bus Co., 99 Wash 64, 168 P 893.

The actual perpetration of a crime through a guilty agent ordinarily constitutes the agent a principal.  Commonwealth v Mannos, 311 Mass 94, 40 NE2d 291.

Whether a person who acts as an agent for another in making sales of goods is to be held penally or criminally responsible on the ground that the article sold was such as to be within the prohibition of a statute defining the character, quality, etc., of such merchandise will ordinarily depend on whether knowledge is a necessary element of the liability and, if so, on whether the agent had knowledge that the statute was not being complied with. State v Faulkner, 175 NC 787, 95 SE 171.

Footnote 67. Giugni v United States (CA1 Puerto Rico) 127 F2d 786; Leonard v State, 38 Ala App 138, 79 So 2d 803, cert den 262 Ala 702, 79 So 2d 808; La Vielle v People, 113 Colo 277, 157 P2d 621; State v Chauvin, 231 Mo 31, 132 SW 243; State v Western Union Tel. Co., 12 NJ 468, 97 A2d 480, app dismd  346 US 869,  98 L Ed 379,  74 S Ct 124; Commonwealth v Hansell, 185 Pa Super 443, 137 A2d 816.

The behest of an employer furnishes no excuse for the commission of an offense.  Cassi v State, 86 Tex Crim 369, 216 SW 1099.

Footnote 68. Lochnar v State, 111 Md 660, 75 A 586.

In criminal cases, a master-and-servant relationship may constitute both as principals.  Grantham v State, 190 Miss 887, 2 So 2d 150.


§ 187  Contributory negligence or wrongful act of person injured  [21 Am Jur 2d CRIMINAL LAW]

Contributory negligence is not available as a defense in a criminal prosecution; 69   it cannot purge an act otherwise constituting a public offense of its criminal character. 70  Specifically, one who is guilty of criminal neglgience is not relieved from criminal responsibility by the contributory negligence of the person injured or killed. 71   However, in some cases in which defendant's guilt is based on his negligence, evidence of negligence on the part of a victim of the defendant's act is admissible on behalf of the defendant as bearing on the question of his negligence. 72   Thus, although the victim's contributory negligence is not a defense, it may be considered as tending to show that the defendant was not culpably negligent or that his acts were not a proximate cause of the wrong. 73   Furthermore, it has been recognized that a felony victim's contributory negligence, though not barring conviction, may afford argument for mitigation. 74

The doctrine of particeps criminis has no place in the administration of criminal law; 75  it is no defense that the victim of a crime may also be guilty of wrongdoing. 76


§ 187  – Contributory negligence or wrongful act of person injured [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Contributory negligence of the victim is not a defense in criminal prosecutions. In order to exonerate a defendant, the victim's conduct must not only be a cause of his or her injury, it must be a superseding cause. A defendant may be criminally liable for a result directly caused by his or her act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of the defendant's original act, the intervening act is "dependent" and not a superseding cause, and will not relieve the defendant of liability. Thus, it is only an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause. People v Morse (1992, 2nd Dist) 2 Cal App 4th 620, 3 Cal Rptr 2d 343, 92 CDOS 357, 92 Daily Journal DAR 485, review den.

Footnotes

Footnote 69. United States v Kreimer (CA5 Ga) 609 F2d 126; Broxton v State, 27 Ala App 298, 171 So 390; People v Tracy (1st Dist) 199 Cal App 2d 163, 18 Cal Rptr 487; State v McKinstry, 2 Conn Cir 42, 193 A2d 905; State v Taylor, 67 Idaho 313, 177 P2d 468; State v Plasphol, 239 Ind 324, 157 NE2d 579; State v Custer, 129 Kan 381, 282 P 1071; Thiede v State, 106 Neb 48, 182 NW 570; State v Phelps, 242 NC 560, 89 SE2d 132; State v Hanahan, 111 SC 58, 96 SE 667; Keller v State, 155 Tenn 633, 299 SW 803; Fox v State, 145 Tex Crim 71, 165 SW2d 733; State v Lunz,  86 Wis 2d 695, 273 NW2d 767; Maxon v State,  177 Wis 379, 187 NW 753.

As to contributory negligence of deceased as defense in homicide cases, see 40 Am Jur 2d,  Homicide §§ 93,  113.

Footnote 70. State v Thomlinson, 209 Iowa 555, 228 NW 80.

Footnote 71. Cain v State, 55 Ga App 376, 190 SE 371; Hart v State,  75 Wis 2d 371, 249 NW2d 810.

Footnote 72. State v Phelps, 242 NC 540, 89 SE2d 132.

Footnote 73. See, for example, 7A Am Jur 2d,  Automobiles and Highway Traffic § 336; 40 Am Jur 2d,  Homicide § 113.

Practice Aids: –Contributory negligence of victim.  1 Wharton's Criminal Law (14th ed) § 47.

Footnote 74. Welch v State, 45 Ala App 657, 235 So 2d 906.

Footnote 75. State v Mellenberger, 163 Or 233, 95 P2d 709.

Footnote 76. State v Posey, 88 SC 313, 70 SE 612.

Practice Aids: –Guilt of victim.  1 Wharton's Criminal Law (14th ed) § 74.


§ 188  Accused in prison for another crime  [21 Am Jur 2d CRIMINAL LAW]

The idea that a prisoner already convicted of an offense and serving an imprisonment therefor cannot be held for another offense while in confinement seems to have had its source in the English doctrine that a person convicted of felony could not be prosecuted for another offense. 77   This was known as the plea of "autrefois attaint." 78   In the United States this doctrine is practically obsolete.  Hence, a conviction and sentence for one felony do not constitute a bar to an indictment or trial for another, and a convict, while imprisoned in the penitentiary, is not exempt from trial and sentence for another crime, whether charged to have been committed before or during such imprisonment. 79   Nor may one in prison on conviction of one crime complain if one sovereignty waives its strict right to exclusive custody of him to allow another to subject him to a prosecution for another crime. 80    

If a convict escapes while serving a sentence, and is afterward sentenced for another offense under another name assumed by him, and while serving the second sentence is recognized as an escaped convict, his imprisonment will not prevent his being compelled to serve out the unexpired former sentence. 81

Footnotes

Footnote 77. Singleton v State, 71 Miss 782, 16 So 295; Ex parte Tramner, 35 Nev 56, 126 P 337; Crenshaw v State, 8 Tenn 122; People v Flynn, 7 Utah 378, 26 P 1114; State v Keefe, 17 Wyo 227, 98 P 122.

Footnote 78. Formerly in England, because of the attainder consequent on conviction of felony, the doctrine was that a plea of autrefois attaint was a bar to prosecution for another felony of the same grade, for the reason that a second trial would be wholly superfluous.  Where, therefore, any advantage, either to public justice or to private individuals, would arise from a second prosecution, the plea would not prevent it, as where the punishment was more severe.  Blitch v Buchanan, 100 Fla 1202, 131 So 151, adhered to 100 Fla 1242, 132 So 474; Singleton v State, 71 Miss 782, 16 So 295.

Footnote 79. Kelley v Oregon,  273 US 589,  71 L Ed 790,  47 S Ct 504; Ex parte Lamar (CA2 NY) 274 F 160; affd  260 US 711,  67 L Ed 476,  43 S Ct 251; Blitch v Buchanan, 100 Fla 1202, 131 So 151, adhered to 100 Fla 1242, 132 So 474; Huffaker v Commonwealth, 124 Ky 115, 98 SW 331; Rigor v State, 101 Md 465, 61 A 631; Singleton v State, 71 Miss 782, 16 So 295; Ex parte Tramner, 35 Nev 56, 126 P 337; Commonwealth v Ramunno, 219 Pa 204, 68 A 184; Arrowsmith v State, 131 Tenn 480, 175 SW 545; State v Keefe, 17 Wyo 227, 98 P 122.

Practice Aids: –Former conviction, autrefois attaint.  1 Wharton's Criminal Law (14th ed) § 53.

Footnote 80. Ponzi v Fessenden,  258 US 254,  66 L Ed 607,  42 S Ct 309.

Footnote 81. Henderson v James, 52 Ohio St 242, 39 NE 805.


§ 189  Consent of victim or person affected  [21 Am Jur 2d CRIMINAL LAW]

The general principle is that private persons cannot license crime, and it is no excuse that the evildoer has anyone's consent thereto. 82  Invitation and consent to the perpetration of a crime do not constitute defenses, adequate excuses, or provocations. 83   But there are exceptions to this general principle, and it would be more accurate to state that whether consent of the party injured by a crime constitutes a defense depends on the character of the particular crime. 84      If the doing of a particular act is a crime regardless of the consent of anyone, consent is, of course, no excuse. Instances of crimes of this character are homicide 85   and statutory rape. 86   On the other hand, if want of consent is an element of a crime, it is equally clear that an act done with the consent of the person affected cannot be made the basis of a criminal charge. 87     Thus, one accused of rape other than statutory rape may defend on the ground that the alleged victim consented to having sexual intercourse, at least if the consent was given at any time before penetration. 88    Likewise, consent is a defense to a criminal assault or battery provided that the consent was not obtained by duress or by fraud, and provided that the act otherwise amounting to an assault or battery is not one that is prohibited by law. 89  

Where a person arranges for a crime to be committed against himself or his property and aids, encourages, or solicits the commission thereof, such facts are a good defense to the accused. 90    A charge of larceny cannot be based on a taking of property with the consent of the owner, 91    and for the same reason a taking of money or goods from the owner's person is not robbery if it is done with his consent. 92    And, since entry into a dwelling without the consent of its occupant is an indispensible element of burglary, unless otherwise provided by statute, the occupant's consent to the breaking and entering by the alleged burglar is a possible defense to that crime. 93    However, if a person does not induce, encourage, aid, or advise the commission of a crime against himself or his property, he may wait passively for a would-be criminal to perpetrate an offense 94   or create the condition under which an offense against the public may be committed, 95   and his doing so is no defense for the criminal. One who knows of a crime contemplated against him may remain silent and permit matters to go on, for the purpose of apprehending the criminal, without being held to have assented to the act. 96   

Even in those cases where the victim's consent negates a necessary element of the crime, the victim must have acted voluntarily and intelligently in the absence of fraud, threats, force, or duress. 97   Significantly, however, a distinction has been made between fraud in the fact, which vitiates consent, and fraud in the inducement, which does not.  Thus, for a crime having lack of consent as a necessary element, consent obtained through misrepresentation alone does not constitute the required element of nonconsent, unless a statute provides otherwise. 98


§ 189  – Consent of victim or person affected [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Necessity or permissibility of mental examination to determine competencyor credibility of complainant in sexual offense prosecution.  45 ALR4th 310.

Admissibility, at criminal prosecution, of expert testimony on rape trauma syndrome. (See also 65 AmJur 2d, Rape § 68.5.)  42 ALR4th 879.

Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient.  99 ALR3rd 854.

Case authorities:

Convicted rapist's federal habeas petition is denied, despite argument that state did not prove beyond reasonable doubt that victim was incapable of giving consent due to mental deficiency or disease, because evidence showed that victim suffered from epilepsy, dysthymia, and borderline personality disorder, and that she told rapist she was epileptic, and that he knew that she was slow and had mental problem. Griggs v State (1993, DC Kan) 814 F Supp 60.

Footnotes

Footnote 82. State v West, 157 Mo 309, 57 SW 1071; Davis v State, 70 Tex Crim 524, 158 SW 288.

Practice Aids: –Consent.  1 Wharton's Criminal Law (14th ed) § 46.

Footnote 83. Martin v Commonwealth, 184 Va 1009, 37 SE2d 43.

Footnote 84. State v West, 157 Mo 309, 57 SW 1071.

As to effect of victim's consent or lack thereof on crimes of abduction and kidnapping, see 1 Am Jur 2d,  Abduction and Kidnapping §§ 15-16.

As to consent as defense to charge of mayhem, see 53 Am Jur 2d,  Mayhem and Related Offenses § 12.

As to victim's consent as defense in prosecution for sodomy, see 70 Am Jur 2d,  Sodomy § 18.

Footnote 85. See 40 Am Jur 2d,  Homicide § 111.

Footnote 86. See 65 Am Jur 2d,  Rape §§ 16,  38.

Footnote 87. Allen v State, 40 Ala 334; People v Hanselman, 76 Cal 460, 18 P 425; Connor v People, 18 Colo 373, 33 P 159; Tones v State, 48 Tex Crim 363, 88 SW 217; State v Hochman,  2 Wis 2d 410, 86 NW2d 446,  77 ALR2d 784.

Footnote 88. See 65 Am Jur 2d,  Rape § 38.

Footnote 89. See 6 Am Jur 2d,  Assault and Battery § 66.

Practice Aids: –The Consent Defense:  Sports, Violence, and the Criminal Law. 1975, 13 Am Crim L Rev 235.

Footnote 90. People v Hartford Life Ins. Co., 252 Ill 398, 96 NE 1049; State v Snider, 111 Mont 310, 111 P2d 1047; State v Burnette, 242 NC 164, 87 SE2d 191,  52 ALR2d 1181.

Footnote 91. See 50 Am Jur 2d,  Larceny §§ 23,  139.

Footnote 92. See 67 Am Jur 2d,  Robbery § 29.

Footnote 93. See 13 Am Jur 2d,  Burglary §§ 10,  64.

Footnote 94. Love v People, 160 Ill 501, 43 NE 710; State v Neely, 90 Mont 199, 300 P 561; State v Burnette, 242 NC 164, 87 SE2d 191,  52 ALR2d 1181; State v Currie, 13 ND 655, 102 NW 875.

Footnote 95. People v Hartford Life Ins. Co., 252 Ill 398, 96 NE 1049; State v Burnette, 242 NC 164, 87 SE2d 191,  52 ALR2d 1181.

Footnote 96. People v Hanselman, 76 Cal 460, 18 P 425 (larceny); Lowe v State, 44 Fla 449, 32 So 956 (larceny); Thompson v State, 18 Ind 386 (burglary); Commonwealth v Nott, 135 Mass 269 (larceny from building); State v Decker, 326 Mo 946, 33 SW2d 958 (bank robbery); State v Neely, 90 Mont 199, 300 P 561 (larceny); State v Sneff, 22 Neb 481, 35 NW 219 (burglary); State v Burnette, 242 NC 164, 87 SE2d 191,  52 ALR2d 1181; State v Currie, 13 ND 655, 102 NW 875 (burglary); Commonwealth v Hollister, 157 Pa 13, 27 A 386 (larceny); Tones v State, 48 Tex Crim 363, 88 SW 217 (robbery).

The criminal liability for breaking and entering a store building and taking goods therefrom at night is not defeated by the fact that a clerk of the proprietor knew that the offense was to be committed and, at the request of an officer acting as a detective, had loaned his key in order to permit a duplicate to be made for the burglar's use, of the burglar, where it does not appear that the clerk had charge of the building or had any right to admit persons therein after it was closed for the night, and his conduct was not known to the proprietor, since the clerk's assent to the entry will not be imputed to the master.  State v Abley, 109 Iowa 61, 80 NW 225.

Footnote 97. United States v Ancarola (CC NY) 1 F 676; People v Hanselman, 76 Cal 460, 18 P 425; People v Dong Pok Yip, 164 Cal 143, 127 P 1031; Love v People, 160 Ill 501, 43 NE 710; State v Abley, 109 Iowa 61, 80 NW 225; State v Sneff, 22 Neb 481, 35 NW 219; State v Currie, 13 ND 655, 102 NW 875; Commonwealth v Hollister, 157 Pa 13, 27 A 386; People v Morton, 4 Utah 407, 11 P 512; Curran v State, 12 Wyo 553, 76 P 577.

Footnote 98. People v Harris (1st Dist) 93 Cal App 3d 103, 155 Cal Rptr 472.

Practice Aids: –Consent.  1 Wharton's Criminal Law (14th ed) § 46.


§ 190  Condonation or compromise; pendency of civil action  [21 Am Jur 2d CRIMINAL LAW]

Because a crime is by definition a public wrong, one against all the people of the state, it is ordinarily no defense that a person injured by the crime condoned the offense. 99    Although condonation or settlement with the criminal may bar the victim from recovering damages in a civil action, it generally does not prevent the state from prosecuting the offender for the crime. 1    Hence, a criminal offender cannot, by restitution, payment or otherwise, before or after the commencement of the prosecution, take away the state's right to insist upon a conviction for the crime committed. 2   Thus, for example, forgiveness, compromise, or settlement between the offender and the victim is no bar to a prosecution for seduction, in the absence of a statute providing otherwise; the victim's personal preference concerning the decision to prosecute is immaterial. 3   

There are exceptions, however, to the general rule that condonation or compromise between the offender and the victim is no defense to a criminal prosecution.  It has been held that condonation may be a defense where the crime involved is not against society or good morals, but relates solely to the redressing of wrongs involving private property. 4   Moreover, statutes may specifically authorize a compromise of both the criminal and civil liability arising out of certain conduct.  Such provisions usually allow dismissal of prosecutions for minor offenses or misdemeanors only, and require the court's consent and the injured party's acknowledgement of receipt of satisfaction for the injury. 5  

It has been said that although a father would naturally not be inclined to prosecute his own son and although any person might not be inclined to prosecute a neighbor or acquaintance who had stolen property, the offense would, nonetheless, be a crime and the state would still have an obligation to prosecute. 6  In cases where the victim is unwilling to testify against the defendant, the prosecutor may subpoena the victim and examine him as a hostile witness. 7     Furthermore, beyond the issue of condonation and compromise as defenses available to a criminal offender, a victim who agrees not to inform against or prosecute the offender in return for a reward, bribe, or reparation for injury may himself be guilty of the criminal offense of compounding a crime. 8  

When a crime is also a private wrong, the victim's right to bring a civil action to recover damages is a separate and independent remedy from the state's right to prosecute the crime. Hence, the pendency or enforcement of a civil action is no defense to the criminal charge. 9   


§ 190  – Condonation of compromise pendency of civil action [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

The legislative purpose behind allowing civil compromise of criminal offenses (Pen. Code, §§ 1377-1379) is not to insure that the victim is maximally compensated for his injury, but to remove from criminal prosecution those offenses for which there is a civil remedy available. The rationale is that the public interest in those cases is best served by requiring the accused to make restitution directly and immediately to the individual victim instead of subjecting him to criminal sanctions for the welfare of society in general. People v Stephen (1986) 182 Cal App 3d Supp 14, 227 Cal Rptr 380.

Footnotes

Footnote 99. Gilbert v United States (CA9 Cal) 359 F2d 285, cert den  385 US 882,  17 L Ed 2d 109,  87 S Ct 169; Williams v State, 126 Ala 50, 28 So 632; State v Garoutte, 95 Ariz 234, 388 P2d 809; Donohoo v State, 59 Ark 375, 27 SW 226; People v O'Rear, 220 Cal App 2d Supp 927, 34 Cal Rptr 61; Wooldridge v State, 49 Fla 137, 38 So 3; Lowe v State, 111 Ga 650, 36 SE 856; State v Fowler, 13 Idaho 317, 89 P 757; Young v People, 193 Ill 236, 61 NE 1104; Reed v Carrigan, 190 Ind 29, 129 NE 8,  13 ALR 411; State v Pingel, 128 Iowa 515, 105 NW 58; State v Dye, 148 Kan 421, 83 P2d 113; State v Dejean, 159 La 900, 106 So 374; Commonwealth v Brown, 167 Mass 144, 45 NE 1; Hilbun v State, 167 Miss 725, 148 So 365; State v Thomas, 318 Mo 605, 300 SW 823; People v Britton, 134 App Div 275, 118 NYS 989; State v Dunn, 138 NC 672, 50 SE 772; Ex parte Warford, 3 Okla Crim 381, 106 P 559; State v Cooper, 120 SC 280, 113 SE 132; State v Allen, 21 SD 121, 110 NW 92; Busby v State, 51 Tex Crim 289, 103 SW 638; Cook v Commonwealth, 178 Va 251, 16 SE2d 635; State v Austin, 93 W Va 704, 117 SE 607; Guenther v State,  137 Wis 183, 118 NW 640.

Practice Aids: –Condonation and Compromise.  1 Wharton's Criminal Law (14th ed) § 45.

Footnote 1. Commonwealth v Slattery, 147 Mass 423, 18 NE 399; State v Tull, 119 Mo 421, 24 SW 1010.

As to illegality of agreement to compromise a criminal offense, see 15A Am Jur 2d,  Compromise and Settlement § 28.

Footnote 2. Dean v State, 147 Ind 215, 46 NE 528.

Footnote 3. 70 Am Jur 2d,  Seduction § 23.

Footnote 4. Holsey v State, 4 Ga App 453, 61 SE 836; State v Engle, 111 Iowa 246, 82 NW 763.

Footnote 5. See 15A Am Jur 2d,  Compromise and Settlement § 26.

Footnote 6. Breaker v State, 103 Ohio St 670, 134 NE 479.

Footnote 7. People v Michaels, 335 Ill 590, 167 NE 857; People v Hill, 236 Mich 672, 211 NW 39; People v Burnstein, 261 Mich 534, 246 NW 217; Commonwealth v Reeves, 267 Pa 361, 110 A 158; State v Laymon, 40 SD 381, 167 NW 402, State v Lapke, 62 SD 187, 252 NW 38; Farino v State,  203 Wis 374, 234 NW 366.

As to persons subject to subpoena, in general, see 81 Am Jur 2d,  Witnesses, § 11.

Footnote 8. See 15A Am Jur 2d,  Compounding Crimes §§ 1-4.

Footnote 9. Freeman v United States,  217 US 539,  54 L Ed 874,  30 S Ct 592; Donohoo v State, 59 Ark 375, 27 SW 226; State v Keller, 8 Idaho 699, 70 P 1051; People v Kenyon, 93 Mich 19, 52 NW 1033; State v Hogard, 12 Minn 293; People v Hayes, 140 NY 484, 35 NE 951; People v Judges (NY) 13 Johns 85; Commonwealth v Hurd, 177 Pa 481, 35 A 682.

Practice Aids: –Civil or criminal action pending.  1 Wharton's Criminal Law (14th ed) § 44.


§ 191  Inconsistent defenses  [21 Am Jur 2d CRIMINAL LAW]

Generally, inconsistent defenses may be interposed in a criminal case. 10   The defenses of insanity and self-defense are inconsistent within the purview of this rule. 11  Likewise, a defendant may raise the alternative defenses of intoxication and noninvolvement in the offense. 12   On the other hand, although there is contrary authority, it has been held that a defendant who denies the offense cannot raise the defense of entrapment, since the invocation of that defense necessarily assumes that he committed the acts charged. 13  

The Federal Rule of Civil Procedure that a party may plead as many separate defenses as he has, regardless of consistency, has no counterpart in the Federal Rules of Criminal Procedure.  It has been held that no such rule would be appropriate since all possible defenses not raised by appropaiate motion are embraced within the plea of not guilty. 14  

Insanity and alibi are not inconsistent defenses; proof of one does not disprove the other.  A defendant in a criminal case may rely on both and show that he was not at the place where the crime was committed, and also introduce evidence to prove that he does not have sufficient mental capacity to be responsible for the offense charged. 15


§ 191  – Inconsistent defenses [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Cal. Pen. Code, §§ 28, 29, and 188, which bar the reduction of murder to nonstatutory voluntary manslaughter due to diminished responsibility arising from voluntary intoxication and/or mental disorder, do not bar the imperfect self-defense doctrine, which reduces an intentional killing from murder to manslaughter when a person kills under an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury. The imperfect self-defense doctrine is not a variety of the former diminished responsibility defense, which reduced the culpability of one who unlawfully and intentionally killed under mitigating circumstances. Rather, imperfect self-defense is a killing done without malice, and emanates from an individual's desire to protect himself or herself. Thus, the policy reasons behind the elimination of the diminished responsibility defense would not be met by the elimination of imperfect self-defense. In re Christian S. (1992, 4th Dist) 10 Cal App 4th 1325, 13 Cal Rptr 2d 232, 92 CDOS 9122, 92 Daily Journal DAR 15070.

Footnotes

Footnote 10. Whittaker v United States, 108 App DC 268, 281 F2d 631; Love v State, 16 Ala App 44, 75 So 189; People v West, 139 Cal App 2d Supp 923, 293 P2d 166; People v Jersky, 377 Ill 261, 36 NE2d 347; Bartram v State, 33 Md App 115, 364 A2d 1119, affd 280 Md 616, 374 A2d 1144; People v Hansma, 84 Mich App 138, 269 NW2d 504; State v Wright, 352 Mo 66, 175 SW2d 866; People v Gaimari, 176 NY 84, 68 NE 112 (ovrld on other grounds People v Miller  39 NY2d 543, 384 NYS2d 741, 349 NE2d 841).

Footnote 11. State v Morris (Mo) 248 SW2d 847.

Footnote 12. People v McLean, 52 Mich App 182, 217 NW2d 138.

Footnote 13.  § 208, infra.

Footnote 14. Henderson v United States (CA5 Fla) 237 F2d 169,  61 ALR2d 666, pointing out further that the common goal of all trials, civil or criminal, of issues of fact is to arrive at the truth, and that it would seem that inconsistent positions should be permitted according to whether they might help or hinder a search for the truth.

Footnote 15. State v Lora (Mo) 305 SW2d 452.


B.  Alibi [192-201]

1.  In General [192]

§ 192  Generally; what constitutes; purpose and effect  [21 Am Jur 2d CRIMINAL LAW]

The literal significance of the word "alibi" is "elsewhere"; 16  as used in criminal law, it indicates that line of proof by which an accused undertakes to show that because he was not at the scene of the crime at the time of its commission, 17   having been at another place at the time, 18  he could not have committed the crime.  In other words, by an alibi the accused attempts to prove that he was at a place so distant that his participation in the crime was impossible. 19   To be successful, his alibi must cover the entire time when his presence was required for accomplishment of the crime. 20   To establish an alibi, the accused must show that he was at another specified place at the time the crime was committed, thus making it impossible for him to have been at the scene of the crime.  It is not enough for the accused to say that he was not at the scene and must therefore have been elsewhere.  The latter statement does not constitute an alibi. 21   And since an alibi defense derives its potency from the physical impossibility of the accused's guilt, 22  a purported alibi that leaves it possible for the accused to be the guilty person is no alibi at all. 23  Thus, in a conspiracy prosecution, the defense of alibi is not allowed since the presence or absence of one of the conspirators at the precise time covered by the crime is immaterial. 24    Alibi is a proper defense, however, when a direct issue is raised concerning the defendant's absence at the time of the very formation of the conspiracy. 25

It is said that an alibi, if established, constitutes a complete, 26  legitimate, 27  and effective 28  defense, and that it precludes the possibility of guilt. 29   It is also said that an alibi is the most perfect, physically conclusive evidence of the accused's innocence, 30   and, since it is a complete defense by itself, that it is neither helped nor hurt by other defenses. 31

Although an alibi is sometimes classified as an affirmative defense, 32   and although from an evidential standpoint it may be defensive in nature, 33  it is not an affirmative defense, strictly speaking. 34     It is simply a denial that the accused committed the crime. 35    An offer to establish an alibi is not the offer of an affirmative issue advanced by the accused; it is merely an offer to show facts inconsistent with the essential element of the criminal charge. 36   In other words, it is a denial of part of what is incumbent on the state to prove as a part of its case, that is, that the accused was at the scene of the crime. 37    It merely negatives the prosecution's required proof that the defendant was personally present at the place when the offense was committed. 38

Since an alibi is shown by evidence that the accused was at a point where he could not have been guilty of participating in the offense, any evidence that tends to establish his whereabouts at the time of the alleged offense is admissible in support of his defense and competent to weaken or destroy the state's case. Furthermore, such evidence is not excluded even though the defendant is unable to cover the exact time of the offense or every minute of the time involved. 39      If the accused's alibi evidence raises a reasonable doubt in the minds of the jury as to his presence when the crime was committed, it is sufficient for acquittal. 40   Although they are easily fabricated, and therefore subject to searching scrutiny, alibis must be given fair consideration. 41  

§ 192  – Generally; what constitutes; purpose and effect [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids:  27 Am Jur Proof of Facts 2d 431, Alibi defense.

Case authorities:

The defendant was denied effective assistance of counsel by his counsel's rejection of the trial judge's offer of an alibi charge where alibi was the sole theory of the defense and, based on the prosecutor's summation remarks, the absence of the charge gave rise to a conclusion by the jury that it was impermissible for them to consider alibi as a defense. Riddle v State (1992, SC) 418 SE2d 308.

Court properly stated to jury that, although they might consider defendant's own alibi testimony, they could not consider his testimony that his employer had written letter certifying that he was working on day of crime, even though testimony regarding letter was not stricken from record, since neither letter nor testimony of employer were admitted in evidence, and thus statements in letter constituted hearsay. People v Quesada (1992, 1st Dept)  182 AD2d 440, 582 NYS2d 167, app den  80 NY2d 896, 587 NYS2d 927, 600 NE2d 654.

An alibi defense is not required to place the defendant at some minimum distance away from the scene of the crime; all that is required is that the defendant, because of the separation, could not possibly have committed the crime. Commonwealth v Johnson (1994, Pa) 646 A2d 1170.

The defendant was not entitled to an alibi instruction where testimony by his wife stated only that he was home for most of the evening of the crime except for one period when he went out for not very long and testimony by the owner of a sub shop stated only that the defendant was there at some point during the evening of the crime; the testimony did not necessarily place the defendant at a location other than that of the crime scene at the time of the crime. Commonwealth v Repaci (1992, Super Ct) 615 A2d 796.

The defendant in a prosecution for drug offenses was not entitled to an alibi instruction where the relevant testimony did not place him at a location away from the scene of the crime but instead implied that the defendant was at the scene but that the police mistakenly identified him as the one who hid a bag of cocaine. Commonwealth v Johnson (1992, Super Ct) 618 A2d 415.

Footnotes

Footnote 16. Azbill v State, 19 Ariz 499, 172 P 658; State v Hubbard, 351 Mo 143, 171 SW2d 701; State v Poole, 161 Or 481, 90 P2d 472.

Footnote 17. Tomlinson v United States, 68 App DC 106, 93 F2d 652, cert den  303 US 642,  82 L Ed 1102,  58 S Ct 645 and cert den  303 US 646,  82 L Ed 1107,  58 S Ct 645; Singh v State, 35 Ariz 432, 280 P 672; Blackwell v State, 79 Fla 709, 86 So 224 (not followed on other grounds Dixon v State (Fla App D4) 227 So 2d 740, cert den (Fla) 237 So 2d 179); State v Hubbard, 351 Mo 143, 171 SW2d 701; State v Steen, 185 NC 768, 117 SE 793; State v Payne, 104 Ohio App 410, 5 Ohio Ops 2d 87, 77 Ohio L Abs 558, 149 NE2d 583; State v Poole, 161 Or 481, 90 P2d 472; Commonwealth v Russell, 149 Pa Super 326, 27 A2d 494.

Footnote 18. Jones v State (Fla App D2) 128 So 2d 754 (disagreed with on other grounds Dixon v State (Fla App D4) 227 So 2d 740, cert den (Fla) 237 So 2d 179); State v Wagner, 207 Iowa 224, 222 NW 407; Huckett v State, 121 Neb 364, 237 NW 159; Commonwealth v McQueen, 178 Pa Super 38, 112 A2d 820; Windham v State, 162 Tex Crim 580, 288 SW2d 73.

Footnote 19. People v Thomas, 393 Ill 573, 67 NE2d 192; State v Baker, 246 Iowa 215, 66 NW2d 303; State v Ovitt, 126 Vt 320, 229 A2d 237.

Practice Aids: Alibi.  1 Wharton's Criminal Law (14th ed) § 43.

Footnote 20. Jones v State (Fla App D2) 128 So 2d 754 (disagreed with on other grounds Dixon v State (Fla App D4) 227 So 2d 740, cert den (Fla) 237 So 2d 179); People v Todaro, 14 Ill 2d 594, 153 NE2d 563; Johnson v Commonwealth, 210 Va 16, 168 SE2d 97.

Footnote 21. Commonwealth v McQueen, 178 Pa Super 38, 112 A2d 820.

Footnote 22. Singh v State, 35 Ariz 432, 280 P 672; Kitchens v State, 209 Ga 913, 76 SE2d 618; State v Searles, 82 NJ Super 210, 197 A2d 384; Baxter v State (Okla Crim) 364 P2d 705; State v Gordon, 208 Or 455, 302 P2d 214.

Footnote 23. Singh v State, 35 Ariz 432, 280 P 672; Yarber v Denver, 116 Colo 540, 182 P2d 897; Commonwealth v Larue, 158 Pa Super 219, 44 A2d 535.

Footnote 24. State v McManaman, 120 Kan 376, 244 P 225; State v Johnson, 40 Kan 266, 19 P 749; State v Gatlin, 170 Mo 354, 70 SW 885; Cain v State, 42 Tex Crim 210, 59 SW 275.

In a prosecution of a man and three women for murder and conspiracy to commit murder arising out of two successive multiple homicides, the male defendant, who was the alleged leader of the group, was not entitled to a jury instruction on alibi, where the prosecution never contended he was present at the time of the actual commission of any homicide and his presence was not a requirement for culpability.  People v Manson (2d Dist) 61 Cal App 3d 102, 132 Cal Rptr 265, cert den  430 US 986,  52 L Ed 2d 382,  97 S Ct 1686 and later app (2d Dist) 113 Cal App 3d 280, 170 Cal Rptr 189.

Footnote 25. Jenkins v State, 45 Tex Crim 173, 75 SW 312.

As to defenses to a conspiracy prosecution, generally, see 16 Am Jur 2d (Rev) Conspiracy §§ 35 et seq.

Footnote 26. Haynes v Commonwealth, 304 Ky 753, 202 SW2d 400; Commonwealth v Bonomo, 187 Pa Super 521, 144 A2d 752, affd 396 Pa 222, 151 A2d 441.

Footnote 27. State v Johnson, 70 SD 322, 17 NW2d 345; Markoff v State, 52 Wyo 457, 75 P2d 773.

Footnote 28. State v Martin, 2 Ariz App 510, 410 P2d 132, reh den 3 Ariz App 119, 412 P2d 294; Anderson v Commonwealth, 291 Ky 727, 166 SW2d 30.

Footnote 29. Basoff v State, 208 Md 643, 119 A2d 917.

Footnote 30. 30 Am Jur 2d,  Evidence § 1162.

Footnote 31. People v Doody, 343 Ill 194, 175 NE 436.

Footnote 32. People v Perroni, 14 Ill 2d 581, 153 NE2d 578, cert den  359 US 980,  3 L Ed 2d 929,  79 S Ct 899, reh den  359 US 1005,  3 L Ed 2d 1034,  79 S Ct 1141 and (ovrld on other grounds People v Nunn 55 Ill 2d 344, 304 NE2d 81, cert den  416 US 904,  40 L Ed 2d 108,  94 S Ct 1608); Witt v State, 205 Ind 499, 185 NE 645; State v Rourick, 245 Iowa 319, 60 NW2d 529.

Footnote 33. State v Stump, 254 Iowa 1181, 119 NW2d 210, cert den  375 US 853,  11 L Ed 2d 80,  84 S Ct 113; State v Hubbard, 351 Mo 143, 171 SW2d 701; Hall v State, 135 Neb 188, 280 NW 847; State v Minton, 234 NC 716, 68 SE2d 844,  31 ALR2d 682.

Footnote 34. People v Bradley, 71 Cal App 2d 114, 162 P2d 38; Halko v State, 54 Del 180, (Sup) 175 A2d 42; State v Baker, 246 Iowa 215, 66 NW2d 303; Parsley v Commonwealth (Ky) 321 SW2d 259; State v Hubbard, 351 Mo 143, 171 SW2d 701; State v Mucci, 25 NJ 423, 136 A2d 761; Commonwealth v Stein, 103 Pa Super 198, 158 A 600, revd on other grounds 305 Pa 567, 158 A 563.

Alibi is not an independent affirmative defense in the same sense that insanity is regarded as an affirmative defense.  Hall v State, 135 Neb 188, 280 NW 847,  118 ALR 1300.

As to nonaffirmative nature of defense as affecting burden of proof of alibi, see 29 Am Jur 2d,  Evidence § 157.

Footnote 35. State v Minton, 234 NC 716, 68 SE2d 844,  31 ALR2d 682.

Footnote 36. State v Searles, 82 NJ Super 210, 197 A2d 384.

Footnote 37. Parham v State, 120 Ga App 723, 171 SE2d 911.

As to presence of accused at place and time of crime as element of offense to be proven by prosecution, see 29 Am Jur 2d,  Evidence § 151.

Footnote 38. People v Bradley, 71 Cal App 2d 114, 162 P2d 38; People v Pearson, 19 Ill 2d 609, 169 NE2d 252.

Footnote 39. 29 Am Jur 2d,  Evidence § 440.

As to admissibility of other crimes to rebut alibi, see 29 Am Jur 2d,  Evidence §§ 321,  440.

Practice Aids: Alibi testimony.  Bailey & Rothblatt, Cross-examination in Criminal Trials, §§ 149, 314-315, 333-336.

Difficult alibis; alibi witnesses.  Bailey & Rothblatt, Investigation and Preparation of Criminal Cases, §§ 108, 141.

Footnote 40. 30 Am Jur 2d,  Evidence § 1162.

As to burden of proving alibi, see 29 Am Jur 2d,  Evidence § 157.

As to alibi as question for jury where evidence is conflicting, see 75 Am Jur 2d,  Trial § 425.

As to degree of proof and sufficiency of evidence of alibi, see 30 Am Jur 2d,  Evidence § 1178.

As to jury instructions on alibi, see 75 Am Jur 2d,  Trial §§ 729-737.

Footnote 41. 30 Am Jur 2d,  Evidence § 1162.


2.  Notice Requirements [193-201]

§ 193  Generally; validity of alibi notice statutes  [21 Am Jur 2d CRIMINAL LAW]

Although an accused is not ordinarily required to give advance notice of the details of his claim of alibi, 42  many states, by statute or rule of court, require him to notify the prosecution of his intention to rely on alibi as a defense and, commonly, to specify the place at which he claims to have been when the crime was committed and the witnesses on whose testimony he will rely in establishing his defense. 43    In view of the ease of manufacturing or fabricating an alibi defense, the courts have recognized that the purposes of such statutes are to prevent last-minute surprises on the prosecution and to enable it to make a full and thorough investigation of the merits of the defense. 44   In a jurisdiction without an alibi notice statute, it has been held that such a procedural innovation should be introduced, if at all, only upon the considered judgment of the state legislature and that, absent such legislation, a trial court cannot compel a defendant to give notice of his alibi by a discovery order. 45

The validity of alibi notice statutes has been questioned on a variety of constitutional grounds. 46   The United States Supreme Court has declared that under the due process clause of the Fourteenth Amendment a state may not require an accused to give notice of the details of his alibi defense without itself providing for meaningful reciprocal discovery of matters to be offered by the prosecution in response to the alibi. 47   Thus, alibi notice statutes not providing for reciprocal discovery between the defendant and the prosecution have been held invalid as violative of due process. 48  On the other hand, the Supreme Court has upheld an alibi notice statute that required a defendant, upon demand by the state, to disclose his proposed alibi witnesses, required the state, in turn, to notify the defendant of any rebuttal witnesses, and authorized the trial court, in its discretion, to exclude either party's alibi evidence, except for the defendant's own testimony, upon that party's failure to comply with the statute.  In so holding, the Supreme Court noted that the statute was carefully hedged with reciprocal duties and that the state's interest in protecting itself against an eleventh-hour defense was obvious and legitimate. 49   Accordingly, statutes providing for such reciprocal discovery between the defendant and the prosecution concerning alibi witnesses have been held to satisfy due process requirements. 50    Furthermore, the courts have rejected claims that alibi notice statutes violate equal protection of the laws, 51   the accused's privilege against self-incrimination, 52  or his right to remain silent, 53  to have compulsory process to compel the attendance of witnesses in his own behalf, 54  and to be heard in his own defense. 55   


§ 193  – Generally; validity of alibi notice statutes [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Testimony of defense alibi witness may not be precluded because of defense counsel's failure to comply with court rules, absent complicity on part of defendant; preclusion sanction violated defendant's constitutional right to call witnesses in his own defense. Hackett v Mulcahy (1980, DC NJ) 493 F Supp 1329.

Defendant was denied his constitutional right to testify through operation of state's notice-of-alibi statute which operated to exclude defendant's alibi testimony simply because he failed notify prosecution that he intended to raise such defense. Alicea v Gagnon (1982, CA7 Wis) 675 F2d 913.

State rule of criminal procedure requiring prosecuting attorney to serve defendant with written notice specifying alleged time and place of offense charged and requiring defendant who intends to introduce evidence that he was at place other than that specified to serve prosecuting attorney with statements specifying details of alleged alibi and names and addresses of supporting witnesses was not facially unconstitutional as infringing defendant's right to present defense where, although rule also provided that neither prosecution nor defense could be permitted at trial to introduce evidence inconsistent with either prosecution or defense specification unless court found good cause to permit specification to be amended, neither prevented defendant from exercising his right to present defense nor restricted nature or content of his alibi evidence, but simply conditioned presentation of alibi evidence on timely pretrial disclosure, where preconditions to exercise right were not unknown to criminal law and, when reasonable in nature, did not constitute abridgement of right, where rule did not mandate automatic exclusion of accused's alibi witnesses upon noncompliance but vested trial court with discretion to permit witnesses to testify upon showing by defendant of good cause to admit evidence, and where rule did not expressly exempt defendant's own testimony from exclusion sanction and court would not extend either disclosure requirement or exclusion sanction to defendant's accused's own alibi testimony since defendant's election to testify would come as no surprise to prosecution; further, trial court did not err in finding that defendant failed to comply with disclosure requirements of rule where defendant's contention that rule should have been interpreted so as to require disclosure only after defendant had formed intent to use alibi defense at trial was incorrect because rule expressly linked defendant's obligation of timely disclosure to prosecution's service of specification at reasonable time before trial and not to time when defendant actually decided to present alibi testimony at trial, where disclosure required by rule was eminently reasonable since defendant in most cases would have little trouble in recalling his location during period of time designated in prosecution's specification and after modest effort would be able to determine names and addresses of those persons testifying to his whereabouts during critical time period, where defendant's delay of one year in responding to prosecution's specification was not excused by prosecution's filing of interlocutory appeal, and where there was nothing in record to support defendant's claim that serving prosecuting attorney during trial itself with written specification of alibi defense and names and addresses of alibi witnesses was disclosure made within reasonable time as required by rule; however, court improperly excluded defendant's alibi evidence where rule did not require automatic exclusion of evidence, and where court failed to give any reasons for its exclusion so that appellate court was unable to determine whether court had properly exercised its discretion in so ruling. People v Hampton (1985, Colo) 696 P2d 765.

Defendant had reciprocal right to discover names and addresses of witnesses prosecution intended to rely on to rebut or discredit alibi defense where defendant complied with statute requiring pretrial disclosure of alibi defense. State v Davis (1981, Hawaii) 624 P2d 376.

Defendant's constitutional right to compulsory process for obtaining witnesses was not violated where trial court excluded alibi testimony of defendant's girlfriend following failure of defense to comply with notice of alibi statute. State v Roberts (1979) 226 Kan 740, 602 P2d 1355.

In a prosecution of defendant for possession and sale of heroin where defendant was arrested and taken to a police station, indictments were read to him, and defendant interrupted the reading to state that he had not sold heroin to the person named in the indictments, defendant's failure to disclose his alibi defense to the police officers then or to some other person prior to trial did not amount to an inconsistent statement in light of his in-court testimony relative to an alibi, and the district attorney's cross-examination of defendant concerning failure to disclose his alibi was sufficiently prejudicial to warrant a new trial, since the cross-examination attacked defendant's exercise of his right against self-incrimination in such a manner as to leave a strong inference with the jury that defendant's alibi defense was an after-the-fact creation, and the cross-examination concerning defendant's failure to relate his defense of alibi prior to trial probably substantially contributed to his conviction. State v Lane, 301 NC 382, 271 SE2d 273.

Application of court rule requiring notification of alibi defense did not constitute ex post facto law even though enacted after defendant's arrest but prior to trial. State v Flohr (1980, ND) 301 NW2d 367, later app (ND) 310 NW2d 735.

Footnotes

Footnote 42. Orr v State, 40 Ala App 45, 111 So 2d 627, affd 269 Ala 176, 111 So 2d 639.

Footnote 43. Williams v Florida,  399 US 78,  26 L Ed 2d 446,  90 S Ct 1893, 53 Ohio Ops 2d 55.

Annotation:  45 ALR3d 958.

Rule 423 of the Uniform Rules of Criminal Procedure provides that a defendant must furnish to the prosecuting attorney the names and addresses of defense witnesses, other than himself, whom he intends to call to show that he was not present at the time and place specified in the information or indictment.  See 23 Am Jur 2d,  Depositions and Discovery § 324.

Practice Aids: Defendant's response to court order to give notice of alibi defense.  1 Bailey & Rothblatt, Complete Manual of Criminal Forms, Form 18:104.

Epstein, Advance Notice of Alibi.  1964, 55 J Crim L C & P S 29.

Alibi.  1 Wharton's Criminal Law (14th ed) § 43.

Discovery in favor of prosecution.  2 Wharton's Criminal Procedure (12th ed) § 387.

Footnote 44. Williams v Florida,  399 US 78,  26 L Ed 2d 446,  90 S Ct 1893, 53 Ohio Ops 2d 55; State v Dodd, 101 Ariz 234, 418 P2d 571; State v Baldwin, 47 NJ 379, 221 A2d 199, cert den  385 US 980,  17 L Ed 2d 442,  87 S Ct 527; State v Payne, 104 Ohio App 410, 5 Ohio Ops 2d 87, 77 Ohio L Abs 558, 149 NE2d 583; Commonwealth v Shider, 209 Pa Super 133, 224 A2d 802; State ex rel. Simos v Burke,  41 Wis 2d 129, 163 NW2d 177.

Annotation:  45 ALR3d 958, § 3.

Footnote 45. Reynolds v Superior Court of Los Angeles County, 12 Cal 3d 834, 117 Cal Rptr 437, 528 P2d 45.

But see Scott v State (Alaska) 519 P2d 774, where it was held that a trial court's discovery order requiring a defendant in a rape prosecution to give notice of his alibi defense was within the court's broad discretion in discovery matters.

Footnote 46. In the face of various objections to their validity other than those hereinafter discussed, or unspecified, notice-of-alibi statutes have been generally held valid and constitutional.  Annotation:   45 ALR3d 958, § 10.

Thus, a provision requiring notice of not less than 5 days prior to trial of the fact that a defendant in a criminal case intends to offer testimony to establish an alibi was held to be reasonable and placed no undue hardship on the defendant in a prosecution for robbery and burglary, in State v George, 100 Ariz 350, 414 P2d 730, the court noting that the defendant could no longer ask his attorney, on the date of trial, to subpoena certain witnesses who would testify to his whereabouts on at least one of the nights the alleged crimes were committed, since he did not give advance notice of his intention to call these witnesses.

In State v Stump, 254 Iowa 1181, 119 NW2d 210, cert den  375 US 853,  11 L Ed 2d 80,  84 S Ct 113, the court noted that there was nothing essentially unconstitutional in a statute requiring pretrial discovery of the names of witnesses whose testimony the other side might be called on to refute, and that the modern trend in discovery is to broaden access to material facts and reduce belated surprise.

The contention of the defendant in a prosecution for rape that the demand of the district attorney for a bill of particulars as to an alibi was an unconstitutional invasion of his rights was held to be without substance, in People v Shulenberg, 279 App Div 1115, 112 NYS2d 374.

Rejecting the argument of the defendant, in a prosecution for soliciting a bribe, that the Ohio notice-of-alibi statute was unconstitutional, the court in State v Thayer, 124 Ohio St 1, 9 Ohio L Abs 734, 176 NE 656,  75 ALR 48, said that the statute pertained to a very important feature of the criminal law which gave the prosecution some protection against false and fraudulent claims of alibi often presented by the accused so near the close of the trial as to make it impossible for the state to ascertain any facts as to the credibility of the accused's witnesses, who may reside at some point far distant from the place of trial.

The contention by the defendant, in a prosecution for aggravated robbery, that the Pennsylvania notice-of-alibi statute was unconstitutional was rejected as without foundation, in Commonwealth v Phoenix, 217 Pa Super 121, 268 A2d 460.

Footnote 47. Wardius v Oregon,  412 US 470,  37 L Ed 2d 82,  93 S Ct 2208.

Where a defendant complied with the New York alibi statute by furnishing the names of alibi witnesses, and the United States Supreme Court subsequently held a similar statute unconstitutional for failure to provide reciprocal discovery rights, due process required only that the defendant be given discovery of the People's rebuttal witnesses and defendant was not entitled to dismissal of the indictment or to a declaration of the unconstitutionality of the New York statute since the People proposed to offer no alibi rebuttal testimony.  People v Baylis,  75 Misc 2d 397, 347 NYS2d 892.

Although the alibi notice statute was unconstitutional as being not significantly different from the statute declared unconstitutional in Wardius v Oregon,  412 US 470,  37 L Ed 2d 82,  93 S Ct 2208, the ruling of unconstitutionality would not be applied retroactively to cases in which the statute did not operate to exclude testimony.  Thus, the ruling was not applied to the trial of a defendant whose alibi witnesses had been allowed to testify, the defendant having furnished their names in compliance with the statute, since the statute had operated only to deny the defendant notice of the prosecution's rebuttal witnesses.  People v Bush,  33 NY2d 921, 352 NYS2d 936, 308 NE2d 451, cert den  419 US 848,  42 L Ed 2d 77,  95 S Ct 85.

The defendant's conviction for burglary was properly reversed where at trial the testimony of his alibi witness had been excluded for failure of the defendant to list her as a witness in the alibi notice required under a statute that was subsequently declared unconstitutional, and, since evidence of the defendant's involvement in burglary rested entirely on testimony of his two alleged accomplices, the importance of the alibi witness' testimony rendered its improper exclusion an error of constitutional magnitude requiring reversal.  People v Cline, 60 Ill 2d 561, 328 NE2d 534.

Footnote 48. Wardius v Oregon,  412 US 470,  37 L Ed 2d 82,  93 S Ct 2208; United States ex rel. Snyder v Mack (ED Pa) 372 F Supp 1077; Commonwealth v Contakos, 455 Pa 136, 314 A2d 259; Allison v State,  62 Wis 2d 14, 214 NW2d 437, cert den  419 US 1071,  42 L Ed 2d 667,  95 S Ct 659.

The Illinois alibi defense statute was held to be unconstitutional as a denial of due process since it did not provide for discovery of the prosecution's alibi rebuttal witnesses, in People v Fields, 59 Ill 2d 516, 322 NE2d 33, cert den  423 US 843,  46 L Ed 2d 65,  96 S Ct 80.  Such holding was expressly based on the Supreme Court's decision in Wardius v Oregon, and effectively overruled an earlier holding to the contrary in People v Holiday, 47 Ill 2d 300, 265 NE2d 634,  45 ALR3d 948, which had held that the discoverability of alibi-rebuttal witnesses was not an essential element of due process where the defendant was otherwise accorded substantial discovery of prosecution witnesses under other provisions of the State Criminal Procedure Code, although the court did suggest, however, as an appropriate subject for consideration by the general assembly, a provision for discovery of alibi-rebuttal witnesses, saying that such a requirement would further implement the concept of a trial as a search for the truth.

A statute requiring the defendant to furnish the prosecutor with timely notice of his alibi with names of the defendant's witnesses endorsed thereon was unconstitutional as a denial of due process where the statute contained no provision requiring the state to furnish names of witnesses it planned to use to refute the alibi defense.  Talley v State, 222 Kan 289, 564 P2d 504, ovrlg State v Rider, 194 Kan 398, 399 P2d 564.

The alibi demand statute was unconstitutional since it lacked a reciprocal provision allowing the defendant to discover the identity of the People's alibi rebuttal witnesses.  People v Maryland,  79 Misc 2d 69, 359 NYS2d 477.

Where a defendant, pursuant to statute, notified the prosecutor of names and addresses of the witnesses he intended to call to establish his alibi, the prosecutor's refusal to afford the defendant reciprocal discovery violated his right to due process. Commonwealth v Jackson, 457 Pa 79, 319 A2d 161.

Footnote 49. Williams v Florida,  399 US 78,  26 L Ed 2d 446,  90 S Ct 1893, 53 Ohio Ops 2d 55.

Footnote 50. Williams v Florida,  399 US 78,  26 L Ed 2d 446,  90 S Ct 1893, 53 Ohio Ops 2d 55; Bowen v State, 263 Ind 558, 334 NE2d 691; State v Smith (App) 88 NM 541, 543 P2d 834.

Annotation:  45 ALR3d 958, § 4.

A statute requiring the defendant to furnish names, addresses, and statements of alibi witnesses did not violate due process where the names and addresses of the state's rebuttal witnesses were available to the defense upon motion.  Wright v Superior Court of County of Maricopa, 110 Ariz 265, 517 P2d 1261.

Where rules and case law required reciprocal discovery, a statute requiring the defendant to give notice of his intention to rely on an alibi was not unconstitutional; but where the state failed to inform the defense of the names of rebuttal witnesses as soon as its intent to call each was determined, admission of rebuttal testimony was prejudicial error.  People v Jarrett, 22 Ill App 3d 61, 316 NE2d 659.

Testimony given by police officers to impeach the defendant's alibi witnesses was admissible and did not deny him due process, even though he complied with the state's notice of alibi statute without receiving recriprocal discovery, where the state had already learned of the defendant's potential alibi witnesses before he gave notice.  United States ex rel. Smith v Brierton (ND Ill) 424 F Supp 364.

A statute directing the trial court in mandatory terms to exclude alibi evidence for failure to give timely notice did not suspend the defendant's right to present his case or deprive him of due process.  People v Jackson, 71 Mich App 395, 249 NW2d 132.

Although the New York alibi statute did not on its face provide for reciprocal discovery rights, it could be construed so as to afford a defendant such rights and, as so construed, did not deny him due process. People v Collins,  75 Misc 2d 535, 348 NYS2d 99.

Footnote 51. People v Jackson, 71 Mich App 395, 249 NW2d 132.

Annotation:  45 ALR3d 958, § 5.

Footnote 52. Williams v Florida,  399 US 78,  26 L Ed 2d 446,  90 S Ct 1893, 53 Ohio Ops 2d 55; State ex rel. Sikora v District Court of Thirteenth Judicial Dist., 154 Mont 241, 462 P2d 897; State v Angeleri, 51 NJ 382, 241 A2d 3, cert den  393 US 951,  21 L Ed 2d 362,  89 S Ct 372; State v Smith (App) 88 NM 541, 543 P2d 834; People v Rakiec, 260 App Div 452, 23 NYS2d 607, mod on other grounds 261 App Div 864, 24 NYS2d 791 and affd 289 NY 306, 45 NE2d 812; People v Schade, 161 Misc 212, 292 NYS 612.

Annotation:  45 ALR3d 958, § 6.

See Scott v State (Alaska) 519 P2d 774, holding that a portion of a trial court's discovery order requiring the defendant to give notice of his alibi defense was permissible, but that a further requirement that he provide the prosecution with the names and statements of prospective alibi witnesses and information concerning the locations to be relied on for alibi purposes violated his privilege against self-incrimination under the Alaska constitution.

Footnote 53. State ex rel. Sikora v District Court of Thirteenth Judicial Dist., 154 Mont 241, 462 P2d 897; State ex rel. Simos v Burke,  41 Wis 2d 129, 163 NW2d 177.

Annotation:  45 ALR3d 958, § 7.

Footnote 54. State v Dodd, 101 Ariz 234, 418 P2d 571; State v Smith (App) 88 NM 541, 543 P2d 834; Commonwealth v Vecchiolli, 208 Pa Super 483, 224 A2d 96; State ex rel. Simos v Burke,  41 Wis 2d 129, 163 NW2d 177.

Annotation:  45 ALR3d 958, § 9.

Footnote 55. State ex rel. Simos v Burke,  41 Wis 2d 129, 163 NW2d 177.

Annotation:  45 ALR3d 958, § 8.

Order which shortened time for defendant to give notice of alibi defense to four days rather than usual ten days provided for in rule was not abuse of discretion and did not deprive defendant of valuable defense where trial court allowed presentation of alibi defense, where defendant did not indicate that he had other witnesses to call or evidence to present, where government did not call any rebuttal witnesses, and where one government witness who placed defendant at time and place in question was interviewed by defense prior to trial.  United States v Singletary (CA8 SD) 562 F2d 1058.


§ 194  Form of notice  [21 Am Jur 2d CRIMINAL LAW]

The required form of the alibi notice depends on the wording of the applicable statute.  Under a statute requiring written notice, it has been held that mere oral notice renders evidence of the alibi inadmissible. 56   On the other hand, a trial court's refusal to allow alibi testimony because of the defendant's failure to serve written notice required by statute has been deemed an abuse of the court's discretion where the prosecutor admittedly had one week's oral notice of the identity of the two alibi witnesses who were in jail prior to trial and available for questioning. 57   In the absence of an express statutory requirement that the defendant's alibi notice be "signed by him", a defendant need not personally sign his notice. 58  

Where the applicable statute requires that the notice contain specific information as to the place or places where the defendant claims to have been when the offense was committed, a notice merely declaring the defendant's intention to rely on alibi as a defense is not legally sufficient. 59    And, it has been held that an accused's statement in his motion for continuance that trial should be postponed to enable an alibi witness to be present and testify does not suffice as a statutory notice of alibi. 60 

Footnotes

Footnote 56. Balzhiser v State (App) 10 Ohio L Abs 666; Jensen v State,  36 Wis 2d 598, 153 NW2d 566, reh den  36 Wis 2d 607A, 154 NW2d 769; State v Selbach,  268 Wis 538, 68 NW2d 37.

Annotation:  45 ALR3d 958, § 26.

Footnote 57. People v Robinson, 54 Mich App 704, 221 NW2d 596.

Footnote 58. Commonwealth v Davenport, 210 Pa Super 60, 231 A2d 429; Commonwealth v Gonzales, 210 Pa Super 57, 231 A2d 414.

Annotation:  45 ALR3d 958, § 27.

Footnote 59. State v Anderson, 25 Utah 2d 26, 474 P2d 735.

Annotation:  45 ALR3d 958, § 28.

Footnote 60. People v Fleisher, 322 Mich 474, 34 NW2d 15.

Annotation:  45 ALR3d 958, § 29.


§ 195  Duty of prosecutor to specify time and place of offense charged  [21 Am Jur 2d CRIMINAL LAW]

When a defendant submits a notice of intention to rely on an alibi defense, some statutes require the prosecution to specify, absent a showing of good cause for failure to do so, the exact time and place of the charged offense.  Under such a statute, it has been held that the prosecution's refusal to comply constituted reversible error. 61   Nevertheless, it has also been held that reversal of a defendant's conviction was not required even though the date and place stated by the prosecution in answer to the defendant's pretrial notice of alibi may not have been sufficiently exact where the notice filed by the defendant accounted for the period of time encompassing the crime proved at trial, where the defense placed him at locations outside the area described in the prosecution's answer, and where specification of a more exact time and place would not have altered presentation of defense evidence. 62

Other statutes make the requirement of giving notice of alibi dependent on a prior demand by the state. 63   The prosecution need not provide exact details of the offense in its demand for the defendant's alibi notice, however, where it is not practicable to do so, 64 or where the evidence of the crime and the defendant's culpability are circumstantial. 65     

Despite an express reference in an alibi notice statute to the charge of the specific time of the offense alleged in the complaint, indictment, or information, the prosecution's failure to allege the precise time of the commission of the crime does not deprive a defendant of his alibi defense where he makes no effort to comply with the statute. 66   It has also been held that the omission of the exact time of the offense in the indictment does not bar the applicability of the notice requirement, since such information is readily obtainable through discovery. 67

Even absent an express statutory requirement that the prosecutor specify the time and place of the offense, there is authority for the view that the prosecution must furnish the defendant with exact details of the offense to allow him to comply with the alibi notice statute. 68    On the other hand, under a statute not imposing a duty on the prosecution, it has also been held that the defendant has the burden of seeking specificity from the prosecutor as to the date, time, and place of the offense. 69


§ 195  – Duty of prosecutor to specify time and place of offense charged [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Under notice of alibi statute which provided reciprocal burden on prosecutor to disclose exact date and place to be asserted at trial as date and place of crime, balance of discovery was afforded parties and statute did not violate defendant's right of due process. Mauricio v Duckworth (1986, ND Ind) 633 F Supp 1302 (construing Ind law).

Evidence as to time and place of abduction was erroneously admitted into evidence in prosecution for criminal confinement where defendant filed and asserted timely notice of intention to offer alibi (including request for specific statement of date, time, and place that prosecution proposed to present at trial as date, time, and place defendant committed crimes) and thereafter state failed without good cause to file such statement. Dew v State (1981, Ind) 416 NE2d 1245.

Fact that prosecutor's response to robbery defendant's notice of alibi was served seven days before trial, rather than eight days as required by statute, did not warrant granting of defense motion to strike state's response where noncompliance was attributable to oversight or miscalculation of time and was not prejudicial. Brown v State (1982, Ind) 436 NE2d 285.

Where State failed to timely file its answer to defendant's notice of alibi, it was not reversible error to admit State's evidence since defendant had procured from victim at deposition that information which he would have received from timely answer by State to his notice of alibi and which he did obtain from State's late answer, and since defendant suffered no prejudice by state's delay. Tolbert v State (1984, Ind) 459 NE2d 1189.

In prosecution for robbery, defendant waived any error in prosecution's failure in response to notice of alibi to file specific statement in regard to exact date and place of crime until day of trial, where defendant's attorney declined offer of continuance and admitted that defendant was not prejudiced by delay in that he knew specific time and place of alleged crime through deposition and probable cause affidavit. Willis v State (1980, Ind App) 411 NE2d 696.

Footnotes

Footnote 61. Pearman v State, 233 Ind 111, 117 NE2d 362.

Annotation:  45 ALR3d 958, § 30[a].

Footnote 62. Monserrate v State, 265 Ind 153, 352 NE2d 721.

Footnote 63. State v Widenmayer, 128 NJL 239, 25 A2d 210.

Footnote 64. Bruce v State, 268 Ind 180, 375 NE2d 1042,  1 ALR4th 616, cert den  439 US 988,  58 L Ed 2d 662,  99 S Ct 586; Monserrate v State, 265 Ind 153, 352 NE2d 721; State v Lizotte (Me) 249 A2d 874 (statement that criminal acts were committed between approximately 2:00 a.m. and 6:00 a.m. on certain date held sufficient).

Annotation:  45 ALR3d 958, § 30[b].

Where the time sequence of the homicide was not so specific as to indicate the exact moment when the victim was killed, and where the state, in its motion requiring the defendant to produce the names and addresses of witnesses to any alibi defense, stated the time of the incident as "between the hours of 9 a.m., and 3:39 p.m." on December 27, 1973, this was sufficient to specify the place, date, and time of the crime charged.  State v Cox (Mo App) 542 SW2d 40.

Footnote 65. State v Baldwin, 47 NJ 379, 221 A2d 199, cert den  385 US 980,  17 L Ed 2d 442,  87 S Ct 527; State v Rogers, 30 NJ Super 239, 104 A2d 89.

Annotation:  45 ALR3d 958, § 30[c].

Footnote 66. State v Wonser, 217 Kan 406, 537 P2d 197.

Footnote 67. State v Nunn, 113 NJ Super 161, 273 A2d 366.

Footnote 68. People v Wright, 172 Misc 860, 16 NYS2d 593; State v Morales, 266 Or 421, 513 P2d 798.

Annotation:  45 ALR3d 958, § 32.

Footnote 69. People v Smith, 58 Mich App 76, 227 NW2d 233.


§ 196  Discretion of trial court to exclude evidence  [21 Am Jur 2d CRIMINAL LAW]

Although a particular statute may make exclusion of alibi evidence mandatory if the accused fails to comply with the notice provisions, 70  many statutes give the trial court discretion to exclude alibi evidence in the event of a party's noncompliance. 71     Thus, alibi evidence has been excluded where a defendant failed to submit his notice within the time specified in the statute 72   or failed to comply with a statutory requirement that a copy of the notice be filed with the court in addition to service on the prosecution. 73    Even under statutes silent on the exclusion of evidence, some decisions recognize the court's inherent power to exclude alibi evidence where the defendant fails to meet notice requirements. 74     

Exclusion of alibi witnesses for failure to comply with a notice-of-alibi rule constitutes error unless there is an inquiry into all of the surrounding circumstances to determine if good cause exists for waiving the rule; 75  and an order of exclusion may be reversed when the court abuses its discretion. 76   Thus, it has been held to be an abuse of the trial court's discretion to exclude untimely offered alibi evidence where the defendant's tardiness of notice was not due to egregious fault and did not prejudice the prosecution's case. 77   Similarly, where the defense submitted notice of alibi to the prosecutor six months prior to trial, even though not within 10 days after demand, the trial court abused its discretion in excluding the alibi testimony due to late notice where failure to comply with the statute did not result in unfair surprise to the state or preclude proper investigation of the validity of the claim. 78

Only testimony contemplated by the alibi notice statute may be excluded for noncompliance with the notice provisions.  Thus, in a prosecution for assault and battery, it has been held reversible error to exclude the testimony of a participant who was previously adjudicated delinquent for the same offense where his testimony to the effect that the defendant was not at the scene of the crime did not show the defendant's whereabouts at the time the crime was committed. 79


§ 196  – Discretion of trial court to exclude evidence [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Alibi Notice Rules: The Preclusion Sanction as Procedural Default, 51 U Chi LR 254, Winter, 1984.

Case authorities:

District court did not abuse its discretion in excluding alibi witness where defendant failed to respond to government's demand for notice of alibi, even though defense counsel argued that he did not know witness's name until one week before trial and could not locate witness until morning of trial; although it may be better practice to hear alibi witness, district court maintains discretion in such matters. United States v Davis (1994, CA10 Okla) 40 F3d 1069.

Trial court's exclusion of testimony of defendant's alibi witnesses was not appropriate as remedy for defendant's labeling pleading "Amended Response to State's Motion for Discovery" instead of "Notice of Alibi Defense" where no evidence existed of defendant's guilt other than testimony of two alleged accomplices. People v Jones (1980) 86 Ill App 3d 1013, 42 Ill Dec 186, 408 NE2d 764.

Reversible error occurred in forgery and misdemeanor theft prosecution when thai court barred corroborating alibi witness' testimony on basis that disclosure of temporary job site at which defendant was supposed to have been located was inadequate disclosure of defendants whereabouts at time of events; if prosecutor found disclosure inadequate, he was under duty to seek clarification rather than moving to exclude evidence. People v Osborne (1983) 114 Ill App 3d 433, 71 Ill Dec 513, 451 NE2d 1.

Where defendant in prosecution for murder was permitted to testify as to alibi in spite of his failure to file required notice, he was not prejudiced but received consideration not contemplated by statute, and there was no error in excluding alibi testimony from particular witness. James v State (1980, Ind) 411 NE2d 618.

Trial court did not abuse its discretion in refusing to admit alibi evidence offered without filing of timely notice and without showing of good cause, where defendant knew of witness from time he was charged, where witness had only feeble excuse of desire not to get involved, and where state did not have opportunity to investigate witness prior to his testimony. State v Christensen (1982, Iowa) 323 NW2d 219.

When aggravated rape defendant complied with prosecutor's pretrial request for notice of alibi by offering to particularize alibi evidence on first day of trial, trial judge improperly exercised his discretionary power in excluding testimony of defense witnesses by applying disclosure statute as mandatory rule excluding testimony of undisclosed alibi witnesses rather than determining whether to exercise his discretionary power to exclude such testimony through consideration of relevant criteria. State v Bias (1981, La) 393 So 2d 677.

Trial court in murder prosecution properly exercised its discretionary power to exclude undisclosed alibi evidence offered by defense witness discovered on first day of trial where existence of witness was disclosed by defendant's mother, who had participated in defense for well over a year while apprised of need for notice regarding alibi testimony, and where state presented testimony of three credible witnesses definitely placing defendant at scene only minutes prior to murder. State v Brown (1982, La) 414 So 2d 689 (effect of retarded defendant's confession not discussed).

Exclusion of alibi testimony was proper sanction rather than abuse of discretion in robbery prosecution against two brothers, where fact counsel learned of witness' existence on first day of trial did not excuse defendant's failure to reveal existence of that witness within time to comply with disclosure requirements, and where prejudice to prosecution resulting from admission of alibi witness' testimony, through depriving state of opportunity to interview her and investigate veracity of her proposed testimony, was substantial. Middleton v State (1981) 49 Md App 286, 431 A2d 734.

In prosecution charging nighttime burglary with intent to commit rape and aggravated assault on 12-year-old girl, defendant's failure to assert alibi defense during August arraignment and defense counsel's asserted unawareness of availability of defense until day before December 17 rearraignment on amended information, justified trial court's refusal to allow alibi defense at December 21 trial; while defendant had statutory right to assert alibi defense within ten days of rearraignment, denial of that right was not prejudicial error considering frivolousness of defense. State v Wells (1983, Mont) 658 P2d 381.

In prosecution of prisoner for first-degree murder of fellow inmate, trial court did not abuse its discretion in refusing to permit alibi witness to testify, where it appeared from record that major thrust of proposed testimony was to place defendant in another cell after lockdown, and where defendant failed to comply with statute requiring defendant to serve notice of alibi not less than ten days before trial. McKenna v State (1985, Nev) 705 P2d 614, cert den (US)  88 L Ed 2d 907,  106 S Ct 868.

Trial court in prosecution for possession of marijuana with intent to distribute by convicted felon erred in overruling defense motion to exclude evidence withheld from defense in violation of discovery order, where videotape of search under warrant of suspects' motel room, germination report on seized marijuana seeds, and small scales seized from one suspect's person were not disclosed pursuant to order. Skelly v State (1994, Okla Crim) 880 P2d 401.

Footnotes

Footnote 70. People v Jackson, 71 Mich App 395, 249 NW2d 132.

Footnote 71. State v Dodd, 101 Ariz 234, 418 P2d 571; Cox v State (Fla App D3) 219 So 2d 762, later app (Fla App D3) 243 So 2d 611; Cockerham v State, 246 Ind 303, 204 NE2d 654; State v Sharp, 202 Kan 644, 451 P2d 137; People v Sherrod, 32 Mich App 183, 188 NW2d 221; State v Nunn, 113 NJ Super 161, 273 A2d 366; Commonwealth v Phoenix, 217 Pa Super 121, 268 A2d 460; State v Di Maggio,  49 Wis 2d 565, 182 NW2d 466, cert den  404 US 838,  30 L Ed 2d 70,  92 S Ct 127.

Annotation:  45 ALR3d 958, § 11[a].

Footnote 72. State v Martin, 2 Ariz App 510, 410 P2d 132, reh den 3 Ariz App 119, 412 P2d 294; People v Jones, 118 Ill App 2d 189, 254 NE2d 843; Riggs v State, 268 Ind 453, 376 NE2d 483.

Annotation:  45 ALR3d 958, § 11[b].

Footnote 73. Cockerham v State, 246 Ind 303, 204 NE2d 654.

Annotation:  45 ALR3d 958, § 11[d].

Footnote 74. People v Chamberlain, 15 Mich App 541, 166 NW2d 815, cert den  397 US 948,  25 L Ed 2d 128,  90 S Ct 967; State v Rourick, 245 Iowa 319, 60 NW2d 529.

Annotation:  45 ALR3d 958, § 12.

Footnote 75. Barnes v State (Fla App D2) 294 So 2d 679; State v Francis, 128 NJ Super 346, 320 A2d 173.

Footnote 76. State v Smith, 50 Ohio St 2d 51, 4 Ohio Ops 3d 118, 362 NE2d 988.

In a prosecution of inmates for aggravated battery of a correctional officer, the sanction of excluding the testimony of 14 defense witnesses, fellow inmates of the defendants, whose names had not been previously disclosed to the state, produced a degree of unfairness that constituted reversible error.  People v Jackson, 48 Ill App 3d 769, 6 Ill Dec 710, 363 NE2d 392.

Footnote 77. People v Merritt, 396 Mich 67, 238 NW2d 31; State v Mitchell, 149 NJ Super 259, 373 A2d 700.

Footnote 78. State v Mitchell, 149 NJ Super 259, 373 A2d 700.

Footnote 79. State v Volpone, 150 NJ Super 524, 376 A2d 199.


§ 197  Exceptions to notice requirements  [21 Am Jur 2d CRIMINAL LAW]

In certain cases, the statutory notice of alibi has not been necessary.  Thus, alibi evidence has been admitted despite the defendant's failure to comply with the notice statute where the information did not allege the time or place of the offense, 80   where the prosecution's evidence at trial suggested that the offense was committed at a time or place different from that alleged in the information, 81   where the prosecution failed to demand in writing, as required by statute, that the defendant file a notice of alibi, 82   where the prosecution did not object to alibi evidence offered without prior notice under the statute, 83   where the court set trial too early for the defendant to file notice according to the statute, 84   or where the alibi evidence was offered to rebut the prosecution's evidence. 85   

"Good cause" for noncompliance with an alibi notice statute may, under certain circumstances, prevent exclusion of alibi testimony. Thus, a prosecutor's explanation that his five-day delay in serving a statement of the exact place and time of the crime on the defendant was due to a three-day Easter weekend and to difficulties in conveying the response to a special judge's law office for his approval has been held sufficient for a finding of good cause for the prosecutor's noncompliance with the statute. 86    On the other hand, a defense counsel's testimony that his tardiness in complying with the alibi notice statute resulted solely from confusion as to which prosecutor had been assigned to the case did not demonstrate good cause for noncompliance, and it has been held proper, under such circumstances, to deny the defendant his right to present alibi evidence. 87


§ 197  – Exceptions to notice requirements [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Where statute required prosecution to file notice of rebuttal to prevent unfair surprise at trial, trial court properly admitted testimony of rebuttal witnesses based on showing that names were not available when notice was required and could not have been obtained with exercise of due diligence. People v Diaz (1980) 98 Mich App 675, 296 NW2d 337.

Defendant would be given new trial on grounds trial court improperly excluded alibi evidence, notice of which was not timely filed under statute, where to construe statute strictly would violate due process. People v Bennett (1982) 116 Mich App 700, 323 NW2d 520.

In rape prosecution trial court properly denied defense motion for mistrial after state submitted evidence in rebuttal to defense alibi witnesses without giving notice required by statute where state's failure to comply with statute was attributable to late compliance with notice requirement by defense, and where defense failed to make timely objection. State v Reiman (1979, SD) 284 NW 2d 860.

Footnotes

Footnote 80. State v Ovitt, 126 Vt 320, 229 A2d 237.

 45 ALR3d 958, § 13.

Footnote 81. State v Taylor, 198 Kan 290, 424 P2d 612.

Annotation:  45 ALR3d 958, § 14.

Footnote 82. State v Wiedenmayer, 128 NJL 239, 25 A2d 210.

Annotation:  45 ALR3d 958, § 15.

It was error to exclude the defendant's alibi witnesses where the prosecution had made compliance by the defendant with the 10-day provision of the notice rule impossible by not filing its written demand more than 10 days prior to trial and had not obtained an order of court setting another time for the defendant's compliance.  Shelby v State (Fla App D1) 301 So 2d 461.

Footnote 83. People v Miller, 250 Mich 72, 229 NW 475.

Annotation:  45 ALR3d 958, § 16.

Footnote 84. Bradley v State, 227 Ind 131, 84 NE2d 580.

Annotation:  45 ALR3d 958, § 17.

The trial court properly admitted testimony of the defendant's alibi witnesses, despite the defendant's failure to comply with notice of alibi rule where the defendant was required to go to trial on two felony counts only 18 days after arraignment and the prosecution neither claimed surprise nor requested a continuance to permit the defendant to supply the statement contemplated by the rule.  People v Moore, 36 Colo App 328, 539 P2d 489.

Footnote 85. Founts v State, 87 Nev 165, 483 P2d 654; State v Ovitt, 126 Vt 320, 229 A2d 237.

Annotation:  45 ALR3d 958, § 18.

But see State v Thayer, 124 Ohio St 1, 9 Ohio L Abs 734, 176 NE 656,  75 ALR 48, holding that to admit such rebuttal testimony despite the defendant's failure to file the statutory notice would be an indirect way of nullifying the statute.

Although no notice of alibi was filed by a criminal defendant, as required by criminal rule, the defendant's work records and testimony relative thereto should have been admitted at trial to establish an alibi where the alibi evidence was a vital factor in determining guilt or innocence, where only a single witness placed the defendant at the scene of the crime, and where the question of the credibility of the alibi evidence would be at a minimum. State v Edwards, 52 Ohio App 2d 120, 6 Ohio Ops 3d 91, 368 NE2d 302.

Although the prosecutor did not notify the defendant of those persons he intended to call to refute the evidence of the alibi, the defendant having given prosecuting attorney notice in writing of his intention to claim alibi, the trial court was justified in waiving the statutory requirement and permitting the rebuttal witnesses to testify where the testimony of one rebuttal witness, the robbery victim, would have been known to the defendant had it been inquired into, where the other rebuttal witness, having been subpoened by defendant, was undoubtedly interviewed by the defendant, and where there was no showing that prosecution intentionally attempted to make any concealment of facts regarding alibi or its refutation.  State v Case (Utah) 547 P2d 221.

Footnote 86. Bruce v State, 268 Ind 180, 375 NE2d 1042,  1 ALR4th 616, cert den  439 US 988,  58 L Ed 2d 662,  99 S Ct 586.

Footnote 87. Riggs v State, 268 Ind 453, 376 NE2d 483.

Where a statute required exclusion of a defendant's testimony if the notice of alibi was not filed properly and if the defendant did not show "good cause" for failure to do so, the defendant's failure to provide sufficient details for the alibi and his subsequent failure to bring himself within compliance prior to trial provided sufficient bases for the trial court to grant the state's motion in limine to exclude the defendant's alibi defense. Hartman v State (Ind App) 376 NE2d 100.


§ 198  Limiting effect of notice; unnamed witnesses  [21 Am Jur 2d CRIMINAL LAW]

Having filed a notice of alibi specifying his whereabouts at the time of the offense, a defendant may not prove other facts at trial that in effect constitute a new alibi. 88    Once a defendant has submitted a list of alibi witnesses in a notice, the trial court, under certain statutes, has discretion to exclude the testimony of witnesses not named in the original list.  Thus, the exclusion of such witnesses has been held a proper exercise of the court's discretion where the offered testimony was cumulative, 89  where the defendant failed to show good cause for having not included the names of all his alibi witnesses in the notice, 90  or where other circumstances made the trial court's decision reasonable. 91    Under a notice statute silent as to unnamed witnesses but giving discretion to the trial court to exclude the entire defense of alibi for the defendant's failure to file a timely notice, exclusion of the testimony of an unlisted witness has also been upheld as a proper exercise of the trial court's discretion. 92    On the other hand, a decision to exclude the testimony of witnesses not listed in the notice has been reversed as an abuse of the court's discretion where the defendant was highly prejudiced and the prosecution would not have been surprised by the unlisted witness, 93  or where a degree of unfairness constituting reversible error would have resulted. 94


§ 198  – Limiting effect of notice; unnamed witnesses [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Although in murder prosecution in which defendant relied on alibi defense state failed to disclose identity of one of its witnesses before that witness testified, there was no violation of defendant's right under rule relating to state's obligation on notice of defendant's intent to assert alibi defense that it advise defendant within reasonable time of any witness state intended to call to refute alibi defense, where witness' testimony was offered to impeach credibility of defendant and two of his defense witnesses rather than as "rebuttal" to defendant's alibi defense. People v Muniz (1980, Colo App) 622 P2d 100.

Court properly excluded alibi testimony under notice of alibi statute which provided reciprocal discovery, where defendant filed his notice of alibi witnesses two years late, at a time when the prosecution was close to closing its case in chief, and where disclosure was intentionally withheld. Statute's notice requirements did not favor state and thus did not restrict defendant's right to due process or violate his right against self-incrimination; nor did statute violate defendant's right to compulsory process, since right to compel attendance of witnesses was not absolute. State v Boucino (1986) 199 Conn 207, 506 A2d 125.

Trial court did not abuse its discretion in denying defendant's motion to endorse additional alibi witness where defendant gave State notice that he intended to rely upon defense of alibi some 50 days prior to trial and disclosed names of three witnesses at that time but did not notify State of existence of additional witness until State had rested upon third day of trial. State v Douglas (1984) 234 Kan 605, 675 P2d 358.

That judge in rape prosecution did not abuse discretion by denying defense opportunity to call new alibi witness on third day of that after two properly noticed alibi witnesses had testified, where strong evidence had already been received by the court concerning defendant's movements on night in question, and where defense counsel had failed to notify prosecution ten days before trial regarding identity and anticipated testimony of proposed witness. Commonwealth v La Frennie (1982) 13 Mass App 977, 432 NE2d 535, app den (Mass) 440 NE2d 1175.

Footnotes

Footnote 88.
Annotation:  45 ALR3d 958, § 21.

A notice to the district attorney by an accused that he intends to rely on an alibi as a defense by proof that, at the alleged time of the crime, he was engaged in moving furniture from one named city to another was not a sufficient compliance with statutory requirements where the alibi relied on at the trial was that defendant was moving furniture within the first named city.  State v Kopacka,  261 Wis 70, 51 NW2d 495,  30 ALR2d 476.

The trial court did not abuse its discretion in excluding the evidence of the defendant's second alibi where he had filed, on the first day of trial, a belated notice of alibi that had placed him with another person on the date of the defense, rather than with the person named in in the initial notice of alibi.  Fields v State (Ind App) 367 NE2d 36.

Footnote 89. State v Rafferty, 145 Kan 795, 67 P2d 1111.

Footnote 90. State v Berry, 170 Kan 174, 223 P2d 726; Bush v State, 203 Kan 494, 454 P2d 429.

Footnote 91. Commonwealth v Vecchiolli, 208 Pa Super 483, 224 A2d 196.

Annotation:  45 ALR3d 958, §§ 22-23.

Footnote 92. State v Adair, 106 Ariz 4, 469 P2d 823.

Annotation:  45 ALR3d 958, § 23[b].

Footnote 93. Commonwealth v Shider, 209 Pa Super 133, 224 A2d 802.

Footnote 94. People v Jackson, 48 Ill App 3d 769, 6 Ill Dec 710, 363 NE2d 392.


§ 199  Applicability to defendant's own testimony  [21 Am Jur 2d CRIMINAL LAW]

It has been said that alibi notice statutes, being in derogation of the common law, must be strictly construed. 95   In accordance with this rule of construction, it has been held that a statute requiring a defendant intending to offer proof of an alibi to serve on the prosecuting officer a bill of particulars setting forth his whereabouts at the time of the crime and the names and addresses of his alibi witnesses applies only to witnesses other than the defendant; 96  and that a defendant who intends to offer only his own testimony in support of his alibi defense need not submit a notice of alibi. 97    There is authority for the contrary view, however, that not even the accused himself may testify as to his alibi where he fails to submit the statutory notice. 98   


§ 199  – Applicability to defendant's own testimony [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

It is constitutionally impermissible to enforce notice-of-alibi statute against defendant by precluding his own testimony; trial court therefore erred in precluding defendants offer to testify where trial court had available alternative remedy of granting continuance to prosecutor in order to alleviate any surprise or prejudice resulting from lack of notice. Walker v Hood (1988, SD NY) 679 F Supp 372.

Since purpose of Wisconsin procedural rule forbidding presentation of alibi evidence by defendant unless defendant had given notice to prosecution of his intention to present such evidence was to prevent surprise to state, not to override defendant's constitutional right to testify in his own behalf, trial court unconstitutionally but harmlessly applied rule in forbidding armed-robbery defendant to testify personally to his alibi, where defendant had federal constitutional right to testify on his own behalf, defendant had no corroborative evidence, state as essential element of crime had to be prepared to place defendant at scene of crime, and defendant's testimony was unlikely to overcome state's evidence, and where rule served little or no purpose; proper procedure where defendant fails to give notice and presents persuasive alibi evidence is for prosecution to seek continuance for further investigation or simply acquit. Alicea v Gagnon (1982, CA7 Wis) 675 F2d 913 (overruling Sims v Lane (1969, CA7 Ind) 411 F2d 661, cert den  396 US 943,  24 L Ed 2d 244,  90 S Ct 378 (to the extent it holds accused's right to testify in his own defense is merely statutory).

Where detective testified to his preparation of photo lineup used by victim to identify defendant as assailant in one of charged crimes, testimony of defendant that at time crimes were committed in California he was intoxicated and on bus in either Utah or Colorado traveling to St. Paul for chemical-dependency treatment, having left Los Angeles on May 11, 1985 between 5:00 and 7:00 p.m., and testimony of defendant's sister that she received telephone call from defendant's wife in Los Angeles on May 12, 1985 that defendant had left and was intoxicated, and another on following day inquiring whether defendant had arrived in St. Paul, both verified by entries on sister's telephone bill, were insufficient to rebut State's evidence of his presence in California on May 12, 1985 when crimes were committed, where he barely recalled boarding bus in Los Angeles and did not possess bus ticket stub to confirm his departure. State v Babb (1986, Minn App) 393 NW2d 705.

In prosecution for sexual assault, alibi notice requirement was not applicable to defendant where witness did not give alibi testimony, in that time period covered by witness' testimony did not cover time established for actual crime, and therefor, excluded testimony was not alibi testimony; moreover, testimony by witness was not relevant and it was within discretion of court to strike it. State v Berg (1985, Mont) 697 P2d 1365.

Reversible error occurred in theft prosecution where defendant properly notified court of her intention to testify as to alibi, but trial judge barred her from saying she was elsewhere at time theft occurred. State v Douglas (1982) 292 Or 516, 641 P2d 561.

Footnotes

Footnote 95. State v Wiedenmayer, 128 NJL 239, 25 A2d 210.

Footnote 96. People v Rakiec, 289 NY 306, 45 NE2d 812.

Footnote 97. White v State (Fla App D4) 356 So 2d 56; State ex rel. Mitchell v Walker (Fla App D2) 294 So 2d 124; State v Lanphear (Iowa) 220 NW2d 618; State v Schlater (Iowa) 170 NW2d 601; People v Merritt, 396 Mich 67, 238 NW2d 31.

Annotation:  45 ALR3d 958, § 25.

Footnote 98. Bowen v State, 263 Ind 558, 334 NE2d 691; Smetana v State (App) 22 Ohio L Abs 165, app dismd for want of debat q 131 Ohio St 329, 6 Ohio Ops 25, 2 NE2d 778; State ex rel. Simos v Burke,  41 Wis 2d 129, 163 NW2d 177.

Annotation:  45 ALR3d 958, § 24.


§ 200  Evidentiary effect of notice  [21 Am Jur 2d CRIMINAL LAW]

The prosecution may not regard a notice of alibi as the defendant's evidence to impeach the prosecution witnesses in advance. 99   The notice may under certain circumstances, however, be considered admissible as an admission against the defendant's interest. 1  

Where a defendant fails to give the required notice but his alibi evidence is admitted without objection by the prosecution, the defendant may not comment on it during his closing argument. 2    An instruction on alibi is not appropriate if the defendant has neither given notice of the alibi nor presented evidence on it. 3   

Alibi notice statutes do not shift the burden of proof from the prosecution to the defendant on the issue of alibi. 4 


§ 200  –  Evidentiary effect of notice [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Accused is not obligated to establish ironclad alibi in order to be entitled to alibi charge to jury. People v Jack (1989, 1st Dept)  146 App Div 2d 532, 536 NYS2d 782, app gr  73 NY2d 985, 540 NYS2d 1019, 538 NE2d 371 and affd  74 NY2d 708, 543 NYS2d 381, 541 NE2d 410.

Footnotes

Footnote 99. Thomas v State, 237 Ind 537, 147 NE2d 577.

Annotation:  45 ALR3d 958, § 33[a].

Footnote 1. People v Nickopoulous, 26 Mich App 297, 182 NW2d 83.

Annotation:  45 ALR3d 958, § 33[b].

Footnote 2. State v Sharp, 202 Kan 644, 451 P2d 137.

Annotation:  45 ALR3d 958, § 34.

Footnote 3. State v Post, 255 Iowa 573, 123 NW2d 11.

Annotation:  45 ALR3d 958, § 35.

As to alibi instructions in general, see 75 Am Jur 2d,  Trial §§ 729-737.

Footnote 4. 29 Am Jur 2d,  Evidence § 157.


§ 201  Federal rules  [21 Am Jur 2d CRIMINAL LAW]

The Federal Rules of Criminal Procedure govern notices of alibi in federal criminal prosecutions. 5   It has been held that the applicable federal rule is intended to reduce the possibility of surprise at trial and to prevent trial delays that might otherwise be necessary to permit a surprised party to meet an unexpected witness or an alibi defense. 6

The rule provides that upon the government attorney's written demand stating the time, date, and place at which the alleged offense was committed, the defendant must serve the government within ten days, or at such different time as the court may direct, a written notice of his intention to offer an alibi defense.  Such notice must state the specific place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses he intends to rely on to establish his alibi. 7   After proper demand has been made, a defendant is under an obligation to disclose to the government the name of an alibi witness, even though the defendant does not know where the witness can be located. 8   

In response to the defendant's notice, the attorney for the government must inform the defendant in writing, within 10 days thereafter, but in no event less than 10 days before trial, unless otherwise directed by the court, of the names and addresses of the witnesses the government intends to rely on to establish the defendant's presence at the scene of the alleged offense or to rebut testimony of any of the defendant's alibi witnesses. 9    It has been said that the prosecution's reciprocal disclosure duties are the essential quid pro quo of the rule, without which it would likely be unconstitutional. 10  Because the rule expressly requires a written notice stating the names and addresses of the witnesses to be relied on, the government cannot meet its disclosure requirements orally. 11    Alibi rebuttal witnesses within the meaning of the rule include not only those who directly place the defendant at the scene of the crime, but also those who solely impeach the credibility of the defendant's alibi witnesses. 12   The government's reciprocal obligation under the rule is not triggered, however, until the government makes a written demand on the defendant that he serve notice of his intention to offer an alibi defense.  Unless the government makes that initial demand, the defendant cannot compel it to disclose the names and addresses of the witnesses it will rely on to establish the defendant's presence at the scene of the crime and to rebut his alibi witnesses. 13    

The rule also imposes on each party a continuing duty to disclose and notify promptly the other party or his attorney of the existence and identity of an additional witness whose identity, if known, should have been included in the previously furnished information. 14  

Upon the failure of either party to comply with the rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant's absence from or presence at the scene of the alleged offense. The rule, however, does not limit the defendant's right to testify in his own behalf. 15   It has been said that the court's authority to exclude evidence flowing from undisclosed sources is an integral part of the rule and is essential to its effective operation.  Thus, the trial court has the power not only to exclude testimony of undisclosed witnesses, but also documentary evidence supplied by them. 16    The court's power to exclude the testimony of an undisclosed witness is discretionary.  It has been held that in exercising its power the court should consider the amount of prejudice that resulted from the failure to disclose, the reason for nondisclosure, the extent to which harm caused by the nondisclousre was mitigated by subsequent events, the weight of properly admitted evidence supporting the defendant's guilt, and other relevant factors arising out of the circumstances of the case. 17  Abuse of discretion is the appropriate standard of review of the trial court's imposition of sanctions; and it is said the trial court should carefully weigh the interest of the defendant in having a full and fair trial against the interests of avoiding surprise and delays. 18    For good cause shown, the court may grant an exception to any of the disclosure requirements of the rule. 19   

The federal alibi notice rule further provides that neither evidence of an intention to rely upon an alibi defense that is later withdrawn nor a statement made in connection with such an intention is admissible in any civil or criminal proceeding against a defendant who gave notice of the intention. 20   The rule in no way changes, moreover, the government's burden to prove guilt beyond a reasonable doubt. 21  

Although the federal rule is silent on the point, a trial court may, upon request by the government before a given witness testifies, compel a defendant to deliver to the court a written statement of any witness listed on the alibi notice.  The court may then give the statement, edited of irrelevancies, to the government upon completion of the direct examination of the witness.  If the existence of a statement is disputed, the court determines the matter after taking evidence on it; and may prohibit an alibi witness from testifying if the defendant refuses to produce a witness' statement that is acknowledged to exist. 22  

The federal alibi notice rule has been applied to a defendant's request for disclosure of the government's witnesses, even though the defendant did not brief or formally present the rule to the district judge.  Thus, an appellate court, on an assumption that the government had a duty to disclose witnesses under the alibi notice rule, has applied the alibi notice rule but held that the trial court's explicit denial of disclosure under the general discovery provision of the Federal Rules of Criminal Procedure 23   was not reversible in the absence of material prejudice to the defendant. 24    

In a prosecution against multiple defendants, one defendant's standing to complain of the exclusion of the testimony of his codefendant's alibi witness has been seriously questioned where the excluded testimony would have been on the codefendant's behalf and there was no claim that it would have been relevant to the other defendant's guilt or innocence. 25


§ 201  – Federal rules [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Rules:

FRCrP, Rule 16, amended in 1994, clarifies the rule's applicability to organizational as well as individual defendants.

FRCrP 16(a)(1)(E), which was added in 1993, provides that at the defendant's request, the government must disclose to the defendant a written summary of testimony the government intends to use under FRE 702, 703, or 705 during its case in chief at trial. This summary must describe the witnesses' opinions, the bases and reasons therefor, and the witnesses' qualifications. FRCrP 16(b)(1)(C) provides that if the defendant requests such disclosure and the government complies, the defendant, at the government's request, must disclose to the government a similar written summary.

Case authorities:

Government was not required to disclose its written statements of interviews with defendant's alibi witnesses since duty imposed on government is limited to disclosure of names and addresses of witnesses upon whom government intends to rely to place defendant at crime scene or rebut alibi witness testimony. United States v Carrasquillo-Plaza (1989, CA1 Puerto Rico) 873 F2d 10.

Defendant need not disclose his intent to offer alibi defense unless and until government submits written request specifying time, date, and place of alleged offense. It was erroneous for District Court to preclude testimony of two alibi witnesses on ground that defendants failed to comply with FRCrP 12.1; government's letter requesting reciprocal discovery did not trigger notice of alibi requirements of Rule 12.1(a) because it did not specify time, place, and date of alleged defense, nor did government notes of interview in combination with letter satisfy Rule 12.1(a) because notes did not specify any date, and also because government did not state in writing that offense was committed at times and places referred to in notes. United States v Saa (1988, CA2 NY) 859 F2d 1067.

Only fair reading that can be subscribed to Rule 12.1 is that it was intended to be reciprocal in sense that, while defendant must respond to Government's demand by stating specific place or places at which he claims to have been at time of alleged offense, Government must also initially state with specificity time, date and place at which alleged offenses were committed. United States v Bickman (1980, ED Pa) 491 F Supp 277.

It is permissible and consistent with Rule's 12.1 purpose for prosecution to seek notice-of alibi with respect to discrete temporal aspect of crime charged and defendant is amply protected if prosecution makes it clear that it is invoking Rule in that manner. United States v Vela (1982, CA5 Tex) 673 F2d 86.

Notice requirement of Federal Rule of Criminal Procedure 12.1 is only reciprocal obligation triggered by government's written demand, under Rule, of notice to offer alibi defense; where government makes no written demand under Rule, it is under no duty to provide defendants with list of rebuttal witnesses. United States v Onega-Chavez (1982, CA5 Tex) 682 F2d 1086.

Documents supporting defendant's alibi were properly excluded where defendant did not provide those documents as part of reciprocal discovery, even though prosecution made no demand for notice of alibi defense. United States v King (1983, CA5 Miss) 703 F2d 119, 12 Fed Rules Evid Serv 1633, reh den (CA5 Miss) 706 F2d 315 and cert den (US)  78 L Ed 2d 123,  104 S Ct 127 and cert den (US)  78 L Ed 2d 138,  104 S Ct 148 and cert den (US)  78 L Ed 2d 160, 104 S Gt 179.

Although FRCrP 12.1 had technically been violated by government, trial court did not abuse its discretion in admitting testimony of a government alibi rebuttal witness where defendant did not contemporaneously object to admission of the testimony, request a continuance, voir dire the witness, or move to strike the testimony; furthermore, government had unsuccessfully attempted to subpoena the witness, notice was provided within 48 hours of time government became aware of potential testimony & within 24 hours of government's decision to call witness, and record indicated that threats were being made to witnesses in an attempt to preclude their testimony. United States v Causey (1987, CA6 Mich) 834 F2d 1277.

Alibi notice requirements are satisfied where defense counsel identifies defendant's mother as possible alibi witness in letter to government and government itself calls mother as witness. United States v Webster (1985, CA8 Minn) 769 F2d 487.

Government request for notice of alibi is not bill of particulars limiting charges as to time, place, and date indicated on request; accordingly, government is not limited to proof of events which took place during time frame indicated in request for notice of alibi and defense is not limited by request to alibi witnesses for that time frame; defendant is free to bring forth alibi witnesses deemed appropriate for other days encompassed by charges against defendant and government cannot claim unfair surprise as it has not requested notice of alibi for those days; defendant confused by request seeking notice of alibi for limited period should seek bill of particulars. United States v Dupuy (1985, CA9 Ariz) 760 F2d 1492.

Timely notice of alibi defense does not require government to disclose evidence rebutting defendant's affirmative evidence that someone else was responsible for crime where government is not aware prior to resting case in chief that defendant would offer such evidence. United States v Givens (1985, CA9 Cal) 767 F2d 574.

Where defendant failed to file notice of alibi, pursuant to statute, court held that defendant did not have constitutional right to testify as to where he was at time of crime if he claimed that he was not at place of its commission; statute did not deny defendant right to testify, but rather, only required that, if he was going to claim not to have been at scene of crime, then he had to notify state as to where he was. State v Burroughs (1984)  117 Wis 2d 293, 344 NW2d 149.

Footnotes

Footnote 5. FRCrP, Rule 12.1.

Footnote 6. United States v Barron (CA9 Cal) 575 F2d 752.

Practice Aids: Orfield, Criminal Procedure Under the Federal Rules, Vol. 2.

Footnote 7. FRCrP, Rule 12.1(a).

Annotation:  42 ALR Fed 878, § 6.

Neither reversible error nor a violation of due process occurred when the district court allowed the government to file a written demand for a notice of alibi on the second day of a three-day trial.  Although the government's notice was belated, the trial court did not abuse its considerable discretion under Rule 12.1, and any error was harmless beyond a reasonable doubt. United States v Hutton (CA6 Ky) 558 F2d 1265, cert den  434 US 970,  54 L Ed 2d 459,  98 S Ct 519.

An order giving a defendant four days instead of ten days to give notice of an alibi defense was not an abuse of discretion where the court allowed the defense to reopen the case and call alibi witnesses after both sides had rested and instructions had been settled upon during trial, where the defense called three alibi witnesses and the court allowed presentation of the defense, where the defendant did not give any indication that he had other witnesses to call or evidence to present, where the government did not call any rebuttal witnesses, and where no prejudice resulted. United States v Singletary (CA8 SD) 562 F2d 1058.

Footnote 8. United States v White (CA6 Ohio) 583 F2d 899.

Practice Aids: –Demand–By United States Attorney–To determine if defendant intends to offer alibi defense [FRCrP 12.1(a)].  7 Federal Procedural Forms L Ed §  20:276.

Notice–By defendant–Of intent to offer alibi defense, specifying place and witnesses [FRCrP 12.1(a)]. 7 Federal Procedural Forms L Ed §  20:277.

Footnote 9. FRCrP, Rule 12.1(b).

The defense was not prejudiced by the government's failure to give pretrial notice of its intent to call an alibi rebuttal witness where the witness' name and anticipated testimony were made known to the defense on the first morning of trial.  United States v Floyd (CA2 NY) 555 F2d 45, cert den  434 US 851,  54 L Ed 2d 120,  98 S Ct 163.

A conspiracy defendant's motion for a bill of particulars setting forth with enhanced specificity the dates, locations, names, and addresses of the participants and the exact date, time, and location of the overt act alleged in the indictment was proper where the information requested was necessary for the defendant to propare an alibi defense; but the defendant was not entitled to disclosure of testimony relating to overt acts not enumerated in the indictment.  United States v Orsini (ED NY) 406 F Supp 1264.

Footnote 10. United States v Barron (CA9 Cal) 575 F2d 752.

Footnote 11. United States v Myers (CA5 Fla) 550 F2d 1036,  42 ALR Fed 855, later app (CA5 Fla) 572 F2d 506, cert den  439 US 847,  58 L Ed 2d 149,  99 S Ct 147.

Annotation:  42 ALR Fed 878, §§ 3-4.

Footnote 12. United States v Myers (CA5 Fla) 550 F2d 1036,  42 ALR Fed 855, later app (CA5 Fla) 572 F2d 506, cert den  439 US 847,  58 L Ed 2d 149,  99 S Ct 147.

Footnote 13. United States v Savage (MD Pa) 430 F Supp 1024, affd without op (CA3 Pa) 566 F2d 1170, cert den  434 US 1078,  55 L Ed 2d 786,  98 S Ct 1273.

Footnote 14. FRCrP, Rule 12.1(c).

Under Rule 12.1, the defendant is under a continuing duty to give names and addresses of alibi witnesses.  United States v Higginbotham, (CA9 Or) 539 F2d 17.

Rule 12.1 sets out the procedure for a defendant's use of an alibi defense and places a continuing obligation on him to give notice.  United States v Boatwright (ED Pa) 425 F Supp 747.

Practice Aids: –Notice–By defendant–Of additional alibi witness [FRCrP 12.1(c)].  7 Federal Procedural Forms L Ed §  20:278.

Footnote 15. FRCrP, Rule 12.1(d).

Annotation:  42 ALR Fed 878, §§ 7-9.

Footnote 16. United States v Myers (CA5 Fla) 550 F2d 1036,  42 ALR Fed 855, later app (CA5 Fla) 572 F2d 506, cert den  439 US 847,  58 L Ed 2d 149,  99 S Ct 147.

Footnote 17. United States v Myers (CA5 Fla) 550 F2d 1036,  42 ALR Fed 855, later app (CA5 Fla) 572 F2d 506, cert den  439 US 847,  58 L Ed 2d 149,  99 S Ct 147.

Footnote 18. United States v Barron (CA9 Cal) 575 F2d 752 (exclusion of testimony justified where defendant steadfastly refused to cooperate in his own defense up until scheduled trial date and did not make timely disclosure of alibi defense to attorney and where government had strong case against him through seven eyewitnesses who made positive in-court identification of him as bank robber).

The district court abused its discretion in failing to exclude the testimony of four undisclosed alibi rebuttal witnesses where the prejudice to the defense was substantial and remained unabated, where the government's reason for nondisclosure, its belief that the witnesses were not within the scope of Rule 12.1, was feeble, and where the evidence against the defendant was weak.  United States v Myers (CA5 Fla) 550 F2d 1036,  42 ALR Fed 855, later app (CA5 Fla) 572 F2d 506, cert den  439 US 847,  58 L Ed 2d 149,  99 S Ct 147.

Authority in the trial judge to exclude evidence for noncompliance with FRCrP Rule 12.1 is contemplated by the wording and history of rule, and indeed, exclusion for noncompliance may be the normal sanction applied; although, in light of extenuating circumstances (counsel was not appointed until the time for compliance with Rule 12.1 had nearly run out, and the lawyer was inexperienced) it would have been better practice to have allowed the testimony, it cannot be said that the trial judge abused his discretion in not doing so.  United States v Fitts (CA10 Okla) 576 F2d 837.

Footnote 19. FRCrP, Rule 12.1(e).

Annotation:  42 ALR Fed 878, § 10.

The trial judge properly excluded alibi testimony (other than by the defendant himself) where the 10-day notice requirement of Rule 12.1 was not complied with, where there was no showing by the defendant of good cause for his noncompliance, and where such exclusion did not substantially prejudice him.  United States v Smith, 173 App DC 314, 524 F2d 1288.

A defendant who did not disclose the name of an alibi witness to the government upon demand made under Rule 12.1(a), allegedly because he did not know where the alibi witness could be located, did not show good cause under Rule 12.1(e) for avoiding exclusion of such alibi testimony under Rule 12.1(d).  The government's case would have been seriously prejudiced had the witness been permitted to testify since the government had not had an opportunity to interview the witness and investigate testimony, the witness' testimony was not offered until both parties had rested at the close of a three-day jury trial, a continuance for the purpose of investigation would not have been satisfactory and it is doubtful the jury would have believed the alibi testimony of the additional witness.  United States v White (CA6 Ohio) 583 F2d 899.

Defendant's failure to inform his counsel of the existence of two alibi witnesses because of a desire not to involve them in the case did not show "good cause" to warrant granting an exception to the exclusion of their testimony.  United States v Boatwright (ED Pa) 425 F Supp 747.

Practice Aids: –Motion–To permit defendant to offer alibi defense, specifying reasons for failure to give notice of defense [FRCrP 12.1(e)].  7 Federal Procedural Forms L Ed §  20:279.

Footnote 20. FRCrP, Rule 12.1(f).

Footnote 21. 29 Am Jur 2d,  Evidence § 157.

Footnote 22. United States v Pulvirenti (ED Mich) 408 F Supp 12.

Annotation:  42 ALR Fed 878, § 5.

Footnote 23. FRCrP, Rule 16.

As to discovery and inspection of prosecution evidence in general under the FRCrP, see 23 Am Jur 2d,  Depositions and Discovery §§ 309 et seq.

Footnote 24. McClendon v United States (CA8 Ark) 587 F2d 384, cert den  440 US 983,  60 L Ed 2d 244,  99 S Ct 1793 (noncompliance by Government with Rule 12.1, assuming a duty to comply, could not have been prejudicial to defendant's case where element of surprise at trial was not a substantial factor in the case).

Footnote 25. United States v Boatwright (ED Pa) 425 F Supp 747


C.  Entrapment [202-209]

§ 202  Generally; definitions and distinctions  [21 Am Jur 2d CRIMINAL LAW]

Entrapment has been defined as the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him. 26  It has also been defined as the conception and planning of an offense by an officer and the procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. 27   This definition is too narrow, however, in that it refers only to entrapment by an officer, whereas entrapment may, in some jurisdictions at least, consist of the action of a person other than an officer, as, for example, a private detective, 28  or even a private citizen. 29    Thus, where law enforcement officers use an individual to help them arrange the commission of a crime by another person, the officers cannot disclaim the inducements such individual made in the course of his efforts on their behalf. 30   Furthermore, manipulation of a third party by law enforcement officers to procure the commission of a criminal offense by another renders the third party a government agent for purposes of the entrapment defense, even though the third party remains unaware of the law enforcement object. 31    

In essence, the defense of entrapment prohibits law enforcement officials from instigating criminal acts by otherwise innocent persons in order to punish them. 32  The defense therefore consists of two elements: (1) acts of persuasion, trickery, or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime, and (2) the origin of the criminal design in the minds of the government officials rather than that of the innocent defendant, such that the crime is the product of the creative activity of the law enforcement officers. 33

Although in every arrest there is a certain amount of entrapment in order to outwit the persons who are violating the law or who are about to violate the law, it is not the deception that is forbidden.  The type of entrapment the law forbids is the inducing of another to violate the law. 34   Generally, therefore, where the criminal intent originates in the mind of the entrapping person and the accused is lured into the commission of the offense charged in order to prosecute him, no conviction may be had. 35    But where the criminal intent originates in the mind of the accused and the criminal offense is completed, the fact that a person acting as a decoy for the state or public officials furnished the accused an opportunity for commission of the offense, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him, constitutes no defense. 36  in other words, entrapment occurs when a law enforcement agent induces the commission of an offense, using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense, however, does not constitute entrapment. 37

There is a clear distinction between inducing a person to do an unlawful act and setting a trap to catch him in the execution of a criminal plan of his own conception. 38   There is also a distinction between the terms "detection" and "entrapment," as applied to the activities of law enforcement officers.  Legitimate detection of crime occurs when officers test a suspected person by offering him an opportunity to transgress the law in such manner as is usual in the activity alleged to be unlawful.  On the other hand, entrapment occurs when officers induce a person to violate the law when he would not otherwise do so. 39   The United States Supreme Court has stated that in deciding the issue of entrapment, "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." 40   Where the officers merely afford an opportunity to one intending to violate the law, they do not procure the offense to be committed.  The offender in such a case acts of his own volition and is simply caught in his own devices. 41   The defense of entrapment concerns the manufacturing of crime by law enforcement officials and their agents, conduct far different from the permissible stratagems involved in the detection and prevention of crime. 42  Recognizing that the use of deceit may be the only practicable law enforcement technique available under certain circumstances, the Supreme Court has further held that the defense of entrapment only comes into play when the government's deception actually implants the criminal design in the defendant's mind. 43   For entrapment to occur, the officer must do something causing the accused to violate the law when he would not otherwise have done so; the accused's normal course of legal conduct must in some way be diverted into an illegal course by the acts of the officer.  Thus, it has been noted that it is difficult to state an all-embracing rule to define the course of conduct or provocation by government officials constituting entrapment and that each case must usually be analyzed on its facts. 44


§ 202  – Generally; definitions and distinctions [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Sentence entrapment: A casualty of the war on crime, 1994 Ann Surv Am L 165 (1994).

Scrutiny for the serpent: the Court refines entrapment law in Jacobson v. United States [ 112 S. Ct. 1535 (1992)], 42 Cath U LR 1027 (1993).

Government manufacture of crime and the entrapment defense, 22 Col Law 925 (1993).

The evolution of the federal law of entrapment: A need for a new approach, 58 Mo LR 403 (1993).

Entrapment and Jacobson v. United States: "Doesn't the government realize that they can destroy a man's life?" 13 N Ill LR 431 (1993).

Entrapment by estoppel: A defense of fairness, 213 New York LJ 81:1 (1995).

The due process defense in "reverse sting" cases: when do police overstep the bounds of permissible conduct?, 22 Stet LR 1305 (1993).

Perelli-Minetti, Causation and Intention in the Entrapment Defense. 28 UCLA LR 859, April, 1981.

Actions by state official involving defendant as constituting "outrageous" conduct violating due process guaranties  18 ALR5th 1.

Right of criminal defendant to raise entrapment defense based on having dealt with other party who was entrapped  15 ALR5th 39.

Entrapment as defense to charge of selling or supplying narcotics where government agents supplied narcotics to defendant and purchased them from him,  9 ALR5th 464.

Maintainability of burglary charge, where entry into building is made with consent. (See also 13 Am Jur 2d, Burglary § 64.)  58 ALR4th 335.

Burden of proof as to entrapment defense–state cases.  52 ALR4th 775.

Entrapment to commit traffic offense.  34 ALR4th 1167.

Entrapment defense in sex offense prosecutions;  12 ALR4th 413. superseding  52 ALR2d 1194 and  53 ALR2d 1156.

What conduct of federal law enforcement authorities in inducing or co-operating in criminal offense raises due process defense distinct from entrapment.  97 ALR Fed 273.

Entrapment to commit bribery offense under 18 USCS §  201.  83 ALR Fed 624.

Entrapment: A Source of Continuing Confusion in the Lower Courts.  5 Am Jur Trials 293.

Entrapment as defense to federal criminal charge–Supreme Court cases  118 L ED 2nd 703.

Barker, Entrapment in Ohio. 17 Akr LR 709, Spring, 1984.

The Michigan Entrapment Defense: Review and Analysis. 61 U Det J Urb L 287, Winter, 1984.

Whelan, Lead Us Not Into (Unwarranted) Temptation: A Proposal to Replace the Entrapment Defense Without a Reasonable Suspicion Requirement. 133 U Pa LR 1193, June, 1985.

Stavsky, The "Sting" Reconsidered: Organized Crime, Corruption and Entrapment. 16 Rut LJ 937, Spring & Summer 1985.

Marcus, The Development of Entrapment Law. 33 Wayne LR 5, Fall. 1986.

Borgida and Park, The Entrapment Defense. 12 Law & Hum Behav 19, March, 1988.

Schreibstein, Entrapment in light of Mathews v United States: The propriety of inconsistency and the need for objectivity. 24 U San Fran LR 541, Spring, 1990.

Webster, Building a Better Mousetrap: Reconstructing Federal Entrapment Theory From Sorrels to Mathews. 32 Ariz LR 605, 1990.

Criminal procedure–entrapment–defendant has been entrapped as a matter of law when the government's protracted and insistent efforts create in defendant a predisposition to engage in unlawful conduct– Jacobson v United States,  112 S Ct 1535 (1992), 23 Set Hall LR 728 (1993).

Entrapment targets and tactics: Jacobson v United States 29 Crim L Bull 241 (1993).

Reshaping the federal entrapment defense: Jacobson v United States [ 112 S Ct 1535 (1992)], 68 Wash LR 185 (1993).

The government as pornographer: government sting operations and entrapment: United States v Jacobson,  112 S Ct 1535 (1992), 61 U Cin LR 1067 (1993).

Case authorities:

The question of the validity of an accused's entrapment defense is generally one for the jury, rather than for the court. Mathews v United States (1988, US)  99 L Ed 2d 54,  108 S Ct 883, on remand (CA7 Wis) 848 F2d 196.

Defendant's conviction for false statement made in response to Department of Labor information forms did not violate due process clause, where defendant knew that forms were sent by government agency and forms placed him on notice through conspicuous warnings that honest answers were required. United States v Arcadipane (1994, CA1 Mass) 41 F3d 1.

Undercover operations for purpose of exposing bribery among public officials certainly are not per se unconstitutional. United States v Carpentier (1982, CA2 NY) 689 F2d 21.

Government did not engage in outrageous conduct in violation of due process by engaging in sting operation in which informant supplied government-owned automobile to be burned by defendant. United States v LaPorta (1994, CA2 NY) 46 F3d 152.

Government infiltration of criminal activity is recognized and permissible means of investigation even where government agents supply something of value to criminal since such supply may be necessary to be taken into confidence of illegal entrepreneur; however, government may not instigate criminal activity, provide place, equipment, supplies and know-how, and run entire operation with only meager assistance from defendants without violating fundamental fairness. United States v Tobias (1981, CA5 Ala) 662 F2d 381.

Defendant's prosecution for knowing possession of child pornography did not violate due process, since such possession was not a wholly passive act. United States v Layne (1995, CA5 Tex) 43 F3d 127.

In prosecution for knowingly and intentionally attempting to possess with intent to distribute cocaine, evidence supported jury's rejection of entrapment defense, where defendant had been involved in prior drug deals, was at ease in communicating in code or in jargon of drug trade, initiated contact with informant, and was willing and eager to participate in drug transaction. United States v Cervante (1992, CA7 Ill) 958 F2d 175.

Defendant was not entrapped as matter of law to purchase child pornography, where he promptly and independently inquired without pressure to do so, and ordered such material at first available opportunity. United States v LaChapelle (1992, CA8 Minn) 969 F2d 632.

Defendant has not shown inducement to violate 18 USCS §  2252 as matter of law, where he ordered child pornography after receiving one questionnaire and one catalog from government sting operation, where two mailings exerted no pressure, and questionnaire specifically stated products were illegal, since government merely afforded him opportunity to commit crime. United States v Stanton (1992, CA8 Ark) 973 F2d 608.

Element of defense of entrapment are government inducement of crime and absence of defendant's predisposition. Thus, court reversed narcotics prosecution with instructions to enter judgment of acquittal where defendant had been entrapped as matter of law; evidence established that government had induced commission of the crime and that no reasonable jury could have found beyond reasonable doubt that defendant had been predisposed to sell narcotics independent of government's actions. United States v Skarie (1992, CA9 Gal) 971 F2d 317, 92 CDOS 6537, 92 Daily Journal DAR 10411.

Permissible police conduct must be limited by constitutional due process, i.e., prosecution of a defendant may be barred where the government's involvement in the criminal enterprise is so extensive that it may be characterized as outrageous. Simmons v State (1991, Fla App DI) 590 So 2d 442, 16 FLW D2788, reh gr, in part, ques certified (Fla App DI) 16 FLW 3092.

Evidence of defendant's predisposition to commit offense is sufficient to negate entrapment defense where defendant willingly attended several meetings with informant, made additional contacts by phone in order to arrange transaction, and furthermore, contacted others in attempt to have them invest in drugs. United States v Sayers (1983, CA11 Fla) 698 F2d 1128.

Federal license to sell firearms does not transform private licensee into government official, and creates no entrapment by estoppel defense, since, if it were otherwise, convicted felons would be allowed to withhold material facts from federally licensed firearms dealers, elicit erroneous responses based on such non-disclosure, and then plead entrapment. United States v Billue (1993, CA11 Fla) 994 F2d 1562, 7 FLW Fed C 535, 37 Fed Rules Evid Serv 468.

The defense of deprivation of constitutional due process, based upon the due process provision of Fla Const Art I § 9, was properly applied to dismiss a prosecution for trafficking and conspiring to traffic in cannabis, despite defendants' admitted predisposition to commit the crime and the consequent result that an entrapment defense would be inapplicable, where sheriffs made an agreement to pay a third party informant and reverse sting participant 10 percent of all civil forfeitures arising out of successful criminal prosecutions in connection with the sting if the informant would testify and cooperate in the prosecutions; the contingency fee arrangement with the informant seemed to manufacture, rather than detect, crime, and created an enormous financial incentive for the informant to color his testimony or even commit perjury in pursuit of such fee. State v Glosson (1985, Fla) 462 So 2d 1082, 10 FLW 56.

Accused video store owner was entrapped as a matter of law, where accused was charged with the sale or distribution of harmful materials to a person under 18 years of age after police obtained a membership card under a fictitious name and had a 16 year-old girl use the card to rent x-rated videotapes by posing as the girlfriend of the card holder and lying about her age, because the undisputed facts clearly established that law enforcement agents induced accused to rent the tape to a juvenile, and there was no evidence whatsoever of accused's predisposition prior to and independent of the government inducement. Munoz v State (1993, Fla) 629 So 2d 90, 18 FLW S 537.

In determining whether an entrapment evaluation should go to the jury, if the factual circumstances of the case are not in dispute, if the accused established that the government induced the accused to commit the offense charged, and if the State is unable to demonstrate sufficient evidence of predisposition prior to and independent of the government conduct at issue, then the trial judge has the authority to rule on the issue of predisposition as a matter of law because no factual "question of predisposition" is at issue. Munoz v State (1993, Fla) 629 So 2d 90, 18 FLW S 537.

The legislature has the authority to statutorily establish entrapment as a defense, but the legislature cannot enact a statute that overrules a judicially established legal principle enforcing or protecting a federal or Florida constitutional right; accordingly, FS § 777.201 cannot overrule a decision of the Florida Supreme Court regarding entrapment in any case decided under the due process provision of Fla. Const Art I, § 9, Munoz v State (1993, Fla) 629 So 2d 90, 18 FLW S 537.

Once issue whether defendant was entrapped is before jury, burden is on Commonwealth to prove beyond reasonable doubt that (1) there was no governmental inducement or (2) defendant was predisposed to commit crime. Commonwealth v Penta (1992) 32 Mass App 36, 586 NE2d 996, review den 412 Mass 1103, 590 NE2d 195.

Regarding constitutional due process entrapment (as distinguished from statutory entrapment), once defendant has initially put forth some evidence of due process entrapment, state must disprove it by clear and convincing evidence. State v Abdelnoor (1994, App Div) 273 NJ Super 321, 641 A2d 1102.

In a prosecution for bribery, conspiracy, and criminal facilitation in which defendant contended that he only intended to catch and to report to the proper authorities the public official he was accused of bribing, the trial court committed reversible error in charging the jury with respect to the defense of entrapment, thereby shifting the burden of proof of criminal intent from the prosecution to defendant, where both the defendant and the prosecution excepted to the charge on entrapment, inasmuch as defendant's defense was not entrapment but lack of criminal intent. People v Albright (1985)  65 NY 2d 666, 491 NYS2d 614, 481 NE2d 246.

There is no constitutional infirmity in imposing the burden of proving entrapment by a preponderance of evidence upon defendant as an affirmative defense since the establishment of entrapment defense does not negate commission of the crime charged nor the existence of any element thereof. People v Millard (1982, 3d Dept)  90 App Div 2d 590, 456 NY S2d 201.

Defendant was entrapped as a matter of law, where law enforcement officers obtained cocaine from police property custodian without written authorization from supervisory personnel and gave it to informant, who sold it to defendant, resulting in his arrest for possession of controlled substance with intent to deliver. State v Kummer (1992, ND) 481 NW2d 437.

Convicted drug dealer was not entrapped where the state merely provided him with the opportunity the commit 3 offenses of selling cocaine to a confidential police informant because the testimony showed that the criminal intent originated in the mind of the dealer; additionally, the trial court did not err in refusing to introduce expert testimony regarding a drug-dependent person's ability to resist a temptation to share drugs because the expert did not have actual knowledge of the dealer's dependency. State v Rios (1991, Cuyahoga Co) 75 Ohio App 3d 288, 599 NE2d 374, dismd, motion overt 62 Ohio St 3d 1475, 581 NE2d 1097, post-conviction proceeding (Ohio App, Cuyahoga Co) 1993 Ohio App LEXIS 2089.

In a prosecution for criminal solicitation arising from a reverse sting operation in which the defendant attempted to purchase 100 pounds of marijuana from a detective, there was no entrapment as a matter of law where there was sharply conflicting evidence as to inducement, and the conflict was for the jury to resolve; the detective testified that he approached the defendant because he knew that the defendant had previously purchased marijuana and recorded conversations showed the defendant to be an experienced marijuana dealer, but the defendant testified that he was induced to purchase marijuana by the detective's plea for assistance in paying off a debt to some "big people" and that the detective coached him in what to say before the conversations were recorded. Commonwealth v Mance (1993, Super Ct) 619 A2d 1378.

The promise to the defendant made by a long-time friend to get him high on dope if he obtained dope and delivered it to strangers was not entrapment. Bush v State (1980, Tex Crim) 611 SW2d 428.

Defendant may raise due process-based defense of outrageous government conduct against criminal indictment; defendant who is target of government's activity has standing to contest his conviction on grounds of outrageous government conduct, but defendants who were not targets of government conduct but who were also arrested for conspiracy with first defendant do not have standing to contest government's conduct as unconstitutional where (1) their conduct was clearly voluntary criminal behavior, (2) government agents repeatedly sought to dissuade involvement of at least one of these defendants from crime and (3) their involvement as a whole was incidental to government's alleged plan to entrap first defendant. United States v Bogart (1986, CA9 Cal) 785 F2d 1428.

Footnotes

Footnote 26. State v Marquardt, 139 Conn 1, 89 A2d 219,  31 ALR2d 1206 (making, recording, and registering bets on horseraces); State v Jarvis, 105 W Va 499, 143 SE 235 (sale of liquor); State v Hochman,  2 Wis 2d 410, 86 NW2d 446,  77 ALR2d 784 (selling obscene booklets and pictures); State v Rice,  37 Wis 2d 392, 155 NW2d 116, cert den  393 US 878,  21 L Ed 2d 152,  89 S Ct 180 (possession and use of narcotic drugs).

Practice Aids: Comment, Administration of the Affirmative Trap and the Doctrine of Entrapment:  Device and Defense.  31 U Chi L Rev 137.

Entrapment.  1 Wharton's Criminal Law (14th Ed) § 52.

Mirakian, Entrapment:  Time to Take an Objective Look.  16 Washburn LJ 324.

Note, Entrapment.  73 Harv L Rev 1333.

Note, Entrapment:  An Analysis of Disagreement.  45 B U L Rev 542.

Park, The Entrapment Controversy.  1976, 60 Minn L Rev 163.

Ranney, The Entrapment Defense–What Hath the Model Penal Code Wrought.  1977-78, 16 Duquesne L Rev 157.

Rotenberg, The Police Detection Practice of Encouragement.  49 Va L Rev 871.

Tanford, Entrapment:  Guidelines for Counsel and the Courts. 1977, 13 Crim L Bull 5.

Footnote 27. People v Bernal (4th Dist) 174 Cal App 2d 777, 345 P2d 140 (sale of narcotics); Halko v State (Sup) 58 Del 383, 209 A2d 895 (using false statement in applying for license); People v Outten, 13 Ill 2d 21, 147 NE2d 284 (sale of narcotic drugs); Eisner v Commonwealth (Ky) 375 SW2d 825 (engaging in prostitution); State v Burnette, 242 NC 164, 87 SE2d 191,  52 ALR2d 1181 (assault with intent to commit rape); Watson v State (Okla Crim) 382 P2d 449 (ovrld on other grounds McInturff v State (Okla Crim) 554 P2d 837; sale of narcotics); Swift v Commonwealth, 199 Va 420, 100 SE2d 9 (sales of alcoholic beverages); Wood v Commonwealth, 213 Va 363, 192 SE2d 762 (distributing marijuana).

Footnote 28. Re Application of Moore, 70 Cal App 483, 233 P 805 (unlawful possession of liquor).

Footnote 29. Beasley v State (Okla Crim) 282 P2d 249, holding, in the prosecution of a police officer for accepting a bribe from an admitted bootlegger, that the defense of entrapment was available to the defendant where, although the entrapping person, the bootlegger, was not acting as a decoy for law enforcement officers at the inception of the transaction, the officers were fully informed of the criminal act before it was committed.

Annotation:  69 ALR2d 1397, § 13.

North Carolina follows the majority rule that entrapment is a defense only when the entrapper is an officer or agent of the government.  State v Whisnant, 36 NC App 252, 243 SE2d 395 (sale and delivery of controlled substances).

In a prosecution for possession of heroin, the trial court erred in refusing to give an instruction on entrapment, where the evidence showed that there was arguable undue persuasion and coercion or unusual enticement by a confidential informant who was working directly for the police.  Weaver v State (Fla App D4) 370 So 2d 1189.

Under a statute limiting the defense of entrapment to an inducement by a "law enforcement agent" (defined as personnel of the federal, state, and local law enforcement agencies and their agents), local traffic engineers and the state highway commission would not fall within the definition.  Drago v State (Tex Crim) 553 SW2d 375 (rejecting defendant's contention that the traffic violation leading to his being stopped by police officers and the discovery of marijuana in his vehicle resulted from obscure traffic control devices that constituted an entrapment as a matter of law).

Footnote 30. State v Ostrand (Iowa) 219 NW2d 509 (delivery of marijuana); State v Tomlinson (Iowa) 243 NW2d 551 (delivery of cocaine); State v Cooper (Iowa) 248 NW2d 908 (delivery of cocaine).

Footnote 31. People v McIntire, 23 Cal 3d 742, 153 Cal Rptr 237, 591 P2d 527 (possessing marijuana for sale).

But see Thompson v State, 259 Ind 587, 290 NE2d 724, cert den  412 US 943,  37 L Ed 2d 404,  93 S Ct 2788 and (ovrld on other grounds Elmore v State 269 Ind 532, 382 NE2d 893) (possession and sale of dangerous drugs), holding that where a third party, who does not know the true identity of the government agent, unwittingly leads the government agent to the defendant, there is no entrapment since it is the third party who induces the initial violation, not the government agent.

Where a defendant claimed entrapment, the trial court properly instructed the jury that if the crime had been suggested by another person, whether or not a law enforcement officer, for the purpose of entrapment, the defendant was not criminally liable.  People v Moran, 1 Cal 3d 755, 83 Cal Rptr 411, 463 P2d 763.

Footnote 32. United States v Russell,  411 US 423,  36 L Ed 2d 366,  93 S Ct 1637, conformed to (CA9) 479 F2d 1046 (unlawful manufacture and sale of drug); Sherman v United States,  356 US 369,  2 L Ed 2d 848,  78 S Ct 819 (sale of narcotics); Sorrells v United States,  287 US 435,  77 L Ed 413,  53 S Ct 210 (illegal possession and sale of liquor).

As to entrapment as defense to particular crimes see:  5 Am Jur 2d,  Arson § 29; 12 Am Jur 2d,  Bribery §§ 29-30; 13 Am Jur 2d,  Burglary § 64; 25 Am Jur 2d,  Drugs §§ 43 et seq; 31 Am Jur 2d,  Explosions and Explosives § 129; 35 Am Jur 2d,  Federal Tax Enforcement § 121; 35 Am Jur 2d,  Fish and Game § 52; 38 Am Jur 2d,  Gambling §§ 164,  168; 40 Am Jur 2d,  Homicide § 124; 45 Am Jur 2d,  Intoxicating Liquors §§ 349-350; 50 Am Jur 2d,  Larceny § 139; 50 Am Jur 2d,  Lewdness § 39; 62 Am Jur 2d,  Post Office § 129; 63 Am Jur 2d,  Prostitution §§ 3,  16; 65 Am Jur 2d,  Rape § 31; 66 Am Jur 2d,  Receiving Stolen Property § 37; 67 Am Jur 2d,  Robbery § 47; 70 Am Jur 2d,  Sodomy § 18.

As to defense of entrapment in contempt proceedings, see 17 Am Jur 2d,  Contempt § 78.

As to defense of entrapment in disciplinary proceedings involving physicians, surgeons, and other healers, see 61 Am Jur 2d,  Physicians and Surgeons § 67.

As to exclusion of evidence obtained by entrapment, see 29 Am Jur 2d,  Evidence § 409.

Footnote 33. State v Walker, 295 NC 510, 246 SE2d 748.

Footnote 34. Butler v United States (CA4 Md) 191 F2d 433 (sale of narcotics).

In Hill v United States (CA5 Miss) 328 F2d 988, cert den  379 US 851,  13 L Ed 2d 54,  85 S Ct 94, it was held, in a prosecution for the possession of untaxed whisky, that there was no entrapment where neighbors had made numerous complaints of the accused's activities and he had a past criminal record, although a government agent hired an informer at $10 per day and promised that he would try to get the informer a reward if the accused was caught.

Footnote 35. Sorrells v United States,  287 US 435,  77 L Ed 413,  53 S Ct 210 (selling liquor in violation of Prohibition Act); United States v Klosterman (CA3 Pa) 248 F2d 191,  69 ALR2d 1390 (bribery); Hoy v State, 53 Ariz 440, 90 P2d 623 (bribery); State v Marquhardt, 139 Conn 1, 89 A2d 219,  31 ALR2d 1206 (making, recording, and registering bets on horseraces); People v Outten, 13 Ill 2d 21, 147 NE2d 284 (sale of narcotic drug); Alford v Commonwealth, 240 Ky 513, 42 SW2d 711 (attempting to State v Dolce, 41 NJ 422, 197 A2d 185 (not followed on other grounds State v Branam 161 NJ Super 53, 390 A2d 1186, affd 79 NJ 301, 399 A2d 299; receiving stolen goods); open safe with explosives); State v Burnette, 242 NC 164, 87 SE2d 191,  52 ALR2d 1181 (assault with intent to commit rape); Cooper v State, 162 Tex Crim 624, 288 SW2d 762 (procuring).

The function of law enforcement officers is to prevent crime and apprehend criminals, not to manufacture evidence.  Sherman v United States,  356 US 369,  2 L Ed 2d 848,  78 S Ct 819.

The purpose of the detective or government agent is not to solicit the commission of, nor to create, an offense, but to ascertain whether the accused is engaged in an unlawful business. State v Parr, 129 Mont 175, 283 P2d 1086,  55 ALR2d 1313 (sale of liquor to minor); Watson v State (Okla Crim) 382 P2d 449 (ovrld on other grounds McInturff v State (Okla Crim) 554 P2d 837; sale of narcotics); State v Hochman,  2 Wis 2d 410, 86 NW2d 446,  77 ALR2d 784 (selling obscene booklets and pictures).

Where defendant was approached by an acquaintance and two government agents who proposed an illegal hunting expedition, with one of the agents stating he wanted to make a present of slain deer to his wife, and the acquaintance informed defendant that he had known the agent for four years and that he need fear no treachery, the defendant who initially refused and then killed a deer which he gave to the agent was entrapped within the meaning of the statute.  United States v Cunningham (MD Fla) 349 F Supp 1115.

Entrapment constitutes a valid defense if officers inspire, incite, persuade, or lure a defendant to commit a crime which he otherwise had no intention of perpetrating.  State v McDonald, 32 Ohio App 2d 231, 61 Ohio Ops 2d 252, 289 NE2d 583 (possession and sale of marijuana).

Footnote 36. Hoy v State, 53 Ariz 440, 90 P2d 623 (bribery); Smith v State, 214 Ind 169, 13 NE2d 562, reh den 214 Ind 174, 14 NE2d 1017 (selling morphine); State v Parr, 129 Mont 175, 283 P2d 1086,  55 ALR2d 1313 (sale of liquor to minor); State v Burnette, 242 NC 164, 87 SE2d 191,  52 ALR2d 1181 (assault with intent to commit rape); State v Jarvis, 105 W Va 499, 143 SE 235 (sale of liquor); State v Hochman,  2 Wis 2d 410, 86 NW2d 446,  77 ALR2d 784 (selling obscene booklets and pictures).

Annotation:  31 ALR2d 1212 (gambling or lottery offenses);  33 ALR2d 883, § 3 (narcotics offenses);  52 ALR2d 1194, 1198-1202 (sexual offenses);  53 ALR2d 1156 (abortion offenses);  69 ALR2d 1397, § 3 (bribery offenses);  55 ALR2d 1322 (offenses against laws regulating sales of liquor);  75 ALR2d 709 (violation of fish and game laws);  77 ALR2d 792 (obscenity offenses);  10 ALR3d 1121 (larceny);  41 ALR3d 418 (contempt proceedings);  62 ALR3d 110 (narcotics offenses);  22 ALR Fed 731 (narcotics offenses).

Artifice and stratagem may be employed to catch those engaged in criminal enterprises.  Sorrells v United States,  287 US 435,  77 L Ed 413,  53 S Ct 210 (selling liquor in violation of Prohibition Act); Johnson v State, 36 Ala App 634, 61 So 2d 867 (possession or sale of marijuana); State v Dolce, 41 NJ 422, 197 A2d 185 (not followed on other grounds State v Branam 161 NJ Super 53, 390 A2d 1186, affd 79 NJ 301, 399 A2d 299; receiving stolen goods); Commonwealth v Kutler, 173 Pa Super 153, 96 A2d 160 (bookmaking and setting up a gambling establishment).

The mere fact that a local police officer, acting as an informer for the FBI, told an attorney truthfully that he knew some members of a jury panel in a prospective federal criminal trial involving one of the attorney's clients and that one of them was his cousin, does not support the defense of entrapment in the attorney's prosecution on charges of endeavoring to bribe a member of the jury panel, the informer's statements at the most affording the attorney opportunities or facilities for the commission of the criminal offense.  Osborn v United States,  385 US 323,  17 L Ed 2d 394,  87 S Ct 429, reh den  386 US 938,  17 L Ed 2d 813,  87 S Ct 951.

It is a well-known fact that criminals usually work in secrecy and that some unlawful practices are encouraged and protected by a large class of citizens, so that it often becomes necessary to resort to various artifices to enforce the law and punish its violation.  State v Marquardt, 139 Conn 1, 89 A2d 219,  31 ALR2d 1206 (making, recording, and registering bets on horseraces).

If officers of the law, by the use of feigned accomplices, apprehend one who is engaging in a crime without their instigation or inducement, there is no entrapment and the use of such evidence is not a defense to the crime charged.  State v Del Bianco, 96 NH 436, 78 A2d 519 (accepting bets on horseraces).

The activity of policemen and their agent in delivering marked money and football pools to defendants at certain designated places was no more unlawful or improper than the use of decoy letters to trap mail thieves or users of the mail for obscene matter.  Ferraro v State, 200 Md 274, 89 A2d 628.

Footnote 37. State v Mullen (Iowa) 216 NW2d 375 (delivery of marijuana).

Footnote 38. Johnson v State, 36 Ala App 634, 61 So 2d 867 (possession or sale of marijuana); Hoy v State, 53 Ariz 440, 90 P2d 623 (bribery); State v Mantis, 32 Idaho 724, 187 P 268 (attempting to induce female to reside with defendant for immoral purposes); State v Burnette, 242 NC 164, 87 SE2d 191,  52 ALR2d 1181 (assault with intent to commit rape); State v Jarvis, 105 W Va 499, 143 SE 235 (sale of liquor); State v Rice,  37 Wis 2d 392, 155 NW2d 116, cert den  393 US 878,  21 L Ed 152,  89 S Ct 180 (possession and use of narcotic drugs); State v Hochman,  2 Wis 2d 410, 86 NW2d 446,  77 ALR2d 784 (selling obscene booklets and pictures).

Footnote 39. Reigan v People, 120 Colo 472, 210 P2d 991, holding that, in the case of entrapment, officers can be convicted of conspiracy to commit an offense, although their ultimate purpose may have been to arrest the offenders while in the act.

Footnote 40. Sherman v United States,  356 US 369, 372,  2 L Ed 2d 848,  78 S Ct 819 (sale of narcotics).

Footnote 41. Story v State (Fla App D4) 355 So 2d 1213, cert den (Fla) 364 So 2d 893 (possession, sale and delivery of heroin); State v Parr, 129 Mont 175, 283 P2d 1086,  55 ALR2d 1313 (sale of liquor to minor); State v Ice & Fuel Co., 166 NC 366, 81 SE 737, petition dismd 166 NC 403, 81 SE 956 (wherein it was held that defendant was properly convicted of obtaining money under false pretenses by short weights in the sale of coal, even though the prosecutor, being suspicious of defendant's practices, bought a ton of coal from him solely for the purpose of catching him in the act); Watson v State (Okla Crim) 382 P2d 449 (ovrld on other grounds McInturff v State (Okla Crim) 554 P2d 837; sale of narcotics); State v Porter, 251 SC 393, 162 SE2d 843, cert den  393 US 1079,  21 L Ed 2d 773,  89 S Ct 859 (occupying room for illegal betting); State v Hochman,  2 Wis 2d 410, 86 NW2d 446,  77 ALR2d 784 (selling obscene booklets and pictures).

Footnote 42. Lopez v United States,  373 US 427,  10 L Ed 2d 462,  83 S Ct 1381, reh den  375 US 870,  11 L Ed 2d 99,  84 S Ct 26 (attempted bribery).

Footnote 43. United States v Russell,  411 US 423,  36 L Ed 2d 366,  93 S Ct 1637, conformed to (CA9) 479 F2d 1046 (unlawful manufacture and sale of drug).

The defense of entrapment did not apply where, although the government sought by use of its informer to confirm its view of the defendant's conduct to encourage them to seek to obstruct justice, the governmental actions were not so outrageous as to deny the defendant's due process of law.  The government could not be said to have implanted a criminal design in the minds of the defendants where the record established that they were counseling each other in an attempt to prevent the grand jury from learning facts concerning certain payments.  United States v De Palma (SD NY) 461 F Supp 778.

Footnote 44. Shanks v Commonwealth (Ky) 463 SW2d 312 (sale and possession of narcotics).


§ 203  Nature of defense  [21 Am Jur 2d CRIMINAL LAW]

The defense of entrapment was not known at common law. 45   It has been described as a judicially created twentieth-century American doctrine that probably evolved from the increasing use of informers and undercover agents in the detection of crimes, particularly liquor and narcotics offenses. 46   In the federal court system, the defense has been recognized and refined in many decisions, 47  and it has been universally accepted by the states through judicial decision or legislation. 48  

Although it is firmly recognized in the federal courts, 49   the doctrine there does not extend to acts of inducement by a private citizen who is not an officer of the law. 50  But when a state officer has induced a person otherwise innocent to commit a crime in order to punish him therefor, the United States cannot take over the task of punishment by prosecuting for the federal offense without allowing the defense of entrapment, the same as if the inducement had been by a federal officer. 51  

Entrapment is an affirmative 52  or positive 53  defense that must be raised by the defendant. 54    It is in the nature of a confession and avoidance. 55

The defense of entrapment is not of constitutional dimension. 56   Accordingly, Congress may address itself to the question of entrapment and adopt any substantive definition of the defense that it may find desirable for the purposes of federal criminal law, 57  and a state court or legislature is free to select its own standards for the defense. 58   It has been held that a convicted defendant has no constitutional right through federal habeas corpus to invoke the jurisdiction of a federal district court to review a determination of his defense of entrapment by a state court. 59    

Although the defense of entrapment may not apply to the case, it is possible that an accused may be acquitted on due process grounds where the government's involvement in the crime was outrageous and reprehensible. 60    Thus, where the defendant's predisposition to commit the crime prevented use of the defense of entrapment, 61   it has been held that police conduct warranted a dismissal on due process grounds where a third party became an informant because of police brutalization and trickery giving him the misconception that he was facing a stiff prison sentence and where the defendant, an out-of-state resident with no prior record, was contacted by the informant and deceitfully lured into a state for a narcotic sale to which he finally agreed after persistent solicitation. 62   It has been held, however, that the limitations of the due process clause of the Fifth Amendment come into play only when the government activity violates some protected right of the defendant. 63    

In keeping with the general rule that appellate courts normally only consider questions that were raised and reserved in the lower court, 64   the defense of entrapment cannot be raised for the first time on appeal. 65    In applying this rule, courts have noted that the defense must be raised at trial since it rests on factual questions 66   and, under the circumstances, is not so "fundamental" that it can be considered on appeal without presentation at trial or in a motion to correct errors. 67


§ 203  – Nature of defense [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Marcus, The Due Process Defense In Entrapment Cases: The Journey Back, 27 Am Crim LR 457, 1990.

Abramson & Linderman, Entrapment and Due Process in the Federal Courts. 8 Am J Crim L 139, July, 1980.

Marcus, The Entrapment Defense and the Procedural Issues: Burden of Proof, Questions of Law and Fact, Inconsistent Defenses. 22 Crim L Bul 197, May-June, 1986.

O'Neill, Entrapment, De Lorean and the Undercover Operation: A Constitutional Connection. 18 John Marsh LR 365, Winter, 1985.

Green, Police Encouragement and the Fourth Amendment. 20 John Marsh LR 661, Summer, 1987.

Long, Entrapment–A Due Process Defense–What Process is Due? 11 Southw U LR 663, 1979.

Mascolo, Due Process, Fundamental Fairness, And Conduct That Shocks The Conscience: The Right Not To Be Enticed Or Induced to Crime By Government And Its Agents. 7 W N Eng LR 1, 1984.

Gershman, Abscam, the Judiciary, and the Ethics of Entrapment. 91 Yale LJ 1565, July, 1982.

Actions by state official involving defendant as constituting "outrageous" conduct violating due process guaranties.  18 ALR5th 1.

Right of criminal defendant to raise entrapment defense based on having dealt with other party who was entrapped.  15 ALR5th 39.

Entrapment defense in sex offense prosecutions;  12 ALR4th 413. superseding  52 ALR2d 1194 and  53 ALR3d 1156.

Case authorities:

Government does not exceed due process limit of governmental participation in crime where government produced people with fictitious identities ready to pay bribes to Congressmen, word of availability of bribe money was made known, and from that point on, essential conduct of agents and their paid informant was to see who showed up to take bribes and videotape them in act of doing so. United States v Myers (1982, CA2 NY) 692 F2d 823.

Government's use of former drug purchaser as informant, allowance of frequent meetings between defendant and informant in absence of DEA undercover agent, failure to record conversations between defendant and informant, and use of untrained informant who had previously served defendant as attorney on commercial matters was not such rare and outrageous circumstance as to violate defendant's right to due process; further, since outrageous conduct defense requires not only government overinvolvement in charged crime but passive role by defendant as well, defendant who actively participated in crime could not avail himself of defense. United States v Arteaga (1986, CA5 Tex) 807 F2d 424.

Even when defendant is predisposed to commit offense, his conviction may be overturned if government was so involved in criminal endeavor that it shocks sense of justice and violates due process; sense of justice would be shocked were government agents to engineer and direct criminal enterprise from start to finish; sense of justice is not shocked however when government merely infiltrates criminal organization, approaches persons already engaged in or anticipating criminal activity, or provides valuable and necessary items to conspiracy. United States v So (1985, CA9 Cal) 755 F2d 1350.

Inspector's conduct in preparing false accident reports and traffic tickets and entering pleas of guilty to falsified charges under assumed identities did not violate due process rights of physician convicted of mail fraud in submitting fraudulent insurance claims; government need not have reasonable suspicion of wrongdoing in order to conduct undercover investigation. United States v Warren (1984, CA10 Kan) 747 F2d 1339.

Conduct of government agents in establishing extensive drug distribution network, in posing as associates of Columbians and Cubans, in making extravagant proposals to buy Corvettes and condominiums from businessman who deals in Corvettes and real estate, and in proposing to use businessman's real estate services to find location for club is not so outrageous as to violate businessman's due process rights when businessman sells cocaine to agent in order to avoid losing agent as client for businessman's legitimate business ventures. United States v Rivera (1985, CA10 NM) 778 F2d 591.

In a prosecution for conspiracy to traffic in cannabis and trafficking in cannabis, a contingent-fee arrangement between a paid informant and the sheriff's department whereby part of the informant's fee was based on the size of the resulting narcotics deal did not violate defendant's constitutional due process rights, where the informant's fee was not contingent upon his cooperation in defendant's prosecution, the state attorney was not involved in the "reverse-sting," and defendant was not a preselected target of law enforcement authorities. Yolman v State (1985, Fla App D2) 473 So 2d 716, 10 FLW 880, review den (Fla) 475 So 2d 696.

Defendant's conviction for aiding and abetting crime of possession of cocaine with intent to distribute was not result of outrageous government overreaching in violation of due process clause, despite fact that co-indictee was informer and government agent, where defendant initiated contact with informer and informer testified that defendant was predisposed to engage in criminal enterprise. Kett v United States (1984, CA11 Ga) 722 F2d 687.

In a murder prosecution, the prosecution did not intentionally withhold evidence favorable to the defendant, even though the state failed to inform the defense about an in-house parole commission memo concerning a witness. The memo, stating that the parole commission had been asked to take no action on either the witness' or defendant's parole because the case was in a critical posture, would not have conveyed any information to the jury that already revealed by the examination and the cross-examination of the witness. Aldridge v State (1987, Fla) 503 So 2d 1257, 12 FLW 129, later proceeding (CA8 Ark) 821 F2d 469, 23 Fed Rules Evid Serv 756, cert den  484 US 930,  98 L Ed 2d 258,  108 S Ct 299, later app (CA8 Ark) 865 F2d 954, amd (CA8) 1989 US App LEXIS 3515 and cert den (US)  107 L Ed 2d 270,  110 S Ct 291, habeas corpus proceeding (CA11 Fla) 925 F2d 1320.

The defense of entrapment was established under the first prong of Cruz where police informant entered into cooperation agreement before she knew of drug trafficker's involvement with drugs and trafficker was not a targeted suspect in a specific ongoing criminal prosecution; however informant's cooperation agreement did not violate due process under Glossen where though agreement was conditioned on trial testimony, it was not conditioned on conviction. State v Evans (1992, Fla App D2) 597 So 2d 813, 17 FLW D 431, review den (Fla) 601 So 2d 553.

Defense of entrapment is not one of constitutional dimension but due process can be violated if law enforcement tactics and activities used against defendant violate fundamental fairness and are shocking to universal sense of justice; as general rule, Federal Congress and state government are free to adopt their own rules governing use of entrapment defense in their respective jurisdictions. State v Little (1981, NH) 435 A2d 517.

See State v Jones (1980, Tenn) 598 SW2d 209, § 205,.

Plea of entrapment does not raise constitutional issue, but is rather defense on merits. Accordingly, motion to quash or motion to suppress may not be utilized to raise such defense in advance of trial. State v Smith (1993, La App 2d Cir) 614 So 2d 778.

Footnotes

Footnote 45. People v Pugh, 48 Mich App 242, 210 NW2d 376 (armed robbery); State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr (possession and sale of narcotics).

Footnote 46. State v Campbell, 110 NH 238, 265 A2d 11 (sales of narcotic drugs).

Annotation:  62 ALR3d 110, § 2[a].

Footnote 47. United States v Russell,  411 US 423,  36 L Ed 2d 366,  93 S Ct 1637, conformed to (CA9) 479 F2d 1046 (unlawful manufacture and sale of drug); Lopez v United States,  373 US 427,  10 L Ed 2d 462,  83 S Ct 1381, reh den  375 US 870,  11 L Ed 2d 99,  84 S Ct 26 (attempted bribery); Sherman v United States,  356 US 369,  2 L Ed 2d 848,  78 S Ct 819 (sale of narcotics); Sorrells v United States,  287 US 435,  77 L Ed 413,  53 S Ct 210 (illegal possession and sale of liquor).

Practice Aids: –Murchison, The Entrapment Defense in Federal Courts: Modern Developments.  1976, 47 Miss L J 573.

Footnote 48. State v Campbell, 110 NH 238, 265 A2d 11 (sales of narcotic drugs); People v Calvano,  30 NY2d 199, 331 NYS2d 430, 282 NE2d 322.

Tennessee was the only jurisdiction in the United States that did not recognize the defense of entrapment.  State v Jones (Tenn) 598 SW2d 209 (holding that entrapment is a defense to a Tennessee criminal prosecution).

Footnote 49. State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr (possession and sale of narcotics); State v Gilman, 110 RI 207, 291 A2d 425 (conspiring to deliver and unlawful possession of a central nervous system stimulant); State v Hochman,  2 Wis 2d 410, 86 NW2d 446,  77 ALR2d 784 (selling obscene booklets and pictures).

Footnote 50. Entrapment was not available as a defense in a prosecution for attempted bribery of a juror where the alleged entrapment was by an individual who was neither a law enforcement official nor an agent of law enforcement officials.  United States v De Alesandro (CA2 NY) 361 F2d 694, cert den  385 US 842,  17 L Ed 2d 74,  87 S Ct 94.

Annotation:  69 ALR2d 1397, § 13.

Footnote 51. Henderson v United States (CA5 Fla) 237 F2d 169,  61 ALR2d 666 (conspiracy in operation of still in violation of Federal Internal Revenue Code).

Footnote 52. State v Anderson, 58 Hawaii 479, 572 P2d 159 (promoting dangerous drug); Averitt v State, 246 Miss 49, 149 So 2d 320,  10 ALR3d 1111, cert den and app dismd  375 US 5,  11 L Ed 2d 38,  84 S Ct 51, reh den  375 US 936,  11 L Ed 2d 268,  84 S Ct 328 (grand larceny); State v Parr, 129 Mont 175, 283 P2d 1086,  55 ALR2d 1313 (sale of liquor to minor); State v Dolce, 41 NJ 422, 197 A2d 185 (not followed on other grounds State v Branam 161 NJ Super 53, 390 A2d 1186, affd 79 NJ 301, 399 A2d 299; receiving stolen goods); People v McGee,  49 NY2d 48, 424 NYS2d 157, 399 NE2d 1177, cert den  446 US 942,  64 L Ed 2d 797,  100 S Ct 2166 (bribery and conspiracy); State v Braun, 31 NC App 101, 228 SE2d 466, cert den and app dismd 291 NC 449, 230 SE2d 766 (possession of marijuana with intent to sell and deliver); State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr (possession and sale of narcotics).

Entrapment is an affirmative defense available on a plea of not guilty, and is in the nature of a confession and avoidance and assumes that the act charged as an offense was committed.  State v Hsie, 36 Ohio App 2d 99, 65 Ohio Ops 2d 99, 303 NE2d 89 (sale of marijuana).

Footnote 53. People v Terry, 44 Cal 2d 371, 282 P2d 19 (giving bribe to influence testimony of witness).

Footnote 54. State v Hoffman (Utah) 558 P2d 602 (practicing medicine without a license).

As to availability of mandamus to compel judge to hear defendant's motion on the issue of entrapment, see 52 Am Jur 2d,  Mandamus § 365.

Footnote 55. State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr (possession and sale of narcotics).

Footnote 56. United States v Russell,  411 US 423,  36 L Ed 2d 366,  93 S Ct 1637, conformed to (CA9) 479 F2d 1046 (illegal manufacture and sale of drug); Ainsworth v Reed (CA5 Miss) 542 F2d 243, reh den (CA5 Miss) 544 F2d 518 and cert den  430 US 917,  51 L Ed 2d 596,  97 S Ct 1332 (selling marijuana).

Practice Aids: –Comment, The Serpent Beguiled Me and I Did Eat:  The Constitutional Status of the Entrapment Defense.  74 Yale L J 942.

Footnote 57. United States v Russell,  411 US 423,  36 L Ed 2d 366,  93 S Ct 1637, conformed to (CA9) 479 F2d 1046 (illegal manufacture and sale of drug).

Footnote 58. State v Nelsen, 89 SD 1, 228 NW2d 143 (unlawfully distributing a controlled substance).

Footnote 59. United States ex rel. Hall v Illinois (CA7 Ill) 329 F2d 354, cert den  379 US 891,  13 L Ed 2d 94,  85 S Ct 164 (unlawful sale and possession of narcotic drugs) (rejecting the defendant's contentions that entrapment is analogous to the exclusionary rule and that due process precludes admission of evidence obtained through entrapment in state court criminal trials).

Footnote 60. United States v Russell,  411 US 423,  36 L Ed 2d 366,  93 S Ct 1637, conformed to (CA9) 479 F2d 1046 (dictum); State v Pooler (Iowa) 255 NW2d 328 (dictum).

Footnote 61. As to effect of defendant's predisposition to commit crime on defense of entrapment, see  § 205, infra.

Footnote 62. People v Isaacson,  44 NY2d 511, 406 NYS2d 714, 378 NE2d 78.

Footnote 63. Hampton v United States,  425 US 484,  48 L Ed 2d 113,  96 S Ct 1646 (plurality opinion).

Footnote 64. 5 Am Jur 2d,  Appeal and Error § 545.

Footnote 65. United States v Patterson (CA5 Tex) 528 F2d 1037, reh den (CA5 Tex) 534 F2d 1113 and cert den  429 US 942,  50 L Ed 2d 313,  97 S Ct 361 (wire fraud); United States v Donell (CA9 Cal) 469 F2d 85, cert den  410 US 935,  35 L Ed 2d 599,  93 S Ct 1390 (counterfeiting); United States v Cambre (CA9 Cal) 467 F2d 216 (bribery of government official and conspiracy to smuggle marijuana); United States v Priest (CA10 Colo) 419 F2d 570 (illegal transfer of marijuana); Longmire v United States (CA5 Ala) 404 F2d 326, cert den  395 US 912,  23 L Ed 2d 225,  89 S Ct 1757 (sale of nontaxpaid whiskey); United States v Bishop (CA2 NY) 367 F2d 806 (counterfeiting); People v Pijal (1st Dist) 33 Cal App 3d 682, 109 Cal Rptr 230 (selling a restricted dangerous drug); People v Werber (1st Dist) 19 Cal App 3d 598, 97 Cal Rptr 150 (cultivation and possession of marijuana); People v Fleming, 50 Ill 2d 141, 277 NE2d 872 (official misconduct and soliciting and receiving a bribe); Di Natale v State, 8 Md App 455, 260 A2d 669 (possession, control and sale of marijuana); State v Harris, 159 Mont 425, 498 P2d 1222 (burglary).

Footnote 66. United States v Cuomo (CA2 NY) 479 F2d 688, cert den  414 US 1002,  38 L Ed 2d 238,  94 S Ct 357 (transportation and sale of heroin).

Footnote 67. Releford v State, 163 Ind App 534, 325 NE2d 214 (possession and sale of heroin).


§ 204  Bases for and limitations on defense  [21 Am Jur 2d CRIMINAL LAW]

Courts have recognized various bases for the defense of entrapment.  It has been said to flow from the doctrine of estoppel, the public interest, and the formulation and application of decent standards in the enforcement of criminal law. 68    It is also said that the whole doctrine originates from a spontaneous moral revulsion against using the powers of government to beguile innocent but ductile persons into lapses that they might otherwise resist, 69  and that conviction for a crime committed by an entrapped offender is against public policy. 70        

According to the prevailing view, entrapment is a relatively limited defense rooted, not in any authority of the judicial branch to dismiss prosecutions for what it feels to have been "overzealous law enforcement," but instead in the notion that the legislative branch could not have intended criminal punishment for a defendant who was induced by the government to commit the elements of a proscribed offense. 71   According to the other view, the defense is primarily a curb upon improper law enforcement techniques whereby an otherwise guilty defendant is permitted to go unpunished since seriously objectionable police conduct may not be tolerated. 72     In a jurisdiction taking this approach, it has been said that the defense of entrapment, unlike more common defenses in criminal cases such as alibi, insanity, self-defense, lack of specific intent, and the like, is not interjected to establish the absence of an essential element in the crime but to present facts collateral or incidental to the criminal act that justify acquittal on the ground of an overriding public policy to deter instigation of crime by enforcement officers in order to get a conviction.  According to this view, the purposes of the doctrine are to deter unlawful government activities and to preclude the implication of judicial approval of impermissible government conduct. 73   It has been described as a rule of fairness that bars a conviction as a result of improper police conduct, contrary to public policy. 74


§ 204  – Bases for and limitations on defense [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Gershman, Abscam, the Judiciary, and the Ethics of Entrapment. 91 Yale LJ 1565, July, 1982.

Actions by state official involving defendant as constituting "outrageous" conduct violating due process guaranties  18 ALR5th 1.

Right of criminal defendant to raise entrapment defense based on having dealt with other party who was entrapped  15 ALR5th 39.

Entrapment defense in sex offense prosecutions;  12 ALR4th 413. superseding  52 ALR2d 1194 and  53 ALR2d 1156.

Case authorities:

The fact that officers or employees of the government merely afford opportunities or facilities for the commission of an offense does not defeat the prosecution for the offense, because artifice and stratagem may be employed to catch those engaged in criminal enterprises; however, government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce the commission of the crime so that the government may prosecute. Jacobson v United States (1992, US)  118 L Ed 2d 174,  112 S Ct 1535, 92 CDOS 2901, 92 Daily Journal DAR 4584.

The trial court erred in dismissing narcotics charges, where accused moved to dismiss the charges, alleging entrapment, but a police informant disputed accused's allegations stating that accused had initiated conversations relating to the sale of cocaine and had provided the kilogram of cocaine that led to accused's arrest, because criminal charges should be dismissed only when the state cannot establish a minimal prima facie case. State v Valdes (1992, Fla App D3) 599 So 2d 1046, 17 FLW D 1400.

Fact that informant furnished marijuana to predisposed defendant to sell to female undercover agent so that defendant could "get in good" with female agent did not establish entrapment. Venable v State (1992) 203 Ga App 517, 417 SE2d 347, 103-53 Fulton County D R 20B, cert den (Ga) 1992 Ga LEXIS 532.

In prosecution for promoting dangerous drug, "reverse buy" operation was not entrapment, where there was no evidence that "reverse buy" operation displayed cocaine for sale to general public or in any manner persuaded or induced persons other than those who were actively seeking to purchase cocaine, and where defendant did not have any contact with agent prior to date of drug transaction. State v Agrabante (1992) 73 Hawaii 179, 830 P2d 492.

Road-test examiner accused of accepting ten dollar bribe from investigator who had no reason to believe she would accept bribe and who initiated offer to defendant in exchange for passing score on road test, was properly denied entrapment instruction where defendant denied acting with required mental state. People v Arriaga (1981) 92 Ill App 3d 951, 48 Ill Dec 387, 416 NE2d 418.

Entrapment is a defense only when the entrapped is an officer or agent of the government. State v Luster (1982) 306 NC 566, 295 SE2d 421.

In a prosecution of defendant for possession with intent to sell and sale and delivery of LSD, the question of entrapment did not arise from defendant's evidence, since defendant denied committing any offense, nor was the question of entrapment raised by the State's evidence. State v Neville, 49 NC App 678, 272 SE2d 164, affd (NC) 276 SE2d 373.

The trial court in a first-degree burglary case did not err in failing to instruct the jury on the defense of entrapment where a State's witness advised the victim of a plan to burglarize the victim's home on a certain date; the victim, in turn, notified the sheriff; officers were inside the victim's home waiting for the burglars when the crime occurred; the witness had arranged to let the police know if he found out for sure that the victim's home was to be broken into; and there was no evidence from which the jury could infer that the witness was acting as an agent of the police. State v Thomas (1981) 52 NC App 186, 278 SE2d 535.

Footnotes

Footnote 68. United States ex rel. Hall v Illinois (CA7 Ill) 329 F2d 354, cert den  379 US 891,  13 L Ed 2d 94,  85 S Ct 164 (unlawful sale and possession of narcotic drugs).

Footnote 69. United States v Becker (CA2 NY) 62 F2d 1007 (sending obscene matter in interstate commerce).

Footnote 70. State v Gellers (Me) 282 A2d 173, cert den  406 US 949,  32 L Ed 2d 337,  92 S Ct 2047 (unlawful possession of marijuana).

The defense of entrapment is based on the policy of not convicting persons who have no preconceived criminal disposition until such disposition is implanted by government agents.  United States ex rel. Hall v Illinois (CA7 Ill) 329 F2d 354, cert den  379 US 891,  13 L Ed 2d 94,  85 S Ct 164 (narcotics offense).

It is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded and lured him to attempt to commit it.  Butts v United States (CA8 Neb) 273 F 35,  18 ALR 143 (illegal sale of narcotic drugs).

It is plain enough that the underlying basis of entrapment is found in public policy, as discerned and announced by the courts. Grossman v State (Alaska) 457 P2d 226 (selling morphine).

The entrapment defense is soundly grounded in public policy. State v Nelsen, 89 SD 1, 228 NW2d 143 (unlawfully distributing a controlled substance).

Footnote 71. United States v Russell,  411 US 423,  36 L Ed 2d 366,  93 S Ct 1637, conformed to (CA9) 479 F2d 1046 (illegal manufacture and sale of drug).

Footnote 72. State v Mullen (Iowa) 216 NW2d 375 (delivery of marijuana); Commonwealth v Jones, 242 Pa Super 303, 363 A2d 1281 (delivery of heroin).

In his separate opinion to Sorrells v United States,  287 US 435,  77 L Ed 413,  53 S Ct 210, Justice Roberts, rejecting the majority's view grounded in legislative intent, stated that the true foundation of the entrapment doctrine is the fundamental rule of public policy that the courts must be closed to the trial of crime instigated by the government's own agents.

Footnote 73. People v D'Angelo, 401 Mich 167, 257 NW2d 655 (delivery of LSD and breaking and entering with intent to commit larceny).

Footnote 74. Wood v Commonwealth, 213 Va 363, 192 SE2d 762.


§ 205  – "Subjective" test;  predisposition of accused to commit crime  [21 Am Jur 2d CRIMINAL LAW]

The generally accepted test of entrapment is the "subjective" or "origin of intent" test, which allows the defense only if the criminal act was the product of the creative activity of law enforcement officials.  Under this test, which applies in the federal courts and a majority of state courts, the focus of inquiry is on the defendant's predisposition to commit the offense charged. 75  It is said that in deciding the issue of entrapment the jury should focus on the subjective intent of the defendant and determine if he was intent on performing the criminal act with the police only furnishing him an opportunity, or if he was an innocent person lured into committing the crime. 76

Although it has been said that decoys may not ensnare the innocent and law-abiding into the commission of crime, 77   this does not mean that the defense of entrapment under the subjective approach is available only to a person who has no criminal record. What is meant by "innocent" in this connection is the absence of a predisposition or state of mind that readily responds to the opportunity furnished by the officer or his agent to commit the forbidden act with which the accused is charged.  "Innocent" in the context of entrapment means that defendant would not have perpetrated the crime with which he is presently charged but for the enticement of the police official. 78   Under this approach, once it is established that a defendant engaged in illegal activity as a result of his own preexisting readiness to do so, it becomes virtually irrelevant that the government's blandishments might have been sufficient to induce some hypothetically innocent person to commit the same criminal acts. 79   Thus, when the accused is continuously engaged in the proscribed conduct, it is permissible to provoke him to a particular violation that will be no more than an instance in a uniform series. 80   Yet, the fact that a defendant made the initial suggestion to commit an offense does not preclude the entrapment defense where the evidence shows that he thereafter abandoned his original scheme and then was lured back into it by repeated solicitations of the entrapping officer. 81    Furthermore, although proof of a predisposition to commit the crime will bar application of the entrapment defense, the fundamental fairness aspect of due process will not permit any defendant to be convicted of a crime in which police conduct in arranging the circumstances which led to commission of the crime was "outrageous." 82

When the question of entrapment is raised, a court applying the subjective test must make a two-part inquiry to determine if the police officers or their informants initiated and actively participated in the criminal activity and if there is evidence that the accused was predisposed to commit the crime so that the proscribed activity was not solely the idea of the police officers. 83  Under this approach, two components are required to successfully establish an entrapment defense; the defendant must show that the police induced him to commit the crime and that, prior to this inducement, he was not predisposed to commit it. 84    Therefore, there arise two questions of fact:  (1) Did the agent induce the accused to commit the offense charged? and, if so (2) Was the accused ready and willing without persuasion to commit the offense and awaiting any propitious opportunity to do so? 85     Provided the inducement exercised by the law enforcement officer was not "shocking or offensive per se," the only issue is whether the defendant was sufficiently predisposed such that the inducement, although bringing about the particular offense, did not create his criminality or "corruption." 86   Once government instigation is shown, the ultimate question is whether the inducement by the officers or the defendant's own predisposition caused the criminal conduct. 87  

Under the subjective test, it is said that the government cannot object to evidence of its representatives' activities in relation to the accused who, in turn, cannot complain of an appropriate and searching inquiry into his own conduct and predisposition. 88   Although there is authority for the view that a defendant's prior convictions should not be introduced on the issue of his criminal predisposition under the subjective test, the federal courts and an overwhelming majority of state courts admit evidence of similar unlawful acts of the defendant, other than those for which he is on trial, as rebuttal to his defense of entrapment. It has been recognized, however, that such crimes must be of a similar character to the offense charged and that the trial court, in determining their admissibility, should consider the remoteness of the offenses and the possibility that their prejudicial effect outweighs their probative value on the issue of predisposition. 89    Other definite criteria helpful on the issue of predisposition include the defendant's initial suggestion of the crime, his readiness to commit it, his familiarity with the criminal activity, his possession of illegal contraband prior to the alleged entrapment, his ready access to the contraband, his ability to collect a large quantity of contraband in a short time, and his in-court testimony and admissible out-of-court statements. 90   A defendant's predisposition to commit the offense can be inferred from evidence that he readily acquiesced in the commission of the proposed offense.  If the conduct of the police prior to the commission of the crime was very slight and consisted of merely providing the opportunity for the offense, the logical inference is that the defendant had a predisposition to commit the crime. 91    On the other hand, inducement that may locate the intent in the government rather than in the accused includes offers of excessive amounts of money, and appeals to friendship, sympathy, or a narcotic's need. 92  

Although the predisposition of an accused to commit the crime charged is an issue when the defense of entrapment is raised, it is not an issue if the evidence, viewed most favorably to the prosecution, shows the acts of the accused constituting the gravamen of the indictment were the intended consequence of duress at the hands of government agents. 93  It has been held that entrapment is established as a matter of law only where the absence of the defendant's predisposition appears from uncontradicted evidence; if the issue of predisposition is in conflict, it must be submitted to the jury. 94  


§ 205  – "Subjective" test; predisposition of accused to commit crime [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Marcus, Proving Entrapment Under the Predisposition Test. 14 Am J Crim L 53, Fall/ Winter, 1986-87.

Defendant finds catch to Catch-22 of entrapment defense, 140 Chi Daily L Bull 249:5 (1995).

Proving a criminal predisposition: Separating the unwary innocent from the unwary criminal, 43 Duke LJ 384 (1993).

Actions by state official involving defendant as constituting "outrageous" conduct violating due process guaranties  18 ALR5th 1.

Right of criminal defendant to raise entrapment defense based on having dealt with other party who was entrapped  15 ALR5th 39.

Entrapment defense in sex offense prosecutions;  12 ALR4th 413. superseding  52 ALR2d 1194 and  53 ALR2d 1156.

Case authorities:

Predisposition, the principal element in the affirmative defense of entrapment, focuses upon whether the accused was an "unwary innocent" or, instead, an "unwary criminal" who readily availed himself of the opportunity to perpetrate the crime. Mathews v United States (1988, US)  99 L Ed 2d 54,  108 S Ct 883, on remand (CA7 Wis) 848 F2d 196.

Defendant is entitled to have entrapment defense presented to jury in prosecution for interstate transportation for stolen motor vehicle (18 USCS §  2312) and aiding and abetting such transportation (18 USCS §  2) where evidence provides basis for reasonable doubt on ultimate jury entrapment issue of whether criminal intent originated with government; requisite basis for entrapment defense is provided when businessman with no criminal history or experience is approached by informant who acts upon vendetta in using persuasion or mild coercion to engage defendant's cooperation in committing crime. United States v Nations (1985, CA5 Tex) 764 F2d 1073.

Evidence was sufficient to prove predisposition to violate 18 USCS §  146l beyond reasonable doubt, where defendant, who was target of sting operation aimed at child pornography offenders, was contacted 3 times by agents, and each time responded voluntarily and promptly to letter which was carefully coded to attract child pornography connoisseurs, and in addition he signed "affidavit" of his intent and admitted to frequently ordering adult obscene films. United States v Kussmaul (1993, CA6 Ohio) 987 F2d 345.

Government must prove predisposition beyond reasonable doubt, where defendant, although acquitted of child pornography charges, asserted entrapment defense to causing obscene pornographic videotapes to be delivered by mail in violation of 18 USCS §  1461, since he was target of sting operation aimed at child pornography offenders, and government used evidence obtained during operation to prosecute him for § 146l offense. United States v Kussmaul (1993, CA6 Ohio) 987 F2d 345.

Defense of entrapment focuses upon whether government's actions implanted criminal design in mind of otherwise unpredisposed person; to raise defense of entrapment, defendant is required to produce evidence that prohibited actions were induced by government and that he lacked any predisposition to commit crime, and once defendant accomplishes this, burden shifts to government to prove beyond reasonable doubt that defendant was predisposed to commit offense. United States v Thoma (1984, CA7 Ill) 726 F2d 1191.

Secret service agents' conduct in selling food stamp coupons to defendant was not so outrageous that due process principles barred government from invoking judicial processes to obtain conviction, since uncontroverted evidence established that defendant was predisposed to buy food stamps and had, in fact, initiated second and third transactions with undercover agents. United States v Dougherty (1987, CA8 Neb) 810 F2d 763.

Drug conspiracy defendant's failure to raise outrageous government conduct claim until posttrial motions constituted waiver of claim; defendant know of basis of claim at least six weeks before trial, of specific facts two weeks before, prepared pro se motion sent to clerk but specifically not filed after colloquy among defense counsel, prosecutor, and court and opportunity for defense counsel to investigate. United States v Henderson-Durand (1993, CA8 Minn) 985 F2d 970.

Different standard is to be employed by court analyzing defense of outrageous government conduct, than standard employed in considering entrapment defense since defendant's subjective criminal predisposition bars successful entrapment defense but it is appropriate to evaluate objectively government's conduct without regard to defendant's criminal predisposition in evaluating defendant's defense of outrageous conduct; court must take especial care not to permit objective analysis of due process defense of outrageous government conduct to swallow subjective entrapment rule. United States v Bogart (1986, CA9 Cal) 783 F2d 1428.

Entrapment is not shown where government suspects existence of drug distribution network and seeks to reach prime distributor through one of his intermediaries, and intermediary acted with criminal purpose and intent of his own, unaware that he was acting for law enforcement officials, therefore alleged inducement of defendant, who was charged with violating 21 USCS §§  841 and  846 was at sole instance of intermediary, not government, thus defendant was unable to demonstrate that he was induced to commit crime by government agent. United States v Goodacre (1986, CA9 Cal) 793 F2d 1124.

Defendant who seeks to raise defense of entrapment in prosecution under 7 USCS §  2024 must first come forward with evidence sufficient to raise jury issue that government's conduct created substantial risk that offense would be committed by person other than one ready to commit it; however, evidence that government agent sought out or initiated contact with defendant, or was first to propose illicit transaction, is insufficient to meet defendant's burden; rather, defendant must demonstrate not merely inducement or suggestion on part of government but element of persuasion or mild coercion; defendant may make such showing by demonstrating that he had not favorably received government plan, and government had to "push it" on him, or that several attempts at setting up illicit deal had failed and on at least one occasion he had directly refused to participate; when defendant makes such showing, burden shifts to government to demonstrate beyond reasonable doubt that defendant was predisposed to commit offense charged; evidence of predisposition may include readiness or eagerness of defendant to deal in proposed transaction. United States v Andrews (1985, CA11 Ala) 765 F2d 1491.

Three questions must be addressed in determining whether subjective entrapment exists under FS § 777.201: whether an agent of the government induced the accused to commit the offense charged; whether the accused was predisposed to commit the offense charged; and whether the entrapment evaluation should be submitted to the jury. Munoz v State (1993, Fla) 629 So 2d 90, 18 FLW S 537.

Defendant sufficiently established that he had been entrapped into committing grand larceny by evidence that the police had placed a decoy, dressed in old clothes and doused with alcohol, in a semi-prone position with several bills protruding from his rear pants pocket, that the area had been the scene of several purse snatchings and robberies but had not been the scene of thefts from persons similar to the decoy, that defendant had walked by and then returned to the decoy, reaching down and removing the protruding money, and that defendant had not been engaging in criminal activity before he took the money from the decoy. This evidence indicated that the decoy had not detected or discovered the robberies and purse snatchings which he had presumably been employed to prevent, and had instead merely provided an opportunity to commit a crime to anyone who succumbed to the lure of the bait, and the State's failure to come forward with evidence of defendant's predisposition warranted dismissal of the charges pursuant to R Cr P 3.190(c)(4). State v Casper (1982, Fla App D1) 417 So 2d 263.

Defendant who responded to police advertisement and thereafter bought child pornography video established defense of entrapment because law enforcement officers' advertisement created criminal activity where none existed before, the government knew of no ongoing criminal activity prior to placing the advertisement, and law enforcement officers had no knowledge of defendant prior to the placement of the advertisement. Beattie v State (1992, Fla App D2) 595 So 2d 249, 17 FLW D657.

Drug charges against a car salesman who had no prior criminal history were dismissed based on an entrapment defense where salesman, who initially refused to get involved, finally introduced a willing buyer to the police informant, who was importuning him for such an introduction because car salesman was not involved in an ongoing criminal activity and the police conduct was not reasonably tailored to apprehend those involved in ongoing crime. Lewis v State (1992, Fla App D3) 597 So 2d 842, 17 FLW D 793, review pending (Fla) 605 So 2d 1266.

The trial court did not err in failing to dismiss the case on the ground that the evidence disclosed entrapment as a matter of law, since the evidence indicated that an officer met defendant for the first time when the alleged offense occurred and the officer never told persons from whom he purchased drugs that he would help them find employment if they provided controlled substances for him, and the evidence therefore did not compel a finding that the criminal intent and design originated in the mind of one other than defendant. State v Hartman, 49 NC App 83, 270 SE2d 609.

A person was not entrapped by undercover agents into selling them marijuana where the jury could well have determined that the delay in consummating a sale was due not to a lack of predisposition to commit the crime as much as to a lack of inventory. State v Hackworth (Sandusky Co) 80 O App 3d 362, 609 NE2d 228.

Entrapment occurs when law enforcement officials, acting either directly or through agent, induce or persuade otherwise unwilling person to commit unlawful act; however, where person is predisposed to commit offense, fact that law enforcement officials or their agents merely afford opportunity does not constitute entrapment, absent outrageous police behavior in light of surrounding circumstances whereby overinvolvement of police or intensity of their activities reaches such level that due process is so offended that predisposition is irrelevant. State v Jones (1980, Tenn) 598 SW2d 209.

Footnotes

Footnote 75. Hampton v United States,  425 US 484,  48 L Ed 2d 113,  96 S Ct 1646 (distributing heroin); United States v Russell,  411 US 423,  36 L Ed 2d 366,  93 S Ct 1637, conformed to (CA9) 479 F2d 1046 (illegal manufacture and sale of drug); Sherman v United States,  356 US 369,  2 L Ed 2d 848,  78 S Ct 819 (sale of narcotics); Sorrells v United States,  287 US 435,  77 L Ed 413,  53 S Ct 210,  86 ALR 249 (illegal possession of liquor); United States v Elorduy (CA5 Tex) 612 F2d 986, reh den (CA5 Tex) 615 F2d 919 and cert den  447 US 910,  64 L Ed 2d 861,  100 S Ct 2997 (conspiracy and possession of marijuana with intent to distribute); United States v Navar (CA5 Tex) 611 F2d 1156 (illegal drugs); United States v Esquer-Gamez (CA9 Ariz) 550 F2d 1231 (importing, possessing, and distributing cocaine); United States v Russo (CA1 Mass) 540 F2d 1152, cert den  429 US 1000,  50 L Ed 2d 611,  97 S Ct 529 (counterfeiting); United States v Jackson (CA6 Mich) 539 F2d 1087 (sale and distribution of heroin and cocaine); Hardin v State, 265 Ind 635, 358 NE2d 134 (delivery of a controlled substance); Maynard v State (Ind App) 367 NE2d 5 (delivery of a controlled substance); State v Batiste (La) 363 So 2d 639 (attempted distribution of heroin); State v McCrillis (Me) 376 A2d 95 (selling amphetamie and marijuana); State v Devine (Mo App) 554 SW2d 442 (selling a controlled substance); State v Hogervorst (App) 90 NM 580, 566 P2d 828, cert den 90 NM 636, 567 P2d 485 (bribery); State v Anderson, 16 Wash App 553, 558 P2d 307, affd 93 Wash 2d 329, 610 P2d 869, cert den (US)  66 L Ed 2d 93,  101 S Ct 213 (possession and delivery of marijuana).

Footnote 76. State v Nelsen, 89 SD 1, 228 NW2d 143 (unlawfully distributing a controlled substance).

Footnote 77. Sorrells v United States,  287 US 435,  77 L Ed 413,  53 S Ct 210 (selling liquor in violation of Prohibition Act); People v Makovsky, 3 Cal 2d 366, 44 P2d 536 (unlawful selling of billies).

Footnote 78. Hansford v United States, 112 App DC 359, 303 F2d 219 (sale, possession, and importation of narcotic drugs); State v Whitney, 157 Conn 133, 249 A2d 238 (narcotic drugs).

In prosecution of two restaurant employees for offering bribes to immigration service agents investigating illegal aliens working at restaurant, predisposition of employees was shown by substantial evidence, though agents had suggested meeting and had suggested payment of money as way to obtain favorable treatment, where first employee had volunteered request that agents "work something out" and had actively participated in events culminating in bribes and where second employee had spontaneously offered nonmonetary bribes and plans for phasing out raids.  United States v Steinberg (CA2d NY) 551 F2d 510.

A state statute providing that it shall not constitute a defense to a prosecution that a law enforcement officer solicited a person predisposed to engage in conduct in violation of the state anti-fencing act, in order to gain evidence, codified the defense of entrapment, preserved the line between the predisposed criminal and the unwary innocent, and was not unconstitutional.  State v Dickinson (Fla) 370 So 2d 762.

Officers of the law are not permitted to generate in the mind of a person who is entirely innocent of any criminal purpose the original intent to commit acts which that person would not have committed or contemplated, except for such inducements.  Dorchincoz v Commonwealth, 191 Va 33, 59 SE2d 863 (using a hotel for lewdness, assignation, and prostitution).

Footnote 79. United States v Principe (CA1 Mass) 482 F2d 60 (conspiracy to distribute and distributing heroin).

Footnote 80. United States v Becker (CA2 NY) 62 F2d 1007 (sending obscene matter in interstate commerce).

Footnote 81. United States v Klosterman (CA3 Pa) 248 F2d 191,  69 ALR2d 1390 (bribery).

Footnote 82. United States v Twigg (CA3 NJ) 588 F2d 373.

Entrapment, normally recognized as a defense in criminal cases, can be so outrageous as to be illegal because it deprives defendant of due process of law.  Wager v Pro, 195 App DC 423, 603 F2d 1005.

Footnote 83. Hardin v State, 265 Ind 635, 358 NE2d 134 (conspiracy to delivery an unlawful delivery of a controlled substance).

Footnote 84. State v Nelsen, 89 SD 1, 228 NW2d 143 (unlawfully distributing a controlled substance).

As to allocation of burden of proving inducement and predisposition where defendant raises defense of entrapment, see 29 Am Jur 2d,  Evidence § 156.

Footnote 85. United States v Glassel (CA9 Ariz) 488 F2d 143, cert den  416 US 941,  40 L Ed 2d 292,  94 S Ct 1945 (possession of and attempting to distribute cocaine); Simmons v State, 8 Md App 355, 259 A2d 814 (selling marijuana).

Footnote 86. Walker v United States (CA1 Mass) 344 F2d 795 (illegal transfer of marijuana); Commonwealth v Harvard, 356 Mass 452, 253 NE2d 346 (sale and possession of marijuana).

Footnote 87. State v Batiste (La) 363 So 2d 639 (attempted distribution of heroin).

Defendant in prosecution for violation of 18 USCS §  1001 presented insufficient evidence of entrapment where there was no evidence on record that defendant's participation in conspiracy was induced by government agents, but rather he was induced to conspire with law breaker unassociated with government.  United States v Freedson (CA9 Cal) 608 F2d 739.

Footnote 88. Sorrells v United States,  287 US 435,  77 L Ed 413,  53 S Ct 210 (illegal possession and sale of liquor).

Footnote 89. 29 Am Jur 2d,  Evidence § 321.

Footnote 90. State v Nelsen, 89 SD 1, 228 NW2d 143 (unlawfully distributing a controlled substance).

Footnote 91. 30 Am Jur 2d,  Evidence § 1160.

Footnote 92. State v Nelsen, 89 SD 1, 228 NW2d 143 (unlawfully distributing a controlled substance).

As to weight and and sufficiency of evidence showing entrapment, see 30 Am Jur 2d,  Evidence § 1160.

Footnote 93. State v Metcalf, 60 Ohio App 2d 212, 14 Ohio Ops 3d 186, 396 NE2d 786.

Footnote 94. 75 Am Jur 2d,  Trial § 425.

As to jury instructions on entrapment, see 75 Am Jur 2d,  Trial § 727.


§ 206  – "Objective" test; activity of law enforcement officials  [21 Am Jur 2d CRIMINAL LAW]

Several state courts have shown disfavor with the "subjective" test of entrapment and have adopted instead an "objective" test whereby the court considers the nature of the police activity involved, without reference to the predisposition of the defendant. 95   This approach to entrapment reflects the view expressed by a minority of the United States Supreme Court. 96   In some jurisdictions, such a test has been adopted by statute. 97   As justification for this approach, it is said that the "objective" test avoids the introduction into evidence of hearsay, suspicion, and rumor to prove the defendant's predisposition and focuses instead on the real concern in the case–whether the actions of the police were so reprehensible under the circumstances that the court should refuse, as a matter of public policy, to allow conviction. 98   It has been recognized that, even though entrapment should not become a ready escape hatch for those who are engaged in a course of criminal enterprise, there must be, under standards of civilized justice, some control on the kind of police conduct that can be permitted in the manufacture of crime. 99  It is said that the success of an entrapment defense should not turn on differences among defendants. The concern is not with who conceived or who acquiesced in a criminal project, but rather how much and what manner of persuasion, pressure, and cajoling are brought to bear by law enforcement officials to induce persons to commit crimes. 1  

Under the objective test, which focuses on the particular conduct of the police in the case presented, unlawful entrapment occurs when a public law enforcement official, or a person working in cooperation with him, in order to obtain evidence of the commission of an offense, induces another person to commit such an offense by persuasion or inducement that would be effective to persuade an average person, other than one who is ready and willing, to commit the offense.  Conversely, instigations that would induce only a person engaged in an habitual course of unlawful conduct for gain or profit do not constitute entrapment. 2   Under this approach, the test of entrapment is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding person to commit the offense.  For purposes of the test, it is assumed that such a person would normally resist the temptation to commit a crime by the simple opportunity to act unlawfully.  Thus, official conduct that merely offers such an opportunity is permissible, but overbearing conduct, such as badgering, cajoling or importuning, is not. 3   Because, under this test, the defense of entrapment is viewed as primarily a curb upon improper law enforcement techniques, the predisposition of the accused is irrelevant. 4   The focus of the objective test is on reprehensible government conduct and not on the character and propensities of the defendant.  The issue is whether the government conduct induced or instigated the commission of a crime. 5    There is no concern with the defendant's prior criminal activity or other indicia of a predisposition to commit crime. 6   The nature of the police conduct is the focus of inquiry and the guilt or innocence of the defendant is irrelevant to that determination. 7

Under the objective definition of entrapment, it has been held that a defendant who asserts the defense will succeed if it is shown that the police conduct would have induced an innocent person to commit the crime. 8  Nevertheless, in applying the objective test, it has been held that the course of conduct between the officer and the defendant should not be ignored.  Thus, the transactions leading up to the offense, the interaction between them, and the defendant's response to the officer's inducements are to be considered in judging what the effect of the officer's conduct would be on a normal person. 9   It is said that the conduct of the law enforcement agent is not to be viewed in a vacuum, but to be judged by the effect it would have on a normally law-abiding person situated in the same circumstances as the accused. 10

Although determining what constitutes impermissible police conduct must proceed on an ad hoc basis, certain guiding principles have been recognized. Entrapment is established if actions of the law enforcement agent generate in a normally law-abiding person a motive for crime other than ordinary criminal intent as, for example, when the police appeal to such person to commit the act because friendship or sympathy, rather than a desire for personal gain or other typical criminal purpose.  Likewise, entrapment exists if the police affirmatively engage in conduct that makes commission of the crime unusually attractive to a normally law-abiding person, such as guaranteeing to him that the act is not illegal or will go undetected, offering him an exhorbitant consideration, or similarly enticing him.  Nevertheless, there is no entrapment where the official conduct goes no further than necessary to assure the suspect that he is not being "set up." Hence, the police remain free under the objective test to take reasonable, though restrained, steps to gain the confidence of suspects. 11   In short, depending upon the facts in each case, examples of prohibited governmental activity may include extreme pleas of desperate illness, appeals based primarily on sympathy, pity, or close personal friendship, and offers of inordinate sums of money. 12

Although there is contrary authority, it is generally held that the trial court, not the jury, rules on the issue of entrapment under the objective test. 13     It has been said, however, that the better rule on entrapment is one that approves both the "objective" and "subjective" tests and applies them in a manner consistent with the evidence. 14  Under this approach, if the evidence establishes, under the "objective" test, that the officer or agent conceived the plan and procured or directed its execution in such an unconscionable way that he could only be said to have created the crime for the purpose of making an arrest and obtaining a conviction, the court will resolve the issue of entrapment rather than the jury where the minds of reasonable men could not differ on the issue.  On the other hand, if the evidence of entrapment is not so overwhelming as to show under the "objective" test such monstrous or unconscionable government conduct requiring the court to hold that entrapment was proved as a matter of law, the issue of entrapment is submitted to the jury under the "subjective" test. 15 


§ 206  – "Objective" test; activity of law enforcement officials [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Government manufacture of crime and the entrapment defense, 22 Col Law 925 (1993).

"The government made me do it": A proposed approach to entrapment under Jacobson v. United States [ 118 LEd2d 174 (1992)], 79 Cornell LR 995 (1994).

Actions by state official involving defendant as constituting "outrageous" conduct violating due process guaranties  18 ALR5th 1.

Right of criminal defendant to raise entrapment defense based on having dealt with other party who was entrapped  15 ALR5th 39.

Entrapment defense in sex offense prosecutions;  12 ALR4th 413. superseding  52 ALR2d 1194 and  53 ALR2d 1156.

Case authorities:

The government may not play on the weaknesses of an innocent party and beguile the party into committing crimes which the party otherwise would not have attempted; law enforcement officials go too far when they implant in the mind of an innocent person the disposition to commit an alleged offense and induce its commission in order that they may prosecute; when the government's quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to the citizen's own devices, likely would never have run afoul of the law, the courts should intervene. Jacobson v United States (1992, US)  118 L Ed 2d 174,  112 S Ct 1535, 92 CDOS 2901, 92 Daily Journal DAR 4584.

Official conduct that does no more than offer an opportunity to the suspect, such as ruses, stings, and decoys, is a permissible strategem in the enforcement of criminal law, and becomes invalid only when badgering or importuning takes place to an extent and degree that is likely to induce an otherwise law-abiding person to commit a crime. Reyes v Municipal Court (1981) 117 Cal App 3d 771, 173 Cal Rptr 48.

The "normally law-abiding person" entrapment standard, as set out in the standard jury instructions for entrapment, makes clear that the test of entrapment is an objective, not subjective, one. The use of such a standard does not unfairly focus the jurors' attention on the subjective character, predisposition and intent of the actor (defendant) and away from the objective nature and extent of the police conduct at issue. Thus, in a prosecution for selling cocaine, the trial court properly gave the jury such standard jury instructions on entrapment. People v Arthurlee (1985, 1st Dist) 168 Cal App 3d 246, 214 Cal Rptr 5.

In a prosecution for sale of a controlled substance, in which defendant alleged entrapment, the trial court erred in giving the standard jury instructions on entrapment, since they focused on whether the law enforcement activity was likely to induce a normally law-abiding person to commit the crime and provided that defendant's predisposition to commit the crime was irrelevant, and thus did not accurately reflect the law of entrapment. The predisposition of the accused to commit the crime is the principal element of the defense, and the fact that officers afford opportunities or facilities for the commission of the offense does not defeat the prosecution. People v Allen (1987, 1st Dist) 192 Cal App 3d 477, 237 Cal Rptr 446.

The proper test for entrapment is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding person to commit the offense. Entrapment focuses upon police conduct and not the defendant's predisposition. Matters such as the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant. This objective test of entrapment is used so as to guard against socially undesirable police persuasion, pressure, and cajoling. People v Lee (1990, 4th Dist) 219 Cal App 3d 829, 268 Cal Rptr 595.

Of the two approaches to entrapment law, California has adopted the "objective" test, which focuses on the conduct of police and the impact of such conduct on a "normally law-abiding person," and has rejected the "subjective" test, which focuses on a defendant's predisposition to commit the offense. "Normally law-abiding person" does not refer to the "average" person, and applies to a person who, although possessing abnormal tastes, is normally law-abiding. Thus, jury instructions on the entrapment defense (CALJIC Nos. 4.60, 4.61, 4.61.5) referring to "normally law-abiding persons" are sufficient without regard to a defendant's abnormal proclivities. People v Burns (1992, 4th Dist) 8 Cal App 4th 715, 10 Cal Rptr 2d 483, 92 CDOS 6756, 92 Daily Journal DAR 10713, review den, op withdrawn by order of ct (Cal) 92 CDOS 8704, 92 Daily Journal DAR 14438 and review den (Oct 22, 1992).

The objective entrapment test set forth in Cruz has been eliminated by FS § 777.201, and in the absence of egregious law enforcement conduct, the statutory subjective test is to be applied on the issue of entrapment, but in the presence of egregious law enforcement conduct, an entrapment defense is to be evaluated under the due process provision of Fla. Const. Art I, § 9 and the objective test articulated in earlier cases. Munoz v State (1993, Fla) 629 So 2d 90, 18 FLW S 537.

Government's conduct in Abscam investigation did not reach that demonstrable level of outrageousness which would bar prosecution of corrupt officials that were uncovered, where government created fictitious corporation purportedly representing wealthy Arabs who let it be known that they would pay substantial sums of money to Congressmen willing to assist Arabs with their immigration difficulties, since government merely provided opportunity, and not means, to commit crime. United States v Kelly (1983) 228 App DC 55, 707 F2d 1460, cert den  464 US 908,  78 L Ed 2d 247,  104 S Ct 264, later app 242 App DC 1, 748 F2d 691.

In a prosecution for conspiracy arising from a reverse sting drug operation in which undercover agents posed as drug dealers and the defendant and others arranged to purchase drugs from them, application of the objective test to determine whether entrapment occurred offered no basis for relief where the most that could be said about the informant's involvement was that he was an intermediary between the police and the defendant and there was no evidence that the informant supplied money for the drug purchase or that he was to receive money or drugs for his part in the purchase. Commonwealth v Timer (1992) 422 Pa Super 636) 613 A2d 1265, reported in full 415 Pa Super 376, 609 A2d 572.

Footnotes

Footnote 95. Grossman v State (Alaska) 457 P2d 226 (selling morphine); People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling heroin); State v Anderson, 58 Hawaii 479, 572 P2d 159 (promoting a dangerous drug); State v Cooper (Iowa) 248 NW2d 908 (delivery of cocaine); State v Mullen (Iowa) 216 NW2d 375 (delivery of marijuana).

Footnote 96. The "objective test" is exemplified by the concurring opinions by Justice Roberts in Sorrells v United States,  287 US 435,  77 L Ed 413,  53 S Ct 210, by Justice Frankfurter in Sherman v United States,  356 US 369,  2 L Ed 2d 848,  78 S Ct 819, and by Justice Stewart in United States v Russell,  411 US 423,  36 L Ed 2d 366,  93 S Ct 1637, conformed to (CA9) 479 F2d 1046.

Footnote 97. State v Anderson, 58 Hawaii 479, 572 P2d 159 (promoting a dangerous drug); State v Pfister (ND) 264 NW2d 694 (delivery of a controlled substance); Commonwealth v Jones, 242 Pa Super 303, 363 A2d 1281 (delivery of heroin).

"Objective" test of entrapment is adopted under statutory provision that entrapment occurs when law enforcement agent induces commission of an offense, using persuasion or other means likely to cause normally law-abiding persons to commit offense; defendant's predisposition to commit the crime is not included in statutory definition of entrapment, and is irrelevant to entrapment issue; accordingly, trial court erroneously instructed jury on subjective test by stating that entrapment defense involved issue of "whether the defendant was ready and willing to commit the crime without persuasion." State v Pfister (ND) 264 NW2d 694 (delivery of a controlled substance).

Under a Pennsylvania statute defining the defense of entrapment, the state of mind of the particular defendant is irrelevant, and a defendant who asserts the defense of entrapment will succeed if it is shown that the police conduct complained of would have induced an innocent person to commit the crime; the objective test of entrapment does not affect the guilt of the accused–the defense allows an otherwise guilty defendant to go unpunished because the Legislature has determined that seriously objectionable police conduct may not be tolerated; because entrapment does not negate an element of the offense, it is constitutionally permissible to place the burden of proving entrapment on the criminal defendant. Commonwealth v Jones, 242 Pa Super 303, 363 A2d 1281 (delivery of heroin).

Section 2.Section 13 of the Proposed Official Draft of the Model Penal Code of the American Law Institute departs from the generally accepted "subjective" view of entrapment and apparently adopts the "objective" view.

Footnote 98. People v Turner, 390 Mich 7, 210 NW2d 336 (sale and possession of heroin).

Footnote 99. Grossman v State (Alaska) 457 P2d 226 (selling morphine).

Footnote 1. People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling heroin).

Footnote 2. Grossman v State (Alaska) 457 P2d 226 (selling morphine).

Footnote 3. People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling heroin).

Footnote 4. People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling heroin); State v Mullen (Iowa) 216 NW2d 375 (delivery of marijuana); State v Pfister (ND) 264 NW2d 694 (delivery of controlled substance); Commonwealth v Jones, 242 Pa Super 303, 363 A2d 1281 (delivery of heroin).

Footnote 5. People v Alford, 73 Mich App 604, 251 NW2d 314, affd 405 Mich 570, 275 NW2d 484.

Entrapment was not a defense in a prosecution for violation of 18 USCS §  152 despite the fact that defendant president of a bankrupt corporation filed reports unsigned, and only signed them later, when the omission was called to his attention by a clerk, since that did not mean that he was overreached and entrapped by the government's action in forcing his signature.  United States v Montilla Ambrosiani (CA1 Puerto Rico) 610 F2d 65, cert den  445 US 930,  63 L Ed 2d 763,  100 S Ct 1318.

Footnote 6. Commonwealth v Jones, 242 Pa Super 303, 363 A2d 1281 (delivery of heroin).

Footnote 7. People v D'Angelo, 401 Mich 167, 257 NW2d 655 (delivery of a controlled substance).

Footnote 8. Commonwealth v Jones, 242 Pa Super 303, 363 A2d 1281 (delivery of heroin).

Footnote 9. Grossman v State (Alaska) 457 P2d 226 (selling morphine); People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling heroin).

Footnote 10. People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling heroin).

Footnote 11. People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P 2d 947 (selling heroin).

Footnote 12. Grossman v State (Alaska) 457 P2d 226 (selling morphine); State v Cooper (Iowa) 248 NW2d 908 (delivery of cocaine); State v Mullen (Iowa) 216 NW2d 375 (delivery of marijuana).

Footnote 13. 75 Am Jur 2d,  Trial § 425.

As to burden of proof of entrapment under "objective" approach, see 29 Am Jur 2d,  Evidence § 156.

Footnote 14. State v Knight (W Va) 230 SE2d 732 (delivery of marijuana).

Footnote 15. 75 Am Jur 2d,  Trial § 425.


§ 207  Imputation of decoy's acts to accused; victim's consent  [21 Am Jur 2d CRIMINAL LAW]

Since a decoy acts without criminal intent, his acts cannot be imputed to the accused as criminal.  In other words, where there is no act other than that of the decoy, that act cannot be the basis of a conviction of the accused. 16   For example, where a property owner by himself or through his agent, actually or constructively aids in the commission of the offense of larceny, as intended by the wrongdoer, by performing or rendering unnecessary some act in the transaction essential to the offense, the would-be criminal is not guilty of all of the elements of the offense. 17    Similarly, where the decoy is the supposed victim and the victim's lack of consent is an element of the crime, the decoy's cooperation may constitute consent such as will eliminate an essential element and thus prevent the accused's conviction of the alleged crime. 18   Thus, for example, one who seeks to entrap another in the commission of larceny must take care that in his efforts he does not overreach himself and consent to the taking of his property.  Where the owner himself or by his agent originates the criminal design and actively urges and assists the defendant in the taking of the goods, such conduct amounts to consent, and the element of trespass essential to larceny is lacking.  On the other hand, if the criminal design originates with the accused, and the owner or his agent does not suggest or actively urge the commission of the crime, but merely exposes the property, neglects to protect it, or furnishes facilities for the execution of the criminal design, there is no consent. 19    Likewise, if a burglary victim, himself or through an agent, induces another to commit the offense for the purpose of entrapping and apprehending him, entrapment is a defense, on the theory that the owner of the premises by his conduct has consented to the breaking and entering by the alleged burglar, thereby destroying the essential element that the breaking and entering be against the owner's consent.  On the other hand, there is no consent to the crime where the owner does not induce the original intent, but only makes provision for the exposure of the offense or, knowing that his property is to be burglarized, takes no action to thwart the plan. 20    And it may be a defense to a robbery prosecution that the crime was instigated by the person robbed or that the property was handed over solely for the purpose of prosecuting the offender, since want of the victim's consent is an essential element of the crime. Nevertheless, there is no defense where the inducement to the taking is only passive, as where a person who knows that a robbery is contemplated remains passive or takes steps to provide an opportunity for the apprehension of the would-be robber. 21  

§ 207  – Imputation of decoy's acts to accused; victim's consent [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Right of criminal defendant to raise entrapment defense based on having dealt with other party who was entrapped  15 ALR5th 39.

Maintainability of burglary charge, where entry into building is made with consent. (See also 13 Am Jur 2d,  Burglary  64.)  58 ALR4th 335.

Case authorities:

The trial court properly granted defendants' motions to dismiss under R Cr P 3.190 on the ground that they had been entrapped as a matter of law, where the facts as stipulated by the parties indicated that the police had posted decoys in a neighborhood plagued by robberies and purse-snatching, each of the defendants had taken clearly exposed money from the pocket of a decoy lying prone on the sidewalk, and there was no indication that any defendant had engaged in prior similar conduct, in that this evidence did not suggest any predisposition on the part of defendants but rather suggested that defendants had simply succumbed to the lure of the bait held out by the decoys. Peterson v Title & Trust Co. (1983, Fla App D1) 431 So 2d 311.

Footnotes

Footnote 16. People v Lanzit, 70 Cal App 498, 233 P 816 (attempt to commit murder); State v Hayes, 105 Mo 76, 16 SW 514 (ovrld on another point State v Barton 142 Mo 450, 44 SW 239; burglary).

Footnote 17. 50 Am Jur 2d,  Larceny § 139.

Footnote 18. State v Dougherty, 88 NJL 209, 96 A 56 (conspiracy to pervert due administration of laws).

Footnote 19. 50 Am Jur 2d,  Larceny § 139.

Footnote 20. 13 Am Jur 2d,  Burglary § 64.

Footnote 21. 67 Am Jur 2d,  Robbery § 47.


§ 208  Manner of raising defense; accused's denial of any participation in offense  [21 Am Jur 2d CRIMINAL LAW]

The defense of entrapment is raised under a plea of not guilty. 22    It is said that the defense of entrapment is no exception to the rule that under a not guilty plea a defendant is entitled to have the jury consider, under proper instructions, every theory of defense that the evidence or reasonable inference therefrom entitles him. 23   It is also said that to require an accused to plead guilty as a prerequisite to utilizing the entrapment defense would be to equate his participation in a course of conduct with his legal guilt. 24       

Although the defense of entrapment may be raised by a plea of not guilty, the overwhelming weight of authority holds that the defense is not available to one who denies the offense, 25   since the invocation of such defense necessarily assumes that the act charged was committed. 26    The majority rule and its rationale have been held generally proper and adequate on the ground that a defendant who denies the crime will ordinarily be unable to establish any evidentiary base for the defense of entrapment. 27   It is said that the phrases, "I was entrapped," and "I didn't do it," are mutually exclusive. 28   Generally, therefore, a defendant who raises the defense of entrapment cannot controvert the allegations of the indictment. 29  Nevertheless, an exception to the general rule has been recognized where the state, rather than the defendant, injects evidence of entrapment into the case. 30  There is also a qualification in cases involving a charge of conspiracy, whereby a defendant may deny being a party to a conspiracy and yet raise the issue that any overt acts done by him resulted from entrapment. 31   However, this qualification applies only if proof that the defendant was not a member of the conspiracy does not necessarily disprove that he was entrapped into committing a particular overt act; the defense will not be permitted where the defendant does not admit to some culpable act that he claims he was entrapped into committing. 32    

On the other hand, there is also authority for the view that a defendant may assert entrapment without being required to concede that he committed the crime charged or any of its elements. 33    As justification for this view, it has been said that the rule in favor of inconsistent offenses should extend to entrapment since the primary function of the defense is to safeguard the integrity of law enforcement and the prosecution process. 34   It has also been said that compelling a defendant to admit guilt as a condition to invoking the defense of entrapment effectively relieves the prosecution of its burden of proving his guilt beyond a reasonable doubt and puts the defendant in a dilemma that frustrates the assertion of the defense itself and undermines its policy. 35   In a jurisdiction adhering to the "objective" test for entrapment, it has been held that a defendant is not required to admit the criminal act in order to raise the entrapment issue since the test for entrapment does not look to his so-called predisposition to commit the crime charged but focuses instead on the challenged governmental activity. 36

It has been held that defendants who raised the defense of entrapment by pretrial motions but later changed their pleas to no contest thereby gave up any chance they might have had to present the entrapment defense to the jury and, on appeal, were not entitled to reversals of their convictions where they had not established entrapment as a matter of law. 37


§ 208  – Manner of raising defense; accused's denial of any participation in offense [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Note, Entrapment and Denial of the Crime: A Defense of the Inconsistency Rule. 1986 Duke LJ 866, November, 1986.

Note, Denying the Crime and Pleading Entrapment: Putting the Federal Law in Order. 20 U Mich J L Ref 567, Winter, 1987.

Right of criminal defendant to raise entrapment defense based on having dealt with other party who was entrapped  15 ALR5th 39.

Entrapment defense in sex offense prosecutions;  12 ALR4th 413. superseding  52 ALR2d 1194 and  53 ALR2d 1156.

Availability in state court of defense of entrapment where accused denies committing acts which constitute offense charged;  5 ALR4th 1128. superseding for state cases  81 ALR2d 877.

Availability in federal court of defense of entrapment where accused denies committing acts which constitute offense charged.  54 ALR Fed 644.

Case authorities:

A defendant in a federal criminal trial is entitled to have the jury instructed on the affirmative defense of entrapment whenever there is sufficient evidence from which a reasonable jury could find entrapment, even if the defendant denies one or more elements of the crime. Mathews v United States (1988)  485 US 58,  99 L Ed 2d 54,  108 S Ct 883.

See United States v Hill (1981, CA3 Pa) 655 F2d 512, § 70.

Defendant did not waive due process challenge to prosecution based on extent of government operative's involvement in narcotics transaction where information was not available to him until eve of trial. United States v Gonzales (1991, CA3 NJ) 927 F2d 139.

In prosecution for conspiracy to buy bobcat hides brought into United States from Mexico contrary to law and for smuggling, trial court erred in refusing to give instruction on entrapment on ground that defense of entrapment was unavailable to defendant so long as defendant denied committing acts which constituted crime, where law had been changed at time defendants were tried and entrapment defense was available to defendant even though he denied committing acts upon which criminal charge was based. United States v Ivey (1991, CA5 Tex) 949 F2d 759.

As result of defendant's failure to raise entrapment defense in District Court, point was therefore not open for normal review. United States v Porter (1988, CA8 Mo) 850 F2d 464.

On the question of whether accused was predisposed to commit the offense charged, an accused asserting the entrapment defense initially has the burden to establish lack of predisposition, but as soon as the accused produces evidence of no predisposition, the burden then shifts to the prosecution to rebut this evidence beyond a reasonable doubt, which the prosecution may accomplish by making "an appropriate and searching inquiry" into the conduct of the accused and present evidence of the accused's prior criminal history, even though such evidence is normally inadmissible. Munoz v State (1993, Fla) 629 So 2d 90, 18 FLW S 537.

On the issue of whether an agent of the government induced the accused to commit the offense charged, the accused asserting the entrapment defense has the burden of proof and pursuant to FS § 777.201, must establish this factor by a preponderance of the evidence. Munoz v State (1993, Fla) 629 So 2d 90, 18 FLW S 537.

Defendant, to be permitted to raise the defense of entrapment, must admit his commission of the offense charged. People v Bradley (1979, Ill App) 391 NE2d 1078,  5 ALR4th 1121 (robbery).

In prosecution for prostitution, defendant sufficiently raised entrapment defense in presentation of evidence by showing police involvement in criminal activity and evidence of lack of predisposition to commit act of prostitution; to extent claim of entrapment was inconsistent with claim of innocence, self-penalizing effect of undermining defendant's credibility obviated any need to prohibit defense of entrapment in case where defendant claimed innocence. Strong v State (1992, Ind App) 591 NE2d 1048, transfer den (Jul 16, 1992).

A defendant may assert the defense of entrapment where he has denied committing the crime since (1) a defendant is unlikely to confess a crime when there is a risk that he will not be able to meet the burden of showing inducement, and (2) the ultimate effect of requiring the defendant to admit to the crime in order to raise entrapment would be to relieve the Commonwealth of its burden of proving all elements of the crime beyond a reasonable doubt. Commonwealth v Tracey (1993) 416 Mass 528, 624 NE2d 84, summary op at (Mass) 22 M.L.W. 736.

In trial for fourth-degree patronizing prostitute, defendant was not entitled to jury charge on affirmative defense of entrapment based on his testimony that man dressed as woman approached his car, offering to perform oral sodomy for money, and that he did not respond to offer, since (1) defendant's testimony denying that he committed proscribed conduct did not by itself support requested charge, and (2) undercover officers' testimony that they merely afforded defendant opportunity to commit offense was insufficient to warrant entrapment charge. People v Brown (1993)  82 NY2d 869, 609 NYS2d 164, 631 NE2d 106.

Where a defendant denies the commission of the acts underlying the offense charged, he cannot raise the inconsistent defense of entrapment. State v Neville, 302 NC 623, 276 SE2d 373.

Defendant has the burden to prove the defense of entrapment to the satisfaction of the jury, and once defendant has presented evidence of entrapment, the burden does not then shift to the prosecution to prove predisposition beyond a reasonable doubt. State v Hageman (1982) 307 NC 1, 296 SE2d 433.

The trial judge did not err in denying defendant's request for an instruction on the defense of entrapment, where defendant took the witness stand and denied committing the crime of which defendant was charged and found guilty. Williams v State (1986, Fla App D2) 482 So 2d 600, 11 FLW 370.

Prostitution defendant who denied crime was still entitled, notwithstanding such denial, to entrapment instruction in view of evidence. State v McBride (1979) 287 Or 315, 599 P2d 449.

Under state statute, defense of entrapment would be available to defendant even where defendant denies commission of crime. State v Taylor (1979, Utah) 599 P2d 496.

Footnotes

Footnote 22. See  § 452, infra.

Footnote 23. State v Knight (W Va) 230 SE2d 732 (delivery of marijuana).

Footnote 24. State v Nelsen, 89 SD 1, 228 NW2d 143 (unlawfully distributing LSD).

A defendant in a prosecution for conspiracy to transport stolen trucks in foreign commerce was entitled to raise the defense of entrapment where he chose not to testify, so that no evidence inconsistent with the defense was introduced; a plea of not guilty is not repugnant to the defense of entrapment.  United States v Groessel (CA5 Tex) 440 F2d 602, cert den  403 US 933,  29 L Ed 2d 713,  91 S Ct 2263.

The holding in the Groessel case, supra, was distinguished in United States v Henciar (CA6 Mich) 568 F2d 489, cert den  435 US 953,  55 L Ed 2d 803,  98 S Ct 1582, where it was held that the district court did not err in failing to permit defendant, who did not take the stand, to raise the defense of entrapment in spite of his refusal to admit that he was guilty of the crime charged, since there was no evidence from which the jury could have concluded that defendant was entrapped.

Footnote 25. United States v O'Leary (CA5 Fla) 529 F2d 1202 (conspiracy to import drugs); United States v Mitchell (CA6 Tenn) 514 F2d 758, cert den  423 US 847,  46 L Ed 2d 68,  96 S Ct 86 (influencing a witness); United States v Gibson (CA10 Kan) 446 F2d 719 (giving money to prison employee to obtain contraband for inmate); Burris v United States (CA7 Ill) 430 F2d 399, cert den  401 US 921,  27 L Ed 2d 824,  91 S Ct 909 (possession of heroin); United States v Freeman (CA10 Colo) 412 F2d 1181 (selling LSD); United States v Blanket (WD Okla) 391 F Supp 15 (illegal sale of feathers); United States v Ramsey (CA2 Conn) 374 F2d 192 (possession and sale of illegally imported heroin); Owens v State, 291 Ala 107, 278 So 2d 693 (possession of heroin); State v Mendoza, 109 Ariz 445, 511 P2d 627 (unlawful sale of narcotics); Robinson v State, 255 Ark 893, 503 SW2d 883 (selling cocaine); State v Avery, 152 Conn 582, 211 A2d 165 (policy playing); Ivory v State (Fla App D3) 173 So 2d 759, cert dismd (Fla) 183 So 2d 212 (illegal sale of narcotic); Reed v State, 130 Ga App 659, 204 SE2d 335 (disapproved on other grounds State v McNeill 234 Ga 696, 217 SE2d 281, on remand 135 Ga App 876, 219 SE2d 613 and (ovrld on other grounds Chandle v State 230 Ga 574, 198 SE2d 289) as stated in Gibbons v State 136 Ga App 609, 222 SE2d 55, cert dismd 237 Ga 283, 227 SE2d 265 and (ovrld on other grounds Webb v State 136 Ga App 90, 220 SE2d 27; sale of marijuana); People v Calcaterra, 33 Ill 2d 541, 213 NE2d 270, cert den and app dismd  385 US 7,  17 L Ed 2d 8,  87 S Ct 65 (selling a nonnarcotic under representation that it was a narcotic); State v Bruno (Iowa) 204 NW2d 879 (selling hallucinogenic drugs); State v Amodei, 222 Kan 140, 563 P2d 440 (narcotic offenses); Tomita v Tucker, 18 Mich App 559, 171 NW2d 564 (false arrest); People v Bersine, 48 Mich App 295, 210 NW2d 501 (unlawful sale of heroin); Landers v State (Miss) 304 So 2d 641 (sale of marijuana); State v Sykes (Mo) 478 SW2d 387 (felonious sale of a narcotic drug); State v O'Donnell, 138 Mont 123, 354 P2d 1105 (grand larceny); State v Dennis, 43 NJ 418, 204 A2d 868 (conspiracy to violate narcotic drug law); State v Garcia, 79 NM 367, 443 P2d 860 (possession of marijuana); State v Good, 110 Ohio App 415, 11 Ohio Ops 2d 459, 83 Ohio L Abs 65, 165 NE2d 28, motion overr (illegal possession and sale of narcotics); Stephens v State (Tex Crim) 522 SW2d 924 (sale of heroin); State v Draper, 10 Wash App 802, 521 P2d 53 (unlawful delivery of a controlled substance).

Annotation:  61 ALR2d 677.

Footnote 26. Brown v State, 248 Ark 561, 453 SW2d 50 (illegal possession of narcotics); Sassnett v State, 156 Fla 490, 23 So 2d 618 (larceny); State v Boles, 246 NC 83, 97 SE2d 476 (possession and sale of liquor); State v Williams, 84 SD 547, 173 NW2d 889 (unlawful possession and sale of marihuana); Cooper v State, 162 Tex Crim 624, 288 SW2d 762 (procuring); State v Hochman,  2 Wis 2d 410, 86 NW2d 446,  77 ALR2d 784 (selling booklets and playing cards containing obscene pictures).

In a prosecution for the sale of heroin, there was no contradiction in the defendant's maintaining that he was merely a procuring agent and was entrapped into even that service.  United States v Rodrigues (CA1 Mass) 433 F2d 760, cert den  401 US 943,  28 L Ed 2d 224,  91 S Ct 950.

The defendant's denial that he made a sale but that he merely "fetched" heroin as an errand boy precluded the defense of entrapment.  Dunbar v United States (CA9 Or) 342 F2d 979.

While the defense of entrapment may be raised when the defendant pleads not guilty, the assumption being that the act charged was committed, the entrapment defense was not available to the defendant charged with selling heroin where he admitted he had sold capsules to the agent, but contended that the capsules had contained whole wheat flour.  McCarroll v State, 294 Ala 87, 312 So 2d 382.

Where the defendant admitted involvement in the sale of narcotics but sought exoneration on the ground that he was merely a procuring agent, the defense of entrapment was available notwithstanding that the defendant had denied the offense charged. State v Fitzgibbon, 211 Kan 553, 507 P2d 313.

A defendant charged with the illegal sale of a nonnarcotic drug was entitled to a jury instruction on entrapment where he admitted all elements of the offense except the agreement to sell, concerning which his testimony was uncertain.  State v Farmer, 212 Kan 163, 510 P2d 180.

The defendant who was accused of bribing police officers to forestall her arrest for prostitution was entitled to instructions on entrapment, even though she claimed that she had not bribed the police officer, but rather, that he had taken money away from her when she refused to pay the bribe. State v Harrington (La) 332 So 2d 764.

Where a defendant admittedly located a willing seller of narcotics at the behest of an undercover agent, arranged for the sale, and was present at the transfer, he was entitled to an entrapment instruction since his two defenses–that his acts did not constitute a sale or joint action with the seller and that he was entrapped–were not entirely repugnant. State v Taylor (Mo) 375 SW2d 58.

The court properly refused the defendant's request for a jury instruction presenting the defense of entrapment where the defendant had not only denied participation in the alleged defense but also had denied that he was entrapped.  State v Wilmore, 192 Neb 807, 224 NW2d 756 (possession of a controlled substance with intent to distribute).

In a prosecution for possession of marijuana, the defendant was not entitled to a jury charge on entrapment where his defense was based on lack of knowledge that there was contraband in vehicle in which he was passenger. Zamora v State (Tex Crim) 508 SW2d 819.

Footnote 27. State v Knight (W Va) 230 SE2d 732 (delivery of marijuana).

Footnote 28. United States v Brooks (CA5 Fla) 611 F2d 614 (illegal sale of firearms); People v Pugh, 48 Mich App 242, 210 NW2d 376 (armed robbery).

Footnote 29. Zinn v State, 134 Ga App 51, 213 SE2d 156 (unlawful sale of heroin).

Footnote 30. Sears v United States (CA5 Ga) 343 F2d 139 (conspiracy to violate liquor laws); State v Knight (W Va) 230 SE2d 732 (delivering marijuana).

Footnote 31. Sears v United States (CA5 Ga) 343 F2d 139 (conspiracy to violate liquor laws); Henderson v United States (CA5 Fla) 237 F2d 169,  61 ALR2d 666 (conspiracy to violate federal liquor laws); Stripling v State (Fla App D3) 349 So 2d 187, cert den (Fla) 359 So 2d 1220 (bribery and conspiracy to commit bribery).

In a prosecution for conspiracy to smuggle marijuana, wherein the defendant denied both conspiracy and having committed any of the overt acts charged, the government's evidence that custom agents only provided the defendant with an anticipated opportunity to commit a criminal act for which he was predisposed did not establish entrapment as a matter of law or constitute substantial evidence of it.  Sendejas v United States (CA9 Cal) 428 F2d 1040, cert den  400 US 879,  27 L Ed 2d 116,  91 S Ct 122 and cert den  400 US 879,  27 L Ed 2d 116,  91 S Ct 127.

In a prosecution for conspiracy to defraud the United States, the defendant was not permitted to argue that he was not part of the conspiracy but was entrapped to commit the overt act charged in the indictment, where there was no evidence in the record introduced by either the prosecution or the defendants to support the theory that the defendants were entrapped in the conspiracy. United States v Morrow (CA5 Fla) 537 F2d 120, reh den (CA5 Fla) 541 F2d 282 and cert den  430 US 956,  51 L Ed 2d 806,  97 S Ct 1602 and cert den  430 US 956,  51 L Ed 2d 806,  97 S Ct 1602.

Footnote 32. United States v Newcomb (CA5 Fla) 488 F2d 190, cert den  417 US 931,  41 L Ed 2d 234,  94 S Ct 2642 (conspiracy to possess with intent to distribute marijuana).

Footnote 33. United States v Demma (CA9 Cal) 523 F2d 981 (conspiracy to import and distribute heroin); People v Barraza, 23 Cal 3d 675, 153 Cal Rptr 459, 591 P2d 947 (selling heroin); People v Perez, 62 Cal 2d 769, 44 Cal Rptr 326, 401 P2d 934 (possession of marijuana).

Rule governing presentment of entrapment defense by accused announced in United States v Demma (CA9 Cal) 523 F2d 981, which corrected aberration of law concerning entrapment which began with Eastman v United States (CA9 Ariz) 212 F2d 320, was applicable to cases pending on appeal at time Demma was decided.  United States v Stagg (CA9 Cal) 540 F2d 1010 (conspiracy, possession and distribution of cocaine).

The court erred in foreclosing the defendant in a drug prosecution from raising an entrapment defense on the ground that he had refused to take the stand to admit the offense.  United States v Hart (CA9 Ariz) 546 F2d 798, cert den  429 US 1120,  51 L Ed 2d 571,  97 S Ct 1155 and later app (CA9 Ariz) 563 F2d 1308, cert den  435 US 925,  55 L Ed 2d 519,  98 S Ct 1491, reh den  436 US 914,  56 L Ed 2d 416,  98 S Ct 2257.

Where the defendant denied making a sale of narcotics yet invoked the issue of entrapment, the defenses were alternative but not inconsistent.  It was consistent with the defendant's denial of the transaction to urge that if the jury believed it did occur the government's evidence as to how it occurred indicated entrapment.  Hansford v United States 112 App DC 359, 303 F2d 219 (sale of narcotics).

The trial court erred in instructing the jury that the defendants conceded their guilt by raising the defense of entrapment.  People v Johnston (2d Dept)  47 App Div 2d 897, 366 NYS2d 198 (criminal possession of a dangerous drug).

Practice Aids: Groot, The Serpent Beguiled Me and I (Without Scienter) Did Eat–Denial of Crime and the Entrapment Defense, 1973 U Ill L F 254.

Footnote 34. United States v Demma (CA9 Cal) 523 F2d 981 (conspiring to import and distribute heroin).

Footnote 35. People v Perez, 62 Cal 2d 769, 44 Cal Rptr 326, 401 P2d 934 (possession of marijuana).

Footnote 36. People v D'Angelo, 401 Mich 167, 257 NW2d 655 (delivery of LSD and breaking and entering with intent to commit larceny).

Footnote 37. Bell v State (Fla) 369 So 2d 932 (prostitution, lewdness, or assignation).


§ 209  Purchase of contraband by officer  [21 Am Jur 2d CRIMINAL LAW]

In the absence of some persuasion or inducement outside the ordinary transaction of purchase and sale between a willing purchaser and the willing seller, 38  where a person is engaged in illegal sales, the mere fact that police officers go to his place of business and ask for a product which may not lawfully be sold, 39  or that a particular sale for which he is prosecuted was induced by them, 40  does not show entrapment.  In other words, where a person is regularly engaged in doing certain prohibited acts, such as unlawfully selling liquor, 41   unlawfully selling narcotics, 42   or accepting bets on horseraces, 43   and has done such acts on his own initiative, it is no defense for him to show that for the purpose of bringing him to justice, an officer of the law directly or indirectly occasioned the commission of the particular act charged. 44

In a jurisdiction applying the "objective" test of entrapment, 45   it has been recognized that an officer should be able to offer money in reasonable amounts at a prevailing price level in an unlawful traffic, but that offers of profit grossly disproportionate to what is reasonably expected in that traffic should not be permitted when they would overwhelm the self-control of a normal person. 46


§ 209  – Purchase of contraband by officer [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Actions by state official involving defendant as constituting "outrageous" conduct violating due process guaranties  18 ALR5th 1.

Right of criminal defendant to raise entrapment defense based on having dealt with other party who was entrapped  15 ALR5th 39.

Case authorities:

In cases in which the government has induced a defendant to break the law and the defense of entrapment is at issue, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents; thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs and, if the offer is accepted, make an arrest on the spot or later, because in such a typical case, or in a more elaborate "sting" operation involving government-sponsored fencing where the defendant was simply provided with the opportunity to commit a crime, the entrapment defense is of little use, since the ready commission of the criminal act simply demonstrates the defendant's predisposition. Jacobson v United States (1992, US)  118 L Ed 2d 174,  112 S Ct 1535, 92 CDOS 2901, 92 Daily Journal DAR 4584.

Narcotics defendant's non involvement defense did not conflict with codefendant's entrapment defense since it was not necessary for jury to have disbelieved one defense in order to believe other. United States v Gutberlet (1991, CA8 Minn) 939 F2d 643.

The evidence in a prosecution for possession and sale of cocaine did not show entrapment as a matter of law but presented a question of entrapment for the jury where the State's evidence tended to show that defendant produced quantities of cocaine for an undercover agent to purchase, defendant was actually the first one to raise the issue of a drug purchase, defendant knew exactly where to go and who to see in order to make a drug purchase, and other people who frequented defendant's home looked upon her as one familiar with drug trafficking in the area, and where defendant's evidence tended to show that the undercover agent knew defendant was unemployed and in need of money, he offered financial assistance to fix her car and leaky basement, he often brought beer, food, and cigarettes for her as gifts, the undercover agent was the first one to raise the subject of a drug transaction, the undercover agent provided defendant with all the money for the drugs purchased and drove her on each of the three occasions in question to buy the drugs, and defendant did not profit on any of the three purchases. State v Grier, 51 NC App 209, 275 SE2d 560.

In a prosecution for delivery of heroin in which defendant testified he delivered the heroin as a result of inducement by his girlfriend, a police informant, but in which the police officer's testimony suggested a different motive, i.e., defendant's desire to obtain heroin for himself, the trier of fact was authorized to weigh the evidence and draw a conclusion from the circumstances that defendant was not induced by the informant to commit the offense; moreover, the evidence did not show that the informant was a law enforcement agent as defined in PC § 8.06, such as to support a finding of entrapment. Soto v State (1984, Tex Crim) 681 SW2d 602, on remand (Tex App Austin) 685 SW2d 131.

Footnotes

Footnote 38. People v Makovsky, 3 Cal 2d 366, 44 P2d 536 (unlawful selling of billies).

Footnote 39. State v Franco, 76 Utah 202, 289 P 100 (marijuana).

Footnote 40. People v Carner, 117 Cal App 2d 362, 255 P2d 835 (selling heroin).

In a prosecution for selling obscene booklets and pictures, evidence that defendant stated to a police officer on his first visit that defendant sold "hotter stuff" only to the better customers, that defendant encouraged the officer to become a regular customer, and that on a subsequent visit defendant stated that the officer arrived too late and that the material was sold to another customer, showed that defendant entertained the criminal intent before he was afforded an opportunity to violate the law. State v Hochman,  2 Wis 2d 410, 86 NW2d 446,  77 ALR2d 784.

For later cases involving the defense of entrapment in a narcotics prosecution, see 25 Am Jur 2d,  Drugs, Narcotics, and Poisons § 43.

Footnote 41. See 45 Am Jur 2d,  Intoxicating Liquors §§ 349-350.

Footnote 42. See 25 Am Jur 2d,  Drugs, Narcotics, and Poisons § 43.

Footnote 43. See 38 Am Jur 2d  Gambling § 168.

Footnote 44. In prosecution for mailing obscene films, entrapment as a matter of law was not shown and, thus, entrapment issue was for jury which rejected it, where government agents purchased films in response to unsolicited advertisements.  United States v Walker (CA5 Tex) 559 F2d 365.

Footnote 45. See  § 206 supra.

Footnote 46. Grossman v State (Alaska) 457 P2d 226 (selling morphine).


D.  Immunity Resulting From Being Compelled to Testify; Agreements Not to Prosecute [210-222]

1.  In General [210, 211]


§ 210  Generally; historical background; types of immunity  [21 Am Jur 2d CRIMINAL LAW]

From the earliest period the policy of the English courts seems to have been to encourage accomplices to become witnesses for the Crown by holding out to them the hope of pardon on a free and full disclosure of their guilt and that of their associates in crime. The first method of attaining this result was by what was known as "the practice of approvement."  The course in pursuing this old form was for the culprit, indicted for treason or felony, to confess the truth of the charge and, on being sworn to reveal all the treasons or felonies within his knowledge, to enter before a coroner his appeal against all his partners in crime who were within the realm.  The criminal thus confessing was called the "approver," or, in Latin, "probator," and the person implicated was styled the "appellee."  By this confession and appeal the approver put it in the discretion of the court either to give judgment and award execution against him or to respite him until the conviction of his partners in guilt.  If it was deemed advisable to admit him as an approver, and then if, upon being sworn, he made a full and true disclosure and also convicted the appellee either by his oath or on wager of battle, the King, ex merito justitiae, pardoned him "as to his life."  This practice, with its conditions that the appellee could claim a trial by battle and that grace to the approver should be dependent on his conviction of his associate in crime, was plainly at variance with modern sentiments and habits, and consequently it passed out of use. 47   

Yet, since the practice of approvement served a valuable purpose in judicial administration, it was inevitable that some equivalent should take its place, and the English practice on such occasions seems to have long since, assumed, a settled form.  Under the modern practice there are pardons grantable as of common right, without any exercise of the King's discretion, as where a statute creating an offense or enacting penalties for its future punishment holds out a promise of immunity to accomplices to aid in the conviction of their associates.  When accomplices do so voluntarily, they have a right absolutely to a pardon.  The same is also true when, by the King's proclamation, they are promised immunity on discovering their associates and are the means of convicting them.  Except in these cases, however, accomplices, though admitted to testify according to the usual phrase as "King's evidence," have no absolute claim or legal right to a pardon. 48   They have an equitable claim to pardon if, on the trial, a full and fair disclosure of the joint guilt of one of them and his associates is made. They cannot plead it in bar of an indictment for the offense, but they may use it to put off the trial in order to have time to apply for a pardon. 49     If the accomplice acts in bad faith or fails to testify fully and fairly, he may still be prosecuted as if he had never been admitted as a witness. 50   

Modern immunity statutes, having historical roots deep in Anglo-American jurisprudence, have been enacted by Congress and every state, as well as the District of Columbia and Puerto Rico. Such statutes have been considered as essential to the effective enforcement of various criminal statutes and have "become part of our constitutional fabric." 51    A grant of immunity represents an accomodation between the government's right to compel testimony, on the one hand, and the witness' constitutional privilege against self-incrimination.  If adequate immunity is granted, incriminating testimony may be compelled.  The theory on which a grant of immunity is based is that, in return for the witness' surrender of his Fifth Amendment right to remain silent lest he incriminate himself, the witness is promised that he will not be prosecuted on the basis of the inculpatory evidence he gives in exchange.  Thus, for example, the prosecution may compel testimony from one of several suspects to be used against the others by granting him immunity.  The prosecution, in effect, allows one person to go free in order to obtain convictions against the others.  Nevertheless, although immunity is earned only after the witness actually testifies, it is effective even where no convictions result from the testimony. 52  

In order to be effective in compelling testimony from a witness, a grant of immunity must be coextensive with the constitutional privilege against self-incrimination. 53    Under a statute extending a witness immunity coextensive with his constitutional privilege from giving self-incriminating evidence, the witness is in the same position, as to prosecutions for the crimes to which his evidence relates, as though his acts did not constitute a crime. 54  

There are three recognized types of immunity:  (1) "transactional," (2) "use and derivative use," and, (3) "use." "Transactional" immunity protects the witness from prosecution for offenses to which the compelled testimony relates.  This type of immunity is broader than the constitutional privilege against self-incrimination and need not always be granted, although it does, of course, constitute adequate immunity.  "Use and derivative use" immunity protects the witness from the use of compelled testimony and evidence derived therefrom.  It is coextensive with the constitutional privilege against self-incrimination and is therefore a sufficient grant of immunity to compel self-incriminatory testimony.  On the other hand, mere "use" immunity, which only prevents the prosecution from using the compelled testimony in any criminal proceeding, is not constitutionally adequate since it does not prevent prosecuting authorities from making derivative use of the fruits of a witness' compelled testimony by obtaining investigatory leads from it. 55   

Where a witness testifies under a statute granting "use and derivative use" immunity, the government may still prosecute him by using evidence from a legitimate independent source.  Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to a federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted and must establish that they had an independent, legitimate source for the disputed evidence.  This burden of proof imposes on the prosecution the affirmative duty to prove that the evidence is derived from a legitimate source wholly independent of the compelled testimony. 56 


§ 210  – Generally; history background; types of immunity [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Van Cleve and Tiefer, Navigating the Shores of "Use" Immunity and Secret International Enterprises in Major Congressional Investigations: Lessons of the Iran-Contra Affair. 55 Mo LR 43, Winter, 1990.

Judicial use immunity and the privilege against self-incrimination in court mandated therapy programs, 17 Nova LR 1441 (1993).

Propriety, under state constitutional provisions, of granting use or transactional immunity for compelled incriminating testimony–post-Kastigar cases  29 ALR5th 1.

Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness;  617 ALR4th 617. superseding  13 ALR2d 1439.

Case authorities:

Trial court properly denied motion to dismiss grounded on defense of qualified immunity in action by nine-year-old plaintiff who alleged that defendant police officer held gun to child's head and threatened to shoot during search of apartment in which he was resident; because he was not under arrest and did not otherwise pose threat to officers, threat of deadly force was objectively unreasonable and violated clearly established constitutional rights. McDonald v Haskins (1992, CA7 Ill) 966 F2d 292.

Use immunity protects a witness only against the actual use of his compelled testimony, as well as the use of evidence derived therefrom. Transactional immunity protects the witness against later prosecutions related to matters about which he testifies. People v Hunter (1989) 49 Cal 3d 957, 264 Cal Rptr 367, 782 P2d 608, mod (1990) 50 Cal 3d 133a, reh den.

Footnotes

Footnote 47. Whiskey Cases,  99 US 594,  25 L Ed 399; State v Graham, 41 NJL 15; Commonwealth v Dabney, 40 Va 696.

Footnote 48. Commonwealth v Dabney, 40 Va 696.

Footnote 49. Whiskey Cases,  99 US 594,  25 L Ed 399; State v Graham, 41 NJL 15.

Footnote 50. Whiskey Cases,  99 US 594,  25 L Ed 399.

Footnote 51. 81 Am Jur 2d,  Witnesses § 56.

Footnote 52. 81 Am Jur 2d,  Witnesses § 54.

Practice Aids: –Immunity from prosecution.  1 Wharton's Criminal Law (14th ed) § 78.

Footnote 53. 81 Am Jur 2d,  Witnesses § 58.

Footnote 54. 81 Am Jur 2d,  Witnesses § 56.

Footnote 55. 81 Am Jur 2d,  Witnesses § 59.

Transactional immunity statute applies to matter about which a witness is subpoenaed to testify; however, if such witness discloses a fact during his testimony, innocent in and of itself, which links him to an independent and separate criminal transaction, he may be prosecuted for such other criminal transaction, but his subpoenaed testimony may not be used.  State ex rel. Hough v Popper (Fla) 287 So 2d 282.

Where a witness in an investigation of a charge against a third person for breaking and entering with intent to commit arson informed the prosecutor that he would not testify unless given transactional immunity, and where he prefaced his testimony by declaring that he was answering only because he had immunity, a subsequent information charging the witness with solicitation to commit arson pertained to the same "transaction, matter or thing" for which the immunity had been granted, and a writ of prohibition would issue to prevent the prosecution.  State ex rel. Key v Fogle (Fla App D2) 347 So 2d 1067, cert den (Fla) 353 So 2d 675.

A manslaughter indictment would be dismissed where the defendant received full transactional immunity from prosecution as a result of her appearance before a grand jury, and where her waiver of immunity was invalid under the state statute.  People v Gerald,  91 Misc 2d 509, 398 NYS2d 244.

Footnote 56. 81 Am Jur 2d,  Witnesses § 61.


§ 211  Right to immunity in absence of statutory authority  [21 Am Jur 2d CRIMINAL LAW]

No one has a general immunity from prosecution for his alleged criminal acts. 57   The mere fact that a participant or an accomplice in the commission of a crime has given testimony of an incriminating nature does not, in the absence of a statute so providing, entitle him to claim immunity from prosecution as a matter of right. 58  Absent appropriate statutory authorization, immunity cannot be granted by a prosecuting attorney, trial judge, grand jury, legislative investigating committee, or some other person. 59    To justify refusal of a claim of privilege against self-incrimination, immunity from prosecution must have its source and sanction in the law.  A witness may insist that his immunity have a basis more substantial than the grace or favor of the prosecutor. 60    However, even in the absence of specific statutory authority, there is an established practice in American courts not to prosecute an accomplice who has testified for the government in the expectation of immunity from prosecution, 61  and such a witness is said to have an equitable claim to immunity from prosecution. 62   Where the case is not within any statute, the general rule is that if an accomplice, when examined as a witness by the public prosecutor, discloses fully and fairly the guilt of himself and his associates, he will not be prosecuted for the offense disclosed, 63    but he cannot plead such fact in bar of any indictment against him or avail himself of it on his trial, since it is merely an equitable right to the mercy of the executive and can only come before the court by way of application to put off the trial in order to give the prisoner time to apply to the executive for that purpose. 64   

If the testimony of an accomplice is corrupt or his disclosure is only partial, he gains nothing and forfeits whatever right to exemption he may have had. 65   

In addition to this equitable right of an accomplice to a pardon or clemency upon testifying fully and freely, it has been held to be competent for the court to order the accomplice to be acquitted at the trial, for the purpose of qualifying him as a witness for the state, or to accept from the defendant a plea admitting guilt to such a degree as in the opinion of the court is requisite, or for the court to assent to, or advise the entering of, a nolle prosequi by the prosecuting attorney. 66

In sentencing an accomplice, the practice of taking into consideration his aid to the state in turning state's evidence has been held to be no denial of due process to a convicted confederate. 67       

The doctrine of common-law approvement, 68   if it ever existed in the federal court system, has for all practical purposes been abolished by statute. 69    


§ 211  – Right to immunity in absence of statutory authority [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness;  4 ALR4th 617. superseding  13 ALR2d 1439.

Footnotes

Footnote 57. Beal v Missouri P. R. Corp.,  312 US 45,  85 L Ed 577,  61 S Ct 418; Miami v Sutton (CA5 Fla) 181 F2d 644.

Whether a crime against society is committed by a man or a woman is immaterial.  State v Brown (App) 84 Ohio L Abs 258, 170 NE2d 858.

Footnote 58. Mulloney v United States (CA1 Mass) 79 F2d 566, cert den  296 US 658,  80 L Ed 468,  56 S Ct 383; People v Grossman, 145 Misc 781, 262 NYS 66; Bruno v State, 192 Tenn 244, 240 SW2d 528, cert den  342 US 840,  96 L Ed 635,  72 S Ct 68; Bills v State, 166 Tex Crim 28, 305 SW2d 614, cert den  355 US 955,  2 L Ed 2d 532,  78 S Ct 542 and cert den  358 US 933,  3 L Ed 2d 306,  79 S Ct 323.

Telling in court of a crime previously committed does not exempt the witness from prosecution.  Commonwealth v Chaitt, 176 Pa Super 318, 107 A2d 214.

Footnote 59. 81 Am Jur 2d,  Witnesses § 57.

Footnote 60. 81 Am Jur 2d,  Witnesses § 55.

Footnote 61. Frady v People, 96 Colo 43, 40 P2d 606; Commonwealth v Knapp, 27 Mass 477; State v Graham, 41 NJL 15; State v Johnson, 77 Wash 2d 423, 462 P2d 933.

Footnote 62. State v Crow (Mo) 367 SW2d 601.

In the United States the courts have held that only an equitable right to immunity exists unless a statute expressly authorizes a grant of immunity in the particular situation.  United States v Levy (CA3 Pa) 153 F2d 995.

An accomplice who, under an agreement or understanding with the prosecuting attorney, approved by, or known to, the court, that he shall be immune from further prosecution, testifies fully and truthfully as to the whole matter has an equitable right to such immunity, which the court has not discretion to take away; in case he has pleaded guilty, he should be permitted to withdraw the plea to permit the entry of a nol-pros, or the case should be continued to permit him to apply for a pardon.  Lowe v State, 111 Md 1, 73 A 637.

Footnote 63. Whiskey Cases,  99 US 594,  25 L Ed 399.

Footnote 64. Whiskey Cases,  99 US 594,  25 L Ed 399; State v Graham, 41 NJL 15; State v Lyon, 81 NC 600.

But see Camron v State, 32 Tex Crim 180, 22 SW 682, apparently holding that where an accomplice has carried out his compact with the state for exemption from prosecution on making an honest and full disclosure, he is entitled to his remedy of pardon as a matter of right.

Footnote 65. Whiskey Cases,  99 US 594,  25 L Ed 399; Alderman v People, 4 Mich 414; Camron v State, 32 Tex Crim 180, 22 SW 682.

Footnote 66. State v Graham, 41 NJL 15.

Footnote 67. Lisenba v California,  314 US 219,  86 L Ed 166,  62 S Ct 280, reh den  315 US 826,  86 L Ed 1222,  62 S Ct 620.

Footnote 68.  § 210, supra.

Footnote 69. United States v Marzec (CA7 Ill) 249 F2d 941, cert den  356 US 913,  2 L Ed 2d 586,  78 S Ct 670.


2.  State Constitutional and Statutory Provisions for Immunity [212-216]

§ 212  Generally  [21 Am Jur 2d CRIMINAL LAW]

State statutory and constitutional provisions often expressly provide for immunity from prosecution to a witness who is compelled to testify in a manner likely to incriminate him. 70   It is not requisite to the effectiveness of the immunity granted a witness by such a provision that he be the only source of information touching the facts or acts about which he is to be interrogated, nor that his answers constitute a confession; it is sufficient if he is required to disclose substantial information as to the material elements necessary in the drafting of the indictment and indispensable to a conviction. 71

The purpose of immunity provisions is to aid prosecuting officers by inducing criminals or their confederates to turn state's evidence and tell on each other, 72  to enable prosecuting officers to procure evidence which would otherwise be denied to them because of the constitutional right against self-incrimination, 73   and at the same time to protect every person from giving testimony that directly or indirectly would be helpful to the prosecution in securing an indictment or a conviction. 74    The provisions for immunity are or should be as broad as or coextensive with the constitutional provisions granting the privilege against self-incrimination. 75    In order to be granted immunity, however, the witness must be compelled to give incriminating testimony.  If his claim of privilege is respected and he is excused from testifying, no immunity arises. 76   Furthermore, a witness who is compelled to give self-incriminating testimony may waive his immunity.  For example, an accused who voluntarily contacted police and signed a waiver of his rights against self-incrimination may be subpoenaed to the state attorney's office because of his representation that he had information concerning the crime and may be subsequently charged as a codefendant without statutory immunity, since his testimony was voluntary and constituted a waiver of immunity. 77  

Some cases state that an immunity statute is remedial in nature 78  and should be liberally construed in order to give complete immunity from prosecution to a person whose constitutional rights may be affected. 79   A statutory provision granting immunity from prosecution has been held to extend to a witness compelled to testify in a civil action. 80  But there is also authority to the effect that such a statute should be strictly construed, 81  and it is said that courts are not inclined to extend the coverage of immunity statutes pertaining to certain situations. 82

Thus, it has been held that where the statute limits the right to immunity to persons who as witnesses give testimony or produce evidence, the protection does not extend to a corporation 83  or to a person verifying a pleading. 84

Under immunity statutes limiting their protection to testimony involving only particular offenses or categories of crime, it has been held that a defendant obtained no immunity where his previous testimony did not fall within the precise terms of the statute. Thus, a murder indictment has been upheld, despite a defendant's contention that he received immunity for testifying before a grand jury and at trial, since the statute empowering the grand jury to confer immunity for certain crimes did not include murder. 85    And, under a statute permitting the state to make a binding promise of immunity in cases of abortion, anarchy, bribery, dueling, and gambling, the power does not extend to cases of forgery, attempted murder and felonious assaults; and the prosecuting attorney cannot compel a witness to give evidence in such cases. 86  Nevertheless, even under a statute conferring immunity only if the testimony concerns one or more of five categories of crimes specifically enumerated, it has been held that the immunity is not confined to those crimes, but extends to any transaction, matter, or thing about which the witness may testify or produce evidence. 87  

Since a statute promising a witness that no testimony given by him shall be offered in evidence against him in any criminal proceeding generally relates to prosecution for past crimes that he admits in his testimony or of which his testimony might assist in convicting him, the immunity granted to a witness required to testify with reference to certain specified crimes is no defense to a subsequent prosecution for perjury if he testifies falsely. 88   Likewise, a witness protected by an immunity statute may be held in contempt if he fails to answer questions as ordered, but cannot be held guilty of contempt for refusing to testify on the ground of self-incrimination where he declines to accept an immunity that the district attorney and the court are powerless to extend. 89  


§ 212  – Generally [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: The Due Process Need for Postponement or Use Immunity in Probation Revocation Hearings Based on Criminal Charges. 68 Minn LR 1077, May, 1984.

Propriety, under state constitutional provisions, of granting use or transactional immunity for compelled incriminating testimony–post-Kastigar cases  29 ALR5th 1.

Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness;  4 ALR4th 617. superseding  13 ALR2d 1439.

Case authorities:

In prosecution of defendant for armed robbery, trial court properly refused to grant immunity to defense witness who, defense counsel claimed, was responsible for robbery for which defendant was on trial since immunity statute was designed to enable prosecution to secure testimony and other evidence from persons implicated in criminal activities. People v Williams, (1970) 11 Cal App 3d 1156, 90 Cal Rptr 409.

The grant of transactional immunity to defendant pursuant to Pen. Code, § 1324, to compel his testimony in a murder prosecution of an associate, with whom defendant was involved in an unrelated robbery, did not immunize defendant from prosecution on the robbery charge even though he testified concerning the robbery on cross-examination, where the district attorney made it clear that the only transaction the offer of immunity covered was the murder, and that any evidence regarding the robbery was not within the scope of the transactional immunity, where the court made an order accordingly, and where defendant and his counsel knew that the transactional immunity was limited to prosecution for the murder and did not include any other crime. An order for transactional immunity under Pen. Code, § 1324, is not a blanket order that immunizes a person from prosecution for any offense committed at any time and about which the witness may have testified when limited by the district attorney. People v Thompson (1983, 2d Dist) 145 Cal App 3d 918, 193 Cal Rptr 782.

In a criminal prosecution for murder, in which the trial court admitted statements of a witness who had told police that defendant had admitted the killing to him, but who denied at trial any recollection of having made inculpatory statements against defendant and claimed he was lying in his prior statements, despite the trial court's grant of use immunity to the witness, defendant had no standing to challenge the trial court's grant of use immunity to the witness. There was no claim or showing that the grant of immunity adversely affected the veracity of the witness' testimony "against" defendant. The privilege against self-incrimination is personal to the person who invokes it and immunity affects only that person. Unless the immunity amounts to an improper coercion of the witness' testimony or demonstrably affects the nature of that testimony, a defendant has no interest in complaining. People v Wisely (1990, 4th Dist) 224 Cal App 3d 939, 274 Cal Rptr 291.

In prosecution for first-degree murder, trial court did not err in denying defendant's request to grant immunity to one of two men charged with being accessory after fact who had not been granted immunity and who was called as defense witness, and there was no denial of equal protection in that State could grant immunity but defendant could not since state alone has responsibility of prosecuting crimes and therefore state, not defendant, must have authority to grant immunity. Walters v State, (1979, Ind) 394 NE2d 154,  4 ALR4th 609.

Police officer's statement made during internal police department investigation of officer was involuntary as matter of law, and was automatically immunized from use in criminal proceedings against officer, where statement was taken during compulsory interview under threat of dismissal. People v Corrigan (1992)  80 NY2d 326, 590 NYS2d 174, 604 NE2d 723.

Claim of statutory immunity can be waived by failing to assert it in timely manner; thus, defendant could not assert claim of ineffective waiver of immunity at grand jury proceedings where he failed to move to dismiss indictment before trial or before sentencing. People v Haggins (1989, 4th Dept)  148 App Div 2d 987, 538 NYS2d 1020, app den  74 NY2d 664, 543 NYS2d 407, 541 NE2d 436.

Written waiver of immunity signed by defendant before grand jury, which bore printed legend "Subscribed and sworn to" in presence of grand jury, was valid waiver, notwithstanding that defendant did not formally raise his right hand and recite that he swore to waiver in grand jury chamber; requirement that waiver be sworn to before grand jury is met, whatever form of oath adopted, if oath is taken in presence of officer authorized to administer it and constitutes unequivocal and present act by which affiant consciously takes upon himself obligation of oath. People v McMillen (1992, Co Ct)  152 Misc 2d 918, 579 NYS2d 321.

In prosecution of defendants for second-degree murder, failure of prosecution to grant immunity to prospective defense witness who had been present at crime scene for purpose of countering testimony by immunized government witnesses did not constitute policy of unfair and unequal law enforcement since decision to grant immunity is legislative function vested in district attorney. People v Beyea (1974, 1st Dist) 38 Cal App 3d, 176, 113 Cal Rptr 254.

Footnotes

Footnote 70. Ex parte Bullen, 236 Ala 56, 181 So 498; People v Fryer, 175 Cal 785, 167 P 382; Lorenzo v Blackburn (Fla) 74 So 2d 289; Halpin v Scotti, 415 Ill 104, 112 NE2d 91; Metz v State, 217 Ind 293, 27 NE2d 761; Freeman v Commonwealth, 305 Ky 221, 203 SW2d 16; State v Gensmer, 235 Minn 72, 51 NW2d 680, cert den  344 US 824,  97 L Ed 642,  73 S Ct 24; Zambroni v State, 217 Miss 418, 64 So 2d 335; State v Caprio, 98 NJL 13, 119 A 81, affd 99 NJL 292, 130 A 377; People v Steuding,  6 NY2d 214, 189 NYS2d 166, 160 NE2d 468; Temple v State, 15 Okla Crim 146, 175 P 555; State v Stone, 161 Tenn 74, 29 SW2d 250; Fine v State, 112 Tex Crim 652, 18 SW2d 156; State v Abdella, 139 W Va 428, 82 SE2d 913.

Footnote 71. Wheat v State, 201 Miss 890, 30 So 2d 84.

Footnote 72. State ex rel. Raines v Grayson (Fla) 55 So 2d 554.

Footnote 73. Lewis v State (Fla App D2) 155 So 2d 841; State v Abdella, 139 W Va 428, 82 SE2d 913; State v Carchidi,  187 Wis 438, 204 NW 473.

Footnote 74. Lewis v State (Fla App D2) 155 So 2d 841; Koonck v Cooney, 244 Iowa 153, 55 NW2d 269; Commonwealth v Barnett, 196 Ky 731, 245 SW 874; People v Florentine, 276 App Div 730, 97 NYS2d 553; People v Fine, 173 Misc 1010, 19 NYS2d 275; State v Abdella, 139 W Va 428, 82 SE2d 913; State v Davidson,  242 Wis 406, 8 NW2d 275.

Footnote 75. 81 Am Jur 2d,  Witnesses §§ 58-59.

Footnote 76. 81 Am Jur 2d,  Witnesses § 54.

As to witnesses' privilege against self-incrimination, see 81 Am Jur 2d,  Witnesses §§ 30 et seq.

Footnote 77. 81 Am Jur 2d,  Witnesses § 56.

Footnote 78. State v Bates, 187 Miss 172, 192 So 832.

Footnote 79. State ex rel. Reynolds v Newell (Fla) 102 So 2d 613; People v Rockola, 346 Ill 27, 178 NE 384; State v Bates, 187 Miss 172, 192 So 832.

The protection of immunity from prosecution given by a statute should be denied a witness only where the evidence is clear and convincing that he is not entitled to it.  Wheat v State, 201 Miss 890, 30 So 2d 84.

Under a statute granting immunity from prosecution to any person who is subpoenaed or compelled to produce his own personal records, a subpoena duces tecum for the production of corporate records, addressed to and served personally on a corporate president, immunized the president from prosecution following production of the documents, where the subpoena was ambiguous as to whether it was directed to the president individually or as custodian of the corporate records and where the subpoena failed to reflect the nature of the matter pending before the trial court for which the records were required. State v Deems (Fla App D3) 334 So 2d 829.

Footnote 80. Smith v Superior Court, Pima County, 17 Ariz App 79, 495 P2d 519 (disapproved on other grounds State v Buchanan, 110 Ariz 285, 518 P2d 108).

Footnote 81. People v Grossman, 145 Misc 781, 262 NYS 66.

Footnote 82. State v Crow (Mo) 367 SW2d 601.

Footnote 83. United States v Armour & Co. (DC Ill) 142 F 808.

Footnote 84. Simon v American Tobacco Co. (CC NY) 192 F 662.

Footnote 85. United States ex rel. Garparino v Butler (SD NY) 398 F Supp 127 (applying New York law prohibiting granting of transactional immunity during investigation or trial for murder); People v Gasparino,  61 Misc 2d 1076, 307 NYS2d 928.

Footnote 86. State v Johnson, 77 Wash 2d 423, 462 P2d 933.

Footnote 87. State ex rel. Johnson v Macmillan (Fla App D2) 194 So 2d 627, cert quashed (Fla) 204 So 2d 514.

Annotation:  38 ALR2d 225, §§ 32[c]-[d].

Footnote 88. 60 Am Jur 2d,  Perjury § 50.

Footnote 89. 17 Am Jur 2d,  Contempt § 32.

Where complete immunity was granted as to the matter being investigated and testified to, the constitutional privilege against self-incrimination did not preclude prosecutions for perjury and contempt.  People v Feinberg,  19 Misc 2d 433, 193 NYS2d 937.


§ 213  Manner of raising defense  [21 Am Jur 2d CRIMINAL LAW]

Where a witness claims that an applicable immunity statute prevents a prosecution against him, he normally asserts his claim by a motion to quash or dismiss the indictment, 90  or by a plea in abatement, 91  which, in effect at least, attacks the validity of the indictment. It has been recognized that an immunity statute is a proper basis for quashing an indictment, since a statutory grant of immunity enjoins the prosecution of a criminal action and thus deprives the court of jurisdiction to proceed. 92  Statutory immunity, as a complete defense to a present prosecution, has also been raised by means of a plea in bar. 93    A writ of prohibition has been issued to prevent the prosecution of an immunized witness. 94   It has been held, however, that a claim of immunity cannot be presented by demurrer and should not be submitted to a jury under a plea of not guilty, but should be raised alone by a plea in bar, which should be decided by the court without the intervention of the jury. 95    It has also been held that statutory immunity, although available when properly set up in a court to which an indictment has been returned, cannot be raised in a habeas corpus proceeding prior to the appearance of the parties to answer for the indictment. 96

A defendant in a criminal case has no standing to question the propriety of a grant of immunity to a witness. 97 


§ 213  – Manner of raising defense [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Where defendants raised their immunity defense to indictment at trial along with their evidentiary challenge to admission of immunized evidence at trial, they properly preserved challenge to indictment. United States v Pelletier (1990, CA2 NY) 898 F2d 297.

Defendant who contends that his prosecution is precluded by grant of immunity may properly make motion to dismiss indictment as method of raising issue; time for making motion is unclear, but failure to make motion before trial does not waive defense. United States v Brimberry (1984, CA7 Ill) 744 F2d 580.

Footnotes

Footnote 90. Sandwich v State, 137 Ala 85, 34 So 620; People v Riley, 129 Misc 373, 222 NYS 228.

Footnote 91. Metz v State, 217 Ind 293, 27 NE2d 761; Bentler v Commonwealth, 143 Ky 503, 136 SW 896.

Footnote 92. People v King, 66 Cal 2d 633, 58 Cal Rptr 571, 427 P2d 171.

Footnote 93. Burt v State, 20 Ala App 296, 101 So 768, cert den 212 Ala 96, 101 So 770; Lucas v State, 130 Miss 8, 93 So 437; Hosey v State, 136 Miss 5, 100 So 577; State v Sterne, 96 W Va 360, 123 SE 235 (plea in bar to the indictment).

Annotation:  38 ALR2d 225, § 41.

Footnote 94. State ex rel. Key v Fogle (Fla App D2) 347 So 2d 1067, cert den (Fla) 353 So 2d 675.

Footnote 95. See  § 449, infra.

As to existence of immunity as question for judge or jury, see 75 Am Jur 2d,  Trial § 425.

Footnote 96. Moreland v State, 168 Tenn 145, 76 SW2d 319.

Footnote 97. 81 Am Jur 2d,  Witnesses § 54.


§ 214  – Jurisdictional extent  [21 Am Jur 2d CRIMINAL LAW]

A state constitutional or statutory immunity from prosecution granted a witness who was compelled to testify against himself has been held to confer immunity to the limits of the state's power; 98   It has been held not to operate as a shield from prosecution by another state or by the federal government, 99   and not to grant immunity from prosecution in the federal courts for a violation of federal laws. 1   The United States Supreme Court has held, however, that to be constitutionally adequate, a state grant of immunity must afford protection extending to federal criminal proceedings as well as criminal proceedings by other states. 2    If a witness is compelled, under a state immunity provision, to give testimony which may be incriminating under state law, the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. 3       

Footnotes

Footnote 98. State v Dominguez, 228 La 284, 82 So 2d 12.

Footnote 99. Smith v United States (CA5 Tex) 58 F2d 735, cert den  287 US 631,  77 L Ed 547,  53 S Ct 82; Re Greenleaf, 176 Misc 566, 28 NYS2d 28, affd 291 NY 690, 52 NE2d 588.

Footnote 1. State v Dominguez, 228 La 284, 82 So 2d 12; State ex rel. Jackson v Coffey,  18 Wis 2d 529, 118 NW2d 939.

Footnote 2. 81 Am Jur 2d,  Witnesses § 60.

Footnote 3. The federal constitutional provision against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law.  Murphy v Waterfront Com. of New York Harbor,  378 US 52,  12 L Ed 2d 678,  84 S Ct 1594.

See Adams v Maryland,  347 US 179,  98 L Ed 608,  74 S Ct 442, holding that a federal statute prohibiting the use of testimony compelled to be given before a congressional committee in any criminal proceeding against the witness in any court bars use of committee testimony in state courts as well as in United States courts.


§ 215  – Who may grant immunity  [21 Am Jur 2d CRIMINAL LAW]

Generally, a prosecuting attorney is not empowered, solely by virtue of his office, to grant immunity to a witness against self-incrimination, 4   the grant of immunity being deemed a legislative function. 5    Under a statute expressly denoting the officials empowered to extend immunity, a prosecuting attorney has been held not authorized to extend immunity since such authority is expressly given only to another.  And, under a general statutory provision that the prosecuting attorney, with the approval of the trial judge, may extend immunity to witnesses against self-incrimination, such approval is a prerequisite to the exercise of the prosecuting attorney's power in this respect. 6    Thus, under a statute providing that full transactional immunity must be authorized by vote of the grand jury, a prosecuting attorney acting alone is without authority to grant immunity to a witness in exchange for his testimony before the grand jury. 7

It has been held that a justice of the peace acting as a coroner is without power to grant immunity to any witness for answering self-incriminating questions. 8   Likewise, in the absence of specific authority conferred by law, a grand jury has no power to grant any witness immunity on account of any testimony given before that body. 9   It has been held, however, that a one-person grand jury could grant immunity from prosecution and require a witness to answer, such immunity being coextensive with the witness' claim of privilege. 10

Where the constitution has expressly defined the immunity to which a witness is entitled in certain cases and under specified circumstances, even the legislature has no power to extend that immunity beyond that which the constitution itself has provided. 11


§ 215  – Who may grant immunity [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Gershman, The Prosecutor's Obligation to Grant Defense Witness Immunity. 24 Crim L Bul 14, January-February, 1988.

Natali, Does a Criminal Defendant have a Constitutional Right to Compel the Production of Privileged Testimony Through Use Immunity? 30 Vill LR 1501, November, 1985.

Prosecutor's power to grant prosecution witness immunity from prosecution;  4 ALR4th 1221. superseding  13 ALR2d 1439.

Case authorities:

The prosecutor's duty is to administer the immunity power evenhandedly, with a view to ascertaining the truth, and not as a partisan engaged in a legal game. People v Hunter (1989) 49 Cal 3d 957, 264 Cal Rptr 367, 782 P2d 608, mod (1990) 50 Cal 3d 133a, reh den.

In a prosecution for grand theft, resisting arrest with violence, obstruction by false information, and battery on a law enforcement officer the trial court's order compelling a defense witness to testify and granting him use and derivative use immunity on defendant's motion and over the state's objection was in error; statutory immunity was not applicable absent a finding of prosecutorial abuse or constitutional violation to be cured, and the trial court would be acting in excess of its jurisdiction in granting judicial immunity under the court's inherent powers to effectuate a defendant's rights, since the compulsory process clause does not carry with it the additional right to displace a proper claim of privilege, including the privilege against self-incrimination. State v Montgomery (1985, Fla App D3) 467 So 2d 387, 10 FLW 853.

Footnotes

Footnote 4. 81 Am Jur 2d,  Witnesses § 57.

Practice Aids: –Immunity from prosecution.  1 Wharton's Criminal Law (14th ed) § 78.

Footnote 5. 81 Am Jur 2d,  Witnesses § 56.

Footnote 6. 81 Am Jur 2d,  Witnesses § 57.

Footnote 7. United States ex rel. Gasparino v Butler (SD NY) 398 F Supp 127 (applying New York law).

Footnote 8. Faucett v State, 10 Okla Crim 111, 134 P 839 (wherein it was said that in Oklahoma immunity is a judicial question which must be passed on and decided alone by a court having jurisdiction finally to try the matters involved in the immunity claimed).

Footnote 9. Scribner v State, 9 Okla Crim 465, 132 P 933.

Footnote 10. Re Colacasides, 379 Mich 69, 150 NW2d 1.

Footnote 11. People v Anhut, 162 App Div 517, 148 NYS 7, affd without op 213 NY 643, 107 NE 1082.


§ 216  – Assertion of right not to testify as prerequisite to claim of immunity  [21 Am Jur 2d CRIMINAL LAW]

The question whether a witness must claim exemption from self-incrimination to be entitled to immunity from subsequent prosecution must in each case be determined in the light of constitutional and statutory provisions in the jurisdiction where the question arises.  Under statutes providing in substance that no person shall be excused from testifying or furnishing evidence on the ground that the testimony or evidence may tend to incriminate him, but that no person shall be subject to indictment or prosecution for anything concerning which he may testify or furnish evidence, it has been held that one who testifies concerning criminal offenses when required to do so is entitled to immunity from prosecution even though he fails to claim his privilege against self-incrimination before giving the incriminating testimony. 12

It has been said that where a person is compelled to testify, immunity attaches without the assertion of the privilege against self-incrimination unless the statute requires such an assertion. 13    Thus, under this view, a witness before a grand jury does not have to claim his privilege against self-incrimination to make operative an otherwise applicable immunity statute. 14       But it has been held under similar statutory or constitutional provisions that the witness must claim his privilege against self-incrimination in order to be entitled to immunity. 15              

Under a statute granting immunity to persons who have been compelled to testify, it has been held that one who has appeared voluntarily and testified without claiming his privilege against self-incrimination, 16  or one who has appeared and testified pursuant to a void subpoena or one addressed to another person, without claiming the privilege, 17     cannot say he has been compelled to testify, and therefore he is not entitled to immunity.  Under a state statute dealing with immunity from prosecution upon compliance with a subpoena, it has been held that the mere issuance of the subpoena does not confer immunity and that a witness must assert his privilege against self-incrimination, thereby giving the state the choice of conferring immunity and compelling him to testify or not conferring immunity and relieving him of the obligation to testify. 18

§ 216  – Assertion of fight not to testify as prerequisite to claim of immunity [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness;  4 ALR4th 617. superseding  13 ALR2d 1439.

Prosecutor's power to grant prosecution witness immunity from prosecution;  4 ALR4th 1221. superseding  13 ALR2d 1439.

Footnotes

Footnote 12. People v Schwarz, 78 Cal App 561, 248 P 990; State ex rel. Marshall v Petteway, 121 Fla 822, 164 So 872; People v Buffalo Gravel Corp. (Sup) 195 NYS 940.

Under a public bribery statute providing that a person making or receiving a bribe may be compelled to testify in behalf of the state and receive immunity thereby, it was not necessary that a witness claim his privilege against self-incrimination in order to obtain the exemption afforded by the statute.  State v Panagoulis, 3 Md App 330, 239 A2d 145, affd 253 Md 699, 253 A2d 877.

Footnote 13. 81 Am Jur 2d,  Witnesses § 56.

Footnote 14. State v Chitwood, 73 Ariz 314, 240 P2d 1202; People v Yonkers Contracting Co. (2d Dept)  24 App Div 2d 641, 262 NYS2d 298, mod on other grounds  17 NY2d 322, 270 NYS2d 745, 217 NE2d 829; People v Werkes,  46 Misc 2d 1020, 261 NYS2d 726; State v Logsdon, 196 Or 542, 250 P2d 377.

Annotation:  38 ALR2d 225, § 34[a].

A doctor who was compelled to testify before a grand jury within the meaning of a state statute was improperly indicted under the Controlled Dangerous Substances Act where the immunity granted by the statute was not waived expressly or by conduct; nor was the witness required to assert his privilege against self-incrimination to preserve immunity where the privilege was taken away by the statute.  State v Fearing, 30 Md App 134, 351 A2d 896.

The immunities conferred by the statute were self-executing by the testimony of the witness; his appearance and testimony before the grand jury invoked the immunities conferred as to all facts tending to incriminate him and no other procedure was necessary. State v Prato, 2 Ohio App 2d 115, 31 Ohio Ops 2d 197, 206 NE2d 917.

Under a statute removing the privilege against self-incrimination in criminal proceedings involving bribery and corruption and substituting transactional immunity, a witness subpoenaed to testify before a grand jury under such circumstances was left with no alternative but to testify, and was not required to claim his privilege.  State v Carroll, 83 Wash 2d 109, 515 P2d 1299.

Footnote 15. People ex rel. Roach v Carter, 297 Mich 577, 298 NW 288; Scribner v State, 9 Okla Crim 465, 132 P 933; Wolke v Fleming,  24 Wis 2d 606, 129 NW2d 841, cert den  380 US 912,  13 L Ed 2d 798,  85 S Ct 897; State v Davidson,  242 Wis 406, 8 NW2d 275.

To obtain full immunity under the statute, the witness must refuse to answer a particular question on grounds of privilege, and then answer it when ordered to do so by the grand jury.  People v Laino,  10 NY2d 161, 218 NYS2d 647, 176 NE2d 571, cert den and app dismd  374 US 104,  10 L Ed 2d 1027,  83 S Ct 1687.

Although a witness before a grand jury never literally refused to answer a specific question on the ground of privilege at any one time, the requirements of the immunity statute were met where he made it patent that he would not be sworn or answer questions unless he was given immunity, where he purported to answer questions put to him after he was told that he would have full immunity, and where he refused to answer some questions, even though he did not literally mouth the traditional words in claiming the privilege against self-incrimination.  People v Ianniello,  21 NY2d 418, 288 NYS2d 462, 235 NE2d 439, cert den  393 US 827,  21 L Ed 2d 98,  89 S Ct 90.

Footnote 16. State v Backstrom, 117 Kan 111, 230 P 306.

Footnote 17. People v Eiseman, 78 Cal App 223, 248 P 716, error dismd for lack of jurisdiction  273 US 663,  71 L Ed 828,  47 S Ct 454 (disapproved People v King 66 Cal 2d 633, 58 Cal Rptr 571, 427 P2d 171).

Footnote 18. Melanson v Nelson (Fla App D1) 366 So 2d 1191.

Where an alibi witness voluntarily and without objection testified as to the whereabouts of a defendant in an armed robbery case, he was not entitled to transactional immunity even though his presence at the offices of the state attorney, where the testimony was given, had been compelled by a subpoena.  State v Kitchen (Fla App D3) 353 So 2d 897, cert den (Fla) 359 So 2d 1216.

The transactional immunity statute is not self-operating and required some objection or invocation of the privilege against self-incrimination; hence, a defense witness who was subjected to a deposition under subpoena requiring attendance respecting a firearms charge against another individual was not entitled to transactional immunity respecting a subsequent robbery charge against both him and the other individual, since the subpoena only required attendance not testimony and the actual testimony elicited from the defense witness related primarily to the firearms charge as opposed to the robbery matter.  Orosz v State (Fla App D1) 334 So 2d 26, dismd without op (Fla) 341 So 2d 292.


3.  Federal Statutory Provisions for Immunity [217-220]

§ 217  Generally  [21 Am Jur 2d CRIMINAL LAW]

Federal statutes provide for immunity of witnesses testifying or providing other information before federal courts, federal executive agencies, or Congressional committees. 19    According to the statute, whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information 20   in a proceeding before or ancillary to (1) a court or grant jury of the United States, 21    (2) an agency of the United States, 22   or (3) either House of Congress, a joint committee of the two Houses, or a committee or subcommittee of either House, the person presiding over the proceeding may communicate to the witness an order requiring him to testify, provided that no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. 23  

The federal immunity statute represents an accommodation between the government's right to compel testimony on the one hand, and the witness' constitutional privilege to remain silent on the other. The purposes of the grant of immunity are to reach the truth 24   and to facilitate prosecution of otherwise undiscoverable offenses. 25

Rather than affording a witness transactional immunity, which affords full immunity from prosecution for any offense to which the compelled testimony relates, the federal statute only provides use and derivative use immunity. 26    The use and derivative use immunity provided by federal statute to witnesses compelled to testify before federal courts, federal executive agencies, or Congress or its committees has thus been held coextensive with the scope of the Fifth Amendment privilege agaist self-incrimination and therefore constitutionally sufficient. 27    Furthermore, in upholding the validity of the federal immunity statute, courts have rejected contentions that it is unconstitutional on the ground that witnesses and defendants are not authorized to grant immunity and to compel testimony from other witnesses on the same basis as the government, 28  that it violates the separation of powers doctrine, 29  or that it violates due process of law and the witness' right of privacy by allowing a nonjudicial functionary, such as the United States Attorney, to gain immunity for the witness without probable cause. 30  A defendant may, however, show that due process has been violated in a particular case. 31    

Since the federal immunity statute does not provide transactional immunity, it does not create a defense to specific criminal charges, but instead provides a ground for suppressing direct or indirect use of compelled evidence in a subsequent criminal prosecution. 32   Because the federal immunity statute grants only use and derivative use immunity, it does not bar completely a subsequent prosecution of the immunized witness through the use of evidence from legitimate independent sources.  However, once a defendant demonstrates that he has testified under a use and derivative use grant of immunity, the government has a heavy burden of showing that its evidence was derived from sources other than the defendant's prior testimony. 33   Thus, even though an indictment against a defendant is obtained through the use of his immunized testimony, the federal immunity statutes do not require immediate dismissal of the indictment.  Instead, the defendant must plead and demonstrate that he has testified under a grant of immunity to matters related to the present prosecution, and the prosecuting authorities then have the burden of showing that their evidence is not tainted, but rather derives from an independent, legitimate source. 34     

§ 217  – Generally [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Phelan, Legislative investigations: The scope of use immunity under 18 U.S.C. §  6002. 27 Am Crim LR 209, Summer, 1989.

Van Cleve and Tiefer, Navigating the Shores of "Use" Immunity and Secret International Enterprises in Major Congressional Investigations: Lessons of the Iran-Contra Affair. 55 Mo LR 43, Winter, 1990.

Prosecution or conviction of one conspirator as affected by disposition of case against coconspirators;  19 ALR4th 192. superseding  91 ALR2d 700. (See also 16 AJ2d, Conspiracy §§ 24-26.)

Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness;  4 ALR4th 617. superseding  13 ALR2d 1439.

Case authorities:

Government's ordinary remedy in situation where defendant breached immunity agreement is prosecution for false statement, not abrogation of immunity agreement and use of defendant's statements to prosecute him for other offenses. United States v Williams (1987, CA5 Tex) 809 F2d 1072.

To trigger shifting of burden of proof to government so that government has obligation to show that it did not use any information against defendant, defendant has to meet initial burden of showing that he did offer such information under grant of immunity, and court did not err in finding that defendant did not make showing, where defendant claimed that several persons received information from him about case, but they denied that they had discussed case with him. United States v Mendoza (1996, CA9 Cal) 78 F3d 460, 96 CDOS 1660, 96 Daily Journal DAR 2801.

Private investigator was not protected from administrative discipline by immunity granted against criminal prosecution, where investigator was granted immunity from prosecution in return for his testimony before a grand jury and in a criminal trial that he had provided forged or falsified documents to help client change her identity and take her children out of the country, but the state licensing division subsequently revoked investigator's license for supplying the false documents, because the statute provides immunity only against criminal prosecution. Intelligence Group, Inc. v Department of State, Div. of Licensing (1992, Fla App D2) 610 So 2d 589, 17 FLW D 2774.

Government did not misuse defendant's immunized grand jury testimony by focusing on defendant's accountant, since government was aware of accountant and his possible involvement in fraudulent scheme before defendant testified, and thus accountant's testimony was derived from independent sources; to extent that government's thought process may have been influenced, such use was merely tangential. United States v Rivieccio (1990, CA2 NY) 919 F2d 812; cert den (US)  115 L Ed 2d 1020,  111 S Ct 2852.

Footnotes

Footnote 19. 18 USCS §§  6001-6005.

Footnote 20. 18 USCS §  6001(2) defines "other information" as including any book, paper, document, record, recording, or other material.

Footnote 21. 18 USCS §  6001(4) defines "court of the United States" as any of the following courts:  the Supreme Court of the United States, a United States court of appeals, a United States district court established under 28 USCS §§  81 et seq., a United States bankruptcy court, the District of Columbia court of appeals, the superior court of the District of Columbia, the district court of Guam, the district court of the Virgin Islands, the United States court of claims, the United States court of customs and patent appeals, the tax court of the United States, the customs court, and the court of military appeals.

Footnote 22. 18 USCS §  6001(1) defines "agency of the United States" as any executive department as defined in 5 USCS §  101, a military department as defined in 5 USCS §  102, and certain other enumerated federal commissions and boards.

A "proceeding before an agency of the United States" is defined in 18 USCS §  6001(3) as any proceeding before such an agency with respect to which it is authorized to issue subpoenas and to take testimony or receive other information from witnesses under oath.

Footnote 23. 18 USCS §  6002.

Footnote 24. United States v Trammel (CA10 Colo) 583 F2d 1166, affd  445 US 40,  63 L Ed 2d 186,  100 S Ct 906 and (disagreed with on other grounds Appeal of (Malfitano) (CA3 NJ) 633 F2d 276).

18 USCS §  6002 represents a compromise between a witness' constitutional privilege to remain silent and the government's right to compel testimony.  United States v Tramunti (CA2 NY) 500 F2d 1334, cert den  419 US 1079,  42 L Ed 2d 673,  95 S Ct 667.

Footnote 25. United States v Henderson (DC Del) 406 F Supp 417.

Footnote 26. Tierney v United States,  409 US 1232,  34 L Ed 2d 37,  93 S Ct 17; Kastigar v United States,  406 US 441,  32 L Ed 2d 212,  92 S Ct 1653, reh den  408 US 931,  33 L Ed 2d 345,  92 S Ct 2478.

Immunity granted a witness before a New York state grand jury is "transactional," as opposed to the "use" immunity established by 18 USCS §  6003.  People v Lopez,  91 Misc 2d 157, 397 NYS2d 1010.

Footnote 27. 81 Am Jur 2d,  Witnesses § 59.

Footnote 28. Re Kilgo (CA4 Md) 484 F2d 1215.

Footnote 29. Ullmann v United States,  350 US 422,  100 L Ed 511,  76 S Ct 497,  53 ALR2d 1008, reh den  351 US 928,  100 L Ed 1457,  76 S Ct 777 (predecessor to 18 USCS §  6002).

Footnote 30. Re Grand Jury Investigation (MD Pa) 362 F Supp 870 (compelling the United States Attorney to have probable cause before gaining immunity for a witness before a grand jury would be an indirect method of requiring probable cause for a grand jury investigation).

The predecessor to 18 USCS §  6003, which granted immunity to witnesses appearing before a grand jury, was not unconstitutional.  December 1968 Grand Jury v United States (CA7 Ill) 420 F2d 1201, cert den  397 US 1021,  25 L Ed 2d 571,  90 S Ct 1260.

Footnote 31. United States v Herman (CA3 Pa) 589 F2d 1191, cert den  441 US 913,  60 L Ed 2d 386,  99 S Ct 2014.

Footnote 32. Re Kilgo (CA4 Md) 484 F2d 1215.

Footnote 33. 81 Am Jur 2d,  Witnesses § 61.

Footnote 34. United States v Henderson (DC Del) 406 F Supp 417.

Where testimony of grand jury witness provided use immunity pursuant to 18 USCS §  6002 led to indictment of defendant and defendant's testimony in turn led to indictment of immunized witness, district court erred in dismissing indictment against immunized witness on grounds that it derived from immunized testimony without receiving testimony proffered by defendant to show that immunized witness's testimony against him was not inducement for his testimony against immunized witness.  United States v Kurzer (CA2 NY) 534 F2d 511, later op (SD NY) 422 F Supp 487 and (disapproved on other grounds United States v Apfelbaum  445 US 115,  63 L Ed 2d 250,  100 S Ct 948, on remand (CA3 Pa) 621 F2d 62).


§ 218  Jurisdictional extent  [21 Am Jur 2d CRIMINAL LAW]

The United States Supreme Court has expressed the opinion that the Fifth Amendment does not permit the federal government to compel a witness to testify under a grant of immunity unless the immunity affords protection extending to state criminal proceedings. 35    Thus, the requirement that every sovereign, state or federal, recognize immunity granted by another sovereign precludes the use of a witness' federal grand jury testimony in any state prosecution. 36   Furthermore, immunity granted under the federal statute is sufficient to protect Indians from use of their testimony in tribal prosecutions. 37   In a decision dealing with the predecessor to the current federal immunity statute, it was held that state courts were bound by the federal statute and that no testimony given by a witness in a Congressional inquiry could be used as evidence in a criminal proceeding, even though, as so applied, the federal statute affected state rules of practice, since Congress in the legitimate exercise of its powers enacts "supreme law of the land." 38   Significantly, however, since the federal immunity statute permits the United States Attorney to grant only use or testimonial immunity, not transactional immunity, he does not have the power to grant a defendant complete immunity from state prosecution. 39    Although the requirement that every sovereign, state or federal, recognize immunity granted by another sovereign precludes the use of a witness' federal grand jury testimony in any state prosecution, the federal government is not required to grant the same type of immunity the state would grant if it were seeking the same testimony, even if the state immunity would be broader. 40

Because immunity flows to a witness and not to the government, the United States may not bring an action in federal court to enjoin or stay a state proceeding that interferes with a grant of immunity under the federal immunity statute. 41   The remedy for a witness who refuses to testify in a federal grand jury proceeding despite a grant of immunity because of fear that his testimony may be used in a state proceeding against him is not to refuse to testify before the grand jury, but to raise the issue of his immunity in the state proceeding.  Thus, an immunized witness who is prosecuted in a state court should raise the issue of immunity with respect to the introduction of his testimony as evidence. 42   If prosecuting officials attempt to use the evidence obtained directly or indirectly from testimony of a witness who has received federal statutory immunity, the courts must exclude that evidence or set aside any conviction obtained thereby. 43   It has also been held that the proper remedy for a threatened violation of an earlier federal immunity statute prohibiting use of testimony given before Congress as evidence in a criminal proceeding is not to enjoin use of the testimony but rather to inspect the grand jury minutes and make a motion in a criminal proceeding to quash the information or indictment if it is grounded mainly upon the protected testimony. 44

Since the immunity granted under the federal statute can only be invoked by a defendant against criminal proceedings, 45   it extends to proceedings in juvenile court 46  and proceedings to impose fines, penalties or forfeitures that are criminal in nature for Fifth Amendment purposes; 47  but it does not extend to disciplinary hearings before a state administrative agency empowered to suspend or revoke an individual's license to practice his profession, 48  or state bar disciplinary proceedings. 49         

Furthermore, testimony immunized under the federal statute cannot be used for purposes of impeachment in a subsequent proceeding. 50   It has been held that neither the Fifth Amendment nor immunity under the federal statute offers a witness protection against prosecution for perjury, giving a false statement, or otherwise failing to comply with the order compelling him to testify. 51   

Footnotes

Footnote 35. 81 Am Jur 2d,  Witnesses § 60.

Footnote 36. Re Bianchi (CA1 Mass) 542 F2d 98.

Footnote 37. Re Long Visitor (CA8 SD) 523 F2d 443.

Footnote 38. Adams v Maryland,  347 US 179,  98 L Ed 608,  74 S Ct 442.

Under a federal statute prohibiting use of intercepted wire or oral communications as evidence in any trial before any court of the United States, a State, or a political subdivision thereof if such communications were intercepted in violation of federal law, the immunity from prosecution granted thereby extends to state criminal proceedings.  Congress has the constitutional power to foreclose state criminal proceedings, even though a lesser degree of immunity would have been constitutionally sufficient to compel testimony.  Commonwealth v Fattizzo, 223 Pa Super 378, 299 A2d 22 (18 USCS §  2514).

Footnote 39. People v Phillips,  97 Misc 2d 665, 412 NYS2d 94.

Footnote 40. Re Bianchi (CA1 Mass) 542 F2d 98.

Footnote 41. United States v Kuehn (CA7 Ill) 562 F2d 427.

Footnote 42. Re Inzirillo (CA1 Mass) 542 F2d 90.

Footnote 43. Re Cardassi (DC Conn) 351 F Supp 1080.

Footnote 44. Erickson v Hogan, 198 Misc 491, 98 NYS2d 858.

Footnote 45. Ullmann v United States,  350 US 422,  100 L Ed 511,  76 S Ct 497,  53 ALR3d 1008, reh den  351 US 928,  100 L Ed 1457,  76 S Ct 777.

The use immunity granted under 18 USCS §§  6002 and  6003 can only be invoked by a defendant against criminal proceedings, and not in civil proceedings under the Organized Crime Control Act of 1970 (18 USCS §  1964). United States v Cappetto (CA7 Ill) 502 F2d 1351, cert den  420 US 925,  43 L Ed 2d 395,  95 S Ct 1121.

Since the immunity granted by 18 USCS §  6002 is coextensive with the privilege against self-incrimination, which may only be invoked against criminal proceedings, a witness' immunized testimony at a criminal trial may be used in a civil fraud proceeding.  United States v Kates (ED Pa) 419 F Supp 846.

Footnote 46. Re Grand Jury Proceedings, 160 App DC 249, 491 F2d 42.

Footnote 47. Re Korman (CA7 Ill) 449 F2d 32, revd on other grounds  406 US 952,  32 L Ed 2d 340,  92 S Ct 2055, reh den  409 US 897,  34 L Ed 2d 156,  93 S Ct 93.

Footnote 48. Childs v McCord (DC Md) 420 F Supp 428, affd (CA4 Md) 556 F2d 1178.

Footnote 49. Re Daley (CA7 Ill) 549 F2d 469, cert den  434 US 829,  54 L Ed 2d 89,  98 S Ct 110; Segretti v State Bar of California, 15 Cal 3d 878, 126 Cal Rptr 793, 544 P2d 929; Maryland State Bar Asso. v Sugarman, 273 Md 306, 329 A2d 1, cert den  420 US 974,  43 L Ed 2d 654,  95 S Ct 1397.

Annotation:  62 ALR3d 1145.

Footnote 50. United States v Moss (CA2 NY) 562 F2d 155, cert den  435 US 914,  55 L Ed 2d 505,  98 S Ct 1467 and (disapproved on other grounds United States v Apfelbaum  445 US 115,  63 L Ed 2d 250,  100 S Ct 948, on remand (CA3 Pa) 621 F2d 62); United States v Hockenberry (CA3 Pa) 474 F2d 247.

Footnote 51. 81 Am Jur 2d,  Witnesses § 56.

Annotation:  28 ALR Fed 938.


§ 219  Who may grant immunity  [21 Am Jur 2d CRIMINAL LAW]

Under the provision of the federal immunity statute dealing with court and grand jury proceedings, a United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, request an order requiring a witness or prospective witness to give testimony or provide other information that he refuses to give or provide on the basis of his privilege against self-incrimination when, in the judgment of the government attorney, the testimony or other information from the witness may be necessary to the public interest and the witness has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination. 52   Under this provision, the power to grant immunity is the sole prerogative of the United States Attorney and his superior officers. 53   Provided that the request for immunity is in proper form, the district judge has no discretion to deny it. 54  It has been held, however, that a court may exercise discretion to decline to issue an immunity order in the face of violation of a witness' constitutional rights, despite the wording of the federal immunity statute that the court "shall issue" the order when the government requests it in accordance with the specified procedures. 55    On the other hand, the district court is not authorized to review the United States Attorney's judgment that the witness' testimony may be necessary to the public interest. 56   Although the statute requires that the United States Attorney must make the request for an order compelling the witness' testimony, a motion for a grant of immunity brought and signed in the name of the United States Attorney has been held to be in substantial compliance with the statute, 57   as has an application signed by an assistant United States Attorney acting in place of his superior during his absence. 58            

Although the federal statute sets forth a specific procedure for the granting of immunity, it has been held that a prosecutor's express promise of immunity in return for testimony is enforceable to the same extent as a formal grant of immunity under the statute. 59   And, even where the statutory procedure has not been followed, it has been recognized that there might be a grant of equitable immunity in view of a defendant's cooperation. 60

Under the provisions of the federal immunity statute dealing with administrative proceedings, the particular agency involved may, with the approval of the Attorney General, issue an order requiring an individual to give testimony or provide other information in the administrative proceeding where the testimony or other information may be necessary to the public interest and where the individual has refused or is likely to refuse to testify or provide the information on the basis of his privilege against self-incrimination. 61  

It has been held that the "approval of the attorney general" referred to in the statute does not require that the attorney general personally give approval; he may delegate such power. 62   It has also been held that the statute does not endow the district judge with any discretion to deny an order for a grant of immunity on the ground that the public interest does not warrant it. 63

Concerning individuals who have been or may be called to testify or provide other information at Congressional proceedings, the federal immunity statute provides that upon the request of a duly authorized representative of the House of Congress or the committee concerned, the district court shall issue an order requiring such individuals to give testimony or provide other information that he refuses to furnish on the basis of his privilege against self-incrimination where the district court finds that the request for the order has been approved by the members of the House or the committee or subcommittee concerned, as set forth in the statute, and that the Attorney General has been properly served with notice of the intention to request the order. 64   The function of the notice to the Attorney General required by the statute is to minimize any prejudicial impact on present and future law enforcement plans.  The Attorney General has no veto power or authority other than permission to apply to the court for an extension before the court issues the order compelling the testimony. 65   Since it is the prerogative of the legislative branch of the government to request immunity under this statute, the court cannot review the propriety of the congressional authorization of immunity, 66  and the judiciary cannot institute a grant of immunity on its own motion, 67  although the court can assure that there has been proper compliance with established procedures. 68


§ 219  – Who may grant immunity [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Prosecutor's power to grant prosecution witness immunity from prosecution;  4 ALR4th 1221. superseding  13 ALR2d 1439.

When is federal prosecutor bound by promises of immunity or plea bargains made by another federal agent. Statutes:  55 ALR Fed 402.

Statutes:

18 USCS §  6003(b) was amended in 1988 by PL 100-690 to designate additional high-level officials of the Department of Justice who may request a judicial grant of immunity.

Case authorities:

Where United States Attorney received authorization from Justice Department in Washington to grant defendant statutory use immunity, as authorized by 18 USCS §  6002, and where United States Attorney moved District Court that defendant be ordered to testify pursuant to immunity statute, and where only statutory requirement lacking was court order, informal use immunity bestowed upon defendant shielded defendant to same extent as would court order had one issued. United States v Williams (1987, CA5 Tex) 809 F2d 1072.

Statement by FBI agent to defendant that if defendant tells truth and fully cooperates with investigation he will not get into any trouble is not promise of immunity where same agent has told defendant that none but United States Attorney could promise immunity and that neither FBI nor its agents have authority to determine who will be subject to prosecution and United States Attorney tells defendant that, although no promises or commitments would be made, court would be informed of defendant's co-operation at time of sentencing. United States v Schmidt (1985, CA7 Ill) 760 F2d 828.

District court is in no way hound by agreement between probationer and United States attorney whereby attorney agreed to neither seek to indict probationer nor to participate in probation revocation proceeding, where type of immunity granted to probationer was informal immunity, meaning that no court order (as required by 18 USCS §  6002) granting her immunity was either requested or obtained, with result that agreement was simply contract. United States v Hembree (1985, CA10 Okla) 754 F2d 314.

Footnotes

Footnote 52. 18 USCS §  6003.

Footnote 53. United States v Graham (CA8 Iowa) 548 F2d 1302; Thompson v Garrison (CA4 NC) 516 F2d 986, cert den  423 US 933,  46 L Ed 2d 263,  96 S Ct 287; United States v Allstate Mortg. Corp. (CA7 Ill) 507 F2d 492, cert den  421 US 999,  44 L Ed 2d 666,  95 S Ct 2396.

Grant of immunity pursuant to 18 USCS §§  6001 et seq. is within the sole discretion of the prosecutor.  United States v Wright (CA2 NY) 588 F2d 31, cert den  440 US 917,  59 L Ed 2d 467,  99 S Ct 1236.

18 USCS §  6003 imposes no obligation upon a prosecutor to grant immunity to witnesses required by defense; the proper issue is whether the failure to grant immunity denied defendant a fair trial.  United States v Wright (CA2 NY) 588 F2d 31, cert den  440 US 917,  59 L Ed 2d 467,  99 S Ct 1236.

Footnote 54. Appeal of Starkey (CA8 Ark) 600 F2d 1043, 1979-2 CCH Trade Cas ¶ 62810 (disagreed with on other grounds Re Corrugated Container Anti-Trust Litigation (CA5 Tex) 620 F2d 1086, 1980-2 CCH Trade Cas ¶ 63435, reh den (CA5 Tex) 625 F2d 1016); Re Perlin (CA7 Ill) 589 F2d 260; Ryan v Commissioner (CA7) 568 F2d 531, cert den  439 US 820,  58 L Ed 2d 111,  99 S Ct 84; United States v Hollinger (CA7 Ill) 553 F2d 535; Re Daley (CA7 Ill) 549 F2d 469, cert den  434 US 829,  54 L Ed 2d 89,  98 S Ct 110; United States v Leyva (CA5 Tex) 513 F2d 774; Urasaki v United States Dist. Court, Cent. Dist. (CA9) 504 F2d 513; Grand Jury Proceedings (DC SD) 443 F Supp 1273.

Courts should not infringe upon prosecutor's discretion to grant immunity under 18 USCS §  6003.  Appeal of Starkey (CA8 Ark) 600 F2d 1043, 1979-2 CCH Trade Cas ¶ 62810 (disagreed with on other grounds Re Corrugated Container Anti-Trust Litigation (CA5 Tex) 620 F2d 1086, 1980-2 CCH Trade Cas ¶ 63435, reh den (CA5 Tex) 625 F2d 1016 and cert den (US)  66 L Ed 2d 827,  101 S Ct 897).

Footnote 55. Re Baldinger (CD Cal) 356 F Supp 153,  28 ALR Fed 911.

Footnote 56. Ullmann v United States,  350 US 422,  100 L Ed 511,  76 S Ct 497,  53 ALR2d 1008, reh den  351 US 928,  100 L Ed 1457,  76 S Ct 777; United States v Herman (CA3 Pa) 589 F2d 1191, cert den  441 US 913,  60 L Ed 2d 386,  99 S Ct 2014; Re Maury Santiago (CA1 Puerto Rico) 533 F2d 727; Re Lochiatto (CA1 Mass) 497 F2d 803; Re Kilgo (CA4 Md) 484 F2d 1215; Re Russo (CA9 Cal) 448 F2d 369 (disapproved on other grounds Gelbard v United States  408 US 41,  33 L Ed 2d 179,  92 S Ct 2357).

Footnote 57. Ryan v Commissioner (CA7) 568 F2d 531, cert den  439 US 820,  58 L Ed 2d 111,  99 S Ct 84.

Footnote 58. Re Grand Jury Proceedings (CA5 Fla) 554 F2d 712, reh den (CA5 Fla) 558 F2d 605 and cert den  434 US 892,  54 L Ed 2d 178,  98 S Ct 269; United States v Smith (CA10 Colo) 532 F2d 158.

Although the wiser course in the future would be to involve the United States Attorney directly in the applications of the district court for an immunity order, rather than permitting a strike-force attorney to seek the order, the requirements of 18 USCS §  6003 were met where the United States Attorney appeared and filed the necessary papers at the nunc pro tunc proceeding initiated by the district court judge. Re Di Bella (CA2 NY) 499 F2d 1175, cert den  419 US 1032,  42 L Ed 2d 306,  95 S Ct 513.

A special attorney appointed by an assistant attorney general had authority to petition the court for a grant of immunity.  Re Special September 1978 Grand Jury (II) (CA7 Ill) 590 F2d 245, cert den  441 US 944,  60 L Ed 2d 1045,  99 S Ct 2162.

Although the assistant attorney general who signed an application for immunity pursuant to 18 USCS §  6003(b) had not been specifically designated as the assistant attorney general in charge of the criminal division, where a person who applied for grant of immunity was in fact designated the person in charge of such division, the requirements of § 6003 were satisfied.  Re Grand Jury Proceedings (CA9 Or) 586 F2d 724.

Footnote 59. United States v Pellon (SD NY) 475 F Supp 467, affd without op (CA2 NY) 620 F2d 286, cert den  446 US 983,  64 L Ed 2d 839,  100 S Ct 2963.

Footnote 60. United States v Weiss (CA5 Ga) 599 F2d 730, reh den (CA5 Ga) 603 F2d 860.

Footnote 61. 18 USCS §  6004.

Footnote 62. Federal Trade Com. v Foucha (ND Ala) 356 F Supp 21.

Footnote 63. Re Lochiatto (CA1 Mass) 497 F2d 803.

Since the defendant had failed to invoke the privilege against self-incrimination at a Federal Trade Commission hearing at which he testified concerning details of an incident that had lead to an earlier contempt conviction, he could not properly claim that immunity granted to him during the Hearing invalidated the prior contempt conviction.  Federal Trade Com. v Gladstone (CA5) 450 F2d 913, 1971 CCH Trade Cas ¶ 73740.

Footnote 64. 18 USCS §  6005.

Footnote 65. Application of United States Sentate Select Committee on Presidential Campaign Activities (DC Dist Col) 361 F Supp 1270.

Footnote 66. Re Kilgo (CA4 Md) 484 F2d 1215.

Footnote 67. United States v Garcia (CA3 NJ) 544 F2d 681.

Footnote 68. Applicaton of United States Sentate Select Committee on Presidential Campaign Activities (DC Dist Col) 361 F Supp 1270.


§ 220  Persons protected; waiver; standing to invoke statute  [21 Am Jur 2d CRIMINAL LAW]

It has been held that the provisions of the federal immunity statute are not limited to witnesses who already are the targets of criminal complaints, since the wording of the statute contains no suggestion of any limitation of that type. 69   Thus, immunity under the federal statute may be granted to an acquitted defendant testifying before a grand jury, 70  witnesses not testifying on behalf of the government, 71  and minor witnesses who were merely innocent bystanders of the crime. 72

Under a federal immunity statute, the United States Supreme Court has held that it is not necessary for a witness giving testimony in obedience to a subpoena to claim his privilege against self-incrimination under the Fifth Amendment in order to be entitled to the statutory immunity from prosecution. 73    Nevertheless, a witness does not acquire immunity under the federal statute if he is not compelled to answer any question and does not exercise his privilege against self-incrimination or refuse to answer. 74   It has been said that a witness claiming immunity should make his claim of privilege known and is considered as waiving it if he fails to do so since it is only reasonable that the government, in its prosecution of crime, receive express notice of a claim of privilege so that it may then determine whether it will continue with the prosecution, grant immunity to the witness, or proceed otherwise. 75   Furthermore, under the predecessor to the current federal immunity statute, it has been held that a defendant could not claim immunity where the questions propounded and answers elicited from him previously in no sense tended to incriminate him or prove him guilty of alleged crimes then under investigation or subsequently charged against him in an indictment. 76   

A defendant has no standing to contest the propriety of a grant of immunity to another person under the statute. 77             Since a grant or denial of immunity under the federal statute is within the sole discretion of the executive branch of the government, the defendant may not force the prosecutor to compel testimony of a defense witness by granting him immunity. 78    Thus, a defendant may not insist that the district court guarantee his alleged accomplice immunity and compel him to testify by invoking the federal immunity statute, since the district judge is not authorized to initiate immunity and the statute places this responsibility on the United States Attorney acting with approval from the Attorney General or his deputy or assistant. 79      A defendant has no Sixth Amendment right to demand that any witness he chooses be immunized. 80     The government's refusal to grant immunity to a defense witness who possibly would offer exculpatory testimony does not constitute a denial of due process or violation of the defendant's Sixth Amendment rights. 81

Although the federal immunity statute imposes no obligation on the prosecutor to grant immunity to witnesses required by the defense, the proper issue is whether the failure to grant immunity denied the defendant a fair trial. 82   A defendant may prove that his due process rights have been violated by showing that the government's decision not to grant immunity was made with the deliberate intent of distorting the judicial process. 83   It has been held that the government was required to request immunity under the federal statute for a defendant's principal witness who, because of prosecutorial misconduct, withheld, out of fear of self-incrimination, testimony valuable to the defense. 84

Although the government must provide a defendant with a list of witnesses granted immunity under the federal statute, 85   the defendant has no right right to be present at immunity hearings or to obtain copies of immunity orders. 86    


§ 220  – Persons protected; waiver; standing to invoke statute [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Karolczyk, Defense Witness Immunity Grants: Independent Judicial Authority to Effectuate the Rights of Criminal Defendants. 1981 Ariz St LJ 771.

Boone, Defense Witness Immunity. 9 Hast Const LQ 199, Fall, 1981.

Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions. 56 Notre D Law 447, February, 1981.

Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness;  4 ALR4th 617. superseding  13 ALR2d 1439.

Case authorities:

Trial courts should summarily reject claims for defense witness immunity whenever witness for whom immunity is sought is actual or potential target of prosecution, and no hearing need be held to establish such status; in prosecution for evading income taxes, filing false income tax returns and conspiracy to defraud, trial court did not err in refusing to compel prosecution to grant immunity to defense witnesses where defense demand for immunity was initially made in middle of trial and was, thus, untimely, and where testimony of witnesses would merely have been cumulative, immaterial or impeaching only on collateral matters. United States v Turkish (1980, CA2 NY) 623 F2d 769, cert den (US)  66 L Ed 2d 800,  101 S Ct 856.

Due process requires testimony of defense witnesses to be immunized either (1) when court finds prosecutorial misconduct by government's deliberate intent to disrupt factfinding process, or (2) when, even if there is no evidence of such misconduct, it is found that potential defense witness can offer testimony that is clearly exculpatory and essential to defense case, and government has no strong interest in withholding use immunity. Thus, in prosecution for robbery, sentences of defendants would be vacated and case remanded to district court for determination of whether judicial immunity would be required to vindicate defendants' rights to fair trial where record showed that issue of defense witness immunity was properly raised in district court and where record clearly suggested that either theory compelling immunization of defense witness testimony could be used by defendants in that it was probable that defendants could offer proof that certain witnesses' testimony would be exculpatory, government had little claim to any interest in opposing grant of immunity to witnesses, and it appeared that government had refused to consent to immunity offered by juvenile authorities in attempt to deliberately keep highly relevant and possibly exculpatory evidence from jury. Government of Virgin Islands v Smith (1980, CA3 VI) 615 F2d 964.

Defendant has no right to have his witnesses given use immunity; decision of government not to grant use immunity for one of defendant's witnesses who exercised self-incrimination privilege did not infringe defendant's compulsory process right to present defense. United States v Lenz (1980, CA6 Mich) 616 F2d 960.

Defendant was not deprived of fair trial because of government's selective grant of immunity to its own witnesses while denying immunity to his witnesses where selective grant did not produce egregiously lopsided access to evidence. United States v Mohney (1991, CA6 Mich) 949 F2d 1397, 68 AFTR 2d 91-5938, 92-1 USTC ¶ 50081, 35 Fed Rules Evid Serv 106, cert den (US)  118 L Ed 2d 546,  112 S Ct 1940.

Defendant is not entitled to compel government witness to assert Fifth Amendment privilege and has no complaint when witness decides to testify in exchange for less formal protection from prosecution than would be available if witness were granted immunity. United States v Murphy (1985, CA7 Ill) 768 F2d 1518.

Although government's authority to decide if and when to seek immunity for witness must be exercised in manner consistent with due process guarantees of Fifth Amendment, defendant is denied fair trial where government seeks and obtains immunity for its own eye witnesses while refusing to request immunity for defendant's eye witnesses in cases where 2 sets of eye witnesses have conflicting stories to tell; failure to grant immunity for defense witness does not violate due process where jury has before it all of facts and claims intended to be elicited from defense witness. United States v Brutzman (1984, CA9 Cal) 731 F2d 1449.

Footnotes

Footnote 69. Goldberg v United States (CA2 NY) 472 F2d 513.

Footnote 70. Re Bonk (CA7 Ill) 527 F2d 120.

Footnote 71. United States v La Duca (DC NJ) 447 F Supp 779, affd (CA3 NJ) 587 F2d 144, cert den  440 US 972,  59 L Ed 2d 789,  99 S Ct 1537.

Footnote 72. Re J. (Dist Col App) 348 A2d 301.

Footnote 73. United States v Monia,  317 US 424  87 L Ed 376,  63 S Ct 409.

A subpoenaed congressional witness' failure to claim the privilege against self-incrimination did not constitute a waiver of his rights under the predecessor to 18 USCS §  6005 where his testimony was brought out by repeated committee questions and the record did not show any spontaneous outpouring of testimony from him.  Adams v Maryland,  347 US 179,  98 L Ed 608,  74 S Ct 442.

Footnote 74. United States v Seewald (CA2 NY) 450 F2d 1159, cert den  405 US 978,  31 L Ed 2d 253,  92 S Ct 1206; May v United States, 84 App DC 233, 175 F2d 994, cert den  338 US 830,  94 L Ed 505,  70 S Ct 58, reh den  338 US 882,  94 L Ed 542,  70 S Ct 154.

Since handwriting exemplars are not protected under the Fifth Amendment, a person providing exemplars to a grand jury is not entitled to be given immunity under 18 USCS §§  6001 et seq. United States v Hawkins (1974, CA9 Wash) 501 F2d 1029, cert den  419 US 1079,  42 L Ed 2d 674,  95 S Ct 668.

Footnote 75. United States v B. Goedde & Co. (DC Ill) 40 F Supp 523.

Footnote 76. Untied States v Greater New York Live Poultry Chamber of Commerce (DC NY) 34 F2d 967.

Individual defendants could not claim immunity from prosecution under the predecessor to 18 USCS §  6003 where there was no showing made that their testimony was in any respect to any personal matters substantially connecting them with transactions set forth in the indictment and the testimony elicited from them before the grand jury was solely in regard to their official capacity as corporate officers and their identification of corporate documents.  United States v Greater Kansas City Retail Coal Merchants' Asso. (DC Mo) 85 F Supp 503.

A witness could not invoke the privilege against self-incrimination where there was no reasonable fear of prosecution and that no apparent effort had been made by an enforcement agency to undertake subsequent criminal prosecutions. Re Folding Carton Antitrust Litigation (ND Ill) 465 F Supp 618, 1979-1 CCH Trade Cas ¶ 62478.

Footnote 77. United States v Hathaway (CA1 Mass) 534 F2d 386, cert den  429 US 819,  50 L Ed 2d 79,  97 S Ct 64; United States v Rauhoff (CA7 Ill) 525 F2d 1170; United States v Braasch (CA7 Ill) 505 F2d 139, cert den  421 US 910,  43 L Ed 2d 775,  95 S Ct 1561,  95 S Ct 1562; United States v Lewis (CA3 VI) 456 F2d 404.

Challenge to grant of use immunity under 18 USCS §  6003, like assertion of privilege against self-incrimination, is personal; defendants are without standing to contest legal sufficiency of grant of immunity by government to witnesses.  United States v Hathaway (CA1 Mass) 534 F2d 386, cert den  429 US 819,  50 L Ed 2d 79,  97 S Ct 64.

Footnote 78. United States v Rocco (CA3 NJ) 587 F2d 144, cert den  440 US 972,  59 L Ed 2d 789,  99 S Ct 1537; United States v Beasley (CA5 La) 550 F2d 261, reh den (CA5 La) 553 F2d 100 and reh den (CA5 La) 553 F2d 101 and cert den  434 US 863,  54 L Ed 2d 138,  98 S Ct 195, reh den  434 US 961,  54 L Ed 2d 323,  98 S Ct 496 and cert den  434 US 938,  54 L Ed 2d 297,  98 S Ct 427; United States v Smith (CA7 Ill) 542 F2d 711.

Footnote 79. Thompson v Garrison (CA4 NC) 516 F2d 986, cert den  423 US 933,  46 L Ed 2d 263,  96 S Ct 287.

Footnote 80. United States v Herman (CA3 Pa) 589 F2d 1191, cert den  441 US 913,  60 L Ed 2d 386,  99 S Ct 2014.

Footnote 81. Re Y. (Dist Col App) 363 A2d 674.

Footnote 82. United States v Wright (CA2 NY) 588 F2d 31, cert den  440 US 917,  59 L Ed 2d 467,  99 S Ct 1236.

The government's refusal to seek immunity for defense witnesses where the government obtained immunity for one prosecution witness did not deny the defendant a fair trial in contravention of due process where the testimony sought by him was cumulative of the testimony of other witnesses, and the jury had before it all facts and claims the defendant intended to elicit from witnesses for whom he sought immunity.  United States v Alessio (CA9 Cal) 528 F2d 1079, cert den  426 US 948,  49 L Ed 2d 1184,  96 S Ct 3167, reh den  429 US 873,  50 L Ed 2d 156,  97 S Ct 193.

Footnote 83. United States v Herman (CA3 Pa) 589 F2d 1191, cert den  441 US 913,  60 L Ed 2d 386,  99 S Ct 2014.

Footnote 84. United States v Morrison (CA3 Pa) 535 F2d 223.

Footnote 85. United States v Brighton Bldg. & Maintenance Co. (ND Ill) 435 F Supp 222, 1977-2 CCH Trade Cas ¶ 61764, affd (CA7 Ill) 598 F2d 1101, 1979-1 CCH Trade Cas ¶ 62637, cert den  444 US 840,  62 L Ed 2d 52,  100 S Ct 79,  100 S Ct 80.

Footnote 86. United States v Braasch (CA7 Ill) 505 F2d 139, cert den  421 US 910,  43 L Ed 2d 775,  95 S Ct 1561,  95 S Ct 1562.


4.  Agreements Not to Prosecute [221, 222]

§ 221  Generally; agreement contingent on passing polygraph test  [21 Am Jur 2d CRIMINAL LAW]

Generally, it is improper for a prosecutor to promise an accused, in return for a confession of guilt regarding a particular crime, immunity from prosecution for other crimes that he may have committed, 87  and it has been said that a court should not be party to an agreement with persons charged with murder that they will themselves escape capital punishment if they will testify for the state against a codefendant, 88  but the state may contract with an accused for his exemption from prosecution in return for his honestly and fairly making a full disclosure of the crime on the trial of a confederate whether or not the confederate is convicted. 89   When agreements of this character have been made by the prosecuting officer with the consent of the court, as is usually the case, 90   the court will see that the public faith which has thus been pledged is duly kept, 91  although sometimes the courts have refused to enforce such agreements. 92   The witness must keep his part of the contract strictly if he hopes to receive the promised immunity; if his testimony is corrupt or his disclosure is only partial, he gains nothing, but forfeits his right under the contract. 93

Agreements not to prosecute may be subject to jurisdictional limitations. Thus, under a statute limiting the duties and authority of the state attorney to the judicial circuit wherein he was duly elected and qualified, a contract between a defendant and a state attorney of one county granting immunity from prosecution for any crimes that the defendant had committed in the past up to the date of the contract does not preclude prosecution in another county. 94   And, it has been held that a county attorney did not break his promise not to prosecute a defendant under changes pending in another county where a subsequent prosecution there was the result of the other county's state attorney's unwillingness to drop the charges. 95   Furthermore, a plea bargaining agreement by prosecuting attorneys in one federal district court not to prosecute a defendant for certain crimes is not violated by an indictment of him by other prosecutors in another federal district court where there was no evidence of an intention to bind anyone outside the office of the prosecutors participating in the agreement. 96    

Although the question has not been raised frequently, there is authority for the view that an agreement to dismiss a pending prosecution if the defendant successfully passes a polygraph test is enforceable. 97   One court has stated that such an agreement on the part of the state is a pledge of public faith, a promise made by state officials, that should not be lightly disregarded. 98   Although questioning the wisdom of such contracts, which tend to remove the decision to prosecute and the determination of guilt from the hands of traditional authorities and delegate them to a scientific device, another court has upheld the agreement where the stipulation between the state and the defendant was presented before a trial judge who examined the defendant closely on his understanding of the conditions of the agreement. 99   It has been held, however, that a defendant who passed a polygraph test was not entitled to a dismissal of the indictment, absent the court's approval of the agreement or of a dismissal requested by the prosecutor pursuant to it. 1   Where a trial court did approve a nolle prosequi, however, a defendant has been held entitled to rely upon an agreement with the prosecutor, notwithstanding the prosecutor subsequently learned that the polygraph results forming the basis of the agreement and the dismissal could have been distorted by a schizophrenic nature. 2


§ 221  – Generally; agreement contingent on passing polygraph test [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Defense access to police polygraph tests, 65 NY St BJ 4:36 (1993).

Enforceability of agreement by law enforcement officials not to prosecute if accused would help in criminal investigation or would become witness against others.  32 ALR4th 990.

Right of prosecutor to withdraw from plea bargain prior to entry of plea. (See also infra, § 481, 482.)  16 ALR4th 1089.

Prosecutor's power to grant prosecution witness immunity from prosecution;  4 ALR4th 1221. superseding  13 ALR2d 1439.

Case authorities:

Government's failure to reveal that prosecution witness would not be granted immunity until after he testified in defendant's murder trial did not violate due process standards of Brady where defendant was advised of witness' immunity and extensive cross-examination disclosed details of plea agreement since additional fact was not material. Brewer v Nix (1992, CA8 Iowa) 963 F2d 1111.

Prosecution of racketeering defendant was not barred by nonprosecution agreement between government and defendant, where agreement was voided by defendant's failure to disclose knowledge of drug scheme, even though episode may not have been under investigation and government may not have made specific inquiry about it. United States v Wood (1986, CA11 Fla) 780 F2d 929, cert den (US)  93 L Ed 2d 48,  107 S Ct 97.

Where parties to plea agreement have conditioned government promise of immunity on continued truthful cooperation of defendant, government cannot act to prevent occurrence of condition. Where government does act to prevent occurrence of condition, government violates its duty of good faith and fair dealing and excuses condition of truthful cooperation. Essentially, government's promise of immunity becomes unconditional. United States v San Pedro (1991, SD Fla) 781 F Supp 761.

Although a plea bargain that requires a witness to testify in a particular fashion renders the testimony inadmissible because of the taint of self-interest, a bargain that required only that an accomplice tell the truth complied with due process and the testimony was admissible against a defendant in the penalty phase of a capital case. People v Andrews (1989) 49 Cal 3d 200, 260 Cal Rptr 583, 776 P2d 285, and reh den, cert den (US)  108 L Ed 2d 775,  110 S Ct 1536 and stay gr (Cal) 1990 Cal LEXIS 4507.

A defendant is not denied the right to a fair trial by virtue of admission of the immunized testimony of a codefendant, so long as the grant of immunity is made on condition that he testify fully and fairly as to his knowledge of the facts out of which the charge arose. People v Douglas (1990) 50 Cal 3d 468, 268 Cal Rptr 126, 788 P2d 640 stay gr (Cal) 1990 Cal LEXIS 4038 and cert den (US)  112 L Ed 2d 1105,  111 S Ct 1023.

A plea agreement that requires only that the witness testify fully and truthfully is valid. Although the witness is under some compulsion to testify in accordance with earlier statements given to police or the prosecutors, due process is satisfied if the agreement permits the witness to testify freely at trial and to respond to any claim that he breached the agreement by showing that the testimony he gave was a full and truthful account. People v Sully (1991) 53 Cal 3d 1195, 283 Cal Rptr 144, 812 P2d 163, 91 CDOS 5489, reh den, mod 54 Cal 3d 545a, 91 CDOS 8009, 91 Daily Journal DAR 12057.

A defendant convicted of voluntary manslaughter was not denied a fair trial, even though his cellmate testified for the prosecution in exchange for a 50-50 chance of getting a relatively lenient sentence on armed robbery charges pending against him, and even assuming that the cellmate was to receive the benefit of his bargain only if his testimony was beneficial or valuable to the prosecution, where there was no requirement that the testimony be confined to a predetermined formulation and where the testimony was not rendered acceptable only if it produced a conviction. People v Meza (1981) 116 Cal App 3d 988, 172 Cal Rptr, 531.

Agreement which defendant had made with law enforcement officers, and which had been apparently affirmed by county prosecutor, to effect that if defendant gave information concerning unrelated crime and agreed to testify, then charges would be dismissed, did not entitle defendant to dismissal of charges; moreover, defendant had not been compelled to incriminate himself since offense concerning which he provided police with information was completely unrelated to subsequent prosecution. People v Marquez (1981, Colo App) 644 P2d 59,  32 ALR4th 982.

Even though murder defendant entered into agreement with prosecution to give state's evidence in return for immunity from prosecution, and even though prosecution generally benefited from her testimony, agreement not to prosecute was unenforceable where defendant later admitted that some of her testimony had been untrue or incomplete. Abner v State (1985, Ind) 479 NE2d 1254.

A plea agreement between the State and a codefendant did not violate public policy or defendant's due process rights because the codefendant agreed to testify truthfully in defendant's trial in accordance with the codefendant's earlier statements to the police. It is clear from the context of the plea agreement that it was conditioned only on the codefendant's truthful testimony at defendant's trial and did not unconstitutionally bind the codefendant to testify consistent with his earlier statements even if they were not truthful. G.S. § 15A-1054. State v Gregory (1995) 340 NC 365, 459 SE2d 638.

Witness who invoked self-incrimination privilege before grand jury investigating oilfield thefts after she had been granted immunity could be held in contempt, but granted immunity would bar prosecution on charges other than contempt in connection with thefts. Clem v State (1985, Okla Crim) 701 P2d 770.

Trial court did not abuse its discretion in dismissing criminal complaints brought against defendants by county police department, charging them with possession of cocaine residue and pharmaceuticals seized during search of their home, where city police officer had entered into agreement with defendants' attorney that if defendant would answer all questions concerning source of controlled substances and paraphernalia seized during search, no charges would be filed and defendant had fulfilled his part of agreement by answering all questions asked of him by city police officers. Whether or not "the police," as an entity, had authority to enter into nonprosecution agreement, trial court did not abuse its discretion in enforcing it. Formal agreement was entered into by police officer in charge of case and defendants, in reliance, divulged all information that police requested, thereby giving up valued constitutional guarantee against self-incrimination. Defendants and their attorney were induced to believe that police officer had full negotiating authority and they detrimentally relied on that belief. Commonwealth v Stipetich (1993, Pa Super) 621 A2d 606 (opinion by one justice with two justices concurring and two concurring in result).

The initial burden is on the defendant to show the existence of an immunity agreement by a preponderance of the evidence, but once the initial burden is met and the existence of an immunity agreement is shown by a preponderance of the evidence, procedurally immunity should be treated just like a defense under the Code of Criminal Procedure, such that the burden then shifts to the state to show beyond a reasonable doubt why the agreement is invalid or why prosecution should be allowed despite the agreement; the determination of whether the agreement is valid cannot be left for the trial itself, but must be conclusively decided prior to trial. Zani v State (1985, Tex Crim) 701 SW2d 249.

Footnotes

Footnote 87. People v Groves, 63Cal App 709, 219 P 1033 (neither prosecutor nor court is bound by bargain).

Footnote 88. Henderson v State, 135 Fla 548, 185 So 625.

Footnote 89. People v Green, 102 Cal App 2d 831, 228 P2d 867; Turnage v State, 134 Miss 431, 99 So 9; Ex parte Jackson, 95 Tex Crim 200, 253 SW 287; State v Ward, 112 W Va 552, 165 SE 803.

Footnote 90.  § 222, infra.

Footnote 91. Lowe v State, 111 Md 1, 73 A 637; Commonwealth v St. John, 173 Mass 566, 54 NE 254; Camron v State, 32 Tex Crim 180, 22 SW 682; State v Ward, 112 W Va 552, 165 SE 803.

Where an agent with authority from the state attorney to make agreements suggested to the defendants that no charge would be made for delivery of a sample of cocaine if they would disclose the source of it, the assigned state attorney was not barred from prosecuting the defendants for conspiracy to deliver cocaine and possession of cocaine in connection with the delivery of the sample.  State v Hargis (Fla App D1) 328 So 2d 479.

Footnote 92. State v Guild, 149 Mo 370, 50 SW 909 (ovrld on other grounds State v Richmond 186 Mo 71, 84 SW 880).

Footnote 93. Lowe v State, 111 Md 1, 73 A 637; Camron v State, 32 Tex Crim 180, 22 SW 682.

Footnote 94. Stancel v Schultz (Fla App D2) 226 So 2d 456.

Footnote 95. People v Gardner, 8 Ill App 3d 588, 289 NE2d 638.

Footnote 96. United States v Alaessi (CA2 NY) 544 F2d 1139, cert den  429 US 960,  50 L Ed 2d 327,  97 S Ct 384.

Where a defendant's initial plea bargain encountered problems because it involved dismissal of an indictment pending in a second court and the approval of that court was not obtained, the defendant could not have specific performance of the initial agreement where the defendant then made a new plea bargain to limit the sentence to be imposed by the second court. People v Wilkinson, 57 Mich App 106, 225 NW2d 702.

Footnote 97. Butler v State (Fla App D4) 228 So 2d 421,  36 ALR3d 1274; State v Davis (Fla App D2) 188 So 2d 24, cert den (Fla) 194 So 2d 621.

Annotation:  36 ALR3d 1280.

Footnote 98. State v Davis (Fla App D2) 188 So 2d 24, cert den (Fla) 194 So 2d 621.

Footnote 99. Butler v State (Fla App D4) 228 So 2d 421,  36 ALR3d 1274.

As to admissibility of evidence of results of lie detector tests for purpose of proving guilt or innocence, see 29 Am Jur 2d,  Evidence § 831.

Footnote 1. State v Sanchell, 191 Neb 505, 216 NW2d 504, on reh 192 Neb 380, 220 NW2d 562, cert den  420 US 909,  42 L Ed 2d 839,  95 S Ct 829.

Footnote 2. People v Reagan, 395 Mich 306, 235 NW2d 581.


§ 222  – Who may make  [21 Am Jur 2d CRIMINAL LAW]

In states in which a prosecuting attorney may enter a nolle prosequi without the consent of the court, 3   he may grant a witness immunity from prosecution by contract without approval of the court. 4   It has been recognized, however, that it is not in the public interest for a prosecuting attorney to have unlimited authority to promise immunity from prosecution in exchange for promises from an accused; it is only when the promise to grant immunity is given in exchange for a promise to "turn state's evidence" that the agreement is legal and enforceable. 5   Generally, a district or prosecuting attorney has no authority without the court's advice or consent to make a binding agreement or contract that if a person charged with an offense will testify against others, he shall be exempt from all criminal liability. 6   In some jurisdictions the district or prosecuting attorney does not have such authority, even though the agreement or understanding with him has been approved by or known to the court. 7

An agreement by the prosecuting officer to grant immunity as to a particular charge if defendant will plead guilty to another charge has been approved by the court and its validity upheld where the accused has fulfilled his part of the agreement. 8    It has been held that a district attorney could no longer prosecute the defendants on a charge that, with another, had been dropped in exchange for a defendant's agreeing to plead guilty to two other charges, even though one of the latter charges was declared unconstitutionally vague and the defendant's conviction on that charge had been reversed. 9   In upholding such agreements relied on by the defendant, the courts have recognized the prosecuting officer's duty to fulfill his pledge of the public faith by abiding by his promise. 10   On the other hand, it has been held that two charges earlier dropped by a prosecutor through plea bargaining could properly be reinstituted where the conviction for the offense to which the defendant had pleaded guilty was set aside by the state supreme court on the ground that it was not covered by statute. 11   Furthermore, a court approved plea agreement has been held unenforceable against the prosecuting attorney's successor in office. 12    Where the court has not sanctioned an agreement of this kind, authority of the prosecuting attorney to enter into it has been denied and the agreement has been regarded as of no effect. 13  

It has been ruled that a committing magistrate, even with the assent and concurrence of the prosecuting attorney, cannot validly promise immunity from prosecution and conviction to a person under arrest, if he will testify against the others accused, especially where the proceedings for the granting of immunity to witnesses are regulated by statute and no provision is made for the granting thereof by a committing magistrate. 14   Nor, in the absence of specific statutory authority, can police officers 15  or a sheriff 16  grant immunity from prosecution to one of two or more persons accused of a crime on condition of confession and readiness to become a witness against the others accused, at least where the promise is made without the authority of the prosecuting attorney; such a promise cannot be pleaded in bar of an indictment for the crime. 17  


§ 222  – Who may make [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: A Prosecutor's Duty to Disclose Promises of Favorable Treatment Made to Witnesses for the Prosecution. 94 Harv LR 887, February, 1981.

Prosecutor's power to grant prosecution witness immunity from prosecution;  4 ALR4th 1221. superseding  13 ALR2d 1439.

When is federal prosecutor bound by promises of immunity or plea bargains made by another federal agent.  55 ALR Fed 402.

Case authorities:

In prosecution for possession of narcotic drug with intent to sell, defendant's contention that refusal of prosecution to grant informant immunity denied defendant opportunity to present effective defense was without merit since prosecution's refusal to grant immunity could not be reversible error in that any decision to grant immunity is within discretion of prosecution; additionally, prosecution's refusal to grant informant immunity did not give rise to situation in which grant of judicial immunity was proper where defendant's motion to compel testimony did not constitute explicit request for judicial immunity, did not specify particulars of informant's testimony, and did not make showing of exculpatory or essential nature of such testimony to his case. People v Macias (1980, Colo App) 616 P2d 150.

A finding of not guilty by reason of insanity is not a final judgment or order from which an appeal may be taken under state statute; the appropriate remedy is a petition for writ of habeas corpus. State v Janney, 55 Ohio App 2d 257, 9 Ohio Ops 3d 393, 380 NE2d 753, motion over.

Footnotes

Footnote 3.  § 514, infra.

Footnote 4. State v Hingle, 242 La 844, 139 So 2d 205; Faucett v State, 10 Okla Crim 111, 134 P 839.

See Commonwealth v Knapp, 27 Mass 477, where it is said that in Massachusetts the attorney general, "of his own authority and upon his own responsibility, gives the pledge of the government" that the witness shall not be prosecuted.

Footnote 5. Application of Parham, 6 Ariz App 191, 431 P2d 86.

Footnote 6. Whiskey Cases,  99 US 594,  25 L Ed 399; State v Guild, 149 Mo 370, 50 SW 909 (ovrld on other grounds State v Richmond 186 Mo 71, 84 SW 880); Whitney v State, 53 Neb 287, 73 NW 696; State v Moody, 69 NC 529 (holding that matter is within "control" of court, but that it is usually and properly left to discretion of prosecuting attorney); Scribner v State, 9 Okla Crim 465, 132 P 933; Wight v Rindskopf,  43 Wis 344.

Footnote 7. Lowe v State, 111 Md 1, 73 A 637.

See Muller v State, 79 Tenn 18, wherein it was held that a statement by the attorney general in open court, that he would not prefer an indictment against the witness on any evidence given by him, was not such a protection as the witness was entitled to.

Footnote 8. State v Ashby, 43 NJ 273, 204 A2d 1; People v Siciliano, 185 Misc 149, 56 NYS2d 80; State v Ward, 112 W Va 552, 165 SE 803.

Annotation:  43 ALR3d 281, § 6[a].

Footnote 9. Stewart v Cupp, 12 Or App 167, 506 P2d 503.

Footnote 10. State v Hingle, 242 La 844, 139 So 2d 205; People v Siciliano, 185 Misc 149, 56 NYS2d 80; State v Ward, 112 W Va 552, 165 SE 803.

Where defendant paid a fine pursuant to a plea bargain providing that he would plead guilty to possession of marijuana if traffic charges agaist him were dismissed, the state could not later obtain civil forfeiture of the defendant's automobile, which constituted punishment for criminal offense, even though at the time of striking the plea bargain neither party had contemplated that such a forfeiture might ensue.  Re 1972 Dodge Van, 24 Ariz App 337, 538 P2d 766.

Footnote 11. People v Clark, 43 Mich App 476, 204 NW2d 332.

Footnote 12. Commonwealth v Smith (Ky) 244 SW2d 724.

Annotation:  43 ALR3d 281, § 6[b].

Footnote 13. People v Groves, 63 Cal App 709, 219 P 1033; State v Miller, 100 Mo 606, 13 SW 832; Hughes v James, 86 Okla Crim 231, 190 P2d 824; State v Keep, 85 Or 265, 166 P 936; Powell v State, 209 Tenn 194, 352 SW2d 224.

Annotation:  43 ALR3d 281, § 7.

Footnote 14. People v Indian Peter, 48 Cal 250.

Footnote 15. Commonwealth v St. John, 173 Mass 566, 54 NE 254; State v Crow (Mo) 367 SW2d 601.

A police officer's promises made to an accused that if he would help in a criminal investigation, all charges, including the one for which he was sentenced, would be dropped are unenforceable. Re Parham, 6 Ariz App 191, 431 P2d 86.

An agreement between officers and defendants who made a sale of narcotics, that defendants would not be prosecuted if they revealed the source of their narcotics, which was made without the knowledge or concurrence of a court, would not bar prosecution even though defendants did reveal the source of their narcotics, where the agreement was made without knowledge or concurrence of a court. State v Hargis (Fla App D1) 328 So 2d 479.

Footnote 16. State v Crow, (Mo) 367 SW2d 601.

Footnote 17. As to defendant's right to specific performance and other remedies in connection with plea bargain, see  § 485, infra.


E.  Statute of Limitations [223-242]

1.  Under State Law [223-233]

a.  In General [223-229]

§ 223  Generally  [21 Am Jur 2d CRIMINAL LAW]

At common law there was no limitation of time for prosecuting a criminal offense. 18   It is said that limitations are for the legislature. 19   Thus, in the absence of statutes of limitation specially applicable to criminal cases, a prosecution may be instituted at any time, however long after commission of the criminal act. 20   In other words, unless a period of limitation is fixed by statute for a particular offense, 21  or unless there exist unusual circumstances that bring high prejudice or other equitable considerations into play, 22  a prosecution for the offense is not barred by lapse of time.  However, statutes of limitation have been enacted to limit the time for commencement of most criminal proceedings. 23  

Statutes of limitation necessarily vary in their form and terms. Among various distinctions that appear may be mentioned the custom of having limitation periods for felonies different from those for lesser crimes. 24   As a general rule, the limitations are made applicable to all or most misdemeanors 25  and to some felonies, 26  whereas murder is generally excepted; 27   but sometimes all felonies, unless otherwise specially provided for, 28  are excepted. Where a crime may be punished either as a felony or as a misdemeanor in the discretion of the court, the statute of limitation applicable to a felony governs, though the punishment imposed is as for a misdemeanor. 29

Statutes of limitation in criminal cases are considered acts of grace, 30  or a surrendering by the sovereign of its right to prosecute. 31   They create a bar to prosecution and are therefore not merely statutes of repose as they are in civil cases. 32   A criminal statute of limitations is not a mere limitation upon the remedy, but one upon the power of the sovereign to act against the accused. 33   Although technically a plea of the statute does not go to the question of defendant's guilt or innocence, it raises a question that, legally speaking, goes to the merits of the case, 34  and a judgment for defendant on a plea of the statute is necessarily an acquittal of the charge, not a mere abatement of the action. 35    

Protection from prosecution under a statute of limitations is a substantive right, 36  not a mere procedural one; 37  in all cases subject to limitation the period prescribed by the statute is jurisdictional, 38    the time within which an offense is committed is a jurisdictional fact, 39    and it is incumbent on the state to prove that the offense was committed within the time fixed by the statute. 40   

§ 223  – Generally [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: The case against statutes of limitations for stolen art, 103 Yale LJ 2437 (1994).

Case authorities:

The superior court properly issued a writ of mandate and/or prohibition directing the municipal court to take no further action in a case in which defendant was charged in a four count complaint with one felony count of possession of cocaine, a misdemeanor of using and being under the influence of cocaine, another misdemeanor of driving under the influence of a drug, and an infraction of driving at an excessive speed, unless and until defendant's demurrer to the misdemeanor and infraction counts had been sustained. The complaint was filed 16 days after the 1-year statute of limitations had run and it could not be said to relate back to a prior complaint filed well within the statutory period, which had been dismissed at the preliminary hearing after the granting of defendant's motion under Pen. Code, § 1538.5. Though the People were entitled under § 1538.5, subd. (j), to file a new complaint after the first case was dismissed, they were required to do so within the 14 days that then remained of the 1-year limitation period. Much of the delay in holding the preliminary examination was caused by an unsuccessful proceeding by the People in the superior court and the Court of Appeal over an attempt by defendant to rely on a defense of discriminatory prosecution, and, in any event, the delay did not prevent the People from filing the second complaint within the statutory period. Maytag v Municipal Court (1982, 2d Dist) 133 Cal App 3d 828, 184 Cal Rptr 365.

Conspiracy to keep a place of prostitution is a misdemeanor for the simple reason that the statute the possibility of punishment as either a felony of a misdemeanor. Accordingly, the applicable limitations period for determining the timeliness of the charges for this offense is that applicable to misdemeanors. People v Laws (1993) 155 Ill 2d 208, 184 Ill Dec 430, 613 NE2d 747.

The fact that a crime is punishable as either a felony or a misdemeanor has no bearing on the classification of that crime for purposes of which limitations period is applicable. People v Laws (1993) 155 Ill 2d 208, 184 Ill Dec 430, 613 NE2d 747.

An indictment for a misdemeanor committed more than two years prior to the indictment is not outside the two-year statute of limitations period when the grand jury has, within two years of the crime, returned a presentment. GS §§ 15-1, 15A-641(c). State v Whittle (1995) 118 NC App 130, 454 SE2d 688.

Complaint accusing defendant of felony delivery of controlled substance was filed in district court within applicable limitations period, but indictment was not returned until after limitations period had expired. Held, because district court has felony jurisdiction, filing of complaint in district court tolled statute of limitations, even though court could not try case without indictment. Bonner v State (1992, Tex App Amarillo) 832 SW2d 134, reh overr (Tex App Amarillo) 1992 Tex App LEXIS 1714, petition for discretionary review ref (Sep 30, 1992).

Footnotes

Footnote 18. Bush v International Alliance of Theatrical Stage Employes & Moving Picture Machine Operators, 55 Cal App 2d 357, 130 P2d 788.

Footnote 19. United States v Ganaposki (DC Pa) 72 F Supp 982; People ex rel. Reibman v Warden of County Jail, 242 App Div 282, 275 NYS 59; Bennett v District Court of Tulsa County, 81 Okla Crim 351, 162 P2d 561 (not for courts).

Footnote 20. United States v Fraidin (DC Md) 63 F Supp 271; State v McCloud (Fla) 67 So 2d 242; Synnott v State, 38 Okla Crim 281, 260 P 517.

Footnote 21. Dean v State, 240 Ala 8, 197 So 53 (arson); Bush v International Alliance of Theatrical Stage Employes & Moving Picture Machine Operators, 55 Cal App 2d 357, 130 P2d 788 (stating rule); People v Dougherty, 266 Ill 420, 107 NE 695 (forgery); State v Mallett, 125 NC 718, 34 SE 651, affd  181 US 589,  45 L Ed 1015,  21 S Ct 730 (conspiracy to cheat and defraud); State v Gregory, 191 SC 212, 4 SE2d 1 (embezzlement).

Footnote 22. Weems v State, 210 Miss 824, 50 So 2d 398.

Footnote 23. McIlwain v State, 226 Ark 818, 294 SW2d 350; State v Kempner, 51 Del 109, 138 A2d 504; State v Latil, 231 La 551, 92 So 2d 63; Purviance v State, 185 Md 189, 44 A2d 474; Jacox v State, 154 Neb 416, 48 NW2d 390; State v Rhodes, 11 NJ 515, 95 A2d 383; Synnott v State, 38 Okla Crim 281, 260 P 517; Dinklage v State, 135 Tex Crim 10, 117 SW2d 111; State v Levesque, 5 Wash 2d 631, 106 P2d 309.

Practice Aids: –Comment, Criminal Law:  Limitation of Prosecution–Time.  5 Land & Water L Rev 179.

Note, The Statute of Limitations in Criminal Law:  A Penetrable Barrier to Prosecution.  102 U Pa L Rev 630.

Statute of limitations.  1 Wharton's Criminal Law (14th ed) § 90.

As to burden of proof concerning statutes of limitations, see 29 Am Jur 2d,  Evidence § 155.

Footnote 24. State ex rel. Melson v Peeler, 107 Fla 615, 146 So 188 (offenses not punishable with death required to be prosecuted within two years after commission); State v Reeves, 97 Mo 668, 10 SW 841.

Footnote 25. People ex rel. Solomon v Mead, 186 Misc 372, 60 NYS2d 563; State v Baker, 101 W Va 617, 133 SE 333.

Footnote 26. State v Weiler (Mo) 338 SW2d 878; People ex rel. Solomon v Mead, 186 Misc 372, 60 NYS2d 563.

Footnote 27. General American Life Ins. Co. v Cole (ED Mo) 195 F Supp 867; McVeigh v State, 205 Ga 326, 53 SE2d 462; Joseph v State, 236 Ind 529, 141 NE2d 109,  69 ALR2d 824, cert dismd  359 US 117,  3 L Ed 2d 673,  79 S Ct 720; Jackson v Olson, 146 Neb 885, 22 NW2d 124; Galbraith v Lackey (Okla Crim) 340 P2d 497; State v Patriarca, 71 RI 151, 43 A2d 54; Ex parte Conway, 118 Tex Crim 148, 37 SW2d 1017.

Footnote 28. Stratton v Commonwealth (Ky) 263 SW2d 99.

Footnote 29. State v Atlas, 75 Mont 547, 244 P 477.

Footnote 30. United States v Udell (DC Del) 109 F Supp 96; People v Ross, 325 Ill 417, 156 NE 303; State v Latil, 231 La 551, 92 So 2d 63; Hogoboom v State, 120 Neb 525, 234 NW 422; People v Guariglia, 187 Misc 843, 65 NYS2d 96, affd 272 App Div 784, 69 NYS2d 759; Davenport v State, 20 Okla Crim 253, 202 P 18; Commonwealth v Foster, 111 Pa Super 451, 170 A 691.

Footnote 31. People v Ross, 325 Ill 417, 156 NE 303; State v Latil, 231 La 551, 92 So 2d 63; Hogoboom v State, 12 Neb 525, 234 NW 422.

Footnote 32. State v Steensland, 33 Idaho 529, 195 P 1080; People v Ross, 325 Ill 417, 156 NE 303; State v Latil, 231 La 551, 92 So 2d 63; State v Civella (Mo App) 364 SW2d 624; Moore v State, 43 NJL 203; People v Hines, 284 NY 93, 29 NE2d 483 (ovrld on other grounds People v Kohut  30 NY2d 183, 331 NYS2d 416, 282 NE2d 312,  52 ALR3d 910); State v Tennyson, 73 ND 259, 14 NW2d 171.

Footnote 33. State v Fogel, 16 Ariz App 246, 492 P2d 742.

Footnote 34. State v Rook, 61 Kan 382, 59 P 653.

Footnote 35. United States v Oppenheimer,  242 US 85,  61 L Ed 161,  37 S Ct 68.

Footnote 36. United States v Auto Rental Co. (WD Pa) 187 F Supp 603, 46 BNA LRRM 3018, 41 CCH LC ¶ 16561.

Footnote 37. United States ex rel. Hassell v Mathues (DC Pa) 27 F2d 137.

Footnote 38. Taylor v O'Grady (CA8) 113 F2d 798; McIlwain v State, 226 Ark 818, 294 SW2d 350; People v Rehman, 62 Cal 2d 135, 41 Cal Rptr 457, 396 P2d 913, cert den  379 US 930,  13 L Ed 2d 342,  85 S Ct 326 (manslaughter); People v McGee, 1 Cal 2d 611, 36 P2d 378.

Footnote 39. Mitchell v State, 157 Fla 121, 25 So 2d 73; State v Morris, 81 Idaho 267, 340 P2d 447; People v Hines, 284 NY 93, 29 NE2d 483 (ovrld on other grounds People v Kohut  30 NY2d 183, 331 NYS2d 416, 282 NE2d 312,  52 ALR3d 910); State v Tennyson, 73 ND 259, 14 NW2d 171.

Footnote 40. See 29 Am Jur 2d,  Evidence § 155.

As to necessity that indictment or information set forth date of commission of offense as within period of limitations, see 41 Am Jur 2d,  Indictments and Informations, § 117.


§ 224  Construction; effect of extension or reduction of statutory period  [21 Am Jur 2d CRIMINAL LAW]

Although statutes of limitation on criminal prosecutions are to be accorded a rational meaning in harmony with the obvious intent and purpose of the law, 41  such statutes are to be liberally construed in favor of the accused, 42  and exceptions from the benefits of such statutes are to be construed narrowly 43  or strictly against the state. 44    Under a statute exempting capital crimes from any limitation of action, it has been held that the exemption, together with all other procedural and substantive incidents of capital crimes, did not apply after the death penalty was abolished. 45

A prosecution under a special statute that fixes the time within which a prosecution thereunder must be commenced is governed by such provision, not by a general statute of limitations relating to crimes of that class. 46

Where a statute extends the period of limitation, the extension applies to offenses not barred at the time of the passage of the act, so that a prosecution may be commenced at any time within the newly established period. 47   Such a statute, however, cannot operate to revive offenses that were barred at the time of its enactment, since that would make the statute ex post facto. 48


§ 224  – Construction; effect of extension or reduction of statutory period [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

If statutory period of statute has fully run and bar to prosecution has once attached, law cannot be changed by future legislation so as to extend period of limitation as to past offenses already barred. Tyson v Johns-Manville Sales Corp. (1981, Ala) 399 So 2d 263.

Where defendant was arrested more than four years after he had shot and killed a man in a bar, and charged with murder (Pen. Code, § 187) but convicted of the lesser included offense of involuntary manslaughter (Pen. Code, § 192), the application of former Pen. Code, § 802.5 (tolling of limitation statute through issuance of arrest warrant), to defendant's case in order to render the prosecution timely under the limitations statute for manslaughter (former Pen. Code, § 800) did not constitute a violation of the constitutional prohibition against ex post facto laws. Although § 802.5 was not enacted until more than one year after defendant's crime, it became effective before the expiration of the three-year limitations period, and a law that increases a limitations period or provides a new method of tolling it may be applied immediately to all crimes as to which the period has not yet run under the prior law. People v Lewis (1986, 4th Dist) 180 Cal App 3d 816, 225 Cal Rptr 782.

A prosecution for conspiracy and grand larceny was governed by the two-year statute of limitations in effect at the time of the crimes, rather than the three-year period which did not come into effect until after commission of the crimes charged, since the statute of limitations in criminal prosecutions is a substantive right rather than merely a procedural one. Rubin v State (1980, Fla) 390 So 2d 322.

A finding of not guilty by reason of insanity is not a final judgment or order from which an appeal may be taken under state statute; the appropriate remedy is a petition for writ of habeas corpus. State v Janney, 55 Ohio App 2d 257, 9 Ohio Ops 3d 393, 380 NE2d 753, motion overr.

Where defendant was not indicted for the offense of rape of a child until after the effective date of the repeal of the five year statute of limitations for rape of a child, the applicable limitation period was found in CCP Art 12.01 (4), the catch-all three year limitation period applicable to all other felonies, and defendant's prosecution was thus barred. Beaird v State (1989, Tex Crim) 772 SW2d 116.

Footnotes

Footnote 41. State v Morey, 103 NH 529, 176 A2d 328; State v Brown, 22 NJ 405, 126 A2d 161.

Footnote 42. United States v Mendoza (DC Cal) 122 F Supp 367; State v Fogel, 16 Ariz App 246, 492 P2d 742; Mead v State (Fla) 101 So 2d 373; People v Ross, 325 Ill 417, 156 NE 303; State v Colvin, 284 Mo 195, 223 SW 585; Jacox v State, 154 Neb 416, 48 NW2d 390; State v Morey, 103 NH 529, 176 A2d 328; People v Guariglia, 187 Misc 843, 65 NYS2d 96, affd 272 App Div 784, 69 NYS2d 759; Synnott v State, 38 Okla Crim 281, 260 P 517.

Where a felony and being accessory before the fact to the felony are regarded as distinct offenses, a statute excepting murder from a limitation of the time for instituting criminal prosecutions cannot be regarded as also excepting a prosecution on the charge of being accessory before the fact to the crime of murder, even though another statute provides that an accessory before the fact to a felony shall suffer the like punishment as the principal offender.  State v Patriarca, 71 RI 151, 43 A2d 54.

Footnote 43. State v Brown, 22 NJ 405, 126 A2d 161.

Footnote 44. State v Patriarca, 71 RI 151, 43 A2d 54.

In a prosecution for false pretenses, the trial court properly refused to quash the indictment, despite defendant's contention that the indictment charged only conspiracy, a crime not excepted from the 2-year statute of limitations, and that the prosecution was thus barred; conspiracy is a complete offense in itself and does not merge with the underlying crime, and the fact that a conspiracy is committed along with the crime does not change the nature of the offense nor lessen exposure to punishment. Furthermore, the prosecution was not time barred even though defendant was charged with being an accessory only, which is a separate crime not excepted from the statute, since an accessory before the fact to an excepted felony is treated as a principal. Harrigill v State (Miss) 381 So 2d 619, cert den  446 US 939,  64 L Ed 2d 792,  100 S Ct 2159.

Footnote 45. Reino v State (Fla) 352 So 2d 853.

Footnote 46. Quillin v Commonwealth, 105 Va 874, 54 SE 333.

Footnote 47. People v Buckner, 281 Ill 340, 117 NE 1023; Commonwealth v Duffy, 96 Pa 506; State v Wolfe, 61 SD 195, 247 NW 407.

In a prosecution for conspiracy to commit larceny in which a second information was filed more than two years after the alleged offenses, the trial court properly denied the defendant's motion to dismiss, even though with two year limitation period had been in effect at the time of the commission of the crime, where the statute of limitations had been extended to three years by the time the second information was filed.  Rubin v State (Fla App D3) 368 So 2d 69, approved (Fla) 390 So 2d 322.

Footnote 48. People v Buckner, 281 Ill 340, 117 NE 1023; Moore v State, 43 NJL 203; People ex rel. Reibman v Warden of County Jail, 242 App Div 282, 275 NYS 59.


§ 225  Effect where included offense is barred  [21 Am Jur 2d CRIMINAL LAW]

It frequently happens that a charge of felony includes an offense of a lower grade with a different period of limitation, so that while the felony is not barred, the statute has run as to the lesser offense.  In this situation, the general rule is that if the statute has not run against the felony, but the lesser offense is barred, the bar cannot be evaded by indicting defendant for the felony and convicting him of the lesser offense. 49   It has been held that failure to comply with the limitation statute for the lesser-included offense, despite the indictment for the greater crime upon which no statute has run, is a defect going to the very jurisdiction of the court. 50    In short, one cannot be convicted of a lesser offense on a prosecution for a greater crime that includes the lesser offense, commenced after the statute has run on the lesser offense. 51    This general rule is not changed by statutes providing that on indictment for certain offenses the accused may be found guilty of certain lesser offenses. 52     In holding that there can be no conviction for the lesser offense, the courts have applied to the limitation statutes a rule of liberal construction in favor of the accused. 53

Although in at least one jurisdiction it has been held that a conviction for a lesser offense may be had under an indictment for the greater crime which includes it, notwithstanding the fact that the ordinary limitation statute has run on the lesser offense before the commencement of prosecution, 54   in another jurisdiction a statute expressly providing that the accused, on an indictment for the greater crime, could be convicted of the lesser offense after the running of the statute ordinarily applicable thereto, has been held unconstitutional. 55  

Where a person is indicted for a greater offense than that for which he is convicted, and the indictment is returned within the statutory period applicable to a prosecution for the lesser offense, the indictment operates to suspend the statute, and a conviction may be had for the lesser offense after the statutory period has elapsed. 56   And, it has been held that a defendant could be convicted of a lesser included offense for which the statute of limitations had run where he was timely indicted for the greater offense and waived the statute of limitations for the lesser offense by failing to challenge its inclusion in the charge to the jury. 57 


§ 225  – Effect where included offense is barred [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation period;  18 ALR4th 1202. superseding  90 ALR 452.

Case authorities:

In prosecution for criminal homicide, although jury returned verdict of guilty of criminal homicide in fourth-degree and prosecution was not begun within statute of limitations for criminal homicide in fourth-degree, evidence was sufficient to sustain finding beyond reasonable doubt that defendant committed criminal homicide in second-degree, as charged; therefore, defendant's conviction was not barred by statute of limitations for fourth-degree charge. State v Hicks (1985, Me) 495 A2d 765.

Statute of limitations did not bar conviction of lesser included offense although period had expired as to included offense where period had not expired as to offense charged. State v Borucki (1986, Me) 505 A2d 89.

Although, as general rule, defendant may not be convicted of lesser included offense when statute of limitations has run on that offense but not on larger offense charged, defendant waived right to raise on appeal issue of error in trial court's reduction of felony theft charge, on which statute had not run, to misdemeanor theft charge, on which statute had run, where he failed to raise issue in trial court or to show that claim was one statutorily excepted from requirement that it be raised in trial court. State v Larson (1989, Mont) 783 P2d 416.

Footnotes

Footnote 49. Letcher v State, 159 Ala 59, 48 So 805; State v Atlas, 75 Mont 547, 244 P 477; People ex rel. Reibman v Warden of County Jail, 242 App Div 282, 275 NYS 59.

Footnote 50. Spears v State, 26 Ala App 376, 160 So 727; People v Morgan (3d Dist) 75 Cal App 3d 32, 141 Cal Rptr 863.

Annotation:  47 ALR2d 887, § 5.

Footnote 51. Chaifetz v United States, 109 App DC 349, 288 F2d 133, revd in part on other grounds  366 US 209,  6 L Ed 2d 233,  81 S Ct 1051, reh den  366 US 955,  6 L Ed 2d 1247,  81 S Ct 1901; Padie v State (Alaska) 557 P2d 1138; People v Morgan (3d Dist) 75 Cal App 3d 32, 141 Cal Rptr 863; People v Rose (2d Dist) 28 Cal App 3d 415, 104 Cal Rptr 702; Drott v People, 71 Colo 383, 206 P 797; Mitchell v State, 157 Fla 121, 25 So 2d 73; Holloway v State (Fla App D3) 362 So 2d 333, cert den (Fla) 379 So 2d 953 and cert den (US)  66 L Ed 2d 137,  101 S Ct 281; State v Brossette, 163 La 1035, 113 So 366; People v Burt, 51 Mich 199, 16 NW 378 (not followed on other grounds People v Eisenberg 72 Mich App 106, 249 NW2d 313); State v Chevlin (Mo) 284 SW2d 563; State v Civella (Mo App) 364 SW2d 624; State v Aircraft Supplies, Inc., 45 NJ Super 110, 131 A2d 571; People v Soto,  76 Misc 2d 491, 352 NYS2d 144; Hickey v State, 131 Tenn 112, 174 SW 269; McKinney v State, 96 Tex Crim 342, 257 SW 258; State v Crank, 105 Utah 332, 142 P2d 178; State v King, 140 W Va 362, 84 SE2d 313,  47 ALR2d 878.

Annotation:  47 ALR2d 887, § 3.

Defendant charged with murder, in a case in which all lesser offenses were time-barred, would not be entitled to have the jury instructed regarding manslaughter, but would be entitled to instruction on the mitigating effect of passion and provocation, requiring the jury to acquit him if he presented such evidence in mitigation and the state did not negate it.  Padie v State (Alaska) 557 P2d 1138.

Footnote 52. People v Di Pasquale, 161 App Div 196, 146 NYS 523; Wilson v State, 15 Tenn 516; State v King, 140 W Va 362, 84 SE2d 313,  47 ALR2d 878.

Annotation:  47 ALR2d 887, § 7.

Footnote 53. People v Picetti, 124 Cal 361, 57 P 156.

Footnote 54. Jinks v State, 114 Ga 430, 40 SE 320.

Annotation:  47 ALR2d 887, § 4.

Footnote 55. Mitchell v State, 157 Fla 121, 25 So 2d 73.

Annotation:  47 ALR2d 887, § 8.

Footnote 56. State v McGee, 167 La 277, 119 So 48.

Footnote 57. People v Lohnes,  76 Misc 2d 507, 351 NYS2d 279.


§ 226  Commencement of statutory period  [21 Am Jur 2d CRIMINAL LAW]

Generally, the statute of limitations begins to run from the time of the commission of an offense, 58  or when the crime is complete, 59   not from the date the crime is discovered. 60   Thus, for example, the crime of false pretenses is complete for the purpose of beginning the period of limitations when the property is obtained by the false pretense with an intent to defraud.  The victim's knowledge is not required as an element of the crime and, therefore, the date the crime is discovered is irrelevant. 61    It has been held, however, in a prosecution for the unlawful taking of personal property, that the statute of limitations begins to run at the time the victim knew or by the exercise of reasonable diligence should have known of the crime, not from the time he makes demand upon the defendant to pay over. 62  

Ordinarily there is no difficulty in fixing the date when the crime is complete, since nearly every crime consists of a definite act or a definite result of such act.  However, there are crimes that are continuous in character, and it is not always easy to determine precisely at what time they are completed.  Generally, in crimes of this nature, the statute does not begin to run from the occurrence of the initial act, which may in itself embody all the elements of the crime, but from the occurrence of the most recent act. 63   Where the offense is a continuing one and is continued to a date within the statute of limitations, it is immaterial that the crime began on a date not within the statute. 64

For certain crimes, special statutory elements are added to the definition of the crime itself so that the offense is not complete for the purposes of the running of the statute of limitations until such requirements have been fulfilled.  For example, in prosecutions for embezzlement, limitation periods have been held to commence upon the discovery of the defalcation, upon the accused's receipt of a benefit from the defalcation, or upon the making of an unsatisfied demand by the victim on the accused. Nevertheless, a sufficiently definite misappropriation may begin the running of a statute of limitations, notwithstanding the absence of a demand, refusal to pay, or any other manner of discovery of the misappropriation. 65    In prosecutions for conspiracy, it is generally held that the statute of limitations runs from the time the last overt act in furtherance of the conspiracy was committed, although the duration of the conspiracy cannot be indefinitely lengthened by keeping the conspiracy a secret in an effort to avoid detection and punishment after the central purpose has been accomplished.  Hence, a prosecution for conspiracy is not barred by the statute of limitations where at least one overt act is alleged to fall within the applicable period of limitations. 66

Generally, the day on which the crime was committed is excluded in the computation of time under a statute of limitations. 67   And, in a number of jurisdictions, the courts have applied general computation statutes providing that the first day is to be excluded and the last day included. 68 


§ 226  – Commencement of statutory period [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Possession of stolen property as continuing offense  24 ALR5th 132.

Case authorities:

Defendant's oral false statement was made within statute of limitations period, even though he had made identical false statement earlier in writing, since he was not charged with first statement. United States v Roshko (1992, CA2 NY) 969 F2d 5.

Under Pen. Code, § 803, subd. (c) (statute of limitations does not run until discovery of offense), it is the burden of the prosecution to prove by a preponderance of the evidence that the "legal discoverer" knew no facts constituting constructive notice of the crime, exercised reasonable diligence, and did not negligently perform his duties so as to allow the crime to remain undiscovered. The statute commences to run after one has knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud, thus putting him on inquiry. The identity of the perpetrator of the crime is not an element of the discovery issue. The question is whether there is sufficient knowledge that a crime has been committed. People v Crossman (1989, 6th Dist) 210 Cal App 3d 476, 258 Cal Rptr 370.

Footnotes

Footnote 58. Sautter v Contractors' State License Board, 124 Cal App 2d 149, 268 P2d 139; State v Bithorn (Mo) 278 SW 685 (obtaining money by false pretenses).

Footnote 59. Pendergast v United States,  317 US 412,  87 L Ed 368,  63 S Ct 268 (criminal contempt).

Footnote 60. Sautter v Contractors' State License Board, 124 Cal App 2d 149, 268 P2d 139; State v King (Fla) 282 So 2d 162,  77 ALR3d 681; State v Weiler (Mo) 338 SW2d 878 (false pretenses).

A prosecution for fraud in obtaining a home mortgage loan was barred by the limitation period of three years from the time the crime was committed, where the last disbursement under the loan was made on a certain date, where the defendant's subsequent conduct, even if fraudulent, did not involve obtaining the loan, and where the crime of fraud was not a continuing offense but was statutorily defined as being completed once the taking occurred. State v Thoreen (App) 91 NM 624, 578 P2d 325, cert den 91 NM 610, 577 P2d 1256 and cert den 91 NM 610, 577 P2d 1256.

Footnote 61. 32 Am Jur 2d,  False Pretenses § 55.

Footnote 62. State v King (Fla App D3) 275 So 2d 274, affd (Fla) 282 So 2d 162,  77 ALR3d 681.

Footnote 63. Pioneer Packing Co. v United States (CA9 Alaska) 99 F2d 547 (engaging in salmon-packing business without a license); People v Rehman, 62 Cal 2d 135, 41 Cal Rptr 457, 396 P2d 913, cert den  379 US 930,  13 L Ed 2d 342,  85 S Ct 326 (in prosecution for involuntary manslaughter, statute of limitations began to run on date patient died as a result of allegedly negligent operation performed 20 days earlier); State v Kemp, 126 Conn 60, 9 A2d 63 (conspiracy); State v Cordrey, 49 Del 281, 114 A2d 805 (nonsupport of illegitimate child); Commonwealth v Ross, 248 Mass 15, 142 NE 791 (polygamy); People v Gold Key Club, Inc.,  2 Misc 2d 380, 152 NYS2d 669, app dismd (1st Dept)  3 App Div 2d 740, 163 NYS2d 361 (selling and storing alcoholic beverages without a license).

Footnote 64. State v Wiseman, 141 W Va 726, 92 SE2d 910 (nonsupport of wife and minor children).

Footnote 65. 26 Am Jur 2d,  Embezzlement § 46.

Annotation:  77 ALR3d 689, § 2[a].

As to when statute of limitation begins to run on charge of obstructing justice or conspiring to do so, see 58 Am Jur 2d,  Obstructing Justice § 28.5.

Footnote 66. 16 Am Jur 2d (Rev) Conspiracy § 22.

As to running of statute of limitations against withdrawing conspirator, see 16 Am Jur 2d (Rev) Conspiracy § 23.

Footnote 67. Wiggins v United States (CA9 Cal) 64 F2d 950, cert den  290 US 657,  78 L Ed 569,  54 S Ct 72 (prosecution for income tax evasion); United States v Mathis (DC NJ) 28 F Supp 582 (income tax evasion); United States v Horwitz (ND Ill) 247 F Supp 412; People v Twedt, 1 Cal 2d 392, 35 P2d 324; Savage v State, 18 Fla 970; State v Rhodes, 11 NJ 515, 95 A2d 383 (conspiracy to defraud; exclusion of day on which last overt act was committed); People v New York Cent. R. Co., 28 Barb 284 (recovery of penalties); Commonwealth v Wood, 5 Pa Dist 179, 17 Pa Co 133.

Annotation:  20 ALR2d 1249, § 2.

Footnote 68. State v Levesque, 5 Wash 2d 631, 106 P2d 309; State v Beasley, 21 W Va 777.

Annotation:  20 ALR2d 1249, § 5.


§ 227  Circumstances tolling statute  [21 Am Jur 2d CRIMINAL LAW]

Unless the statute of limitations contains an exception or condition that will toll its operation, the running of the statute is not interrupted. 69   Hence, the fact that one accused of a crime conceals himself will not prevent the statute from running so long as it is not specifically provided therein that the statute shall not be in operation during such concealment. 70   Under statutes so providing, there may be deducted from the period of limitation the time during which the accused is absent from the state, 71   or during which he so conceals himself that process cannot be served on him, 72  or during which he conceals the fact of the crime. 73   However, to suspend the operation of the statute the concealment of the fact of a crime must be the result of positive acts done by the accused and calculated to prevent discovery; mere silence, inaction, or nondisclosure is not concealment. 74   Thus, for example, a loan officer's failure to inform an investor in the lending business of a principal payment on a mortgage loan was more than mere silence and inaction, and his instruction to the company secretary to pay the regular amount of interest to the investor to cause him to believe the principal was still loaned out constituted an active step toward the concealment of the crime of embezzlement where the investor has previously expressed his desire not to leave any more money with the loan company. 75   

Under a statute providing that there may be deducted from the period of limitation the time during which the accused is not an inhabitant of or usually resident within the state, absence from the state beyond occasional absences of temporary duration should not be reckoned in the running of the prescribed period. 76   The period of a person's imprisonment in another state should be excluded in determining whether his indictment was barred by such a statute, 77  though his departure was not voluntary. 78   A statute providing for the tolling of limitations during the time an accused is out of state does not deny him equal protection of the laws or violate his right to travel, even though he was not in flight from prosecution when he left the state, no warrant had been issued either before or after his departure, and state law enforcement officials knew his whereabouts or should have been able to discover it with reasonable diligence.  Apart from the tolling statute's function in assuring that the accused is available for prosecution at any time before lapse of the period of limitations, it is said that a legislature could reasonably determine that an accused's departure from the state renders discovery of the crime or the criminal more difficult. 79

The absence of an offender in the military service of the United States does not prevent the running of the statute of limitations; a soldier in military service remains an inhabitant of the state, and is not within a statutory provision meant for persons escaping and absenting themselves to avoid punishment until the lapse of time might enable them to return with impunity. 80


§ 227  – Circumstances tolling statute [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

The record in a prosecution for kidnap with intent to commit robbery, robbery, false imprisonment, and unlawful driving and taking of a vehicle, did not establish reversible error, even though the information on which defendant was tried showed on its face that the statute of limitations had run on the charges of robbery, false imprisonment and auto theft and contained nothing to indicate tolling of the statutes, where defendant conceded that during the time in question he was out of the state incarcerated in a Virginia prison. A state statute excludes from the limitation period time during which the defendant is not within the state, and reversal or retrial for jurisdictional defects in the accusatory pleading is not required when those defects are as a matter of law cured on the undisputed record. People v Posten (1980) 108 Cal App 3d 633, 166 Cal Rptr 661.

State statute did not bar a prosecution arising out of the defendant's sexual molestation of his stepdaughter where the victim was living with the defendant and her mother, the defendant was in a position of parental authority over the victim, and the defendant threatened to kill the victim's father if she told anyone, since it was the defendant's conduct that kept the crime from being reported; furthermore, the defendant's conduct in sexually abusing his stepdaughter could be considered to have been a continuing course of conduct which would delay the commencement of the running of the statute of limitations until such course of conduct terminated; additionally, where a small child is threatened with harm to himself or herself or a family member if he or she tells, statute was tolled until the child is removed from the threatening environment. Morris v State (1991, Miss) 595 So 2d 840.

Statute of limitations pursuant to RC §§ 2901.13(A) and (B) had expired against defendant alleged to have received food stamps when she was not eligible for them, where the indictment was filed more than 2 years after the fraud was discovered and nearly 8 years after the acts of defendant that constituted the first count of the indictment, and more than 6 years after the acts of defendant that constituted the second and third counts, because: (1) as to the first count, the indictment had to be returned within one year after discovery of the offense since the discovery occurred in the fifth year of the 6-year statute of limitations in RC § 2901.13(A); (2) as to the second and third counts, the indictment had to be returned within the original 6-year period since the fraud was discovered sooner than 5 years from the date of the offense; and (3) RC § 2901.13(F) does not toll the start of the 6-year statute of limitations contained in RC § 2901.13(A)(1) until the date of discovery. State v Mitchell (1992, Cuyahoga Co) 78 Ohio App 3d 613, 605 NE2d 978, dismd, motion overr 64 Ohio St 3d 1428, 594 NE2d 970.

A child abuse victim who was 14 years of age at the time of the sexual contact but who was 21 when she reported the contact to the prosecutor's office, is presumed to have understood and acknowledged the act and the criminal nature of the act upon attaining the age of majority; and absent a showing to the contrary rebutting such presumption, the tolling of the statute of limitations with regard to that act ceased upon the victim attaining the age of 18. State v Pfouts (1992) 62 Ohio Misc 2d 587, 609 NE2d 249, 1992 Ohio Misc 61.

Footnotes

Footnote 69. Synnott v State, 38 Okla Crim 281, 260 P 517.

As to tolling of period of limitations by each overt act done pursuant to conspiracy, see 16 Am Jur 2d (Rev) Conspiracy § 22.

As to whether facts tolling the statute must be alleged in the indictment when the offense is prima facie barred, see 41 Am Jur 2d,  Indictments and Informations, § 117.

Footnote 70. Rouse v State, 44 Fla 148, 32 So 784; Synnott v State, 38 Okla Crim 281, 260 P 517.

Footnote 71. People v Snowden (2d Dist) 149 Cal App 2d 552, 308 P2d 815, cert den  355 US 841,  2 L Ed 2d 49,  78 S Ct 62; Thompson v State, 96 Okla Crim 8, 247 P2d 535.

Footnote 72. State v Rook, 61 Kan 382, 59 P 653.

Footnote 73. State v Watson, 145 Kan 792, 67 P2d 515.

Practice Aids: –Tolling of period of limitation.  1 Wharton's Criminal Law (14th ed) § 94.

Footnote 74. State v Watson, 145 Kan 792, 67 P2d 515.

Footnote 75. 26 Am Jur 2d,  Embezzlement § 46.

Annotation:  77 ALR3d 689, §§ 12-13.

Footnote 76. State v Williams, 92 NH 377, 31 A2d 369.

Footnote 77. People v Carman, 385 Ill 23, 52 NE2d 197; Traxler v State, 96 Okla Crim 231, 251 P2d 815.

One is not a "resident" in the state while incarcerated in another state. Grayer v State, 234 Ark 548, 353 SW2d 148.

Footnote 78. Couture v Commonwealth, 338 Mass 31, 153 NE2d 625.

Footnote 79. Scherling v Superior Court of Santa Clara County, 22 Cal 3d 493, 149 Cal Rptr 597, 585 P2d 219.

Footnote 80. Commonwealth v Shimpeno, 160 Pa Super 104, 50 A2d 39.


§ 228  – Fleeing from justice  [21 Am Jur 2d CRIMINAL LAW]

In a number of states, statutes somewhat similar to a federal one have been enacted, making an exception to the limitation statute in cases where the alleged offender has fled from justice or absconded. 81   With respect to one such statute it has been held that the phrase "fleeing from justice" applies to a person who, having committed a crime, has removed from or secreted himself within the jurisdiction wherein the offense was committed with intent to avoid detection or prosecution. 82   With respect to another it has been said that the phrase implies a departure by one from his usual place of abode, or from the place where he has committed an offense, with the intent to avoid detection or prosecution for a public offense. 83  Generally, therefore, it appears that it is not essential that one should leave the state before he can be regarded as a fugitive from justice within the meaning of the state proviso excepting fugitives from justice from the benefits of the limitation statutes. 84   Furthermore, it has been held that one who successfully hides or conceals himself even on his own premises so as to avoid punishment for his crime is as much a fugitive as if he had escaped to some other state or country. 85

Footnotes

Footnote 81. State v Woolworth, 148 Kan 180, 81 P2d 43; State v Berryhill, 188 La 549, 177 So 663; State v Washburn, 48 Mo 240.

Footnote 82. Renner v Renner, 13 NJ Misc 749, 181 A 191.

Footnote 83. Colling v State, 116 Neb 308, 217 NW 87.

Footnote 84. Lay v State, 42 Ark 105; Renner v Renner, 13 NJ Misc 749, 181 A 191.

Footnote 85. State v Miller, 188 Mo 370, 87 SW 484.


§ 229  Manner of raising and determining question  [21 Am Jur 2d CRIMINAL LAW]

A plea of the statute of limitations is a plea in bar and should be presented to and passed on by the trial court. 86   Although in some cases special pleas of the statute of limitations have been held necessary, 87  or at least have been countenanced or approved, 88  it is generally held that the statute need not be specially pleaded 89   and may be raised under the general issue or a plea of not guilty. 90    It has also been said that the bar of the statute of limitations may be raised by a motion to dismiss for lack of jurisdiction. 91   The statute may not, however, be set up by a demurrer to the indictment or information, 92  or on a motion in arrest of judgment. 93   Even under a statute without any exception or proviso, it has been said that the demurrer is not available since time is not of the essence of the offense charged and since sustaining the demurrer would preclude the prosecutor from giving evidence, pursuant to his right under the general issue, to show that the offense was committed within the time prescribed for prosecution. 94   

A special plea of the statute is not good where the indictment alleges the continuance of the offense to the date of its presentment. 95    

Footnotes

Footnote 86. United States v Franklin (CA7 Ill) 188 F2d 182.

Practice Aids: –Nock, Pleading the Statute of Limitations in Criminal Cases.  1977 BYU L Rev 75.

Footnote 87. People v Murphy, 296 Ill 532, 129 NE 868.

Footnote 88. State v Rook, 61 Kan 382, 59 P 653.

In a prosecution for armed robbery, the trial court erred in denying the defendant's motion for a judgment of acquittal where the state neither adduced evidence during the trial that the prosecution of the crime had been commenced within the two-year statute of limitations nor amended its information to allege the timely issuance of an arrest warrant.  Akers v State (Fla App) 370 So 2d 81.

Footnote 89. Calvert v State, 26 Ala App 189, 155 So 389; Dill v People, 94 Colo 230, 29 P2d 1035, cert den and app dismd  292 US 609,  78 L Ed 1470,  54 S Ct 781; Mead v State (Fla) 101 So 2d 373; Jacox v State, 154 Neb 416, 48 NW2d 390; State v Landis, 177 Tenn 304, 145 SW2d 1032.

Footnote 90. United States v Barber,  219 US 72,  55 L Ed 99,  31 S Ct 209; State v Streensland, 33 Idaho 529, 195 P 1080; State v Rook, 61 Kan 382, 59 P 653; McCullar v State (Miss) 183 So 487; State v Porter, 130 Mont 299, 300 P2d 952; Jacox v State, 154 Neb 416, 48 NW2d 390; State v Rodman, 44 NM 162, 99 P2d 711; People v Rapoport, 261 App Div 484, 26 NYS2d 110; State v Johnson, 52 SD 273, 217 NW 205; State v Landis, 177 Tenn 304, 145 SW2d 1032.

Footnote 91. Bustamante v District Court of Third Judicial Dist., 138 Colo 97, 329 P2d 1013 (ovrld on other grounds County Court of County of El Paso v Ruth 194 Colo 352, 575 P2d 1, later app (Colo) 595 P2d 237).

Footnote 92. Capone v Aderhold (CA5 Ga) 65 F2d 130.

Footnote 93. Capone v Aderhold (CA5 Ga) 65 F2d 130.

Footnote 94. United States v Cook,  84 US 168,  21 L Ed 538.

Footnote 95. United States v Barber,  219 US 72,  55 L Ed 99,  31 S Ct 209.


b.  Stage of Proceedings That Must Be Reached to Avoid Bar of Statute [230, 231]

§ 230  Generally  [21 Am Jur 2d CRIMINAL LAW]

The statute of limitations runs from the time the offense is committed until the prosecution is commenced, unless some intervening act occurs to interrupt it. 96    If the finding of an indictment or the filing of an information is the first step in a criminal case, the prosecution is commenced by the finding and return of the indictment or the filing of the information, and the running of the statute is thereby stopped. 97   But when, as is usually the case, there are preliminary proceedings, the prosecution is commenced and the statute is tolled at the time a complaint is laid before a magistrate and a warrant of arrest is issued; 98   a defective warrant is sufficient for this purpose, especially where no objection is made to it until defendant has been convicted. 99

Under statutes that merely require an indictment or information to be found or filed within a specified time after the commission of an offense, the finding of an indictment and its return by the grand jury or the filing of an information within the specified time prevents a bar of the prosecution, 1  without regard to the time of trial, 2  and though the cause may be continued from time to time indefinitely. 3

§ 230  – Generally [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation period;  18 ALR4th 1202. superseding  90 ALR 452.

Case authorities:

In prosecution for aiding the preparation of false tax returns and making false statements to the IRS, violations that were subject to six-year statute of limitations, statute was tolled by original indictment where counts of superseding indictment were duplicative of counts in original indictment. United States v Pacheco (1990, CA9 Cal) 912 F2d 297, 90-2 USTC ¶ 50458, 66 AFTR 2d 90-5429.

Prosecution commenced when indictment was found and therefore further running of statute of limitations was tolled. Anthony v Superior Court of Orange County (1980, 4th Dist) 109 Cal App 3d 346, 167 Cal Rptr 246.

Trial court erred in dismissing second superseding indictment after dismissal of first superseding indictment for failure to state facts tolling statute of limitations, where it was undisputed that statute of limitations had in fact been tolled during pendency of earlier indictment, and failure to include required statement in first superseding indictment was technical error, which did not prejudice defendants; state was not required to appeal dismissal of first superseding indictment in order to file second superseding indictment. People v Cray (1991, 4th Dist) 209 Ill App 3d 60, 153 Ill Dec 640, 567 NE2d 598.

Under state statutes requiring commencement of prosecution within three years but without unreasonable delay, and defining commencement of prosecution as issuance of a warrant, failure of district attorney to issue warrant until two years and nine months after indictment and three years and four months from date of alleged offense, without excuse, required dismissal of indictment for felony welfare fraud. State v Barnes (1984) 66 Or App 896, 676 P2d 344.

Footnotes

Footnote 96. Jarrett v State, 49 Okla Crim 162, 292 P 888 (robbery with firearms).

Failure to call a grand jury does not toll the statute of limitations. State v Haverstick (Mo) 326 SW2d 92,  75 ALR2d 1422.

Footnote 97. Guise v State, 198 Ark 767, 131 SW2d 631 (overdrafting); Lowe v State, 154 Fla 730, 19 So 2d 106 (having carnal intercourse with unmarried female of previous chaste character under 18 years of age); Gardner v State, 161 Ind 262, 68 NE 163 (rape); State v Ling, 91 Kan 647, 138 P 582 (adultery); Brown v Commonwealth, 255 Ky 486, 74 SW2d 939 (assault and battery and involuntary manslaughter); Davenport v State, 20 Okla Crim 253, 202 P 18 (embezzlement); Commonwealth v O'Gorman, 146 Pa Super 553, 22 A2d 596 (failure to support child born out of wedlock); State v Johnson, 52 SD 273, 217 NW 205 (embezzlement and misapplication of bank funds).

Footnote 98. State v White, 76 Kan 654, 92 P 829 (cattle stealing); Jarrett v State, 49 Okla Crim 162, 292 P 888 (robbery with firearms).

As to commencement of prosecution for larceny by issuance of warrant, see 50 Am Jur 2d,  Larceny § 112.

Footnote 99. State v White, 76 Kan 654, 92 P 829 (cattle stealing).

Footnote 1. State v Tinney, 26 La Ann 460; State v Rank, 162 Minn 393, 203 NW 49 (holding that information must be filed and presented to court within statutory period); State v Williams, 151 NC 660, 65 SE 908 (maintaining nuisance); Commonwealth v Haas, 57 Pa 443 (construing term "prosecutions" as used in statute as synonymous with "indictments"); Matthews v State, 57 Tex Crim 328, 122 SW 544 (violating local option law).

Footnote 2. People v Paisley, 220 Ill App 460, affd 299 Ill 576, 132 NE 822 (receiving bank deposits while insolvent).

Footnote 3. Carr v State, 36 Tex Crim 390, 37 SW 426 (rape).


§ 231  Loss or theft of indictment; amendment of information  [21 Am Jur 2d CRIMINAL LAW]

It has been held that where an indictment returned against the accused has been lost and a copy of the original substituted after the statutory period had expired, the statute of limitations does not bar the prosecution, since it is a continuance of the proceeding begun by the return of the indictment. 4   However, where an indictment pending against a defendant was stolen and a new indictment returned by the grand jury, it has been held that the second indictment was the beginning of a new prosecution and that the first indictment did not operate to suspend the running of the statute. 5

Unsubstantial changes in certain counts of an information, together with reverification without refiling after the expiration of the limitation period, do not bring into operation the statute of limitations as to another count left unchanged and on which alone conviction was had. 6   And it appears that in some jurisdictions an information duly filed, though insufficient to charge a crime, prevents the running of the statute of limitations pending the filing of an amendment. 7   Under a statute that does not limit or prevent the subsequent amendment of a timely filed information, a proper amendment relates back to the filing date of the original information. 8   Where a prosecution commences by the timely filing of an information, the filing of a superseding information after the expiration of the statutory period does not divest the court of jurisdiction. 9  

Where a defendant, under a mistaken legal understanding of a statute, had pleaded guilty to a crime under a plea negotiation in exchange for the striking of another allegation and the dismissal of another count, but the state supreme court, in habeas corpus proceedings, authorized withdrawal of the plea, it has been held that the statute of limitations did not prevent amendment of the complaint to reinstate the previously dismissed count. 10

§ 231  - Loss or theft of indictment; amendment of information [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation period;  18 ALR4th 1202. superseding  90 ALR 452.

Case authorities:

The statute of limitations did not require dismissal of an information charging defendant with grand theft by fraud, notwithstanding the fact that the information had been filed beyond the statutory period of limitations established by FS § 775.15(2)(b), where the information bore the same number as an earlier information filed within the statutory period, and was identical in all its allegations except for the name of the alleged victim. State v Garofalo (1984, Fla App D4) 453 So 2d 905, 9 FLW 1752.

Footnotes

Footnote 4. Brown v State, 57 Tex Crim 570, 124 SW 101 (theft).

Footnote 5. Commonwealth v Keger, 62 Ky (1 Duv) 240.

Footnote 6. State v Ling, 91 Kan 647, 138 P 582 (adultery).

Footnote 7. People v Ross, 243 Ill App 427; State v Plotner, 283 Mo 83, 222 SW 767 (forgery).

Footnote 8. State v Sciortino, 245 La 587, 159 So 2d 685.

Footnote 9. People v Schildhaus,  15 Misc 2d 377, 180 NYS2d 377 (violations of municipal sanitary code and multiple dwelling law).

Footnote 10. Re Crumpton, 9 Cal 3d 463, 106 Cal Rptr 770, 507 P2d 74.


c.  New Proceeding After Failure of Original Prosecution [232, 233]

§ 232  Generally; in absence of statute suspending running of statute  [21 Am Jur 2d CRIMINAL LAW]

Generally, the return of an indictment or the filing of an information on which no valid conviction or judgment can be had will not, in the absence of a statute expressly so providing, operate to stop the running of the statute of limitations pending the return or filing of another indictment or information. 11

In some jurisdictions it has been held that a prosecution under an indictment returned or an information filed after the statutory limitation period has elapsed will not be barred where a previous indictment or information charging the same offense had been returned or filed within the statutory period but was quashed, set aside, or dismissed, and the case directed to be resubmitted.  The theory of these cases is that the first indictment or information suspended the operation of the statute and that a proceeding under a subsequent indictment or information was a mere continuation of the first. 12   However, for the second indictment to be considered a continuation of the prosecution so as to avoid the running of the statute of limitations, the second indictment must allege the facts as to the former indictment and its dismissal, thus showing that the prosecution was intended to be a continuous one. 13  

§ 232  – Generally; in absence of statute suspending running of statute [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

In prosecution for obtaining funds over $100 by false pretenses and state securities law violation, begun by filing complaint, warrant and information more than six years after date of last act charged therein, circuit court erred in finding that limitations period was tolled by prosecution's previously having filed, within six-year statute of limitations, indictment charging same offenses since that indictment had been quashed; where state had no statute specifically providing for tolling while improper indictment was pending, statute continued to run. People v Dalton (1979) 91 Mich App 246, 283 NW2d 710,  18 ALR4th 1196.

Information charging defendant with false material statements under oath and filed in August tolled statute of limitations until it was dismissed even though it lacked signature of prosecuting attorney; information making same charge and filed in February two days after dismissal of August information and after statute of limitations would have run if not tolled could be amended to indicate that statute of limitations had been tolled. State v Strand (1983, Utah) 674 P2d 109.

Footnotes

Footnote 11. State v Fogel, 16 Ariz App 246, 492 P2d 742, State v Bilboa, 38 Idaho 98, 222 P 785, reaching contrary conclusions on reh of 38 Idaho 92, 213 P 1025 (possession of intoxicating liquor); State v Disbrow, 130 Iowa 19, 106 NW 263 (embezzlement); State v Morris, 104 NC 837, 10 SE 454; State v Silver, 239 Or 459, 398 P2d 178; Redfield v State, 24 Tex 133.

Footnote 12. Wells v Commonwealth, 200 Ky 241, 254 SW 743 (carrying concealed deadly weapon); Davenport v State, 20 Okla Crim 253, 202 P 18 (embezzlement); Hickey v State, 131 Tenn 112, 174 SW 269 (assault).

Footnote 13. R. M. Hughes & Co. v Commonwealth, 31 Ky LR 179, 101 SW 1194 (selling adulterated food).

As to alleging commission of offense within statutory period generally, see 41 Am Jur 2d,  Indictments and Informations § 117.


§ 233  Under statute suspending running of statute  [21 Am Jur 2d CRIMINAL LAW]

Under some statutes, when a nolle prosequi is entered against an indictment or information, or a demurrer sustained thereto, or the accusatory pleading is quashed or set aside, the time elapsing between its return or filing and the preferment of a new indictment or filing of a new information is not computed as part of the limitation prescribed for the offense. 14  Under such a statute, it has been held that a prosecution under an indictment returned or information filed after the limitation period had expired was not barred where a previous indictment or information charging the same offense had been returned or filed within the period, though the earlier indictment or information was defective or was such that a conviction could not be had on it. 15     It is essential that the reindictment be filed within the time prescribed therefor after the quashing of the prior indictment. 16    

In order for an indictment that has been quashed, set aside, or otherwise disposed of, to have the effect of suspending the running of the statute against the offense during the time elapsing until a new indictment is preferred, the new indictment must charge the same defendant and substantially the same offense. 17   Thus, an initial indictment that was ultimately dismissed for failure to allege a certain required intent in performing the criminal act is considered as tolling the statute of limitations where a second indictment is later brought under the same penal statute as the first. 18  And to have the effect of suspending the running of the statute against the prosecution of the same offense under a subsequent indictment, the judgment entry of the court disposing of the first indictment must show how the indictment was disposed of and on what grounds. 19


§ 233  – Under statute suspending running of statute [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation period;  18 ALR4th 1202. superseding  90 ALR 452.

Footnotes

Footnote 14. Mitchell v State, 248 Ala 169, 27 So 2d 36; People v Switalski, 394 Ill 530, 69 NE2d 315 (diagnosing ailment without license to practice medicine); State v Murray, 222 La 950, 64 So 2d 230 (theft); State v Norton (Mo) 347 SW2d 849 (violation of traffic laws); State v Comstock, 205 Tenn 389, 326 SW2d 669.

Footnote 15. Grimsley v United States (CA5 Fla) 50 F2d 509 (sale of stolen automobile); Davis v State, 145 Ala 69, 40 So 663 (sale of intoxicating liquor in violation of statute); Heaton v State, 40 Ga App 87, 149 SE 62 (dealing with statute providing that if indictment is quashed or nolle prosequi entered, new indictment may be found in six months); People v Hobbs, 361 Ill 469, 198 NE 224 (larceny by embezzlement); State v Cashman, 174 Kan 272, 255 P2d 660 (unlawful sale of mortgaged personal property); State v Plotner, 283 Mo 83, 222 SW 767 (defective information); State v Hailey, 51 NC 42 (statute providing that second indictment must be returned within one year after first shall have been abandoned by state).

Where a prosecution is apparently barred by limitation, it is incumbent on the state to prove that the offense was committed within the period of the statutory bar or that the running of the statute has been suspended, as by the finding of a previous indictment for the same offense which had been quashed or set aside.  State v Harvey, 169 Ark 1074, 277 SW 869 (malicious mischief).

Racial discrimination in selection of the grand jury that indicted the accused did not render such indictment void or toll the statute of limitations in a prosecution for rape.  Hill v State, 146 Tex Crim 333, 171 SW2d 880, 174 SW2d 733, cert dismd  320 US 806,  88 L Ed 487,  64 S Ct 72.

Footnote 16. United States v Durkee Famous Foods, Inc.,  306 US 68,  83 L Ed 492,  59 S Ct 456; Alewine v State, 103 Ga App 120, 118 SE2d 499.

Practice Aids: –Extension of period of limitation.  1 Wharton's Criminal Law (14th ed) § 93.

Footnote 17. Buckalew v State, 62 Ala 334 (running a lottery); Jester v State, 14 Ark 552 (gambling); Ross v People, 62 Colo 193, 162 P 152 (seduction under promise of marriage); State v Hailey, 51 NC 42.

Footnote 18. Ex parte Slavin (Tex Crim) 554 SW2d 691.

Footnote 19. Coleman v State, 71 Ala 312 (embezzlement).


2.  Under Federal Law [234-242]

a.  In General [234-239]

§ 234  Generally; capital and noncapital crimes  [21 Am Jur 2d CRIMINAL LAW]

Like those state statutes of limitation that make exception for certain felonies, such as murder, 20   the federal criminal statutes of limitation distinguish between capital and noncapital offenses.  Federal law provides that capital offenses are exempt from limitations and that an indictment for any offense punishable by death may be found at any time without limitation, except for offenses barred by the provisions of law existing on August 4, 1939. 21   It has been held that this exemption encompasses any offense for which the death penalty may be imposed 22   and that the term "capital offense" as used in the statute is a shorthand reference to the category of offenses of a particularly serious nature. 23              

A separate federal statute of limitations dealing with non-capital offenses provides that, except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years after such offense shall have been committed. 24         

Protection from prosecution under the federal statute of limitations is a substantive right 25  that creates a bar to the right of prosecution, unlike that afforded by civil statutes of limitation, which are statutes of repose going to remedy only. 26          

Absent a showing of prejudice, a prosecution brought several years after the offense was committed but within the period of limitations prescribed by the federal statute does not constitute a denial of a defendant's rights to due process and a speedy trial. 27   Neither mere passage of time nor a general allegation concerning loss of witnesses and failure of memories is sufficient to demonstrate actual prejudice necessary to set aside an indictment returned within the appropriate statute of limitations. 28             

Pursuant to the express wording of the statute, the general limitations period is inapplicable where special limitation periods are otherwise expressly provided for by statute. 29     The predecessor to the current federal statute of limitations, being general in its language and not restricted by any other statute, applied to all misdemeanors constituting offenses against the United States, whenever added by Congress to the list of statutory crimes. 30


§ 234  – Generally; capital and noncapital crimes [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Statutes:

18 USCS §  3286, enacted in 1994, extends the statute of limitation for certain terrorism offenses to eight years.

18 USCS §  3286, pertaining to seduction on a vessel of the United States, has been repealed.

Case authorities:

Four-year delay in filing indictment, which is within prescribed time period for offense, does not warrant dismissal of indictment where government did not consider defendant suspect during initial phase of investigation and when they did start suspecting, his indictment was procured promptly thereafter. United States v Farinacci-Garcia (1982, DC Puerto Rico) 547 F Supp 759.

RICO convictions involving mail fraud were not barred by 5 year statute of limitations under 18 USCS §  3282 since one of proven mailings and racketeering acts of which defendant was found guilty occurred within 5 years of original indictment. United States v Eisen (1992, CA2 NY) 974 F2d 246, petition for certiorari filed (Nov 27, 1992) and petition for certiorari filed (Dec 7, 1992).

Defendant's wire fraud affected "financial institution" within meaning of 18 USCS §  3293(2), notwithstanding fact that wholly owned subsidiary of financial institution was party to loan agreement, and thus 10 year limitations period was applicable. United States v Pelullo (1992, CA3 Pa) 964 F2d 193, reh den (CA3) 1992 US App LEXIS 17370.

Limitations period shall extend to person where it is clear that person delayed departure for several months to allow investigation to be completed and in applying for non-residence classification with government, person gives government address to which he plans to and does in fact move to. Caplan v Vokes (1981, CA9 Cal) 649 F2d 1336.

Defendant was entitled to jury instruction as to whether earlier offenses occurred more than 5 years before indictment was issued, since conflicting accounts of when importation and possession with intent to distribute cocaine occurred raised issue of prosecution in timely manner under 18 USCS §  3282. United States v Edwards (1992, CA11 Fla) 968 F2d 1148.

Rape in District of Columbia with statutory maximum sentence of life imprisonment is noncapital offense subject to statute of limitations of 18 USCS §  3282. United States v Brown (1980, Dist Col App) 422 A2d 1281.

Footnotes

Footnote 20. See  § 223, supra.

Footnote 21. 18 USCS §  3281.

Footnote 22. Coon v United States (CA8 Iowa) 360 F2d 550, cert den  385 US 873,  17 L Ed 2d 100,  87 S Ct 145.

Footnote 23. United States v Provenzano (SD NY) 423 F Supp 662, affd without op (CA2 NY) 556 F2d 562.

The decision of Furman v Georgia,  408 US 238,  33 L Ed 2d 346,  92 S Ct 2726, reh den  409 US 902,  34 L Ed 2d 163,  93 S Ct 89, holding the death penalty to be unconstitutional, did not repeal statutes imposing the death penalty or repeal such statutes, such as 18 USCS §  3281 which depend for their operation on the defendant's being charged with a capital crime. United States v Watson (CA4 Va) 496 F2d 1125 (disagreed with on other grounds, United States v Shepherd (CA7 Ind) 576 F2d 719, cert den (US)  58 L Ed 2d 155,  99 S Ct 158).

Where the defendant was convicted of violating 18 USCS §  2113(e), proscribing robbery wherein an individual is forced to accompany the robber, prior to the Supreme Court decision holding the death penalty invalid as punishment for a similar offense of kidnapping, 18 USCS §  3281 governed with regard to the issue of limitations.  Coon v United States (CA8 Iowa) 411 F2d 422.

Where the Supreme Court held unenforceable the death penalty provision of the kidnapping statute and Congress subsequently amended the statute to remove the death penalty provision, the five year statute of limitations under 18 USCS §  3282 would apply to bar indictment of the defendants 15 years after the alleged commission in the offense, notwithstanding that at the time of the alleged act, kidnapping was a "capital offense" and therefore, under the terms of 18 USCS §  3281, not subject to the statute of limitations.  United States v Provenzano (SD NY) 423 F Supp 662, affd without op (CA2 NY) 556 F2d 562.

Footnote 24. 18 USCS §  3282.

Under 18 USCS §  3282, a sentence imposed for second degree murder, which was not a "capital offense," upon an indictment timely for first-degree murder, but found more than three years [now five years] after the offense, was a sentence not authorized by law.  Askins v United States, 102 App DC 198, 251 F2d 909.

As to federal statute of limitations for offense of concealment of bankrupt's assets (18 USCS §  3284), see 9 Am Jur 2d (Rev) Bankruptcy § 1724.

As to federal statute of limitations for criminal contempt (18 USCS §  3285), see 17 Am Jur 2d, Contempt § 66.

As to federal statute of limitations for seduction on vessel of United States (18 USCS §  3286), see 70 Am Jur 2d, Seduction § 23.

As to federal statute of limitations for violation of federal laws relating to nationality, citizenship and passports, see 3 Am Jur 2d,  Aliens and Citizens §§ 170-171 and  60 Am Jur 2d,  Passports § 14.

Footnote 25. United States v Haramic (DC Pa) 125 F Supp 128.

Footnote 26. Chaifetz v United States, 109 App DC 349, 288 F2d 133, revd on other grounds  366 US 209,  6 L Ed 2d 233,  81 S Ct 1051, reh den  366 US 955,  6 L Ed 2d 1247,  81 S Ct 1901; Benes v United States (CA6 Ohio) 276 F2d 99, 12 Ohio Ops 2d 392, 84 Ohio L Abs 226 (disagreed with on other grounds United States v Wild 179 App DC 232, 551 F2d 418, cert den  431 US 916,  53 L Ed 2d 226,  97 S Ct 2178).

Footnote 27. United States v Radmall (CA10 Utah) 591 F2d 548; United States v Edwards (CA5 Ala) 458 F2d 875, cert den  409 US 891,  34 L Ed 2d 148,  93 S Ct 118, reh den  409 US 1029,  34 L Ed 2d 323,  93 S Ct 459; United States v Hephner (CA7 Wis) 410 F2d 930; United States v Kane (SD NY) 243 F Supp 746.

As to effect of crime barred by limitations on witness' right against self-incrimination, see 81 Am Jur 2d,  Witnesses § 39.

Footnote 28. United States v Butts (CA5 Ga) 524 F2d 975 (disapproved on other grounds United States v Lovasco  431 US 783,  52 L Ed 2d 752,  97 S Ct 2044, reh den  434 US 881,  54 L Ed 2d 164,  98 S Ct 242) as stated in United States v Brand (CA5 Fla) 556 F2d 1312, reh den (CA5 Fla) 561 F2d 831 and cert den  434 US 1063,  55 L Ed 2d 763,  98 S Ct 1237, reh den  435 US 961,  55 L Ed 2d 811,  98 S Ct 1593.

Footnote 29. United States v Heinze (DC Del) 361 F Supp 46.

The six-month limitation period contained in 29 USCS §  658(c) is limited to citation procedure and does not extend to criminal prosecution, which is controlled by the period of limitations contained in 18 USCS §  3282. United States v Dye Constr. Co. (CA10 Colo) 510 F2d 78.

Footnote 30. United States v Central Vermont R. R. Co. (CC NY) 157 F 291.


§ 235  Construction; effect of extending period of limitation  [21 Am Jur 2d CRIMINAL LAW]

The purpose of the statute of limitations is to limit exposure to prosecution to a certain fixed period of time following the occurrence of those acts that the legislature has decided to punish by criminal sanctions. Such limitation protects individuals from having to defend themselves against charges when the basic facts have become obscured by the passage of time, minimizes the danger of official punishment because of facts in the far-distant past, and encourages law enforcement officials to promptly investigate suspected criminal activity. 31   It is said that statutes of limitation are founded upon the liberal theory that a prosecution should not be allowed to ferment endlessly in the files of government only to explode after witnesses and proofs necessary to protection of the accused have, by sheer lapse of time, passed beyond availability. 32   Thus, criminal statutes of limitation are matters of grace to be liberally construed in favor of the defendant 33  and interpreted in favor of repose. 34              

It has been held that Congress may extend the limitations period for a crime already committed, provided that crime is not already barred by the prior statute. 35   The accused does not acquire any vested right in the statute of limitations until it has operated to bar prosecution of the offense charged; and he may not complain if the limitations period is extended by the legislature so long as the period of time originally provided therein has not run at the time of such extension. 36   Under such circumstances, a legislative enactment extending the statute of limitations beyond the period described in the original statute is not an ex post facto law. 37               

Statutes of limitation apply to offenses created after the enactment of the period of limitation. 38  


§ 235  – Construction; effect of extending period of limitation [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Although courts have permitted sealing of indictment beyond limitations period where Government feared that disclosure of indictment and arrest of one defendant would cause codefendants whose whereabouts were unknown to flee, if Government cannot demonstrate such prosecutorial need, expiration of statute of limitations prior to unsealing would invalidate indictment as in any case where indictment is untimely filed; if there is legitimate prosecutorial need for sealing, defendants, to be entitled to dismissal, must be able to demonstrate actual prejudice occurring between date of sealing and date of unsealing. United States v Slochowsky (1983, ED NY) 575 F Supp 1562.

Expiration of statute of limitations does not bar prosecution where indictment is sealed prior to end of limitations period to advance legitimate prosecutorial need; legitimate prosecutorial need is demonstrated where government demonstrates that indictment was sealed so that defendant would not remain in foreign country. United States v Davis (1984, SD NY) 598 F Supp 453.

Footnotes

Footnote 31. Toussie v United States,  397 US 112,  25 L Ed 2d 156,  90 S Ct 858.

Footnote 32. United States v Eliopoulos (DC NJ) 45 F Supp 777.

Footnote 33. United States v Satz (DC NY) 109 F Supp 94.

Footnote 34. United States v Marion,  404 US 307,  30 L Ed 2d 468,  92 S Ct 455; Toussie v United States,  397 US 112,  25 L Ed 2d 156,  90 S Ct 858; United States v Habig,  390 US 222,  19 L Ed 2d 1055,  88 S Ct 926; United States v Scharton,  285 US 518,  76 L Ed 917,  52 S Ct 416.

Footnote 35. United States v Richardson (CA3 Pa) 512 F2d 105.

Footnote 36. United States v Haug (DC Ohio) 21 FRD 22, 40 BNA LRRM 2307.

Footnote 37. Falter v United States (CA2 NY) 23 F2d 420, cert den  277 US 590,  72 L Ed 1003,  48 S Ct 528; United States v Haug (DC Ohio) 21 FRD 22, 40 BNA LRRM 2307.

Since the amendment to 18 USCS §  3282 extending the three-year period of limitation to five years was passed on September 1, 1954, a prosecution for any crime governed by § 3282 that was committed before September 1, 1951, would be barred by the statute of limitations.  United States v Reina (CA2 NY) 242 F2d 302, cert den  354 US 913,  1 L Ed 2d 1427,  77 S Ct 1294, reh den  355 US 852,  2 L Ed 2d 61,  78 S Ct 9.

Where, at the time the crime was committed, 18 USCS §  3282 provided for a three-year limitation period, and such period had not run at the time the 1954 amendment of § 3282, increasing the periods of five years was enacted, an indictment filed within five years of the commission of the crime was not barred.  Clements v United States (CA9 Cal) 266 F2d 397, cert den  359 US 985,  3 L Ed 2d 934,  79 S Ct 943.

Footnote 38. Adams v Woods,  6 US 336,  2 L Ed 297; United States v White (CC Dist Col) F Cas No 16676; United States v Ballard (CC Mich) F Cas No 14507; Johnson v United States (CC Mich) F Cas No 7418


§ 236  Commencement of statutory period  [21 Am Jur 2d CRIMINAL LAW]

By its express terms, the federal statute of limitations for noncapital offenses specifies that the indictment must be found or the information instituted within the specified period "next after such offense shall have been committed." 39   Thus, the limitations period runs from the commission of the offense. 40    

The United States Supreme Court has stated that several considerations guide its decision in determining when the statute of limitations begins to run in a given case.  These considerations include the principles that criminal limitation statutes are to be given liberal interpretation in favor of repose, 41   that statutes of limitations normally begin to run when the crime is complete, 42   and that the federal limitations statute should not be extended "except as otherwise expressly provided by law." 43      

Significantly, the determination of the timeliness of a prosecution hinges on the nature of the particular offense involved.  Some offenses are complete upon the commission of certain acts, whereas other so-called continuing offenses are not. 44    Typically, the statute of limitations begins to run as soon as every element of the crime occurs and the offense is complete.  For a continuing offense, however, the crime is not exhausted for purposes of the statute of limitations as long as the proscribed course of conduct continues. 45   Thus, for example, the crime of conspiracy has been held to continue as long as the conspirators engage in overt acts in furtherance of their plot, and the statute of limitation for a conspiracy prosecution generally commences to run from the time the last overt act in furtherance of the conspiracy was committed. 46   The determination whether a given crime is a continuous offense is a matter of statutory interpretation. 47   It has been held that the doctrine of continuing offenses should be applied only in limited circumstances, since the doctrine effectively extends the statute of limitations beyond its stated term.  A particular offense should not be deemed continuous unless the explicit language of the substantive criminal statute compels such a conclusion or the nature of the crime involved is such that Congress must have intended that it be treated as a continuing one. 48   


§ 236  – Commencement of statutory period [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Possession of stolen property as continuing offense  24 ALR5th 132.

Case authorities:

180-day time period in Article III(a) for bringing prisoner to trial does not commence until prisoner's request for final disposition of charges against him has actually been delivered to court and prosecuting officer of jurisdiction that lodged detainer against him. Fex v Michigan (1993, US)  122 L Ed 2d 406,  113 S Ct 1085, 93 CDOS 1214, 7 FLW Fed S 10.

Time spent in state custody did not count toward six-hour limitation of 18 USCS §  3501(c), where there was no evidence of any working relationship between state and federal authorities as of day defendant made statement. United States v White (1992, CA7 Wis) 979 F2d 539 (disagreed with by United States v Bayles (CA4) 1993 US App LEXIS 2877).

Where a defendant was prosecuted under customs law for making false statements in connection with importation of goods and applicable statute of limitation provided that no action could be commenced more than five years after discovery of alleged violation, knowledge of falsity of import documents caused statute of limitation to begin to run, and once plaintiff knew of falsity of import documents it could not sleep on information until it became aware that false documentation was part of the fraudulent intent. United States v R. I. T. A. Organics, Inc. (1980, ND Ill) 487 F Supp 75.

Footnotes

Footnote 39. 18 USCS §  3282.

Footnote 40. Lewis v United States,  216 US 611,  54 L Ed 637,  30 S Ct 438.

The statute of limitations runs against an offense even though the government does not know who the offender is.  United States v White (CC Dist Col) F Cas Nos 16675 and 16676.

Footnote 41. See  § 224, supra.

Footnote 42. Pendergast v United States,  317 US 412,  87 L Ed 368,  63 S Ct 268; United States v Irvine,  98 US 450,  25 L Ed 193.

Footnote 43. 18 USCS §  3282; Toussie v United States,  397 US 112,  25 L Ed 2d 156,  90 S Ct 858.

Footnote 44.  § 226, supra.

Footnote 45. Toussie v United States,  397 US 112,  25 L Ed 2d 156,  90 S Ct 858 (dissenting opinion); United States v Cores,  356 US 405,  2 L Ed 2d 873,  78 S Ct 875; United States v Kissel,  218 US 601,  54 L Ed 1168,  31 S Ct 124.

Footnote 46. 16 Am Jur 2d (Rev) Conspiracy § 22.

Footnote 47. Toussie v United States,  397 US 112,  25 L Ed 2d 156,  90 S Ct 858; United States v Cores,  356 US 405,  2 L Ed 2d 873,  78 S Ct 875; Pendergast v United States,  317 US 412,  87 L Ed 368,  63 S Ct 268; Bramblett v United States, 97 US App DC 330, 231 F2d 489, cert den  350 US 1015,  100 L Ed 874,  76 S Ct 658.

Footnote 48. Toussie v United States,  397 US 112,  25 L Ed 2d 156,  90 S Ct 858 (crime of failing to register for the draft was complete upon accused's failure to register within specified period and did not continue each day he remained unregistered).


§ 237  Circumstances tolling statute–wartime suspension of limitations  [21 Am Jur 2d CRIMINAL LAW]

When the United States is at war, a federal statute provides for the suspension until three years after the termination of hostilities, as proclaimed by the President or by a concurrent resolution of Congress, of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any of its agencies in any manner, whether by conspiracy or not, or (2) committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the United States, or (3) committed in connection with the negotiation, procurement, award, performance, payment for, interim financing, cancellation, or other termination or settlement of any contract, subcontract, or purchase order that is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or government agency. 49   It has been said that this statutory provision creates an exception to the long-standing congressional policy of repose, but, as indicated by its legislative history, suspends the general statute of limitations only as to war frauds of a pecuniary nature or of a nature concerning property. 50    It has also been said that the purpose of the War Suspension Act is to give government law enforcement officials additional time to discover and punish offenses related to the commercial aspect of war programs where extensive war efforts render them unable to deal with those offenses within the normal period of limitation. 51  Although it has been recognized that the legislative history of the statute emphasizes conservative interpretation, 52  there is authority for the view that, unlike the general statute of limitations, which is strictly construed, the War Suspension Act is to be liberally construed in favor of the public. 53

The wartime suspension provision has been strictly limited in its application, however, to offenses having as an essential ingredient the defrauding or attempted defrauding of the United States. 54    Thus, the statute has been applied to suspend the statute of limitations for conspiracy to defraud the United States in liquidation of surplus war property, 55   for violations of the false claims clause of the False Claims Act (19 USCS §  287), 56   and for furnishing false financial statements to the war contracts price adjustment board in connection with renegotiation, 57  but it is not applicable to indictments for fraud in procuring a passport, 58   for making a false statement under oath in a naturalization proceeding, 59   for passing worthless checks payable to the treasurer of the United States, 60  for perjury or false swearing, even when the United States is directly interested, 61   or for income tax evasion. 62   Furthermore, where the wartime suspension provision does not apply to a given substantive offense, it is not applicable to a charge of conspiracy to commit that offense. 63    


§ 237  – Circumstances tolling statute–wartime suspension of limitation [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Statutes:

19 USCS §  287 was repealed in 1993 as an obsolete provision.

Case authorities:

Five-year statute of limitation applicable to crimes of conspiracy to commit offenses against the United States involving bribery and misapplication of federal funds with which defendant was charged is not extended by 3 years pursuant to 18 USCS §  3287, where, although military court of appeals declared that conflict in Middle East with Iraq constituted war, Congress never formally recognized conflict as war; 18 USCS §  3287 is not applicable since judicial branch has no constitutional power to declare war. United States v Shelton (1993, WD Tex) 816 F Supp 1132.

Stay of commitment entered at defendant's request tolls running of statute of limitations for purposes of 18 USCS §  3282. Re Assarsson (1982, CA7 Ill) 670 F2d 722.

Indictment is "found" within meaning of 18 USCS §  3291 when it is filed, and it tolls the statute of limitations for reasonable period; however, unreasonable delay does not establish presumption to justify dismissal of indictment, and indictment therefore should not have been dismissed where there was no resulting prejudice, even though 2-year delay beyond limitations period was unreasonable. United States v Shell (1992, CA9 Wash) 961 F2d 138, 92 CDOS 2863, 92 Daily Journal DAR 4528.

In a prosecution for first-degree murder, defendant did not demonstrate ineffective assistance of counsel, notwithstanding his assertion that his lawyers performed no investigation about the crime or defendant's background, where the record of the proceeding showed that against the advice of counsel defendant pled guilty and decided not to make any kind of presentation to the court on the matter of sentencing. Agan v State (1987, Fla) 503 So 2d 1254, 12 FLW 99, habeas corpus proceeding (Fla) 508 So 2d 11, 12 FLW 285.

Footnotes

Footnote 49. 18 USCS §  3287 (War Suspension Act).

Suspension of Limitations Act (18 USCS §  3287) suspended the running of the general statute of limitations until three years after the termination of hostilities as declared by the President.  United States v Grainger,  346 US 235,  97 L Ed 1575,  73 S Ct 1069, reh den  346 US 843,  98 L Ed 363,  74 S Ct 14; United States v Covollo (DC Pa) 136 F Supp 107.

18 USCS §  3287 applies to civil offenses as well as to criminal offenses.  United States v Kolsky (DC Pa) 137 F Supp 359.

Crimes committed after the termination of hostilities are not affected by the predecessor to 18 USCS §  3287.  United States v Smith,  342 US 225,  96 L Ed 252,  72 S Ct 260; United States v Minkow (DC Ill) 108 F Supp 509.

The suspension of the statute of limitations on offenses against the United States involving fraud applied only to offenses committed prior to the Presidential Proclamation of December 31, 1946, declaring an end to hostilities and did not apply to offenses committed in 1947.  United States v Riley (DC RI) 102 F Supp 440; United States v Peoples Sav. Bank (DC RI) 102 F Supp 439.

Footnote 50. Bridges v United States,  346 US 209,  97 L Ed 1557,  73 S Ct 1055.

The predecessor to 18 USCS §  3287 was not limited to frauds involving pecuniary or property loss to the government.  United States v Choy Kum (DC Cal) 91 F Supp 769; United States v Marzani (DC Dist Col) 71 F Supp 615, affd 83 App DC 78, 168 F2d 133, affd  335 US 895,  93 L Ed 431,  69 S Ct 299, adhered to  336 US 922,  93 L Ed 1084,  69 S Ct 653.

Footnote 51. United States v Sack (DC NY) 125 F Supp 633.

Footnote 52. Bridges v United States,  346 US 209,  97 L Ed 1557,  73 S Ct 1055.

Footnote 53. United States v Choy Kum (DC Cal) 91 F Supp 769.

Footnote 54. Bridges v United States,  346 US 209,  97 L Ed 1557,  73 S Ct 1055.

Footnote 55. United States v Lurie (CA7 Ill) 222 F2d 11, reh den  350 US 898,  100 L Ed 789,  76 S Ct 149 and cert den  350 US 835,  100 L Ed 745,  76 S Ct 71.

As to the obtaining of surplus property by fraudulent means prior to December 31, 1946, the predecessor to 18 USCS §  3287 tolled the running of the statute of limitations for a period of three years after the proclamation of the president terminating hostilities as of that date. United States v Witherspoon (CA6 Tenn) 211 F2d 858.

Footnote 56. United States v Grainger,  346 US 235,  97 L Ed 1575,  73 S Ct 1069, reh den  346 US 843,  98 L Ed 363,  74 S Ct 14; United States v Salvatore (DC Pa) 140 F Supp 470; United States v Strange Bros. Hide Co. (DC Iowa) 123 F Supp 177; United States v Epstein (DC Pa) 119 F Supp 946.

Footnote 57. United States v Sack (DC NY) 125 F Supp 633.

Footnote 58. United States v Shoso Nii (DC Hawaii) 96 F Supp 971, app dismd  342 US 912,  96 L Ed 683,  72 S Ct 358.

But see United States v Choy Kum (DC Cal) 91 F Supp 769 holding that an indictment charging a violation of passport and false claims laws was not barred by the statute of limitations since the Wartime Suspension of Limitations Act is not limited to offenses involving monetary laws to the government.

Footnote 59. Bridges v United States,  346 US 209,  97 L Ed 1557,  73 S Ct 1055.

Footnote 60. McGuinness v United States (Mun Ct App Dist Col) 77 A2d 22.

Footnote 61. United States v Obermeier (CA2 NY) 186 F2d 243, cert den  340 US 951,  95 L Ed 685,  71 S Ct 569.

Footnote 62. United States v Beard (DC Md) 118 F Supp 297.

Footnote 63. Bridges v United States,  346 US 209,  97 L Ed 1557,  73 S Ct 1055.


§ 238  – Fleeing from justice  [21 Am Jur 2d CRIMINAL LAW]

A federal statute provides that no federal criminal statute of limitations shall extend to any person "fleeing from justice." 64    This provision reflects the Congressional determination that defendants should not gain the advantages of statutory limitations by means of flight. 65    

A fugitive from justice has been defined, for purposes of the federal statute, as a person who, having committed a crime in violation of the laws of the United States, flees from the jurisdiction of the court where the crime was committed or departs from his usual place of abode and conceals himself within the district.  The term applies to anyone fleeing from the justice of the United States, not the justice of any particular district. 66  Under a predecessor to the current federal statute, it has been held that flight to avoid prosecution in a state court is sufficient to toll the federal criminal statute of limitations. 67   Where a corporation subject to prosecution exists merely as a shell and can only be reached through an individual defendant, its status as a fugitive under the federal statute depends on whether the individual is a fugitive. 68

Authorities are divided on the meaning of the phrase "fleeing from justice."  One line of cases holds that in order for the tolling statute to apply, the government must show an intent on the part of the accused to flee from prosecution or arrest, since the statutory phrase carries a common-sense connotation that only those persons who have absented themselves from the jurisdiction of the alleged crime with the intent of escaping prosecution shall be denied the benefit of the statute of limitations. 69     Under this view, the defendant's intent and the purpose of his absence are important matters of inquiry for the jury. 70   In holding that the prosecution must meet the burden of proving that the accused concealed himself with an intent to avoid arrest or prosecution, one court has said that the word "fleeing" commonly connotes the performance of some volitional act, and that it would not further the purposes of the statute to toll the statute of limitations in the absence of such an intent to avoid arrest or prosecution. 71    Another court following this rule has held, however, that the statute of limitations may be tolled even if the prosecution has not actually begun at the time of the suspect's flight.  The government need not prove that the accused concealed himself with an intent to avoid arrest or prosecution, but only that he knew he was wanted by the police and that he failed to submit to arrest. 72

Thus, whether a person was, during any given period, "fleeing from justice" for purposes of the federal statute, is held by some courts to be a question of fact determined from his acts and intent. 73    Courts have found evidence sufficient to establish flight from justice within the meaning of the statute or its predecessor where, after committing the offense, the accused went to a place remote from the scene of the crime; 74     made a striking and unexplained change in his habits as to his customary places of resort; 75  was aware of a pending criminal investigation of his activities, yet sold his belongings and left the country; 76   or was aware of an outstanding warrant against him, yet continued to conceal himself. 77    The government's failure to find the accused despite a diligent attempt to do so is an additional factor persuasive to some courts in establishing flight from justice. 78  

On the other hand, several cases support the view that under the terms of the current statute or its predecessors, the defendant's leaving of the jurisdiction in which the offense occurred is enough to constitute "fleeing from justice," regardless of his intent or motive in leaving. 79   In so holding, one court has said that it is not necessary that the accused leave the state for the purpose of avoiding a prosecution anticipated or begun; it suffices that he committed a crime within a state and left its jurisdiction when he was sought to be subjected to its criminal process to answer for his offense. 80      

It has been held for purposes of the meaning of the phrase "fleeing from justice", that it is not necessary that the course of justice have been put in operation by the presentment of an indictment, the filing of an information, or the making of a complaint before the accused's flight or concealment. 81  It has also been held unnecessary for the alleged offender to be found in a jurisdiction other than that in which the crime was committed. 82   Physical absence from the jurisdiction where the offense was committed is not essential to toll the statute of limitations. 83    Thus, an accused's departure from his usual place of abode and the concealment of himself within the district is within the meaning of the statute. 84    By way of explanation, one court has stated that in large and heavily populated districts it is almost as easy to avoid arrest or prosecution by concealing oneself within the district as by fleeing it. 85    A fortiori, it is unnecessary for the alleged fugitive to leave the United States in order to be charged with "fleeing from justice" within the meaning of the statute. 86   On the other hand, the "fleeing from justice" exception does not apply where the accused innocently and openly moves to a new residence while remaining easily accessible to any careful law enforcement officer who has a warrant to serve, 87    or where the accused openly returns, resumes his accustomed activities, and continues them for the full period of limitation fixed for the crime.  Thus, it appears that the return of the accused, after his flight, to the jurisdiction in which the crime was committed will operate so as to entitle him to the benefit of the limitation statute from the time of his return. 88   Nevertheless, a person continues to be "fleeing from justice" even though he has been seen somewhere in public, or government officers have conversed with him but have failed to take action to secure his arrest. 89   Where the accused remains some time in the jurisdiction in which the crime is committed, flees, and then returns, the period prior to flight and that subsequent to return cannot be added to complete the limitation period. 90

Where the accused's absence from the jurisdiction wherein the crime was committed is involuntary, the courts have reached differing results.  It has been held that an accused felon was "fleeing from justice" within the meaning of the predecessor to the current federal statute, notwithstanding his confinement in prison in another jurisdiction after committing the crime. 91   On the other hand, where an accused was confined to prison in a foreign country during the whole statutory period of limitations he has been held not to be a person "fleeing from justice." 92  Furthermore, it has been held that a seaman who committed an offense while on the high seas and remained at sea during the whole of the statutory period of limitations did not fall within the intendment of the predecessor to the current federal statute. 93  

It is immaterial that the statute of limitations may have begun to run before the accused fled. 94    An accused who, while under indictment, escapes from those charged with his custody and eludes recapture for several years, however, is a person "fleeing from justice." 95    The tolling requirements of the statute may be met by an accused's "constructive flight" in not returning to his homeland out of fear of a pending criminal investigation against him.  In recognizing this doctrine, a court has stated that it is fully supported by the language and logic of the federal statute, since there is no meaningful distinction between those who leave their native country and those who, already outside, decline to return 96    Nevertheless, although persons accused of mail fraud have been found to be "fleeing from justice" within the meaning of the statute, even though they were not present in the district at the time the crime was allegedly committed, 97     it has also been held that a person alleged to have made criminal misrepresentations to a federal agency was not "fleeing from justice" where he was outside the United States when the crime was allegedly committed and had no notice of the charge until after the statutory period. 98  

It is unnecessary to plead specially the defendant's flight from justice; evidence of that fact may be introduced under the general issue. 99   The prosecution has the burden of proving that the accused was "fleeing from justice" within the meaning of the statute. 1    It has been held that the question may properly be submitted to the jury. 2    

A defendant cannot avail himself of a limitations defense by demurrer unless the indictment shows on its face that he is not a person fleeing from justice.  Absent such case, the proper practice is for him to interpose a special plea in the nature of a plea in abatement, or to present the question by evidence given under a plea of not guilty. 3   One court has held that the question whether the predecessor to the current federal statute dealing with flight from justice applied to toll the statute of limitations was reviewable only on appeal from a judgment of conviction, and could not be tried on the defendant's motion to vacate the sentence. 4  
  

§ 238  – Fleeing from justice [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Person can be "fleeing from justice" in one jurisdiction even though imprisoned in another; defendant's active resistance of extradition request, coupled with letter expressing desire to resist all future extradition requests, constitutes constructive flight from justice, tolling limitation period, since imprisonment does not relieve defendant of duty to do all he can to return, and since it is not unconstitutional to require defendant to choose between exercise of right to oppose extradition and gaining benefit of statute of limitations. United States v Catino (1984, CA2 NY) 735 F2d 718.

Appellant is fugitive for purposes of 18 USCS §  3290 where he is absent from jurisdiction with intent to avoid arrest or prosecution. Re Assarsson (1982, CA8 Minn) 687 F2d 1157.

Defendant's term of supervised release was tolled under 18 USCS §  3565(c) and § 3624(e) while defendant was in fugitive status and state custody, and thus magistrate judge had jurisdiction to revoke supervised release. United States v Crane (1992, CA9 Cal) 979 F2d 687, 92 CDOS 8217, 92 Daily Journal DAR 13552.

Footnotes

Footnote 64. 18 USCS §  3290.

As to who is fugitive from justice for purposes of extradition laws, see 31 Am Jur 2d,  Extradition § 15.

As to tolling prosecution periods for tax crimes, see 34 Am Jur 2d,  Federal Taxation § 9390.

Footnote 65. United States v Mullins (CA5 Ga) 562 F2d 999, cert den  435 US 906,  55 L Ed 2d 496,  98 S Ct 1452.

Footnote 66. United States ex rel. Demarois v Farrell (CA8 Minn) 87 F2d 957, cert den  302 US 683,  82 L Ed 527,  58 S Ct 31, reh den  302 US 775,  82 L Ed 600,  58 S Ct 135.

Footnote 67. Streep v United States,  160 US 128,  40 L Ed 365,  16 S Ct 244.

Annotation:  33 ALR Fed 716, § 10.

Footnote 68. United States v Belimex Corp. (SD NY) 340 F Supp 466.

Footnote 69. Jhirad v Ferrandina (CA2 NY) 536 F2d 478, cert den  429 US 833,  50 L Ed 2d 98,  97 S Ct 97, reh den  429 US 988,  50 L Ed 2d 600,  97 S Ct 511 (fleeing from justice was shown by preponderance of evidence that at some point within period of limitations accused made decision to avoid prosecution by not returning to India, notwithstanding travel from India was not motivated by desire to avoid apprehension and prosecution); Donnell v United States (CA5 Tex) 229 F2d 560.

Annotation:  33 ALR Fed 716, § 3.

Footnote 70. Donnell v United States (CA5 Tex) 229 F2d 560.

Practice Aids: –Whether an Accused in "Fleeing from Justice" so as to Toll the Statute of Limitations Depends upon His Intent and is a Question of Fact for the Jury.  104 U Pa L Rev 1111.

If the defendants committed a crime in the Southern District of Georgia, and, when sought to be tried by the court having jurisdiction, had left the district and were found in another state and district not their home, under circumstances indicating a purpose to evade the authority and jurisdiction of the local courts, they may be justly considered persons "fleeing from justice" under a predecessor to 18 USCS §  3290.  Greene v United States (CA5 Ga) 154 F 401, cert den  207 US 596,  52 L Ed 357,  28 S Ct 261.

Footnote 71. United States v Wazney (CA9 Cal) 529 F2d 1287,  33 ALR Fed 710.

Footnote 72. United States v Ballesteros-Cordova (CA9 Ariz) 586 F2d 1321.

Footnote 73. Brouse v United States (CA1 Mass) 68 F2d 294.

Annotation:  33 ALR Fed 716, § 2[b].

Footnote 74. Brouse v United States (CA1 Mass) 68 F2d 294 (accused went from the eastern part of the United States to the West and Southwest); Greene v United States (CA5 Ga) 154 F 401, cert den  207 US 596,  52 L Ed 357,  28 S Ct 261 (accused fled to Canada); Martin v United States (1972, SD NY) 339 F Supp 1187 (accused left the country).

Footnote 75. Brouse v United States (CA1 Mass) 68 F2d 294.

Footnote 76. Jhirad v Ferrandina (CA2 NY) 536 F2d 478, cert den  429 US 833,  50 L Ed 2d 98,  97 S Ct 97, reh den  429 US 988,  50 L Ed 2d 600,  97 S Ct 511.

Footnote 77. United States v Wazney (CA9 Cal) 529 F2d 1287,  33 ALR Fed 710.

The defendant was "fleeing from justice" for purposes of 18 USCS §  3290 where, after a warrant was issued for his arrest for parole violations, he left the country and remained a fugitive before returning and voluntarily surrendering himself three years later to federal authorities.  Martin v United States (SD NY) 339 F Supp 1187.

Footnote 78. United States v Wazney (CA9 Cal) 529 F2d 1287,  33 ALR Fed 710; Ferebee v United States (CA4 Va) 295 F 850.

Footnote 79. Green v United States, 88 App DC 249, 188 F2d 48, cert den  341 US 955,  95 L Ed 1376,  71 S Ct 1008, reh den  342 US 842,  96 L Ed 636,  72 S Ct 24; King v United States (CA8 Ark) 144 F2d 729, cert den  324 US 854,  89 L Ed 1413,  65 S Ct 711; McGowen v United States, 70 App DC 268, 105 F2d 791,  124 ALR 1047, cert den  308 US 552,  84 L Ed 464,  60 S Ct 98; Howgate v United States, 7 App DC 217; Re Bruce (CC Md) 132 F 390, affd (CA4 Md) 136 F 1022.

Footnote 80. McGowen v United States, 70 App DC 268, 105 F2d 791,  124 ALR 1047, cert den  308 US 552,  84 L Ed 464,  60 S Ct 98.

Annotation:  33 ALR Fed 716, § 4.

Footnote 81. Streep v United States,  160 US 128,  40 L Ed 365,  16 S Ct 244; King v United States (CA8 Ark) 144 F2d 729, cert den  324 US 854,  89 L Ed 1413,  65 S Ct 711; Howgate v United States, 7 App DC 217; United States v White (CC Dist Col) F Cas No 16675; United States v Smith (CC Conn) F Cas No 16332.

Footnote 82. United States v Wazney (CA9 Cal) 529 F2d 1287,  33 ALR Fed 710; Forthoffer v Swope (CA9 Wash) 103 F2d 707; Ferebee v United States (CA4 Va) 295 F 850; Porter v United States (CA5 Tex) 91 F 494; United States v O'Brian (CC Kan) F Cas No 15908.

Footnote 83. United States v Wazney (CA9 Cal) 529 F2d 1287,  33 ALR Fed 710.

Footnote 84. United States v Wazney (CA9 Cal) 529 F2d 1287,  33 ALR Fed 710; Ferebee v United States (CA4 Va) 295 F 850.

An offender may flee from justice within the meaning of the statute, though he never left the limits of the state, as, for example, by secretly concealing himself or by not being usually and publicly known as being within it.  United States v O'Brian (CC Kan) F Cas No 15908.

Footnote 85. United States v Wazney (CA9 Cal) 529 F2d 1287,  33 ALR Fed 710.

Annotation:  33 ALR Fed 716, § 6.

Footnote 86. Greene v United States (CA5 Ga) 154 F 401, cert den  207 US 596,  52 L Ed 357,  28 S Ct 261; Howgate v United States, 7 App DC 217; United States v White (CC Dist Col) F Cas No 16677.

Annotation:  33 ALR Fed 716, § 7.

Footnote 87. United States v Wazney (CA9 Cal) 529 F2d 1287,  33 ALR Fed 710; Jhirad v Ferrandina (CA2) 486 F2d 442, on remand (SD NY) 377 F Supp 34 and on remand (SD NY) 401 F Supp 1215, affd (CA2 NY) 536 F2d 478, cert den  429 US 833,  50 L Ed 2d 98,  97 S Ct 97, reh den  429 US 988,  50 L Ed 2d 600,  97 S Ct 511; Donnell v United States (CA5 Tex) 229 F2d 560; United States v O'Brian (CC Kan) F Cas No 15908; Donnell v United States (CA5 Tex) 229 F2d 560.

Annotation:  33 ALR Fed 716, § 8.

Footnote 88. United States v Parrino (CA2 NY) 180 F2d 613.

Footnote 89. Howgate v United States, 7 App DC 217.

Footnote 90. Howgate v United States, 7 App DC 217, United States v White (CC Dist Col) F Cas No 16677.

Footnote 91. McGowen v United States, 70 App DC 268, 105 F2d 791,  124 ALR 1047, cert den  308 US 552,  84 L Ed 464,  60 S Ct 98.

Annotation:  33 ALR Fed 716, § 9[a].

Although a person accused of housebreaking and robbery in the District of Columbia in February, 1950, was not indicted until February, 1954 and not brought to trial until February, 1956, and had been in prison in New York State from November, 1950 until February, 1956 was denied his right to speedy trial, he was not, under 18 USCS §  3290 and § 3282, entitled to the protection of the statute of limitations.  Taylor v United States, 99 App DC 183, 238 F2d 259.

Footnote 92. United States v Hewecker (CC NY) 79 F 59.

Footnote 93. United States v Brown (DC Mass) F Cas No 14665.

Annotation:  33 ALR Fed 716, § 9[b].

Footnote 94. Howgate v United States, 7 App DC 217.

Annotation:  33 ALR Fed 716, § 11.

Footnote 95. Howgate v United States, 7 App DC 217.

Annotation:  33 ALR Fed 716, § 12.

A court's refusal, pursuant to 18 USCS §  3290, to apply the statute of limitations (18 USCS §  3282) to bail jumpers does not deny them due process. United States v Lyon (CA8 Mo) 567 F2d 777, cert den  435 US 918,  55 L Ed 2d 510,  98 S Ct 1476.

Footnote 96. Jhirad v Ferrandina (CA2 NY) 536 F2d 478, cert den  429 US 833,  50 L Ed 2d 98,  97 S Ct 97, reh den  429 US 988,  50 L Ed 2d 600,  97 S Ct 511.

Annotation:  33 ALR Fed 716, § 13.

Footnote 97. King v United States (CA8 Ark) 144 F2d 729, cert den  324 US 854,  89 L Ed 1413,  65 S Ct 711; Brouse v United States (CA1 Mass) 68 F2d 294.

Footnote 98. United States v Belimex Corp. (SD NY) 340 F Supp 466.

Alleged narcotic offenders who were never in the United States during the commission of the offenses charged and who lived in Europe until their arrival in the United States did not fall within the statute.  United States v Eliopoulous (DC NJ) 45 F Supp 777.

Annotation:  33 ALR Fed 716, § 14.

Footnote 99. United States v White (CC Dist Col) F Cas No 16677.

Footnote 1. United States v Wazney (CA9 Cal) 529 F2d 1287,  33 ALR Fed 710; Brouse v United States (CA1 Mass) 68 F2d 294.

Footnote 2. Greene v United States (CA5 Ga) 154 F 401, cert den  207 US 596,  52 L Ed 357,  28 S Ct 261.

Footnote 3. United States v Brace (DC Cal) 143 F 703.

Footnote 4. Wallace v United States (CA8 SD) 174 F2d 112, cert den  337 US 947,  93 L Ed 1749,  69 S Ct 1505, reh den  338 US 842,  94 L Ed 515,  70 S Ct 30.


§ 239  Manner of raising and determining question; waiver  [21 Am Jur 2d CRIMINAL LAW]

Where the statute of limitations applies to an indictment, the defense must be raised at trial or before trial on motion; if it is not so raised and a guilty verdict is rendered, sentence may lawfully be imposed. 5   It is said that the statute of limitations does not constitute a jurisdictional bar to prosecution, but rather is the equivalent of an affirmative defense, which must be raised by the defendant. 6    Although the plea of limitation may be raised by a special plea, it is not necessary in criminal cases. 7  An accused may avail himself of the statute of limitations by special plea or by evidence under the general issue on a plea of not guilty. 8     It is available on appeal if so urged in trial court. 9  It has been held, however, that an indictment charging conspiracy in restraining trade and alleging continuation of the conspiracy must be denied under the general issue and not by a special plea of the statute of limitations. 10       

A defendant cannot raise the statute of limitations as a defense by demurrer, 11  unless the offense itself contains an exception or proviso. 12    Nor can a defendant avail himself of the defense by a motion for judgment of acquittal at the close of the evidence offered by the prosecution. 13       

The trial court has discretion to determine the validity of the defense of the statute of limitations before trial or at trial of the general issue. 14   It has been said, however, that a defendant may not by affidavit contradict allegations of the information where the introduction of proof concerning the statute of limitations would necessarily open central issues before the court and result in a trial by affidavit prior to the trial itself. 15

The government has the burden of proving that the alleged offense occurred within the limitation period provided by the statute. 16   It must present evidence justifying a jury's finding, beyond a reasonable doubt, that the particular offense charged is not barred by the statute of limitations. 17    A trial court does not err in refusing to submit to the jury the question whether the defendant's acts were committed within the period of limitations under the federal statute where the face of the indictment shows a timely filing and the defendant does not request an instruction of this issue in the trial court. 18

As a general rule, an accused does not waive the statute of limitations by procuring continuances of a preliminary hearing from time to time until the period of limitations expires or by making an agreement with the government to withhold prosecution. 19    A defendant may, however, make an intentional and deliberate waiver of the federal statute of limitations with effective assistance of counsel. 20    Such waiver may be made in conjuction with a plea of guilty, 21        or in writing prior to indictment. 22    Thus, the federal statute of limitations does not run in favor of an accused who, by his own initiative, persuades the government to agree to his waiver of the statute while he pursues the possibility of a plea arrangement.  Even though the particular waiver contained no time restriction on how long the government could wait before seeking an indictment, it was not void as against public policy where the accused was prosecuted within a reasonable length of time after an unsuccessful attempt at plea bargaining and where no prejudice was shown. 23   


§ 239  – Manner of raising and determining question; waiver [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Waivability of bar of limitations against criminal prosecution.  78 ALR4th 693.

Case authorities:

Although waiver of statute of limitations may prove to have unfavorable consequences, defendant cannot subsequently repudiate his bargain simply because hindsight indicates that different strategy might have occasioned more desirable results. United States v Levine (1981, CA3 Pa) 658 F2d 113.

Footnotes

Footnote 5. United States v Wild, 179 App DC 232, 551 F2d 418, cert den  431 US 916,  53 L Ed 2d 226,  98 S Ct 2178; Askins v United States, 102 App DC 198, 251 F2d 909 (dictum).

Footnote 6. United States v Wild, 179 App DC 232, 551 F2d 418, cert den  431 US 916,  53 L Ed 2d 226,  98 S Ct 2178.

Footnote 7. United States v J. L. Hopkins & Co. (DC NY) 228 F 173; United States v Brown (DC Mass) F Cas No 14665.

Footnote 8. United States v Cook,  84 US 168,  21 L Ed 538; Forthoffer v Swope (CA9 Wash) 103 F2d 707.

Footnote 9. Forthoffer v Swope (CA9 Wash) 103 F2d 707.

Footnote 10. United States v Barber,  219 US 72,  55 L Ed 99,  31 S Ct 209; United States v Kissel,  218 US 601,  54 L Ed 1168,  31 S Ct 124.

Footnote 11. United States v Cook,  84 US 168,  21 L Ed 538; Hedderly v United States (CA9 Or) 193 F 561; United States v Andem (DC NJ) 158 F 996; Greene v United States (CA5 Ga) 154 F 401, cert den  207 US 596,  52 L Ed 357,  28 S Ct 261; United States v Brace (DC Cal) 143 F 703; United States v Johnson (DC Pa) 76 F Supp 542, affd (CA3 Pa) 165 F2d 42, cert den  332 US 852,  92 L Ed 421,  68 S Ct 355, reh den  333 US 834,  92 L Ed 1118,  68 S Ct 457.

Footnote 12. United States v Cook,  84 US 168,  21 L Ed 538; United States v Brace (DC Cal) 143 F 703.

Footnote 13. United States v Johnson (DC Pa) 76 F Supp 542, affd (CA3 Pa) 165 F2d 42, cert den  332 US 852,  93 L Ed 421,  68 S Ct 355, reh den  333 US 834,  92 L Ed 1118,  68 S Ct 457.

Footnote 14. United States v Auto Rental Co. (WD Pa) 187 F Supp 603, 46 BNA LRRM 3018, 41 CCH LC ¶ 16561.

Footnote 15. United States v Andreas (DC Minn) 374 F Supp 402.

Footnote 16. Az Din v United States (CA9 Cal) 232 F2d 283, cert den  352 US 827,  1 L Ed 2d 49,  77 S Ct 39; United States v McCord (DC Wis) 72 F 159.

The government, in a prosecution under 18 USCS §  1202(a)(1), has the burden of showing that the defendant was charged within the five-year period after his receipt of the firearm; when the evidence shows that the firearm had been stolen more than five years before the indictment was filed, it must also show where the firearm in question was received by the defendant. United States v Wolf (ED Mo) 405 F Supp 731, affd (CA8 Mo) 535 F2d 476, cert den  429 US 920,  50 L Ed 2d 287,  97 S Ct 315.

Footnote 17. United States v Borelli (CA2 NY) 336 F2d 376, cert den  379 US 960,  13 L Ed 2d 555,  85 S Ct 647.

Footnote 18. United States v Cianchetti (CA2 Conn) 315 F2d 584.

Footnote 19. Benes v United States (CA6 Ohio) 276 F2d 99, 12 Ohio Ops 2d 392, 84 Ohio L Abs 226 (disagreed with on other grounds United States v Wild 179 App DC 232, 551 F2d 418, cert den  431 US 916,  53 L Ed 2d 226,  97 S Ct 2178).

Footnote 20. United States v Wild, 179 App DC 232, 551 F2d 418, cert den  431 US 916,  53 L Ed 2d 226,  97 S Ct 2178; United States v Sindona (SD NY) 473 F Supp 764.

Footnote 21. United States v Doyle (CA2 Conn) 348 F2d 715, cert den  382 US 843,  15 L Ed 2d 84,  86 S Ct 89; United States v Parrino (CA2 NY) 212 F2d 919, cert den  348 US 840,  99 L Ed 663,  75 S Ct 46 and (disagreed with on other grounds Strader v Garrison (CA4 NC) 611 F2d 61).

Footnote 22. United States v Wild, 179 App DC 232, 551 F2d 418, cert den  431 US 916,  53 L Ed 2d 226,  97 S Ct 2178; United States v Sindona (SD NY) 473 F Supp 764.

Footnote 23. United States v Wild, 179 App DC 232, 551 F2d 418, cert den  431 US 916,  53 L Ed 2d 226,  97 S Ct 2178.


b.  Stage of Proceedings That Must be Reached to Avoid Bar of Statute [240]


§ 240  Generally  [21 Am Jur 2d CRIMINAL LAW]

The general federal statute of limitations concerning noncapital offenses provides for a bar to prosecution "unless the indictment is found or the information is instituted" within the specified period following the committing of the offense. 24   Thus, arrest does not toll the statute of limitations; it is the return of the indictment or the filing of the information that must occur before expiration of the statutory period, although such event may occur either before or after the arrest itself. 25   An indictment is "found" within the meaning of the statute when it is returned by the grand jury and filed, 26  even though it remains sealed. 27   When a sealed indictment has tolled the statute, the government must unseal the indictment as soon as its legitimate need for delay has been satisfied.  Where the defendant can show substantial, actual prejudice, the government must show that the delay was justified by a legitimate interest. 28  

The fact that a federal indictment was not timely filed in the federal district division in which the offense was committed is of no importance where the indictment was returned in another division of the district within the statutory period. 29

a superseding indictment containing substantially the same charge as the initial indictment has no effect on the initial tolling of the statute of limitations, so long as the defendant is not significantly prejudiced by the delay. 30    Since the statute of limitations stops running with the bringing of the first indictment, a superseding indictment brought at any time while the first is still pending cannot be barred by the statute of limitations, if and only if it does not broaden the previous charges.  Amendments of form and those that are trivial or innocuous, as opposed to those of substance, are acceptable within the rule that a superseding indictment that does not broaden charges made in the initial indictment may be returned after the running of the statute of limitations. 31 


§ 240  – Generally [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation period;  18 ALR4th 1202. superseding  90 ALR 452.

Case authorities:

If prosecution has delayed beyond limitations period in unsealing timely indictment, prosecution should be barred only if defendant can show substantial, actual prejudice arising at any time prior to post-limitations unsealing of indictment and in such situation, as in ordinary case of untimely indictment, even strong prosecutorial interest should not toll statute. United States v Watson (1979, CA2 NY) 690 F2d 15.

When sealed indictment is not opened until after expiration of time allowed by statute of limitations for prosecution of offense, statute is not ordinarily bar to prosecution if indictment was timely; however, if defendant can demonstrate substantial actual prejudice occurring between date of sealing and date of unsealing, then indictment is not considered "found" until it is unsealed and expiration of limitations period before latter event warrants dismissal of indictment; but where prosecution can demonstrate that decision to keep indictment secret is informed by exercise of sound discretion in public interest, date of return, rather than unsealing, will establish time indictment is "found"; District Court's refusal to review reasons for sealing advanced by prosecutor was improper because it was based on erroneous assumption that contemporaneous record of application for sealing was required. United States v Srulowitz (1987, CA2 NY) 819 F2d 37.

Two-count indictment charging aiding and abetting receipt, sale, and disposition of stolen beef and aiding and abetting receipt and disposition of stolen motor vehicle, which was returned 20 months after two counts charging receipt of stolen beef were dismissed on ground of improper venue and two other counts, charging conspiracy and concealment of felony, were dismissed by United States attorney with leave of court, was timely since once original charges were dismissed "speedy indictment" clock returned to zero and there was no subsequent arrest, which would have required that new indictment be filed within 30 days, but second prosecution began with indictment. United States v Samples (1983, CA7 Ill) 713 F2d 298, 13 Fed Rules Evid Serv 1457.

Indictment was properly sealed so as to toll statute of limitations where District Court found government's reason for requesting sealing legitimate, on-the-record showing of legitimate prosecutorial need need not be shown prior to sealing, and defendants did not show substantial, irreparable, and actual prejudice arising from decision to seal. United States v Lakin (1989, CA8 Ark) 875 F2d 168.

Superseding' indictment did not broaden original indictment, and thus was not barred by five-year statute of limitations, where substitution of general false statement provision in one federal statute for more specific provision in another did not expand charges against defendant, and addition of reference to dumping duties was not substantial change. United States v Sears, Roebuck & Co. (1986, CA9 Cal) 785 F2d 777, cert den (US)  93 L Ed 2d 583,  107 S Ct 580.

In prosecution for numerous banking-related fraud offenses, wire fraud counts in superseding indictment were not time barred as having impermissibly broadened or substantially amemded charges under original timely indictment where, for purposes of scheme or artifice to defraud incorporated into wire fraud counts, conspiracy count in original indictment covered defendant's activities. Thus, defendant had prior notice of conspiracy charged in superseding indictment. Practical reading of counts in question lead to conclusion that essentially same fact were used to charge almost identical offenses. Wire fraud counts remained the same, and conspiracy charge, which contained description of fraudulent scheme alleged in wire fraud counts was not materially different. United States v Davis (1992, CA10 Wyo) 953 F2d 1482, cert den (US)  119 L Ed 2d 210,  112 S Ct 2286.

Reasons other than taking defendant into custody validly support sealing of indictment; indictment may be sealed where government's only reason for filing indictment is to toll running of statute of limitations. United States v Edwards (1985, CA11 Fla) 777 F2d 644, 86-1 USTC ¶ 9110.

Trial judge did not err in ordering that defense witness be shackled to waist type device he was wearing with one hand attached to witness underneath table where there was no showing that jury was aware of shackling and no showing of actual prejudice. People v Myers (1989, 4th Dist) 185 Ill App 3d 118, 133 Ill Dec 184, 540 NE2d 1050.

Although general rule prohibited physical restraints on defendants except under exceptional circumstances, trial court did not err in allowing armed-robbery defendant to be brought into courtroom in ankle restraints and seated in jury box while prospective jurors were milling about, where defendant was dressed in civilian clothes and judge refused to call attention to restraints, where it was not shown that any jurors even noticed defendant or that he otherwise had been prejudiced, and where all impaneled jurors swore that they could give defendant fair trial. State v Stephens (1982, La) 412 So 2d 1057.

Footnotes

Footnote 24. 18 USCS §  3282.

Footnote 25. Powell v United States, 122 App DC 229, 352 F2d 705.

Footnote 26. United States v Villa (ND NY) 470 F Supp 315.

Though federal indictments charging fraudulent income tax returns were returned more than six years after the alleged offense was committed, where the complaints were filed within the six-year period and the indictments were returned prior to the discharge of the grand jury at its session next to the time of filing of the complaints, the statute of limitations was tolled. Ashe v United States (CA6 Tenn) 288 F2d 725.

Footnote 27. United States v Onassis (DC Dist Col) 125 F Supp 190.

Footnote 28. United States v Watson (CA2 NY) 599 F2d 1149, mod on other grounds (CA2 NY) 633 F2d 1041.

Where the United States kept an indictment sealed for 11 months, due more to a commitment not to prosecute a defendant rather than to his absence from the country, and where the defendant did not consent to or instigate a 13-month delay in bringing the prosecution, he was entitled to a dismissal of all counts in view of the fact that the statute of limitations (18 USCS §  3282) had been about to run out when the indictment was finally filed. United States v Sherwood (DC Conn) 38 FRD 14.

Footnote 29. Collins v United States (CA8 Iowa) 20 F2d 574 (theft of mailbag).

Footnote 30. Unites States v Panebianco (CA2 NY) 543 F2d 447, cert den  429 US 1103,  51 L Ed 2d 553,  97 S Ct 1128,  97 S Ct 1129.

Where a 1969 proceeding was not a new prosecution but rather a continuation of one begun in 1963, which had been vacated by the appellate court and remanded to the district court for further proceedings, the statute of limitations was tolled in 1963 when the government first had secured an order to show cause.  The 1969 show cause order served only notice purposes and was mere surplusage because the contempt prosecution had been commenced in 1963 by issuance of the show cause order.  United States v Randazzo (CA5 Tex) 457 F2d 1058, cert den  409 US 858,  34 L Ed 2d 104,  93 S Ct 142.

Footnote 31. United States v Grady (CA2 NY) 544 F2d 598,  37 ALR Fed 819.


c.  New Proceeding After Failure of Original Prosecution [241, 242]

§ 241  Indictment where defect found after period of limitation  [21 Am Jur 2d CRIMINAL LAW]

Whenever (1) an indictment is dismissed for any error, defect, or irregularity with respect to the grand jury, or (2) an indictment or information filed after the defendant's waiver in open court of a prosecution by indictment is found otherwise defective or insufficient for any cause, after the period prescribed by the applicable statute of limitations has expired, a federal statute provides that a new indictment, which shall not be barred by any statute of limitations, may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment or information, or, if no grand jury is in session in the appropriate jurisdiction when the indictment or information is dismissed, within six calendar months of the date when the next regular grand jury is convened. 32   The purpose of the provision is to extend the statute of limitations so that a person who was charged under a defective indictment should not escape because the fault was dicovered too late to indict him again. 33   In cases where the statute applies, it has been held that the six-month period begins to run when a district court dismisses the indictment after an appellate court had held that it was defective. 34

It has been held that the statute is meant to apply whenever the first charging paper has been vacated, for any reason whatsoever, including a lack of jurisdiction. 35   It has been applied to dismissal of the indictment for a legal defect, such as failure to state the offense. 36  On the other hand, it has also been held that the six-month extension of time is available only if the dismissal was for technical defects or an irregularity in the grand jury. 37   Thus, where the grand jury that returned the original indictment was a nullity, its term having expired, a defendant can be reindicted within six months of the date of dismissal of the first indictment even though the statute of limitations has since run. 38   Similarly, where a judgment of conviction is reversed for defects in the selection process of the grand jury, neither the statute of limitations nor the prohibition against double jeopardy bars reindictment and prosecution of the accused within six months after the actual dismissal by the district court. 39

Dismissal is necessary to trigger operation of the statute; and the government cannot rely on a superseding indictment to activate it. 40    Furthermore, the statute does not control discretionary dismissals of indictments, which matters are controlled by a federal rule of criminal procedure. 41   Thus, the six-month extension does not apply to reindictment of an accused after the first indictment was dismissed for want of prosecution 42  or where the sole ground given by the government for its request for dismissal of the indictment was that the "interest of justice" required it. 43   Although the statute does apply to criminal indictments brought under the Internal Revenue Code, 44  it does not apply to courts-martial practice. 45  

The phrase "new indictment" as used in the statute does not mean one indictment only.  Thus, any number of new indictments on the same subject matter and charging the same defendants can be brought within the "next succeeding term" following that in which the original indictment was dismissed for some deficiency. 46    Furthermore, it has been held that the statute applies whether the defendant is reindicted before or after a trial has taken place. 47   To fall within the statute and not be barred, however, a prosecution brought after the running of the statute of limitations must be instituted only by a new indictment, not by a new information. 48


§ 241  – Indictment where defect found after period of limitation [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation period;  18 ALR4th 1202. superseding  90 ALR 452.

Statutes:

18 USCS §  3288, as amended in 1988 by PL 100-690, now additionally covers informations as well as indictments, provides for a reduced time for refiling an indictment or information following dismissal on appeal and prohibits the filing of a new indictment or information where the reason for the dismissal was the failure to file the indictment or information within the period of time prescribed by the applicable statute of limitations, or some other reason that would bar new prosecutions.

Footnotes

Footnote 32. 18 USCS §  3288.

Where the first and second counts of a present indictment are substantially the same as the counts of a former indictment that had been quashed, the legal effect was to create reindictment for purposes of former 18 USC §§  587 and  588 (predecessors to 18 USCS §§  3288 and  3289). Hughes v United States (CA6 Tenn) 114 F2d 285.

Where the first indictment charging violations of securities laws was dismissed for failure to state an offense after the five-year statute of limitations period had elapsed, the government was permitted to reindict the defendant on essentially the same set of facts within six months of the first dismissal under 18 USCS §  3288, and a second indictment would not be dismissed on grounds that the offenses charged therein differed than those charged in the first indictment.  United States v Charnay (CA9 Nev) 537 F2d 341, cert den  429 US 1000,  50 L Ed 2d 610,  97 S Ct 527, and later app (CA9 Nev) 577 F2d 81.

Once an indictment is brought, the statute of limitations is tolled as to charges contained in that indictment and, under 18 USCS §  3288, the statute begins to run again on those charges only if the indictment is dismissed.  The government must then reindict before the statute runs out or within six months, which ever is later, to avoid the time-bar.  United States v Grady (CA2 NY) 544 F2d 598,  37 ALR3d 819.

Where the original indictment charging violations of the mail fraud statute in sending out letters dated June, 1935, was returned in March, 1938, and quashed on February 20, 1939, after having been found defective, a second indictment returned on March 1, 1939, during the next succeeding term of court, met the requirements of former 18 USC §  587 (predecessor to 18 USCS §  3288).  United States v Main (DC Tex) 28 F Supp 550.

Where the original indictment had been dismissed for failure to comply with provisions of FRCrP, Rule 7, and the defendant had been reindicted for the same offense, but the five-year limitations period since the date alleged in both indictments had expired during the time that the first indictment was dimissed and the second indictment returned, the second indictment would be barred by 18 USCS §  3282 and § 3288.  United States v Civic Plaza Nat. Bank (WD Mo) 390 F Supp 1342.

Footnote 33. United States v Strewl (CA2) 162 F2d 819, cert den  332 US 801,  92 L Ed 381,  68 S Ct 92 (construing predecessor to current statute).

Former 18 USCS §  587 (the predecessor to 18 USCS §  3288) was enacted to provide that in any case in which an indictment is found defective or insufficient after the period prescribed by the statute of limitations has run, or where such period has not run but will expire before the end of the next regular session of court, a new indictment may be returned at any time during the first succeeding term of court at which the grand jury is in session.  United States v Durkee Famous Foods, Inc.  306 US 68,  83 L Ed 492,  59 S Ct 456.

The predecessor to 18 USCS §  3288 was intended to place a fixed time limit where previously an element of discretion had in some measure obtained. Medley v United States, 81 App DC 85, 155 F2d 857, cert den  328 US 873,  90 L Ed 1642,  66 S Ct 1377, reh den  329 US 822,  91 L Ed 699,  67 S Ct 35.

Footnote 34. United States v Zirpolo (DC NJ) 334 F Supp 756.

Footnote 35. United States v Macklin (CA2 NY) 535 F2d 191.

Footnote 36. United States v Charnay (CA9 Nev) 537 F2d 341, cert den  429 US 1000,  50 L Ed 2d 610,  97 S Ct 527,  97 S Ct 528 and later app (CA9 Nev) 577 F2d 81.

By virtue of 18 USCS §  3288, dismissal of counts relating to aiding and abetting obstruction of correspondence, in a multi-count indictment, did not preclude the government from again presenting those charges to the grand jury within six months from the decision of the court, despite expiration of the statute of limitations, where the counts, as supplemented by a bill of particulars, wholly failed to set forth, fully, correctly, expressly, certainly, and unambiguously, all elements necessary to constitute the offense intended to be punished.  United States v Kerney (SD NY) 444 F Supp 1290.

Footnote 37. United States v Grady (CA2 NY) 544 F2d 598,  37 ALR Fed 819; United States v Porth (CA10 Kan) 426 F2d 519, cert den  400 US 824,  27 L Ed 2d 53,  91 S Ct 47.

Footnote 38. United States v Macklin (CA2 NY) 535 F2d 191.

The predecessor to 18 USCS §  3288 was restricted to irregularities in the drawing or impaneling of the grand jury or upon the ground of disqualification of a grand juror, and it referred to the constitution of the grand jury at its inception.  United States v McKay (DC Mich) 45 F Supp 1007.

Footnote 39. United States v Zirpolo (DC NJ) 334 F Supp 756.

Footnote 40. United States v Moskowitz (ED NY) 356 F Supp 331.

Where the government filed a superseding indictment while the original indictment was still pending, 18 USCS §  3288 did not apply to toll the statute of limitations; however, the mere fact that the original indictment has not been dismissed does not make a superseding indictment invalid where the original indictment tolled the statute of limitations.  The superseding indictment was timely since the original indictment was still pending when the superseding one was filed.  United States v Drucker (SD NY) 453 F Supp 741, affd without op (CA2 NY) 591 F2d 1332, cert den  440 US 963,  59 L Ed 2d 778,  99 S Ct 1510.

Footnote 41. DeMarrias v United States (CA8 SD) 487 F2d 19, cert den  415 US 980,  39 L Ed 2d 877,  94 S Ct 1570.

Where an indictment for conspiracy was good against one defendant was lacking only in that it did not include other conspirators who were as guilty as the named defendant, such indictment was not "insufficient" for purposes of former 18 USC §  587 (predecessor to 18 USCS §  3288).  United States v Strewl (CA2) 162 F2d 819, cert den  332 US 801,  92 L Ed 381,  68 S Ct 92.

Footnote 42. United States v Di Stefano (SD NY) 347 F Supp 442.

Footnote 43. United States v Moriarty (ED Wis) 327 F Supp 1045.

Footnote 44. United States v Bair (ED Wis) 221 F Supp 171.

Footnote 45. United States v Rodgers, 8 USCMA 226, 24 CMR 36.

In 18 USCS §  3288, the term "indictment" connotes a traditional, formal, written charge returned by a grand jury.  Hattaway v United States (CA5 La) 304 F2d 5 (superseded by statute as stated in United States v Macklin (CA2 NY) 535 F2d 191).

Footnote 46. Mende v United States (CA9 Cal) 282 F2d 881, cert den  364 US 933,  5 L Ed 2d 365,  81 S Ct 379, reh den  365 US 825,  5 L Ed 2d 704,  81 S Ct 689.

Footnote 47. United States v Zirpolo (DC NJ) 334 F Supp 756.

Footnote 48. United States v Civic Plaza Nat. Bank (WD Mo) 390 F Supp 1342.


§ 242  Indictment where defect found before period of limitation  [21 Am Jur 2d CRIMINAL LAW]

Whenever an indictment is dismissed for any error, defect, or irregularity with respect to the grand jury, or an indictment or information that is filed after the defendant in open court has waived prosecution by indictment is found otherwise defective or insufficient for any cause, before the period prescribed by the applicable statute of limitations has expired, and such period will expire within six calendar months of the date of the dismissal of the indictment or information, a federal statute provides that a new indictment, which shall not be barred by any statute of limitations, may be returned in the appropriate jurisdiction within six calendar months of the expiration of the applicable period of limitations, or, if no regular grand jury is in session in the appropriate jurisdiction at the expiration of the applicable statute of limitations, within six calendar months of the date within the next regular grand jury is convened. 49     
 

§ 242  - Indictment where defect found before period of limitation [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Finding or return of indictment, or filing of information, as tolling limitation period;  18 ALR4th 1202. superseding  90 ALR 452.

Statutes:

18 USCS §  3289, as amended in 1988 by PL 100-690, now additionally covers informations as well as indictments, provides for a reduced time for refiling an indictment or information, following a dismissal on appeal, and prohibits the filing of a new indictment or information where the reason for the dismissal was the failure to file an indictment or information within the period prescribed by the applicable statute of limitations, or some other reason that would bar a new prosecution.

Footnotes

Footnote 49. 18 USCS §  3289.

Where two counts of a second indictment were substantially the same as those in a former indictment that had been quashed, the legal effect was to create reindictment for purposes of former 18 USC §§  587 and  588(predecessors to 18 USCS §§  3288 and  3289).  Hughes v United States (CA6 Tenn) 114 F2d 285.


F.  Former Jeopardy [243-320]

1.  In General [243-248]


§ 243  Generally; historical background  [21 Am Jur 2d CRIMINAL LAW]

The prohibition against double jeopardy has an extensive history.  With origins in ancient Greek and Roman law, it became established in early English common law and entered American common law through Blackstone's commentaries. 50   The common-law principle that a man shall not be brought into danger of his life or limb for one and the same offense more than once 51  is now embodied in the Fifth Amendment of the United States Constitution in language that tracks Blackstone's statement of the principles of autrefois acquit and autrefois convict, 52     which, together with the concept of pardon, respectively prevented the retrial of a person who had previously been acquitted, convicted, or pardoned for the same offense. 53   Every state now incorporates some form of the double jeopardy prohibition in its constitution or common law, 54   and the legislature cannot deprive citizens of it. 55      
                                               

§ 243  – Generally; historical background [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Double jeopardy after United States v. Dixon, 30 Crim L Bull 4:346 (1994).

The Burden of Proof in Double Jeopardy Claims. 82 Mich LR 365, November, 1983.

Cantrell, Double Jeopardy and Multiple Punishment: An Historical and Constitutional Analysis. 24 So Tex LJ 735, 1983.

Thomas, A Modest Proposal to Save the Double Jeopardy Clause. 69 Wash ULQ 195, Spring, 1991.

Case authorities:

The constitutional guarantee against double jeopardy consists of three separate constitutional protections–protecting against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense; for purposes of double jeopardy, an acquittal is accorded special weight and the public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even if the acquittal was based on an egregiously erroneous foundation, absolute finality being accorded to a jury's verdict of acquittal no matter how erroneous its decision. United States v Di Francesco (1980, US)  66 L Ed 2d 328,  101 S Ct 426.

Multiple punishment prong of double jeopardy clause precluded defendant from being prosecuted in different district court for fraudulent conduct that was already used in prior proceeding as relevant conduct under § 1B1.3(a)(2) to increase defendant's offense level. United States v McCormick (1993, CA2 Vt) 992 F2d 437.

Double Jeopardy Clause applies in Virgin Islands. Government of the Virgin Islands v Christensen (1982, CA3 VI) 673 F2d 713.

Government's introduction of certain evidence in order to obtain defendant's conviction in first trial did not preclude, on double jeopardy grounds, introduction of same evidence in second trial involving different offense, since Fifth Amendment does not bar omission of same evidence. United States v Morris (1995, CA5 Tex) 46 F3d 410.

Double jeopardy was not violated by convictions and sentences on both conspiracy to distribute cocaine count under 2l USCS §  846 and conspiracy to use or carry firearms in relation to drug trafficking crime count under 18 USCS §  924(c), since Congress intended § 924(c) to act as enhancement to other offenses. United States v Gibbons (1993, CA6 Mich) 994 F2d 299, petition for certiorari filed (Jun 30, 1993).

Double jeopardy clause precluded district courts from disturbing defendant's sentence order of imprisonment and fine which omitted cost of incarceration and supervision on government's motion to amend where defendant had completed serving his incarceration and had paid all fines and restitutions since he had acquired legitimate expectation of finality in his sentence. United States v Daddino (1993, CA7 Ill) 5 F3d 262.

Defendant's sentencing for armed assault on federal officer in violation of 18 USCS §  111 and of using firearm in commission of violent felony in violation of 18 USCS §  924 did not violate double jeopardy, since Congess intended separate punishment under § 924. Bear Heels v United States (1993, CA8 SD) 993 F2d 1325.

Double jeopardy clause was violated by trial court's erroneous citation of applicable parole eligibility section in written judgment even though court corrected its mistake in oral pronouncement of sentence. United States v Garcia (1994, CA9 Cal) 37 F3d 1359, 94 CDOS 7615, 94 Daily Journal DAR 13968, cert den (1995, US)  131 L Ed 2d 562,  115 S Ct 1699.

Defendant, convicted of drug and tax offenses, lacked reasonable expectation in original sentence of 13 years imprisonment, and thus resentencing did not implicate double jeopardy concerns, even though sentence was increased to include additional three-year parole term as required by law. United States v Rourke (1992, CA10 Okla) 984 F2d 1063.

The guarantee against double jeopardy consists of 3 separate constitutional protections: It protects against a second prosecution for the same offense after acquittal; it protects against a second prosecution for the same offense after conviction; and it protects against multiple punishments for the same offense. Lippman v State (1994, Fla) 633 So 2d 1061, 19 FLW S 129.

Where defendant's conviction for aggravated criminal sexual assault could be supported without relying on the acts which caused the victim's death, there was no impermissible double enhancement. People v Scott (1992) 148 Ill 2d 479, 171 Ill Dec 365, 594 NE2d 217, cert den (US)  123 L Ed 2d 156.

In a criminal prosecution, the issue of double jeopardy is subject to appellate review even though not preserved properly for review by a contemporaneous objection. Tyler v Commonwealth (1991, Ky) 805 SW2d 126.

The protection afforded by the double jeopardy clause is not waived by the failure of the defendant to object at trial to a violation of his constitutional protection against double jeopardy. Hall v Commonwealth (1991, Ky App) 819 SW2d 39.

Double jeopardy clause is not violated by state's capital punishment scheme, under which same felony may form basis of essential element of crime and aggravating circumstance for consideration by jury in recommending death sentence. State v Flowers (1983, La) 441 So 2d 707.

One convicted of carrying a concealed weapon was not entitled to reversal on the basis of double jeopardy where a companion at the incident had earlier been tried and convicted separately of the same charge with respect to the same weapon; accused was not tried, therefore not in jeopardy in the initial prosecution of the companion. Shearman v Van Camp (1992) 64 Ohio St 3d 468, 597 NE2d 90.

Although revocation of parole hearing can result in incarceration and thereby loss of probationer's or parolee's conditional liberty status, incarceration comes about through reimposition of original criminal sanction after it has been determined that defendant is not fit to continue on probational parole status and hearing is not itself new criminal adjudication, does not require proof of criminal offense, does not impose punishment for any new offense, and is act in performance of duty of judicial supervision of probationary liberty; therefore, Double Jeopardy Clause does not attach. State v Dawson (1981, W Va) 282 SE2d 284.

Footnotes

Footnote 50. United States v Wilson,  420 US 332,  43 L Ed 2d 232,  95 S Ct 1013; Benton v Maryland,  395 US 784,  23 L Ed 2d 707,  89 S Ct 2056, on remand 8 Md App 388, 260 A2d 86.

Footnote 51. Ex parte Lange,  85 US 163,  21 L Ed 872; Davidson v People, 64 Colo 281, 170 P 962; Bennett v State, 229 Md 208, 182 A2d 815,  4 ALR3d 862; Commonwealth v Di Stasio, 297 Mass 347, 8 NE2d 923,  113 ALR 1133, cert den  302 US 683,  82 L Ed 527,  58 S Ct 50 and cert den  302 US 759,  82 L Ed 587,  58 S Ct 370; State v Linton, 283 Mo 1, 222 SW 847; State v Williams, 30 NJ 105, 152 A2d 9; State v Watson, 209 NC 229, 183 SE 286.

Footnote 52. United States v Wilson,  420 US 332,  43 L Ed 2d 232,  95 S Ct 1013.

Footnote 53. United States v Scott,  437 US 82,  57 L Ed 2d 65,  98 S Ct 2187, on remand (CA6) 579 F2d 1013, cert den  440 US 929,  59 L Ed 2d 486,  99 S Ct 1266 and reh den  439 US 883,  58 L Ed 2d 197,  99 S Ct 226; United States v Wilson,  420 US 332,  43 L Ed 2d 232,  95 S Ct 1013; Ex parte Lange,  85 US 163,  21 L Ed 872.

Footnote 54. Benton v Maryland,  395 US 784,  23 L Ed 2d 707,  89 S Ct 2056, on remand 8 Md App 388, 260 A2d 86.

Practice Aids: –The Meaning of Double Jeopardy.  74 Harvard L Rev 3.

–Jeopardy.  3 Wharton's Criminal Evidence (13th ed) §§ 655-661.

Footnote 55. United States v Aurandt, 15 NM 292, 107 P 1064; Ex parte Bornee, 76 W Va 360, 85 SE 529.

As to accused's waiver of right to plead former jeopardy, see  § 461, infra.

As to accused's failure to object to court's declaration of mistrial as waiver of defense of double jeopardy, see  § 287, infra.

As to waiver of claim of double jeopardy by attack on earlier proceeding, see  §§ 309,  314, infra.

As to weight and sufficiency of evidence and burden of proof concerning defense of double jeopardy, see 30 Am Jur 2d,  Evidence § 1160.

As to double jeopardy as defense to particular crimes see: 1 Am Jur 2d,  Abduction and Kidnapping § 28; 2 Am Jur 2d,  Adultery and Fornication § 16; 5 Am Jur 2d,  Arson § 31; 6 Am Jur 2d,  Assault and Battery § 64; 7A Am Jur 2d (Rev) Automobiles and Highway Traffic §§ 388-391; 10 Am Jur 2d,  Bigamy § 37; 12 Am Jur 2d,  Breach of Peace and Disorderly Conduct §§ 27,  39,  46; 13 Am Jur 2d,  Burglary § 65; 16 Am Jur 2d (Rev) Conspiracy § 37; 17 Am Jur 2d,  Contempt §§ 15,  29,  127; 23 Am Jur 2d,  Desertion and Nonsupport §§ 26,  77,  78; 25 Am Jur 2d,  Drugs, Narcotics, and Poisons § 27; 25 Am Jur 2d,  Elections § 377; 26 Am Jur 2d,  Embezzlement §§ 36,  39,  45; 27 Am Jur 2d,  Escape § 17; 36 Am Jur 2d,  Forgery §§ 30,  43; 38 Am Jur 2d,  Gambling §§ 33,  167; 40 Am Jur 2d,  Homicide §§ 183, et seq.; 41 Am Jur 2d,  Incest § 12; 45 Am Jur 2d,  Intoxicating Liquors §§ 352-356,  447,  611; 50 Am Jur 2d,  Larceny §§ 116,  138; 50 Am Jur 2d,  Lewdeness, Indecency, and Obscenity § 30; 50 Am Jur 2d,  Libel and Slander § 508; 54 Am Jur 2d,  Mobs and Riots § 56; 58 Am Jur 2d,  Nuisances § 143; 60 Am Jur 2d,  Perjury §§ 51-52; 63 Am Jur 2d,  Rape § 32; 67 Am Jur 2d,  Robbery §§ 48,  89,  97; 70 Am Jur 2d,  Sedition § 21; 70 Am Jur 2d,  Seduction § 22; 70 Am Jur 2d,  Sodomy § 19.

As to former jeopardy as ground for discharge on habeas corpus, see 39 Am Jur 2d,  Habeas Corpus § 61.

As to double jeopardy and juvenile court proceedings, see 47 Am Jur 2d,  Juvenile Courts and Delinquent and Dependent Children § 45.

As to res judicata and former jeopardy as grounds for prohibition, see 63 Am Jur 2d,  Prohibition § 33.


§ 244  Constitutional provisions; scope of protection  [21 Am Jur 2d CRIMINAL LAW]

The Fifth Amendment provides, in part, that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."  Recognizing that the prohibition against double jeopardy represents a "fundamental ideal in our constitutional heritage," the United States Supreme Court has held that the Fifth Amendment's double jeopardy clause applies to the states through the Fourteenth Amendment.  The same constitutional standards concerning double jeopardy pertain to both the state and federal governments; 56  and the federal constitutional prohibition is considered as fully applicable to state criminal proceedings. 57        

As in the case of the common-law rule, 58   the constitutional provisions against double jeopardy protect an accused not only against the peril of a second punishment, 59   but also against being tried again for the same offense, 60  whether he was acquitted or convicted on the former trial. 61   The "twice put in jeopardy" language relates to a potential–the risk that an accused for a second time will be convicted for the "same offense" for which he was initially tried. 62     

Since the constitutional prohibition against double jeopardy is designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense, it does not allow a state to make repeated attempts to convict him. 63   At the heart of the prohibition is a concern that permitting the sovereign freely to subject a citizen to a second trial for the same offense would arm the government with a potent instrument of oppression. 64    It forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence that it failed to muster in the first proceeding. 65   The double jeopardy clause of the Fifth Amendment therefore provides three related protections.  It protects against:  (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.  The interests underlying these three protections are quite similar.  Where a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of futher punishment by being again tried or sentenced for the same offense.  When a defendant has been acquitted of an offense the clause guarantees that the state shall not be permitted to make repeated attempts to convict him, thereby subjecting him to embarrassment, expense, and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty. 66   Furthermore, although English common law follows the relatively simple rule that a defendant has been put in jeopardy only when there has been a conviction or an acquittal after a complete trial, the United States constitutional guarantee against double jeopardy may be invoked by a defendant who was subjected to a prosecution that was discontinued without a verdict and did not culminate in a conviction or an acquittal. 67    For example, the double jeopardy clause prohibits retrial of a defendant whose first trial ended in an improperly declared mistrial. 68  

Since the double jeopardy clause prohibits a second trial for the same offense after a final judgment is reached in the first prosecution, not merely conviction or punishment, a defendant may appeal from a trial court's denial of his motion to dismiss an indictment on double jeopardy grounds before the second trial takes place. 69  


§ 244  – Constitutional provisions; scope of protection [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Cantrell, Double Jeopardy and Multiple Punishment: An Historical and Constitutional Analysis. 24 So Tex LJ 735, 1983.

U.S. v Dixon –Finally a bright line rule in double jeopardy analysis? 58 Tex BJ 5:453 (1995).

The Double Jeopardy Clause as a Bar to Reintroducing Evidence. 89 Yale LJ 962, April, 1980.

 22 Fed Proc, L Ed §§  22:204-22:239Doctrine of former jeopardy in federal criminal proceedings.

Case authorities:

While the prohibition against multiple trials is the controlling constitutional principle involved in the double jeopardy clause of the Fifth Amendment, the protection against retrial is not absolute and it is acquittal that prevents retrial even if legal error was committed at the trial. United States v Di Francesco (1980, US)  66 L Ed 2d 328,  101 S Ct 426.

The double jeopardy clause of the Fifth Amendment is enforceable against the states through the Fourteenth Amendment. Arizona v Manypenny (1981, US)  68 L Ed 2d 58,  101 S Ct 1657.

The double jeopardy clause of the Fifth Amendment forbids the retrial of a defendant who has been acquitted of the crime charged. Bullington v Missouri (1981, US)  68 L Ed 2d 270,  101 S Ct 1852.

Although a civil sanction may, under some circumstances, be so disproportionate to the damages caused by the defendant that it constitutes "punishment" for purposes of analysis under the double jeopardy clause of the Federal Constitution's Fifth Amendment, this does not preclude the government from seeking the full civil penalty against a defendant who previously has not been punished for the same conduct, even if the civil sanction imposed is punitive; in such a case, the double jeopardy clause is not implicated. United States v Halper (1989, US)  104 L Ed 2d 487,  109 S Ct 1892.

The conviction and sentencing of a defendant in a state court to consecutive terms of imprisonment for both felony-murder and the underlying felony violates that aspect of the double jeopardy clause of the Federal Constitution's Fifth Amendment which protects against multiple punishments for the same offense being imposed in a single proceeding, where the state legislature, in enacting the felony-murder statute, (1) does not intend to allow conviction and punishment for both offenses, but (2) rather intends that persons who commit murder in the commission of a felony are either to be convicted of felony-murder or to be convicted separately of the felony and of non-felony-murder. Jones v Thomas (1989, US)  105 L Ed 2d 322,  109 S Ct 2522, reh den (US)  106 L Ed 2d 627,  110 S Ct 12.

The double jeopardy clause of the Federal Constitution's Fifth Amendment bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the prosecutors will prove conduct that constitutes an offense for which the defendant has already been prosecuted; thus, the double jeopardy clause bars a motorist from being tried in state courts on charges of reckless or negligent homicide and reckless assault arising out era traffic accident, and the state's highest court properly grants a writ of prohibition against such a prosecution, where (1) the motorist has previously pleaded guilty to traffic tickets arising out of the same accident, which tickets charged the motorist with (a) driving while intoxicated, and (b) failing to keep right of the median, and (2) the prosecutors in the homicide and assault case have filed a bill of particulars which states that they will show recklessness or negligence by proving that the motorist, among other misconduct, (a) operated a motor vehicle on a public highway while intoxicated, and (b) failed to keep right of the median–thereby proposing to prove the entirety of the conduct for which the motorist has already been convicted; a subsequent prosecution on the homicide and assault charges would not be barred under the above rule if the bill of particulars indicated that the prosecutors would not rely on proving the conduct for which the motorist has already been convicted to establish recklessness or negligence, but would rely solely on his conduct in driving too fast in a heavy rain; although an exception to the above rule may exist where the prosecution is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain the charge have not occurred or have not yet been discovered, such an exception is inapplicable to the case at hand, because one assistant district attorney was informed of the fatality on the night of the accident, although neither the court hearing the traffic charges nor the assistant district attorney covering that court was informed of the fatality or of the pending homicide investigation. Grady v Corbin (1990, US)  109 L Ed 2d 548,  110 S Ct 2084.

Prosecution of a defendant for conspiracy, where certain of the overt acts relied on by the government are based on substantive offenses for which the defendant has been previously convicted, does not violate the double jeopardy clause of the Federal Constitution's Fifth Amendment, because a substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes; thus, double jeopardy does not bar the prosecution of a defendant in a federal court in Oklahoma on charges of conspiracy to manufacture, possess, and distribute methamphetamine, even though (1) the defendant previously has been convicted in a federal court in Missouri of the offense, committed subsequent to the alleged Oklahoma offenses, of attempting to manufacture methamphetamine, based on his accepting delivery in Missouri of chemicals and equipment required for that activity, and (2) two of the nine overt acts charged in the Oklahoma indictment and naming the defendant are based on conduct that was the subject of the Missouri prosecution, namely, the defendant's (a) making a downpayment in Oklahoma on the chemicals and equipment later delivered in Missouri, and (b) receiving those materials in Missouri. United States v Felix (1992, US)  118 L Ed 2d 25,  112 S Ct 1377, 92 CDOS 2539, 92 Daily journal DAR 4007, 34 Fed Rules Evid Serv 315.

Double jeopardy clause of Fifth Amendment applies to both successive punishments and successive prosecutions for same criminal offense. United States v Dixon (1993, US)  125 L Ed 2d 556,  113 S Ct 2849, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.

The double jeopardy clause of the Federal Constitution's Fifth Amendment, which provides that no person may be twice put in jeopardy for the same offense, applies to both successive punishments and successive prosecutions for the same criminal offense. United States v Dixon (US)  125 L Ed 2d 556, 93 CDOS 4852, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.

The double jeopardy clause of the Federal Constitution's Fifth Amendment, which provides that no person may be twice put in jeopardy for the same offense, applies to nonsummary criminal contempt prosecutions, as criminal contempt–at least the sort enforced through nonsummary proceedings–is a crime in the ordinary sense. United State v Dixon (US)  125 L Ed 2d 556, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.

The question whether subsequent criminal prosecutions are barred by the double jeopardy clause of the Federal Constitution's Fifth Amendment, where defendants were tried for criminal contempt of court for violating court orders prohibiting them from engaging in conduct that was the subject of the subsequent prosecutions, should be evaluated (1) under the same-elements test, but (2) not also under an additional double jeopardy test–which prohibits a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the accused already has been prosecuted–announced in a prior Supreme Court decision, since the Supreme Court has decided to overrule that prior decision. (White, Stevens, and Souter, JJ., dissented from this holding). United States v Dixon (US)  125 L Ed 2d 556, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.

On certiorari to review a decision of the District of Columbia Court of Appeals in a case which the sole question presented in the petition for certiorari is whether the double jeopardy clause of the Federal Constitution's Fifth Amendment bars prosecution of an accused on substantive criminal charges based upon the same conduct for which the accused previously has been held in criminal contempt of court for violating a court order, the United States Supreme Court will consider whether particular counts–prosecution of which has been determined by the Supreme Court not to be barred under a double jeopardy test announced later in another prior Supreme Court case, because (1) the government, as one of the litigants in the instant case, argued in its brief that the counts should be evaluated under the earlier test only, (2) the Supreme Court is not aware of any principle that prevents the court from accepting a litigant's legal theory unless the court agrees with the litigant on all the applications of the theory, (3) the standard to be applied in determining the double jeopardy effect of criminal charges based on the same conduct is included within the question presented, and (4) there is no abuse of prudential limitations, where the evident factual differences between the subsequent charges and the court order is central to proper constitutional analysis. United States v Dixon (US)  125 L Ed 2d 556, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.

A defendant who asserts that principles of constitutional collateral estoppel, under the double jeopardy clause of the Federal Constitution's Fifth Amendment, require the vacation of his death sentence bears the burden of demonstrating that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding. Schiro v Farley (US)  127 L Ed 2d 47,  114 S Ct 783.

The protections of the double jeopardy clause of the Federal Constitution's Fifth Amendment stem from the underlying premise that a defendant should not be twice tried or punished for the same offense; the clause operates as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent; the primary evil to be guarded against is successive prosecutions. Schiro v Farley (US)  127 L Ed 2d 47,  114 S Ct 783.

When a defendant has been acquitted, the double jeopardy clause of the Federal Constitution's Fifth Amendment guarantees that the state shall not be permitted to make repeated attempts to convict the defendant. Schiro v Farley (US)  127 L Ed 2d 47,  114 S Ct 783.

Under the double jeopardy clause of the Federal Constitution's Fifth Amendment, a criminal defendant convicted and punished for an offense may not have a nonremedial civil penalty imposed upon the defendant for the same offense in a separate proceeding, but subjecting a tax statute to the actual-costs test for civil penalties is inappropriate, as (1) tax statutes serve a purpose different from civil penalties, and (2) the actual-costs test does not work in the case of a tax statute. (O'Connor, Scalia, and Thomas, JJ., dissented in part from this holding.) Department of Revenue v Kurth Ranch (US)  128 L Ed 2d 767,  114 S Ct 1937.

Under the double jeopardy clause of the Federal Constitution's Fifth Amendment, a state may collect a tax on an unlawful activity if the state has not previously punished the taxpayer for the same offense, or if the state assesses the tax in the same proceeding that results in the taxpayer's conviction; however, a tax is not immune from double jeopardy scrutiny simply because it is a tax, a court's task is to determine whether the tax has punitive characteristics that subject the tax to the constraints of the double jeopardy clause, and taxes imposed upon illegal activities are fundamentally different not only from taxes with a pure revenue-raising purpose that are imposed despite their adverse effect on the taxed activity, but also from mixed-motive taxes that are imposed both to deter a disfavored activity and to raise money. (Rehnquist, Ch. J., and Scalia and Thomas, JJ., dissented in part from this holding.) Department of Revenue v Kurth Ranch (US)  128 L Ed 2d 767,  114 S Ct 1937.

The double jeopardy clause of the Federal Constitution's Fifth Amendment protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense; although the text of the double jeopardy clause mentions only harms to "life or limb," it is well settled that the Fifth Amendment covers imprisonment and monetary penalties. (Scalia and Thomas, JJ., dissented in part from this holding.) Department of Revenue v Kurth Ranch (US)  128 L Ed 2d 767,  114 S Ct 1937.

A jury's arbitrary decision to acquit a defendant charged with a crime is completely unreviewable. Honda Motor Co. v Oberg (1994, US)  129 L Ed 2d 336,  114 S Ct 2331, 94 CDOS 4761, 94 Daily Journal DAR 8844, CCH Prod Liab Rep P 13895, 8 FLW Fed S 341.

The double jeopardy clause of the Federal Constitution's Fifth Amendment prohibits successive prosecution or multiple punishment for the same offense; the language of the double jeopardy clause protects against more than the actual imposition of two punishments for the same offense, and by the terms of the clause, it protects a criminal defendant from being twice put in jeopardy for such punishment, that is, the clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense; thus, under the double jeopardy clause, courts may not impose more than one punishment for the same offense, and prosecutors ordinarily may not attempt to secure that punishment in more than one trial. (Scalia and Thomas, JJ., dissented in part from this holding.) Witte v United States (1995, US)  132 L Ed 2d 351,  115 S Ct 2199, 95 CDOS 4523, 95 Daily Journal DAR 7739.

There was no violation of double jeopardy clause, where court sentenced defendant separately on continuing criminal enterprise count under 21 USCS §  848,  853, and on two convictions for aiding and abetting distribution of narcotics in violation of 18 USCS §  2 and 21 USCS §  841, since aiding and abetting was substantive crime, and logic supports conclusion that Congress intended separate punishments for underlying substantive predicate and for continuing criminal enterprise offense. United States v Rivera-Martinez (1991, CA1 Puerto Rico) 931 F2d 148, cert den (US)  116 L Ed 2d 145  122 S Ct 184, post-conviction proceeding 785 F Supp 23, affd without op 968 F2d 1210, reported in full slip op.

Defendant's retrial did not violate double jeopardy where court had granted mistrial after discovery that second individual allegedly involved with narcotics conspiracy was referred to by same name as defendant and had previously been represented by defense counsel and court could not devise remedy to resolve problem since mistrial was justified by manifest necessity. United States v Simonetti (1993, CA1 Me) 998 F2d 39, summary op at (CA1 Me) 21 M.L.W. 3118, 14 R.I.L.W. 358.

Double jeopardy did not bar defendant's retrial after his conviction was reversed because of prosecutorial misconduct through presentation of perjured testimony where there was no showing of prosecutor's deliberate misconduct to avoid acquittal. United States v Wallach (1992, CA2 NY) 979 F2d 912.

Evidence of failure to appear in court, introduced to show consciousness of guilt in narcotics trial, did not bar later prosecution for bail jumping in another state since defendant had not been previously prosecuted for conduct for which he was charged in bail jumping trial. United States v Ahmed (1992, CA2 NY) 980 F2d 161.

Defendant's prosecution on conspiracy charges arising from smaller drug conspiracy that was part of larger drug conspiracy of which defendants were previously acquitted was barred by double jeopardy clause. United States v Calderone (1992, CA2 NY) 982 F2d 42.

Defendants' acquittal of conspiracy to distribute heroin did not bar, on double jeopardy grounds, later prosecution for possession of heroin with intent to distribute. United States v Calderone (1992, CA2 NY) 982 F2d 42.

Defendant's due process rights and rights concerning double jeopardy were not violated by court's decision to base enhancement of his sentence for possession of stolen property upon facts contained in dismissed count of indictment. United States v Streich (1993, CA2 Vt) 987 F2d 104.

60-months sentence for carrying firearm in relation to narcotics trafficking offense consecutive to defendant's sentences for underlying drug crimes which had been enhanced after defendant was classified as career offender did not violate double jeopardy clause since Congress clearly intended to impose cumulative punishments. United States v Howard (1993, CA2 Conn) 998 F2d 42.

Double jeopardy clause does not bar government from prosecuting defendant for possession of firearm by felon despite his prior prosecution for transporting same weapon in interstate commerce knowing it was stolen since each charge requires proof of fact not required for other. United States v Liller (1993, CA2 NY) 999 F2d 61.

Double jeopardy did not limit government's recovery in forfeiture action relating to building which housed narcotics defendant's clinic and pharmacy of costs in investigating and prosecuting case since clause does not apply to civil forfeitures where forfeited property itself was instrument of criminal activity. United States v Cullen (1992, CA4 Va) 979 F2d 992.

Sentencing tri-furcated procedure whereby jury first assessed life imprisonment for accused's aggravated robbery convictions and then assessed death sentence for capital murder conviction did not violate defendant's right to be free from double jeopardy or his due process rights. Callins v Collins (1993, CA5 Tex) 998 F2d 269.

Defendant's rights under double jeopardy clause were not violated by his multiple convictions for use of same firearms in relation to two different drug trafficking offenses since each conviction was based on defendant's use of such firearms in different drug offense. United States v Johnson (1993, CA6 Mich) 986 F2d 134.

Double jeopardy principles were not violated by imposition of civil penalties on defendant officers and directors of corporation who had been convicted of willfully violating mandatory safety standards under Federal Mine Safety and Health Act since Congress may impose both a criminal and civil sanction in respect to same act or omission. United States v WRW Corp. (1993, CA6 Ky) 986 F2d 138, 23 BCD 1672, CCH Bankr L Rptr ¶ 75155, 1993 CCH OSHD ¶ 29973, reh, en banc, den (CA6) 1993 US App LEXIS 10899.

Court's declaration of mistrial in bank fraud and mail fraud prosecution after jury informed trial judge twice during 4 days of deliberation that they were deadlocked was supported by manifest necessity and permitted retrial without violating double jeopardy. Re Ford (1993, CA6 Tenn) 987 F2d 334.

Double jeopardy clause does not prohibit convictions and sentences under 18 USCS §  924 which provides for enhanced punishment when offender used or carried firearms in connection with commission of crimes of violence and under 18 USCS §  2113 which already provides enhanced punishment for armed robbery while carrying dangerous weapon since double jeopardy clause does no more than prevent sentencing court from prescribing greater punishment than legislature intended. United States v Harris (1987, CA7 Wis) 832 F2d 88.

Collateral estoppel component of double jeopardy did not bar defendant's retrial for murder after jury verdict convicting him for both murder and voluntary manslaughter had been reversed on appeal, where there was no finding that defendant acted in sudden passion as required for voluntary manslaughter conviction under Illinois law. Kennedy v Washington (1993, CA7 Ill) 986 F2d 1129, reh, en banc, den (CA7) 1993 US App LEXIS 6683.

Reconsideration by National Association of Security Dealers of matter after it had closed its investigation of dealer did not violate double jeopardy clause since clause does not apply to civil proceedings. Schellenbach v SEC (1993, CA7) 989 F2d 907, CCH Fed Secur L Rep ¶ 97378.

Resentencing Missouri persistent offender after reversal of his initial sentence based on insufficient evidence violated double jeopardy clause since Missouri persistent offender proceeding is sufficiently similar to trial on guilt or innocence. Bohlen v Caspari (1992, CA8 Mo) 979 F2d 109, reh, en banc, den (CA8) 1992 US App LEXIS 32167 and motion gr, cert gr (US)  125 L Ed 2d 660,  113 S Ct 2958, 93 Daily Journal DAR 7442.

Double jeopardy was not violated by punishing defendant for aiding and abetting armed bank robbery and aiding and abetting use of firearm in commmission of violent felony since Congress clearly intended that person liable for use of firearm be liable for both underlying felony and use of gun charge. United States v Simpson (1992, CA8 Minn) 979 F2d 1282, petition for certiorari filed (Jan 5, 1993).

Imposition of criminal fines for defendants' conspiracy to evade employment taxes and of civil penalties for their failure to file returns and pay personal taxes did not violate double jeopardy clause since penalties were not imposed for same conduct and were not multiple punishments for same conduct. United States v Mathis (1992, CA8 SD) 980 F2d 496, 71 AFTR 2d 93-377.

Court did not violate defendant's right to due process or prohibition against double jeopardy by using the same earlier conviction to add three criminal history points under Sentencing Guidelines for earlier sentence of imprisonment, exceeding one year and one month, two points for offense committed while on parole and one point for offense committed less than two years after release for a total of six points. United States v Kirtley (1993, CA8 Iowa) 986 F2d 285.

Defendant's prosecution on 4 counts of robbery and 4 counts of use of weapon during violent crime for same incidents did not violate double jeopardy. United States v McQuiston (1993, CA8 Ark) 998 F2d 627.

Imposition of separate consecutive sentences for violating probation and for violating supervised release based on single violation did not violate double jeopardy since defendant was not directly prosecuted for violation at all but punishment was for conduct underlying original convictions. United States v Clark (1993, CA9 Cal) 984 F2d 319, 93 CDOS 448, 93 Daily Journal DAR 975.

Convicted narcotics offenders' double jeopardy rights were violated by assessing them $865,000 as "tax" under Montana Dangerous Drug Tax Act since civil sanction was disproportionate to government's costs and was actually in nature of additional punishment. Re Kurth Ranch (1993, CA9 Mont) 986 F2d 1308, 93 CDOS 1373.

Defendants were not placed twice in jeopardy when trial court dismissed three jurors after jury was sworn because of unavailability and in three alternate jurors were selected since jeopardy did not terminate during process of jury selection merely because sworn jurors were excused during process of selecting alternates. United States v Trigg (1993, CA9 Cal) 988 F2d 1008, 93 CDOS 2110, 93 Daily Journal DAR 3741, supp op (CA9 Cal) 1993 US App LEXIS 6252.

Deportation of illegal alien convicted of drug crimes did not constitute double jeopardy as being second punishment for single crime since deportation is civil action and not criminal punishment. Urbina-Mauricio v INS (1993, CA9) 989 F2d 1085, 93 CDOS 2201, 93 Daily Journal DAR 3853.

Drug conspiracy defendant's rights under double jeopardy clause were not violated when district court relied twice on use of gun by defendant, first in refusing to give downward adjustment under Sentencing Guidelines for "minor participant" and second in sentencing defendant separately for possessing gun. United States v Taren-Palma (1993, CA9 Ariz) 997 F2d 525, 93 CDOS 4256, 93 Daily Journal DAR 7305.

Defendant's double jeopardy rights were not violated by imposition of consecutive sentences for violation of 2 statutes, namely malicious destruction of building by use of explosives and use of explosives to commit felony, since violation of each statute required proof of fact which other did not. United States v Karlic (1993, CA9 Cal) 997 F2d 564, 93 CDOS 4637, 93 Daily Journal DAR 7906.

Consecutive sentences for violation of 18 USCS §  844(h) and (i) did not violate double jeopardy, where defendant was charged with felony violation of 18 USCS §  2113(a), entering bank with intent to commit larceny, which was required for § 844(h) but not § 844(i) offense, since there is no indication that Congress did not intend this result. United States v Karlic (1993, CA9 Cal) 997 F2d 564, 93 CDOS 4637, 93 Daily Journal DAR 7906.

Defendant's right under double jeopardy clause was not violated when illegal sentence, in which court failed to include statutorily mandated special parel term, was corrected in resentencing to include such term without at same time reducing original prison term, thus resulting in increased sentence, since defendant lacked reasonable expectation of finality in original illegal sentence. United States v Rourke (1992, CA10 Okla) 984 F2d 1063.

Consideration for sentencing purposes of conduct alleged in count upon which defendant was acquitted did not violate double jeopardy clause since there was no separate punishment for acquitted crime but only enhancement of sentence of convicted crime. United States v Garcia (1993, CA10 Okla) 987 F2d 1459.

Double jeopardy did not bar retrial of defendant after court declared sua sponte mistrial when sick juror was unable to continue and defendant declined to continue trial with only 11 jurors and made no objection to court's sua sponte declaration of mistrial since judge exercised sound discretion in determining that manifest necessity existed for mistrial. United States v Holley (1993, CA5 Tex) 986 F2d 100, reh, en banc, den (CA5) 1993 US App LEXIS 9692.

Double jeopardy clause does not provide defendant with right to know at any specific moment in time what exact limit of his punishment will turn out to be. United States v Jones (1983, CA11 Ga) 722 F2d 632.

Prohibition of double jeopardy is not against all multiple punishments, applying only to multiple punishments for same offense. State v Alexander (1980, Minn) 290 NW2d 745.

Enhancement of criminal defendant's sentence from 6 months to 12 months by the court, after defendant had already begun to serve her sentence, violated defendant's rights under the Double Jeopardy Clause of the United States Constitution, 'where there was no statutory authority granting the trial court the power to increase the sentence, because the Double Jeopardy Clause prevents a trial court from modifying a completed sentence by increasing it after execution of that sentence has commenced. State v Ballard (1991, Clermont Co) 77 Ohio App 3d 595, 602 NE2d 1234.

The double jeopardy provision of the Texas and the US Constitutions are not offended when evidence used in a successful or unsuccessful attempt to revoke "regular" probation or deferred adjudication probation is later used to prosecute the defendant in a different case. Chambers v State (1985, Tex Crim) 700 SW2d 597.

Forfeiture of a disabled person's specially equipped vehicle in connection with possession of narcotics did not implicate the multiple-punishment prong of the double jeopardy clause as the forfeiture proceeding was an in rem proceeding which did not constitute a second punishment prohibited by the double jeopardy clause. People v 1988 Mercury Cougar (1992) 154 Ill Dec 323, 607 NE2d 217.

Footnotes

Footnote 56. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221; Benton v Maryland,  395 US 784,  23 L Ed 2d 707,  89 S Ct 2056, on remand 8 Md App 388, 260 A2d 86, ovrlg Palko v Connecticut,  302 US 319,  82 L Ed 288,  58 S Ct 149.

Footnote 57. Illinois v Vitale,  447 US 410,  65 L Ed 2d 228,  100 S Ct 2260; Greene v Massey,  437 US 19,  57 L Ed 2d 15,  98 S Ct 2151, on remand (CA5) 595 F2d 221, ctfd ques ans (Fla) 384 So 2d 24.

Annotation:  25 L Ed 2d 968, § 2.

Footnote 58.  § 243, supra.

Footnote 59. Whalen v United States,  445 US 684,  63 L Ed 2d 715,  100 S Ct 1432; Weeks v State (Me) 267 A2d 641; Anderson v Commissioner of Highways, 267 Minn 308, 126 NW2d 778,  9 ALR3d 746 (suspension or revocation of driver's license is not a punishment); Rupert v State, 9 Okla Crim 226, 131 P 713.

Compare Louisiana ex rel. Francis v Resweber,  329 US 459,  91 L Ed 422,  67 S Ct 374, reh den  330 US 853,  91 L Ed 1295,  67 S Ct 673, holding that no double jeopardy is involved in executing a death sentence after an accidental failure in equipment had rendered a previous attempt at execution ineffectual.

Annotation:  25 L Ed 2d 968, § 4.

As to statutory prohibition of multiple punishment for offenses arising out of same transaction, see  § 551, infra.

As to concurrent and consecutive or cumulative sentences for more than one offense, see  § 552, infra.

As to increased punishment on retrial of defendant after successful appeal from first conviction, see  § 581, infra.

As to jeopardy effect of resentence after illegal sentence, see  §§ 583,  584, infra.

Footnote 60. Stroud v United States,  251 US 15,  64 L Ed 103,  40 S Ct 50, reh den  251 US 380,  64 L Ed 317,  40 S Ct 176; Davidson v People, 64 Colo 281, 170 P 962; State v Duvall, 135 La 710, 65 So 904, error dismd  239 US 626,  60 L Ed 474,  36 S Ct 162; State v Labato, 7 NJ 137, 80 A2d 617; State v Watson, 209 NC 229, 183 SE 286; State v Ridgley, 70 Wash 2d 555, 424 P2d 632; State v Brunn, 22 Wash 2d 120, 154 P2d 826, (superseded by statute as stated in State v Jubie 15 Wash App 881, 552 P2d 196).

Footnote 61. Abney v United States,  431 US 651,  52 L Ed 2d 651,  97 S Ct 2034; Serfass v United States,  420 US 377,  43 L Ed 2d 265,  95 S Ct 1055; United States v Ewell,  383 US 116,  15 L Ed 2d 627,  86 S Ct 773 (ovrld on other grounds Chapman v California  386 US 18,  17 L Ed 2d 705,  87 S Ct 824,  24 ALR3d 1065, reh den  386 US 987,  18 L Ed 2d 241,  87 S Ct 1283) as stated in Sumpter v De Groote (CA7 Ind) 552 F2d 1206; Kepner v United States,  195 US 100,  49 L Ed 114,  24 S Ct 797; Commonwealth v Murphy, 174 Mass 369, 54 NE 860, affd  177 US 155,  44 L Ed 711,  20 S Ct 639; State v Labato, 7 NJ 137, 80 A2d 617; State v Watson, 209 NC 229, 183 SE 286; Rupert v State, 9 Okla Crim 226, 131 P 713.

Annotation:  50 L Ed 2d 830, § 4[a].

 25 L Ed 2d 968, §§ 3[a], 3[c].

Footnote 62. Price v Georgia,  398 US 323,  26 L Ed 2d 300,  90 S Ct 1757, conformed to, 122 Ga App 293, 176 SE2d 671.

Footnote 63. Burks v United States,  437 US 1,  57 L Ed 2d 1,  98 S Ct 2141, on remand (CA6) 579 F2d 1013; Green v United States,  355 US 184,  2 L Ed 2d 199,  78 S Ct 221, 77 Ohio L Abs 202,  61 ALR2d 1119.

Footnote 64. United States v Martin Linen Supply Co.,  430 US 564,  51 L Ed 2d 642,  97 S Ct 1349, 1977-1 CCH Trade Cas ¶ 61354.

Annotation:  50 L Ed 2d 830, § 4(b).

Footnote 65. Swisher v Brady,  438 US 204,  57 L Ed 2d 705,  98 S Ct 2699; Burks v United States,  437 US 1,  57 L Ed 2d 1,  98 S Ct 2141, on remand (CA6) 579 F2d 1013.

Footnote 66. United States v Wilson,  420 US 332,  43 L Ed 2d 232,  95 S Ct 1013; North Carolina v Pearce,  395 US 711,  23 L Ed 2d 656,  89 S Ct 2072.

The constitutional prohibition of double jeopardy consists of three separate guarantees, protecting an accused against a second criminal prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense.  Illinois v Vitale,  447 US 410,  65 L Ed 2d 228,  100 S Ct 2260.

Annotation:  50 L Ed 2d 830, § 4(b).

Footnote 67. Crist v Bretz,  437 US 28,  57 L Ed 2d 24,  98 S Ct 2156, 10 Ohio Ops 3d 466.

Footnote 68. See  § 264, infra.

Footnote 69. Commonwealth v Bolden, 472 Pa 602, 373 A2d 90,  98 ALR3d 958.

Practice Aids: –Former jeopardy.  1 Wharton's Criminal Law (14th ed) § 54.


§ 245  --General rules of construction  [21 Am Jur 2d CRIMINAL LAW]

Although the constitutional language "jeopardy of life or limb" suggests proceedings in which only the most serious penalties can be imposed, it has been held that the double jeopardy clause means something far broader than its literal language. 70   Thus, fines have been treated in the same way as prison sentences for purposes of double jeopardy. 71   Since the prohibition against placing a defendant in jeopardy more than once for the same offense is a vital safeguard in American society, it is not given a narrow, grudging application 72  nor is it considered a "fragile" guarantee. 73   It is said that it must be construed with reference to the common law from which it was taken; 74    and that it differs significantly from procedural guarantees in that its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules governing the conduct of a trial. 75    Hence, the United States Supreme Court has eschewed rigid, mechanical rules in interpreting the double jeopardy clause. 76  Nevertheless, since the constitutional provision of double jeopardy is rooted in history and is not an evolving concept like due process, a long course of adjudication in the United States Supreme Court carries impressive authority in applying the provision. 77       

In construing the double jeopardy clause, the United States Supreme Court has put limitations on its scope.  Thus, the constitutional prohibition against double jeopardy does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. 78    Accordingly, there is no bar to retrying an accused after his earlier trial has ended in a properly declared mistrial or discharge of the jury 79   or after he has obtained an appellate reversal of his prior conviction based on error in the trial court. 80    The double jeopardy clause does not guarantee a defendant that the government will be prepared, in all circumstances, to vindicate society's interest in law enforcement through a single proceeding for a given offense. 81     

A sentence of death imposed by a trial court after a jury recommendation of life imprisonment does not constitute double jeopardy. 82

Enhancement of a defendant's punishment pursuant to statute is not offensive to the double jeopardy clause. 83  


§ 245  – General rules of construction [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Double Jeopardy: An Illusive Expansion of a Constitutional Protection. 14 Ga LR 761, Summer, 1980.

Hicks, A Proposal For Legislative Effectuation of Double Jeopardy Protection. 41 Hast LJ 669, March, 1990.

Case authorities:

When a defendant obtains a reversal of a prior, unsatisfied conviction, he may, consistently with the double jeopardy clause, be retried in the normal course of events. United States v Loud Hawk (1986, US)  88 L Ed 2d 640,  106 S Ct 648, on remand United States v Loud Hawk (1986, CA9 Or) 784 F2d 1407.

While recourse to statutory language, structure, and intent is appropriate in identifying the inherent nature of a proceeding as civil or criminal, or in determining the constitutional safeguards that must accompany those proceedings as a general matter, this approach is not well suited to the context of the humane interests safeguarded by the proscription of multiple punishments, under the double jeopardy clause of the Federal Constitution's Fifth Amendment; the multiple-punishments proscription is intrinsically personal, and its violation can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state; this does not mean that whether a sanction constitutes punishment for purposes of the double jeopardy clause must be determined from the defendant's perspective, but rather that, in determining whether a particular civil sanction constitutes criminal punishment, it is the purposes which the sanction in question may fairly be said to serve, and not the underlying civil or criminal nature of the proceeding giving rise to the sanction, that must be evaluated; a civil as well as a criminal sanction constitutes punishment for double jeopardy purposes when the sanction as applied in the individual case serves the goals of punishment. United States v Halper (1989, US)  104 L Ed 2d 487,  109 S Ct 1892.

Double jeopardy clause did not preclude jury's consideration of defendant's guilt under 18 USCS §  645 once district court determined that government had failed to prove fraud under 18 USCS §  153, since § 645 does not require proof of fraud; government may proceed under either § 153 or § 165, since there is no clear intention that § 165 should supplant § 153, and rule of lenity only applies when doubt exists about scope of statute after resorting to all other methods of statutory construction. United States v Sharpe (1993, CA6 Mich) 996 F2d 125, 24 BCD 588, petition for certiorari filed (Sep 7, 1993).

In a prosecution for two murders, the trial court properly overrode the jury's recommendation of life imprisonment, where the record supported the trial court's findings regarding the aggravating and mitigating circumstances, where defense counsel's reading to the jury of an "extremely vivid and lurid" description of an electrocution might well have been calculated to influence the jury's recommendation of a life sentence through emotional appeal, and where the trial court had access to the deposition of defendant's former roommate, which contained relevant evidence not given to the jury. Furthermore, imposing a death sentence over a jury's recommendation of life imprisonment neither puts defendant in double jeopardy, violates defendant's due process rights, nor constitutes cruel and unusual punishment. Porter v State (1983, Fla) 429 So 2d 293.

In a criminal prosecution, the beginning point in the analysis of a double jeopardy claim appears to be the statute or statutes under which the defendant was convicted and the determination of whether the legislature intended to impose multiple or cumulative punishments for the same act or course of conduct. Cooley v Commonwealth (1991, Ky) 821 SW2d 90.

A convicted criminal who had challenged his resentencing as a second felony offender, claiming, inter alia, double jeopardy principles barred reconsideration of his second felony offender status, inasmuch as there was a different predicate felony after a remand by the appellate division for resentencing, was properly resentenced and the resentencing was affirmed since principles of double jeopardy were not applicable where the defendant had been resentenced nunc pro tunc to the same sentence originally imposed and accordingly the resentencing in no way increased the punishment originally imposed, and where there was no issue of multiple proceedings in that the appeal by the defendant had resulted in reversal and remand. People v Maldonado (1981, 2d Dept)  82 App Div 2d 576, 442 NYS2d 567.

The trial court did not violate defendant's right to be free from double jeopardy where defendant was convicted separately of burglary and first-degree murder based on premeditation and deliberation, but not of felony murder, and the court submitted to the jury as an aggravating circumstance that the offense was committed while defendant was engaged in a burglary. GS § 15A-2000(e)(5). State v Upchurch (1992) 332 NC 439, 421 SE2d 577.

Where the trial court in a robbery prosecution had sentenced defendant and had committed him to the custody of the sheriff, the court violated defendant's constitutional guarantee against being twice placed into jeopardy by recalling defendant and resentencing him to an increased period of incarceration on the basis of the court's earlier misapprehension as to the proper classification of the crime of which defendant had been convicted. Pooley v State (1981, Fla App D1) 403 So 2d 593.

Footnotes

Footnote 70. Breed v Jones,  421 US 519,  44 L Ed 2d 346,  95 S Ct 1779, on remand (CA9 Cal) 519 F2d 1314.

Footnote 71. Jeffers v United States,  432 US 137,  53 L Ed 2d 168,  97 S Ct 2207, reh den  434 US 880,  54 L Ed 2d 164,  98 S Ct 241.

As to applicability of double jeopardy prohibition to civil proceedings imposing statutory penalties, see  § 251, infra.

Footnote 72. Green v United States,  355 US 184,  2 L Ed 2d 199,  78 S Ct 221, 77 Ohio L Abs 202,  61 ALR2d 1119.

Footnote 73. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221.

Footnote 74. Kepner v United States,  195 US 100,  49 L Ed 2d 114,  24 S Ct 797.

Footnote 75. Blackledge v Perry,  417 US 21,  40 L Ed 2d 628,  94 S Ct 2098; Robinson v Neil,  409 US 505,  35 L Ed 2d 29,  93 S Ct 876, reh den  410 US 959,  35 L Ed 2d 694,  93 S Ct 1423 and on remand (ED Tenn) 366 F Supp 924.

Footnote 76. Serfass v United States,  420 US 377,  43 L Ed 2d 265,  95 S Ct 1055; Illinois v Somerville,  410 US 458,  35 L Ed 2d 425,  93 S Ct 1066.

Footnote 77. Gore v United States,  357 US 386,  2 L Ed 2d 1405,  78 S Ct 1280, reh den  358 US 858,  3 L Ed 2d 92,  79 S Ct 13.

Footnote 78. Gori v United States,  367 US 364,  6 L Ed 2d 901,  81 S Ct 1523, reh den  368 US 870,  7 L Ed 2d 70,  82 S Ct 25; Wade v Hunter,  336 US 684,  93 L Ed 974,  69 S Ct 834, reh den  337 US 921,  93 L Ed 1730,  69 S Ct 1152.

Footnote 79.  § 264, infra.

Footnote 80.  § 309, infra.

Footnote 81. United States v Jorn,  400 US 470,  27 L Ed 2d 543,  91 S Ct 547 (plurality opinion).

Annotation:  50 L Ed 2d 830, § 5.

Footnote 82. Douglas v State (Fla) 373 So 2d 895.

Footnote 83. A prior conviction used merely to enhance a defendant's punishment pursuant to statute is not an "offense" within the meaning of the double jeopardy clause; thus, in a prosecution for burglary of a vehicle in which punishment was improperly enhanced since the state failed to introduce evidence showing when the prior offense was committed, a retrial of the issue of enhancement was not barred by the doctrine of former jeopardy; the prior conviction was not a question of fact determining the guilt or innocence of the defendant, but a historical fact, proof of which could be readjudicated.  Porier v State (Tex Crim) 591 SW2d 482.

State law providing that concealment of identity during perpetration of crime constitutes aggravation of such crime and providing for enhanced punishment as a result of such concealment is not offensive to the double jeopardy clause of the Fifth Amendment.  Haldane v State,  85 Wis 2d 182, 270 NW2d 75.


§ 246  – Applicability to corporations  [21 Am Jur 2d CRIMINAL LAW]

Although the United States Supreme Court has repeatedly stated that the double jeopardy clause protects an individual, 84  it has applied the clause for the benefit of corporations, without discussing the question whether a corporation is a "person" within the meaning of constitutional provision. 85   A United States court of appeal has explicitly held, however, that corporations, as well as individuals, are entitled to protections against double jeopardy. 86

Footnotes

Footnote 84. Abney v United States,  431 US 651,  52 L Ed 2d 651,  97 S Ct 1034; Green v United States,  355 US 184,  2 L Ed 2d 199,  78 S Ct 221, 77 Ohio L Abs 202,  61 ALR2d 1119.

Footnote 85. United States v Martin Linen Supply Co.,  430 US 564,  51 L Ed 2d 642,  97 S Ct 1349, 1977-1 CCH Trade Cas ¶ 61354; Fong Foo v United States,  369 US 141,  7 L Ed 2d 629,  82 S Ct 671.

Annotation:  50 L Ed 2d 830, § 9.

Footnote 86. United States v Hospital Monteflores, Inc. (CA1 Puerto Rico) 575 F2d 332.

Practice Aids: The Applicability of the Double Jeopardy Right to Corporations. 1977 Duke L J 726.

Schrieber, Double Jeopardy and Corporations:  "Lurking in the Record" and "Ripe for Decision."  28 Stan L Rev 805.


§ 247  Prior conviction on plea of guilty  [21 Am Jur 2d CRIMINAL LAW]

A former conviction on a plea of guilty is generally sufficient to sustain a defense of double jeopardy in a subsequent prosecution for the same offense. 87   A guilty plea that is not followed by a judgment of conviction, however, will not support a subsequent plea of former jeopardy. 88


§ 247  ----Prior conviction on plea of guilty [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

See Garrett v United States,  85 L Ed 2d 764, § 267.

Double jeopardy principles did not bar defendant's retrial on original first-degree murder indictment after state court had vacated his plea-bargained conviction for third-degree murder. Klobuchir v Pennsylvania (1981, CA3 Pa) 639 F2d 966, cert den (US)  70 L Ed 2d 474,  102 S Ct 566.

Further prosecution of defendant was not prohibited by double jeopardy rule where defendant waived that defense by violating earlier plea agreement. Adamson v Superior Court of Arizona (1980) 125 Ariz 579, 611 P2d 932.

Footnotes

Footnote 87. Kring v Missouri,  107 US 221,  27 L Ed 506,  2 S Ct 443; United States v Jerry (CA3 Pa) 487 F2d 600; Kellett v Superior Court of Sacramento County, 63 Cal 2d 822, 48 Cal Rptr 366, 409 P2d 206; Markiewicz v Black, 138 Colo 128, 330 P2d 539,  75 ALR2d 678 (ovrld on other grounds County Court of County of El Paso v Ruth 194 Colo 352, 575 P2d 1, later app (Colo) 595 P2d 237); Ray v State (Fla) 231 So 2d 813; State v Hickman (Fla App D2) 189 So 2d 254, cert den (Fla) 194 So 2d 618; People v Stickler, 31 Ill App 3d 977, 334 NE2d 475; State v Harriman (Me) 259 A2d 752, supp op (Me) 265 A2d 706; Commonwealth v Therrien, 359 Mass 500, 269 NE2d 687; State v Sailor (Minn) 257 NW2d 349; State v Smith, 101 Or 127, 199 P 194; Benard v State (Tex Crim) 481 SW2d 427; Salters v State,  52 Wis 2d 708, 191 SW2d 19; Hawkins v State,  30 Wis 2d 264, 140 NW2d 226.

Annotation:  75 ALR2d 683, § 3.

Footnote 88. United States v Scarlata (CA3 Pa) 214 F2d 807.


§ 248  Prior conviction or acquittal in court of concurrent jurisdiction  [21 Am Jur 2d CRIMINAL LAW]

Generally, where two courts within a given state have concurrent jurisdiction of a criminal offense against the state, the prosecution must be in the name of the state. 89   Since courts of concurrent jurisdiction in the same state are "creations emanating from the same sovereignty," the concept of "dual sovereignty" does not apply and successive prosecutions for the same offense in different courts of the same state constitute double jeopardy. 90    Thus, a continuous act violative of a state law committed while passing through more than one county or division of the state constitutes a single offense against the state, and a conviction in any one county or division of the state is a bar to the prosecution in any other county or division for the same act. 91    Nevertheless, where the respective prosecutions are not based on the same act and are not commenced for violation of the same rule or regulation, an accused may be subjected to successive prosecutions in two different cities within one state. 92    Furthermore, where grand jury indictments for the same offense were handed down in two separate counties, but one indictment was dismissed because of insufficiency of evidence remaining in the grand jury transcript after suppressed evidence had been removed, a prosecution under the indictment in the other county did not place the accused twice in jeopardy. 93  

The double jeopardy clause of the Fifth Amendment is not violated by a state's "two-tier" court system of criminal justice administration whereby a defendant convicted in a court of the first tier may take a timely appeal to a court of the second tier in which he is entitled to request a trial de novo by jury.  Nothing in the double jeopardy clause prohibits a state from affording a defendant two opportunities to avoid conviction and secure an acquittal. 94   


§ 248  – Prior conviction or acquittal in court of concurrent jurisdiction [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Double Jeopardy Problems Presented by Two-Tier Systems. 69 Geo LJ 1525, August, 1981.

Case authorities:

The Double Jeopardy Clauses of the United States and Ohio Constitutions forbid the prosecution of a defendant for drunk driving by a political subdivision when that defendant has already been placed in jeopardy by another political subdivision of the same state for the same offense, stemming from the same underlying course of conduct. State v Anderson (1989, Medina Co) 57 Ohio App 3d 108, 566 NE2d 690.

Double Jeopardy principles do not bar retrial of defendant who was convicted at bench trial under two-tier trial system which provides trial de novo as sole means of obtaining relief from unsatisfactory result in bench trial. Lydon v Commonwealth (1980, Mass) 1980 Adv Sheets 1915, 409 NE2d 745.

Footnotes

Footnote 89. State v Roberts, 152 La 283, 93 So 95; State v Shimman, 122 Ohio St 522, 8 Ohio L Abs 386, 172 NE 367.

Footnote 90.  § 281, infra.

Footnote 91. State v Licari, 132 Conn 220, 43 A2d 450; State v Roberts, 152 La 283, 93 So 95; State v Shimman, 122 Ohio St 522, 8 Ohio L Abs 386, 172 NE 367.

But see Campbell v People, 109 Ill 565, holding that an acquittal in one county of a state of a charge of receiving stolen property was not a bar to a subsequent prosecution of the same defendant in another county on a charge of receiving the same stolen property.

As to successive prosecutions in municipal and state courts for the same offense, see  § 284, infra.

Footnote 92. Smith v Irondale, 293 Ala 357, 303 So 2d 130, on remand 53 Ala App 742, 303 So 2d 132, cert den  420 US 935,  43 L Ed 2d 410,  95 S Ct 1143 (accused who pleaded guilty to charge of speeding in one city was not placed in jeopardy by being tried and found guilty on charge of reckless driving in adjoining city).

A person who operates an illegal lottery in several counties may be prosecuted therefor in each county.  Lunsford v State, 60 Ga App 537, 4 SE2d 112.

A person who speeds through several counties may be prosecuted therefor in each county.  Hall v State, 73 Ga App 616, 37 SE2d 545.

Footnote 93. McGrath v Gold,  36 NY2d 406, 369 NYS2d 62, 330 NE2d 35.

Footnote 94. Ludwig v Massachusetts,  427 US 618,  49 L Ed 2d 732,  96 S Ct 2781.


2.  Nature and Validity of Prior Proceeding [249-257]

§ 249  Generally; criminal nature of proceeding; bench and jury trials  [21 Am Jur 2d CRIMINAL LAW]

The double jeopardy clause has been held to apply only to criminal proceedings.  Thus, where the objective of a subsequent action is punishment, a former acquittal or conviction is a bar. 95   The term "jeopardy" denotes the risk that is traditionally associated with a criminal prosecution, an action intended to authorize criminal punishment to vindicate public justice.  This risk is not present in proceedings that are not "essentially criminal." 96   Since jeopardy, in a criminal prosecution, signifies the danger of punishment that the defendant incurs when brought to trial before a court of competent jurisdiction, 97  the constitutional provision is not intended to apply to a civil proceeding, even though such proceeding is in part a punishment for an offense. 98   In this sense a criminal prosecution does not involve double jeopardy where the same act charged was previously the basis on which an administrative agency had revoked a business license. 99   Similarly, the doctrines of res judicata and double jeopardy do not apply to judicial disciplinary proceedings; and a public reprimand does not amount to an acquittal for purposes of any subsequent inquiry into a judge's conduct. 1   Also, it has been held that the suspension of a government contractor is not in purpose or in fact punishment within the scope of the double jeopardy clause barring subsequent trial of the contractor on a charge of defrauding the government. 2   And, prison disciplinary measures or administrative sanctions imposed upon a prisoner for violation of a prison rule of conduct do not raise the bar of double jeopardy to his prosecution for a statutory offense arising from the same act that was the basis of the prison discipline. 3   The guaranty against double jeopardy does not prohibit a state from twice subjecting a defendant to a revocation of probation proceeding based on the same alleged probationary violation and fact situation, since the proceeding is only administrative, not criminal, in nature and its result is neither a conviction nor acquittal. 4    Likewise, a criminal prosecution for prison escape is not barred by a plea of former jeopardy based on disciplinary punishment previously imposed by prison authorities for the same escape. 5    On the other hand, violations of municipal ordinances are criminal offenses placing a defendant in "jeopardy" for constitutional purposes because conviction subjects the person to a stigma and punishment by incarceration or fine. 6    Also, contempt proceedings are generally criminal in nature whether they grow out of criminal or civil actions. 7   And the double jeopardy clause of the Fifth Amendment has been held to be applicable in adjudicative juvenile prosecutions designed to determine whether a juvenile has committed a criminal act. 8    

The double jeopardy clause of the Fifth Amendment does not distinguish between bench and jury trials, but applies to cases tried before a judge as well as those before a jury. 9   In so holding, the United States Supreme Court has pointed out that a general finding of guilty by a judge may be analogized to a verdict of "guilty" returned by a jury. 10  Thus, when a criminal prosecution is tried to a judge alone, the double jeopardy clause accords full constitutional effect to his determination in favor of a defendant. 11   


§ 249  – Generally; criminal nature of proceeding; bench and jury trials [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Constitutional law–Second Circuit extends double jeopardy clause to prohibit prosecution of criminal conduct used previously to enhance sentence, 67 Temp LR 4:1387-1419 (1995).

Note: Civil Sanctions and the Double Jeopardy Clause: Applying the Multiple Punishment Doctrine to Parallel Proceedings After United States v. Halper. 76 Va LR 1251, Summer, 1990.

Popular sovereignty, double jeopardy, and the dual sovereignty doctrine, 102 Yale LJ 281 (1992).

Case authorities:

The double jeopardy clause of the Fifth Amendment does not provide a criminal defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be, and, accordingly, there is no double jeopardy protection against revocation of probation and the imposition of imprisonment. United States v Di Francesco (1980, US)  66 L Ed 2d 328,  101 S Ct 426.

Although a civil sanction may, under some circumstances, be so disproportionate to the damages caused by the defendant that it constitutes "punishment" for purposes of analysis under the double jeopardy clause of the Federal Constitution's Fifth Amendment, this does not prevent the government from seeking and obtaining both the full civil penalty and the full range of statutorily authorized criminal penalties in the same proceeding; that the government seeks the civil penalty in a second proceeding is critical in triggering the protections of the double jeopardy clause; in a single proceeding, the multiple punishment issue is limited to insuring that the total punishment does not exceed that authorized by the legislature, since a legislature may authorize cumulative punishment under two statutes for a single course of conduct. Although a civil sanction may, under some circumstances, be so disproportionate to the damages caused by the defendant that it constitutes "punishment" for purposes of analysis under the double jeopardy clause of the Federal Constitution's Fifth Amendment, this does not preclude a private party from filing a civil suit seeking damages for conduct that previously was the subject of criminal prosecution and punishment; the protections of the double jeopardy clause are not triggered by litigation between private parties. United States v Halper (1989, US)  104 L Ed 2d 487,  109 S Ct 1892.

Double jeopardy does not bar defendant's guilty plea and conviction on information charging defendant with same offenses that had been presented at earlier sentencing hearing on unrelated charge and which appeared to result in enhanced sentence. United States v Piteo (1984, CA2 NY) 726 F2d 53.

Double jeopardy clause did not bar indictment of defendant for conspiracy to violate federal narcotics laws and for engaging in CCE in violation of 21 USCS §  848, where indictment charged defendant with conduct engaged in after earlier guilty plea to drug and conspiracy to violate RICO charges, and there was no evidence that government had sufficient evidence at time of earlier plea to bring prosecution on CCE charge. United States v Romero (1992, CA2 NY) 967 F2d 63.

Pretrial determination of double jeopardy issue on motion to dismiss superseding indictment would be premature, where peculiar circumstances of claim required proportionality comparison between value of forfeited property and amount of damage caused by defendants' alleged criminal conduct, since, prior to adjudication of merits of defendants' claims as to seized properties and their guilt or innocence as to criminal charges, there was no basis upon which to determine whether civil forfeiture constituted "punishment" for purposes of double-jeopardy analysis. United States v Amiel (1993, CA2 NY) 995 F2d 367.

Discovery after narcotic defendant's trial that government witness perjured herself did not bar his retrial on double jeopardy grounds where there was no evidence of any prosecutorial misconduct aimed at avoiding acquittal and evidence against defendant was strong enough for conviction even if perjury had been fully disclosed. United States v Pavloyianis (1993, CA2 NY) 996 F2d 1467.

Double jeopardy was not violated by requirement of New Jersey statute that repetitive and compulsive sex offenders who completed sentence for designated crimes register with local law enforcement (Megan's law) since requirement did not constitute "punishment" but had solely remedial purpose and was not unduly harsh. Artway v Attorney Gen. (1996, CA3 NJ) 81 F3d 1235, reh, en banc, den (1996, CA3) 1996 US App LEXIS 11363.

Prior state administrative action for unauthorized use of food stamps does not preclude subsequent federal criminal prosecution of same defendants. United States v Ramsey (1985, CA4 NC) 774 F2d 95.

A doctor whose medical license was suspended because of his conviction for violating federal drug laws, after he had already served a prison term for that offense, did not twice receive criminal punishment for the same offense in violation of the Fifth Amendment. Emory v Texas State Bd. of Medical Examiners (1984, CA5 Tex) 748 F2d 1023.

Since double jeopardy protections do not extend to appellate bond revocation proceedings, which are not essentially criminal, and since the collateral estoppel doctrine is not cognizable as a constitutional claim apart from those claims that are recognized under the double jeopardy clause, double jeopardy did not bar the state from prosecuting defendant for the offense of involuntary manslaughter allegedly committed while free on an appellate bond granted pending defendant appeal of a previous conviction, though the state had sought revocation of the appellate bond, alleging that by committing the manslaughter offense defendant had violated his bond condition, and the Court of Criminal Appeals had affirmed the intermediate appellate court's determination that the state had failed to prove by a preponderance of the evidence that defendant had committed the manslaughter offense. Showery v Samaniego (1987, CA5 Tex) 814 F2d 200.

Execution of promissory notes by persons arrested for possession of marijuana, in absence of judgment or payment, did not constitute "punishment" under the Double Jeopardy Clause, either in the ordinary nomenclature associated with the word or pursuant to analysis of caselaw, where the execution of notes was to obtain evidence of indebtedness and other documents advised signers of available procedural mechanism for relief from the notes, because punishment consists in taking life, liberty, or property and execution of promissory notes involves none of these. United States v Sanchez-Escareno (1991, CA5 Tex) 950 F2d 193, cert den (US)  121 L Ed 2d 78,  113 S Ct 123.

Indictment charging bank officer with 2 counts of unlawful participation in benefits from bank transactions based on borrower's receipt of 2 loans which allegedly were individual steps in overarching scheme to procure improper benefits in violation of statute was not multiplicitous so as to charge single offense in multiple counts and, thereby, implicate double jeopardy clause, since officer violated statute each time he benefited from extension of credit to borrower. United States v Brechtel (1993, CA5 La) 997 F2d 1108, reh den (CA5 Miss) 1993 US App LEXIS 25892.

Double jeopardy clause is not violated by transfer proceeding from juvenile court to criminal court, where no adjudication of delinquency is made, but only evidence taken is offered to determine presence of probable cause to believe act had been committed which if committed by adult would be felony. Johnson v Perini (1981, CA6 Ohio) 644 F2d 573.

Federal Government was collaterally estopped from prosecuting defendant for his corporation's participation in fraudulent tax shelters where defendant had been exonerated in Security Exchange Commission's prior civil suit based on same conduct, with judgment in prior suit reaching merit of case. United States v Rogers (1992, CA10 Colo) 960 F2d 1501, petition for certiorari filed (Sep 16, 1992).

State's seeking death penalty on retrial when only life sentence had been previously imposed did not place defendant in double jeopardy where state had not previously presented evidence in support of death penalty and trial court had not made any findings as to appropriateness of death penalty, since defendant had not been "acquitted" of death penalty at his earlier proceeding. Osborn v Shillinger (1993, CA10 Wyo) 997 F2d 1324.

Six month sentence is not excessive for violation of 21 USCS §  844 by inmate while in prison; administrative punishment imposed by prison officials does not render subsequent judicial proceeding, criminal in nature, violative of prohibition against double jeopardy. Orosco v United States (1981, WD Okla) 526 F Supp 756.

A "slow plea," which is the submission of a criminal case on the evidentiary record established at the preliminary hearing, is tantamount to a guilty plea in the context of a case in which the uncontested evidence is clearly sufficient to support a conviction as a matter of law. In such a case, no submission will be effective absent the defendant's personal waiver of the constitutional rights to plead not guilty, to have a jury trial, to confront and cross-examine witnesses, and to present evidence on his or her own behalf. Nevertheless, a slow plea is not equivalent to a guilty plea in all respects. Even the submission of a case in which conviction is the only logically foreseeable outcome is considered a trial, and requires the trial court to weigh the evidence, make evidentiary findings, and apply the relevant law to determine whether the case has been proved. Thus, upon reversal, the verdict rendered on a slow plea is subject to double jeopardy protections. Moreover, the defendant who makes a slow plea has the right to challenge the conviction on the basis of lack of sufficient evidence. In re Tommy E. (1992, 4th Dist) 7 Cal App 4th 1234, 92 CDOS 6162, 92 Daily Journal DAR 9468.

The double jeopardy clause is not an absolute bar to the imposition of an increased sentence on remand from an authorized appellate review of an issue of law concerning the original sentence. Harris v State (1994, Fla) 645 So 2d 386, 19 FLW S 464.

Jeopardy did not attach at a burglary convict's probation revocation hearing, at which the court concluded that the state had failed to show the defendant's involvement in the act, and thus the information filed against defendant alleging the same crimes as alleged in the probation revocation hearing could not be dismissed on double jeopardy grounds. State v Justice (1984, Fla App D2) 451 So 2d 1056.

Prohibition against double jeopardy does not preclude separate civil and criminal proceedings based on same incident and different degree of burden of proof between criminal and civil cases also precludes application of res judicata; therefore, it is proper for state to hold civil proceeding to determine whether party is entitled to inherit under will after that party has been acquitted of murder of testator. Re Estate of Congdon (1981, Minn) 309 NW2d 261.

Use of burglary charge against defendant to revoke his mistaken probation resulting from an embezzlement conviction was not a trial on the merits for burglary, and defendant's subsequent trial on burglary charge did not place him twice in jeopardy. Lightsey v State (1986, Miss) 493 So 2d 375.

The prohibition against double jeopardy did not preclude the State at resentencing from enhancing a defendant's life sentence for murder with the habitual offender statute where the defendant was initially sentenced to death and therefore his status as an habitual offender was not determined until after the sentencing trial on remand; since the defendant's status as an habitual offender had not previously been determined, the finding of habitual offender status on resentencing was not barred by double jeopardy. Gray v State (1992, Miss) 605 So 2d 791, reh den (Miss) 1992 Miss LEXIS 652.

Defendant's guilty plea was not barred by reason of double jeopardy where reversal of his conviction on jury verdict was based solely on trial errors, and defendant's claim that verdict was legally insufficient or against weight of evidence was considered on prior appeal and rejected. People v Crosby (1992, 2d Dept)  182 AD2d 696, 582 NYS2d 466, app den  80 NY2d 829, 587 NYS2d 914, 600 NE2d 641.

Evidence of unrelated criminal offenses which is presented as aggravating circumstances at sentencing stage does not establish independent crime, and thus double jeopardy clause does not preclude subsequent prosecution for these unrelated offenses. Johnson v District Court of Oklahoma County (1982, Okla Crim) 653 P2d 215.

Principles of res judicata and double jeopardy do not bar disciplinary proceeding which follows disposition of criminal charges although based on substantially same conduct since different standards of proof are required. Re Oxman (1981, Pa) 437 A2d 1169.

Since the legislature intended the forfeiture provisions of Texas Controlled Substance Act to be a remedial civil action and since the civil forfeiture proceeding at issue was not so punitive in effect as to negate the legislature's civil intent (the forfeiture of cash, two cars, a mobile phone, a TV, and two safes being reasonably related to the government's injury and expenses from drug distribution of the magnitude discovered), double jeopardy did not preclude the State from criminally prosecuting defendant for possession of over 400 grams of cocaine with intent to deliver after defendant had consented to the forfeiture and signed an agreed judgment of forfeiture. Ex parte Rogers (1990, Tex App Dallas) 804 SW2d 945.

Prosecution of the accused for aggravated kidnapping after he had been administratively disciplined by the Department of Corrections for escape and kidnapping did not expose the accused to double jeopardy. Feltrin v State (1982, Tex App 10th Dist) 627 SW2d 813.

Footnotes

Footnote 95. Helvering v Mitchell,  303 US 391,  82 L Ed 917,  58 S Ct 630.

Practice Aids: –Former jeopardy–Nature of proceedings.  1 Wharton's Criminal Law (14th ed) § 55.

Footnote 96. Breed v Jones,  421 US 519,  44 L Ed 2d 346,  95 S Ct 1779, on remand (CA9 Cal) 519 F2d 1314.

Footnote 97. State v Watson, 209 NC 229, 183 SE 286; Holt v State, 160 Tenn 366, 24 SW2d 886.

Footnote 98. Stout v State, 36 Okla 744, 130 P 553.

Footnote 99. State v Allen, 243 La 698, 146 So 2d 407.

Footnote 1. Re (Lee) (Fla) 336 So 2d 1175.

Footnote 2. United States v Hartley (CA5 Fla) 612 F2d 1009.

Footnote 3. People v Eggleston (1st Dist) 255 Cal App 2d 337, 63 Cal Rptr 104; State v Keller, 52 Ohio App 2d 217, 6 Ohio Ops 3d 235, 369 NE2d 798, motion overr.

The prosecution of a defendant for possessing a weapon while an inmate in a state prison did not constitute double jeopardy, notwithstanding the fact that he had already been subjected to special administrative confinement by prison authorities in connection with such crime.  Sadler v State (Fla App D1) 333 So 2d 69.

Administrative disciplinary proceeding in which a prisoner loses good time does not place him in jeopardy and the subsequent conviction and sentence in a criminal prosecution for the same offense does not therefore constitute double jeopardy which the Fifth Amendment prohibits.  State v Kerns, 201 Neb 617, 271 NW2d 48.

Prison officials' punitive action of placing a prisoner in solitary confinement as the result of an assault on a fellow immate did not put the defendant in jeopardy so as to bar his prosecution for the criminal offense. State v Collins, 115 NH 499, 345 A2d 162.

Footnote 4. Davenport v State (Tex Crim) 574 SW2d 73.

As to acquittal in criminal proceeding as precluding revocation of parole on same charge, see 59 Am Jur 2d,  Pardon and Parole § 90.

Footnote 5. Mullican v United States (CA5 Tex) 252 F2d 398,  70 ALR2d 1217; People v Bachman, 50 Mich App 682, 213 NW2d 800.

Footnote 6. State v Burroughs, 244 Ga 288, 260 SE2d 5, vacated on other grounds (US)  65 L Ed 2d 1134,  100 S Ct 3044, on remand 246 Ga 393, 271 SE2d 629.

Footnote 7. Ex parte Payne (Tex Civ App 6th Dist) 598 SW2d 312, holding that a contempt order against a divorced father for failure to make child support payments violated the double jeopardy clause of the Fifth Amendment and thus was void where the trial court had previously found the father in contempt but stated that he could purge himself by a partial payment of $1,000, and where the father had paid the $1,000 and did not commit any new act of contempt; an appeal of the court's order by the father did not justify the second contempt order.

Footnote 8. Illinois v Vitale,  447 US 410,  65 L Ed 2d 228,  100 S Ct 2260.

Footnote 9. United States v Jenkins,  420 US 358,  43 L Ed 2d 250,  95 S Ct 1006 (ovrld on other grounds United States v Scott  437 US 82,  57 L Ed 2d 65,  98 S Ct 2187, on remand (CA6) 579 F2d 1013, cert den  440 US 929,  59 L Ed 2d 486,  99 S Ct 1266 and reh den  439 US 883,  58 L Ed 2d 197,  99 S Ct 226); United States v Kopp,  429 US 121,  50 L Ed 2d 336,  97 S Ct 400; United States v Rose,  429 US 5,  50 L Ed 2d 5,  97 S Ct 26; United States v Morrison,  429 US 1,  50 L Ed 2d 1,  97 S Ct 24.

Fundamental policy that judgment of acquittal may not be reviewed without putting defendant twice in jeopardy, thereby violating the constitution, applies equally to trials by court and trials by jury.  State v Flower, 176 Conn 224, 405 A2d 655.

Annotation:  50 L Ed 2d 830, § 8.

Footnote 10. United States v Morrison,  429 US 1,  50 L Ed 2d 1,  97 S Ct 24; United States v Jenkins,  420 US 358,  43 L Ed 2d 250,  95 S Ct 1006 (ovrld on other grounds United States v Scott  437 US 82,  57 L Ed 2d 65,  98 S Ct 2187, on remand (CA6) 579 F2d 1013, cert den  440 US 929,  59 L Ed 2d 486,  99 S Ct 1266 and reh den  439 US 883,  58 L Ed 2d 197,  99 S Ct 226).

Footnote 11. United States v Martin Linen Supply Co.,  430 US 564,  51 L Ed 2d 642,  97 S Ct 1349, 1977-1 CCH Trade Cas ¶ 61354.


§ 250  –  Civil and criminal contempt  [21 Am Jur 2d CRIMINAL LAW]

The rule as to former jeopardy cannot be invoked on the ground that the same act is punishable both as a contempt of court and as a crime. 12   The two offenses are not the same. 13   Thus, a federal trial court may impose a sentence for a witness' refusal to answer questions at a criminal trial even though the court has previously imposed a civil contempt sentence for the witness' refusal, at the same trial, to answer similar questions, since the civil and criminal contempt sentences serve distinct purposes, the one coercive, and the other punitive and deterrent. 14   It has been held, however, that the Fifth Amendment prohibition against double jeopardy is violated when conduct previously punished as an indirect criminal contempt is again sought to be punished as a substantive criminal offense. 15     


§ 250  –  Civil and criminal contempt [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: United States v. Dixon [ 125 LEd2d 556 (1993)]: The Supreme Court returns to the traditional standard for double jeopardy clause analysis, 69 Notre Dame LR 575 (1994).

Double jeopardy and summary contempt prosecutions, 69 Notre Dame LR 691 (1994).

Contempt finding as precluding substantive criminal charges relating to same transaction.  26 ALR4th 950.

Case authorities:

Under the same-elements test–which states that two offenses are not the same, for purposes of the double jeopardy clause of the Federal Constitution's Fifth Amendment, if each offense contains an element not contained in the other offense–the double jeopardy clause does not, in a case where a defendant has been prosecuted for contempt for disruption of judicial business, bar subsequent prosecution of the defendant for a criminal assault that was part of the disruption, because (1) the contempt offense does not require the element of criminal conduct, and (2) the criminal offense does not require the element of disrupting judicial business. United States v Dixon (US)  125 L Ed 2d 556, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.

Under the same-elements test, which provides that two offenses are not the same if each offense contains an element not contained in the other, the double jeopardy clause of the Federal Constitution's Fifth Amendment, which provides that no person may be twice put in jeopardy for the same offense, does not bar criminal prosecutions of an accused for three counts of threatening to injure another and one count of assault with intent to kill, where all four counts are based on events for which the accused previously has been tried in the same jurisdiction for contempt of court for violating a civil protection order requiring that the accused not "molest, assault, or in any manner threaten or physically abuse" his estranged wife. [per Scalia and Kennedy, JJ., Rehnquist, Ch. J., and O'Connor and Thomas, JJ. Dissenting: White, Stevens, and Souter, JJ.] United States v Dixon (US)  125 L Ed 2d 556, 93 CDOS 4852, 93 Daily Journal and DAR 8205, 7 FLW Fed S 599.

The double jeopardy clause of the Federal Constitution's Fifth Amendment, which provides that no person may be twice put in jeopardy for the same offense, applies to nonsummary criminal contempt prosecutions, as criminal contempt–at least the sort enforced through nonsummary proceedings–is a crime in the ordinary sense. United States v Dixon (US)  125 L Ed 2d 556, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.

The question whether subsequent criminal prosecutions are barred by the double jeopardy clause of the Federal Constitution's Fifth Amendment, where defendants were tried for criminal contempt of court for violating court orders prohibiting them from engaging in conduct that was the subject of the subsequent prosecutions, should be evaluated (1) under the same-elements test, but (2) not also under an additional double jeopardy test–which prohibits a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the accused already has been prosecuted–announced in a prior Supreme Court decision, since the Supreme Court has decided to overrule that prior decision. (White, Stevens, and Souter, JJ., dissented from this holding). United States v Dixon (US)  125 L Ed 2d 556, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.

The double jeopardy clause of the Federal Constitution's Fifth Amendment, which provides that no person may be twice put in jeopardy for the same offense, bars prosecution of an accused under substantive criminal law for possession of narcotics, where, on the basis of alleged narcotics offense, the accused previously has been tried in the same jurisdiction for criminal contempt of court for violating a term of the accused's pretrial release with respect to an unrelated charge, which term subjected the accused to prosecution for contempt of court if the accused committed "any criminal offense." [per Scalia, Kennedy, White, Stevens, and Souter, JJ. Dissenting; Rehquist, Ch J., and O'Connor, Thomas, and Blackmun, JJ.] United States v Dixon (US)  125 L Ed 2d 556, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 499.

Imposition of both civil and criminal penalties for defendants' refusals to testify before grand jury did not violate double jeopardy clause of Fifth Amendment, since civil contempt is not "offense" within meaning of double jeopardy rule, civil contempt sanction is coercive or remedial, not punitive, in nature, and double jeopardy clause merely prohibits punishing criminally twice for same offense. United States v Ryan (1987, CA7 Ill) 810 F2d 650.

Defendant was not subjected to double jeopardy where unspecified contempt citation was for his failure to comply with order of bankruptcy court to appear before it, while his conviction was for misappropriation of funds from bankruptcy estate for which he was acting as trustee; although the two judgments were necessarily related, elements of the two offenses differed significantly. United States v Lingo (1984, CA8 Ark) 740 F2d 667.

The trial court violated the Double Jeopardy Clause of the US Const by finding antiabortion protestors in contempt for trespassing at a women's health center in violation of an injunction after they had been charged and convicted in municipal court under a criminal trespass statute; the essential element of the charge of contempt brought against appellants required proof of conduct which constituted the offense of criminal trespass for which they had previously been prosecuted and convicted; the portion of their punishment that constituted a criminal penalty was therefore barred by double jeopardy. Dayton's Women Health Center v Enix (1991, Montgomery Co) 68 Ohio App 3d 579, 589 NE2d 121, motion gr 62 Ohio St 3d 1470, 580 NE2d 1100 and dismd, motion overr 62 Ohio St 3d 1500, 583 NE2d 971 and cert den (US)  120 L Ed 2d 903,  112 S Ct 3033.

Party to property dispute who was held in criminal contempt for violating injunction prohibiting him from trespassing on adjoining property could not be prosecuted for criminal trespass, since contempt charge was equivalent of criminal prosecution and since criminal trespass charge, thus, would amount to double jeopardy. State v Thompson (1983) 294 Or 528, 659 P2d 383.

Principles of double jeopardy and compulsory joinder did not bar prosecution of individual for simple assault, criminal trespass and rape after that individual had been found in indirect criminal contempt for violating court order entered pursuant to Protection from Abuse Act; because Act had its roots in equity and was essentially civil, court's use of its inherent power to enforce its orders under Act through contempt did not preclude later criminal prosecution to protect Commonwealth's interest in preventing crime. Commonwealth v Allen (1984) 506 Pa 500, 486 A2d 363, cert den (US)  88 L Ed 2d 105,  106 S Ct 128.

Where defendant ran out of courtroom and down stairs of city hall immediately after judge found him guilty of narcotics possession, but police officers caught him, returned him to courtroom and judge found defendant in direct criminal contempt of court and sentenced him to serve term of six months of imprisonment, double jeopardy clause did not preclude defendant's subsequent prosecution for escape. Although same conduct gave rise to defendant's convictions for both contempt and escape, summary criminal contempt is by its nature different type of offense than other crimes, that is, escape. Commonwealth v Warrick (1992) 415 Pa Super 385, 609 A2d 576, app den (Pa) 626 A2d 1157.

Defendant's previous conviction for criminal contempt for violating a temporary restraining order entered in a civil proceeding did not bar his subsequent prosecution for attempted capital murder based on the same act of shooting two of his neighbors which had established his violation of the civil order where the contempt conviction was sought by a private party, not on behalf of the State, and the State did not seek the punishment obtained; the double jeopardy provisions protect only against prosecutions by persons on behalf of the same sovereign, and the contempt conviction, while criminal in nature, is not the same offense as the attempted capital murders the State was seeking to prosecute. Ex parte Williams (1990, Tex Crim) 799 SW2d 304.

Double jeopardy did not bar defendant's indictment and prosecution for attempted capital murder though defendant had earlier been held in contempt of court and punished for the same shooting incident, which violated a civil injunction against physical contact or bodily injury, since the Texas Legislature did not consider contempt of court and attempted capital murder to be the same offense for double jeopardy purposes and did not intend that a contempt adjudication would bar the murder case, since contempt of court is not a lesser included offense of attempted capital murder, and since the purposes underlying the double jeopardy clause prohibition against successive prosecutions were not implicated because the State had not yet prosecuted defendant for anything. Williams v State (1989, Tex App San Antonio) 775 SW2d 812, petition for discretionary review gr.

Footnotes

Footnote 12. Re Application of Morris, 194 Cal 63, 227 P 914; Pompano Horse Club, Inc. v State, 93 Fla 415, 111 So 801; Ex parte Allison, 99 Tex 455, 90 SW 870.

Footnote 13. Re Application of Morris, 194 Cal 63, 227 P 914; State ex rel. Duensing v Roby, 142 Ind 168, 41 NE 145.

Footnote 14. Yates v United States,  355 US 66,  2 L Ed 2d 95,  78 S Ct 128.

Footnote 15. People v Gray, 36 Ill App 3d 720, 344 NE2d 683, affd 69 Ill 2d 44, 12 Ill Dec 886, 370 NE2d 797, cert den  435 US 1013,  56 L Ed 2d 395,  98 S Ct 1887.

Annotation:  50 L Ed 2d 830, § 7[d].


§ 251  – Statutory civil penalty for criminal conduct  [21 Am Jur 2d CRIMINAL LAW]

Although there has been authority to the contrary, 16  the established rule is that a former acquittal or conviction of a defendant on a criminal charge does not bar a civil action against him to recover a statutory penalty for the same conduct. 17   Because the double jeopardy clause is limited to criminal actions, it does not preclude the imposition by Congress of both a criminal and a civil sanction for the same act or omission. 18        

The question whether a given sanction is civil or criminal in nature is one of statutory construction. 19    Thus, for example, the double jeopardy clause was not applicable to bar an assessment of an additional 50 percent of a deficiency in an income tax return "due to fraud with intent to evade tax" as authorized under federal law, notwithstanding the taxpayer had previously been acquitted on a criminal indictment under the same federal revenue act for wilful attempt to evade and defeat the tax.  The assessment proceeding was civil in nature, since the additional assessment was provided for "civil incidents of the assessment and collection of the income tax." 20    And it has been held that the rule against double jeopardy does not apply to a proceeding to collect from a prisoner the cost of maintaining him in prison, since the action is civil, not criminal. 21  

Since acquittal of a criminal offense is no bar to recovery of a civil penalty, evidence of acquittal in a criminal prosecution is ordinarily not admissible in a civil action to prove the innocence of the accused, even though the same material facts and circumstances are involved. 22 


§ 251  – Statutory civil penalty for criminal conduct [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Taking the ammunition away from the "war on drugs": A double jeopardy bar to 21 USCS §  881 after Austin v. United States [ 125 LEd2d 488 (1993)], 44 Case W Res LR 235 (1993).

Note: Civil Sanctions and the Double Jeopardy Clause: Applying the Multiple Punishment Doctrine to Parallel Proceedings After United States v. Halper. 76 Va LR 1251, Summer, 1990.

Case authorities:

A civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can be explained only as also serving either retributive or deterrent purposes, is punishment for purposes of the double jeopardy clause of the Federal Constitution's Fifth Amendment, because punishment serves the twin aims of retribution and deterrence, while retribution and deterrence are not legitimate nonpunitive governmental objectives; thus, a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution. United States v Halper (1989, US)  104 L Ed 2d 487,  109 S Ct 1892.

Assessment of civil penalties for fraud and understatement amounting to about 80 percent of lost revenue caused by taxpayer's wrongful actions did not constitute punishment for double jeopardy purposes where purpose of penalties was to compensate government for costs of investigation and recovery of lost money. United States v Alt (1996, CA6 Mich) 83 F3d 779, 96-1 USTC ¶ 50267.

Recovery by United States of all sums received by owner of shrimp trawlers under guaranty agreements issued under Fishermens Protective Act on ground of fraud did not violate double jeopardy although amount exceeded amount of fraudulent overpayment since recovery beyond actual amount of fraud did not constitute second punishment prohibited by clause. Versaggi Shrimp Corp. v United States (1993) 28 Fed Cl 20.

Civil action to recover amounts paid to woman as welfare payments during period in which she knowingly failed to report income from employment, as well as statutory penalty in equal amount for fraud, was not barred by criminal conviction and payment of fine by woman for same acts as penalty was additional damages rather than criminal punishment. People ex rel. Department of Public Aid v Bell (1984) 121 Ill App 3d 1017, 77 Ill Dec 422, 460 NE2d 478.

Although civil penalty for filing false claim with governmental agency which is imposed after criminal punishment for same act can violate double jeopardy if amount of civil penalty bears no rational relation to government's loss, statute which provides for treble damages if person makes fraudulent statements pursuant to scheme to improperly obtain public funds, does not violate double jeopardy principles since statute is civil in nature, per se reasonable and remedial, and formula utilized therein (treble damages based on size of offense) does not suffer from inherent flaw of fixed penalty based solely on number of offenses regardless of their size. Kuriansky v Professional Care, Inc. (1990)  147 Misc 2d 782, 555 NYS2d 1, motion dismd  75 NY2d 991, 557 NYS2d 306, 556 NE2d 1113.

Footnotes

Footnote 16. United States v La Franca,  282 US 568,  75 L Ed 551,  51 S Ct 278 (conviction); United States v Seattle Brewing & Malting Co. (DC Wash) 135 F 597 (acquittal).

Footnote 17. Helvering v Mitchell,  303 US 391,  82 L Ed 917,  58 S Ct 630 (distinguishing cases to the contrary on the ground that they did not involve civil administrative sanctions); United States v Burkhart (CA6 Ohio) 501 F2d 993, cert den  420 US 946,  43 L Ed 2d 424,  95 S Ct 1326 (acquittal; recognizing rule); United States v Guzzone (CA2 NY) 273 F2d 121; United States v Rubin (CA7 Ill) 243 F2d 900; Bambulas v United States (DC SD) 323 F Supp 1271; United States v Ben Grunstein & Sons Co. (DC NJ) 127 F Supp 907; People v Chimbers,  91 Misc 2d 927, 398 NYS2d 222; Stout v State, 36 Okla 744, 130 P 553; Gooch v Rogers, 193 Or 158, 238 P2d 274; Commonwealth v Mackill, 120 Pa Super 408, 183 A 87.

Annotation:  42 ALR2d 634, § 2[a].

 100 L Ed 156.

 50 L Ed 2d 830, § 7[b].

The double jeopardy clause of the Fifth Amendment does not exonerate a person convicted of fraudulently obtaining surplus property from liability under the Surplus Property Act of 1944, which requires payment of $2,000 for each act of fraud.  Rex Trailer Co. v United States,  350 US 148,  100 L Ed 149,  76 S Ct 219.

Liability imposed by the by the Surplus Property Act upon every person who uses or engages in any fraudulent trick, scheme, or device for the purpose of securing property from the United States is not barred by the double jeopardy clause, even though the liability is sought to be enforced after conviction or acquittal in a criminal prosecution.  United States v Schneider (DC NY) 139 F Supp 826.

The double jeopardy clause did not apply where defendants convicted of criminal conspiracy to defraud the government were subjected to forfeiture and double damage provisions of the False Claims Act.  United States v Kates (ED Pa) 419 F Supp 846; United States v Ben Grunstein & Sons Co. (DC NJ) 127 F Supp 907.

Footnote 18. One Lot Emerald Cut Stones & One Ring v United States,  409 US 232,  34 L Ed 2d 438,  93 S Ct 489; Rex Trailer Co. v United States,  350 US 148,  100 L Ed 149,  76 S Ct 219.

Annotation:  50 L Ed 2d 830, § 7(a).

Footnote 19. One Lot Emerald Cut Stones & One Ring v United States,  409 US 232,  34 L Ed 2d 438,  93 S Ct 489; Helvering v Mitchell,  303 US 391,  82 L Ed 917,  58 S Ct 630.

Footnote 20. Helvering v Mitchell,  303 US 391,  82 L Ed 917,  58 S Ct 630.

Similarly, a public welfare agency was not barred from assessing fraudulent overpayment charges against a welfare recipient who had previously been acquitted in a criminal proceeding for grand larceny arising out of the same facts.  Double jeopardy did not apply since the fraudulent overpayment assessment proceeding was remedial in nature and designed primarily to safeguard state revenues, rather than to inflict punishment.  Beckett v Department of Social & Health Services, 87 Wash 2d 184, 550 P2d 529.

Footnote 21. Auditor General v Hall, 300 Mich 215, 1 NW2d 516,  139 ALR 1022.

Footnote 22. New York v Carolla,  48 Misc 2d 140, 264 NYS2d 408.


§ 252  – Forfeiture of property involved in former criminal proceeding  [21 Am Jur 2d CRIMINAL LAW]

When proceedings in rem are instituted by the government for the forfeiture of property involved in former criminal proceedings, the double jeopardy clause does not apply so long as the forfeiture proceeding is civil rather than criminal in nature and the forfeiture is no part of the punishment for the criminal offense. 23   Thus, the prior acquittal of a defendant under smuggling charges has been held not to bar a subsequent forfeiture action against the gems involved since the forfeiture is intended to aid in the enforcement of tariff regulations and has a remedial rather than a punitive purpose. 24   And, conviction of defendants on a charge of conspiracy to violate federal revenue laws concerning taxation of distilled spirits has been held not to bar a proceeding in rem instituted for forfeiture of the distillery property of the defendants, since the forfeiture is no part of the punishment for the criminal offense. 25   On the other hand, proceedings instituted for the purpose of declaring the forfeiture of a person's property by reason of offenses committed by him may be deemed criminal in nature, even though they may be civil in form. 26   Accordingly, proceedings for forfeiture of property allegedly the subject of or used in a criminal transaction have been barred when brought against a claimant who showed that in a previous criminal prosecution he was acquitted of the same criminal acts relied upon to justify the forfeiture. 27     And, an acquittal on charges of possession of firearms has been held to bar forfeiture where the firearms were not illegal per se. 28

Although recognizing that collateral estoppel will bar a statutory forfeiture if the elements of the forfeiture have been resolved against the government in the earlier criminal proceeding, the United States Supreme Court has held that an acquittal on a criminal charge does not always operate as a collateral estoppel to a subsequent forfeiture proceeding where the prior proceeding involved proof of criminal intent and where the acquittal may have only represented an adjudication that the proof was not sufficient to overcome all reasonable doubt of the accused's guilt, rather than an adjudication on the preponderance-of-the-evidence burden applicable in the subsequent civil proceeding. 29      On the other hand, it has been held, under the combined impact of the double jeopardy clause and the doctrine of collateral estoppel, that a prior judgment of acquittal of a property owner forecloses a proceeding to forfeit his property when the operative facts of both the criminal and the forfeiture proceedings are the same. 30    


§ 252  --Forfeiture of property involved in former criminal proceeding [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Running the gauntlet: An assessment of the double jeopardy implications of criminally prosecuting drug offenders and pursuing civil forfeiture of related assets under 21 USCS §  881(a)(4), (6) and (7), 70 Notre Dame LR 4:941 (1995).

Case authorities:

The double jeopardy clause of the Fifth Amendment is not applicable to a forfeiture proceeding under 18 USCS §  924(d), since such a proceeding is a civil, not a criminal proceeding. United States v One Assortment of 89 Firearms (1984, US)  79 L Ed 2d 361,  104 S Ct 1099.

Court will not direct U.S. to return seized rifles to their purported owner under 18 USCS §  924(d)(1), based on motion by felon, where rifles were seized as part of unsuccessful criminal prosecution of felon under 18 USCS §  922, because felon is not proper moving party under § 924 since he was acquitted of having possession of rifles and therefore has no relevant interest in their disposition. United States v Leader (1992, ED Pa) 809 F Supp 18.

Double jeopardy did not limit government's recovery in forfeiture action relating to building which housed narcotics defendant's clinic and pharmacy of costs in investigating and prosecuting case since clause does not apply to civil forfeitures where forfeited property itself was instrument of criminal activity. United States v Cullen (1992, CA4 Va) 979 F2d 992.

Defendant's prosecution for mail fraud and for RICO violations, preceded by his involuntary bankruptcy brought by creditors to recover money he owed then due to fraudulent investment scheme, did not violate double jeopardy clause since bankruptcy was brought by creditors, not the government, and did not constitute punishment, being analogous to forfeiture of proceeds of crime. United States v Randy (1996, CA7 Ill) 81 F3d 65.

Convicted illegal gambling operator is denied postconviction relief under Double Jeopardy Clause, even though his property was seized and in 1989 forfeited under 18 USCS §§  1955 (a) and (d), and he was prosecuted in 1993 for gambling conspiracy arising out of same underlying activity, because punishments complained of here were separate since conspiracy charge did not require proof that any property was being used, and civil forfeiture did not require proof of conspiratorial agreement. United States v Richardson (1995, ND Ill) 914 F Supp 212.

Defendant's criminal conviction was not subject to double jeopardy attack where defendant was sentenced to imprisonment before civil proceedings against real estate and currency were completed. United States v Barton (1995, CA9 Wash) 46 F3d 51, 95 CDOS 1831.

City was barred by double jeopardy, Ohio Const. Art I § 10, from petitioning an order for forfeiture of guns by gun owner under RC § 2933.41 after owner had been convicted of a felony and was thus not permitted to own them; the propriety of the forfeiture was dependent upon gun owner's conviction of the felony; thus the rule of the Casalicchio case applies to such a forfeiture brought under RC § 2933.41. Re Forfeiture of Property of Dorsey (1991, Mont) 75 Ohio App 3d 526, 599 NE2d 861.

Footnotes

Footnote 23. One Lot Emerald Cut Stones & One Ring v United States,  409 US 232,  34 L Ed 2d 438,  93 S Ct 489; Helvering v Mitchell,  303 US 391,  82 L Ed 917,  58 S Ct 630; Various Items of Personal Property v United States,  282 US 577,  75 L Ed 558,  51 S Ct 282.

Practice Aids: –Former jeopardy–Forfeiture of property.  1 Wharton's Criminal Law (14th ed) § 70.

Footnote 24. One Lot Emerald Cut Stones & One Ring v United States,  409 US 232,  34 L Ed 2d 438,  93 S Ct 489.

Footnote 25. Various Items of Personal Property v United States,  282 US 577,  75 L Ed 558,  51 S Ct 282.

Annotation:  50 L Ed 2d 830, § 7[c].

Footnote 26. United States v United States Coin & Currency,  401 US 715,  28 L Ed 2d 434,  91 S Ct 1041; Boyd v United States,  116 US 616,  29 L Ed 746,  6 S Ct 524 (ovrld on other grounds Warden, Maryland Penitentiary v Hayden  387 US 294,  18 L Ed 2d 782,  87 S Ct 1642) as stated in United States v Abrams (CA1 Mass) 615 F2d 541.

Footnote 27. People v Mudd, 54 Ill App 3d 603, 12 Ill Dec 414, 370 NE2d 37.

Annotation:  27 ALR2d 1137, § 2.

As to acquittal or conviction in criminal prosecution as bar to subsequent proceeding for forfeiture of property allegedly involved in crime, generally, see 36 Am Jur 2d,  Forfeitures and Penalties §§ 32-35.

Footnote 28. Lowther v United States (CA10 Okla) 480 F2d 1031.

Footnote 29. One Lot Emerald Cut Stones & One Ring v United States,  409 US 232,  34 L Ed 2d 438,  93 S Ct 489.

Footnote 30. Coffey v United States,  116 US 436,  29 L Ed 684,  6 S Ct 437; United States v One 1967 Cadillac El Dorado (CA9 Cal) 453 F2d 396.

As to collateral estoppel in general, see  §§ 321 et seq., infra.


§ 253  Validity  [21 Am Jur 2d CRIMINAL LAW]

When the prosecution is acquiesced in by the accused, a conviction under an unconstitutional law has been held to be a bar to a second prosecution for the same offense. 31    And an acquittal by a jury may form the basis of a plea of former jeopardy notwithstanding any defect in form or substance of the indictment on which the acquittal was rendered. 32     Further, a conviction under a statute prescribing no penalty supports a valid plea of former jeopardy and bars a subsequent trial and conviction under a statutory amendment fixing a penalty. 33

Footnotes

Footnote 31. McGinnis v State, 28 Tenn 43.

As to effect of plea of guilty in sham or collusive proceeding, see  § 257, infra.

Footnote 32. State ex rel. Zirk v Muntzing, 146 W Va 878, 122 SE2d 851,  94 ALR2d 1033.

As to declaration of mistrial on ground of defective indictment, see  § 288, infra.

Footnote 33. United States v Sabella (CA2 NY) 272 F2d 206.


§ 254  Court without jurisdiction  [21 Am Jur 2d CRIMINAL LAW]

It cannot be said that a person has been in jeopardy unless the court in which he was acquitted or convicted had jurisdiction to try him for the offense charged. 34  Thus, the defense of former jeopardy cannot be based on a plea of guilty entered before a court not having jurisdiction of the matter. 35   If the court had no jurisdiction, any judgment that might be rendered would be void and would be no bar to a subsequent prosecution for the same offense in a court of competent jurisdiction. 36  This conclusion is not affected by the fact that the defendant did not object to the jurisdiction of the court. Consent cannot confer jurisdiction. 37

A related problem arises when a defendant who has been convicted or acquitted of a lesser crime in a court of competent jurisdiction is thereafter charged in another court for a greater crime that the first court lacked jurisdiction to hear and determine.  There is authority for the view that the prior trial on the lesser offense bars his prosecution before the higher court for the greater offense, notwithstanding the difference in jurisdiction had prevented him from being in jeopardy of the greater offense in the inferior court. 38   Where the offense charged in the prior proceeding was not identical to or included in the offense charged in the second, however, two separate and distinct offenses have been committed by the defendant, albeit in the same transaction, and the question of jurisdiction becomes relatively unimportant, since there can be no double jeopardy where the offenses are not the same. 39 


§ 254  –  Court without jurisdiction [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

A motion by defendant, who was previously "convicted" in Family Court on the same charges he faced in Criminal Court, to dismiss the information on double jeopardy grounds would be denied where the Criminal Court prosecution had been commenced when it was learned that defendant had misrepresented his age and was over the Family Court's jurisdictional age of 16 at the time the acts in question were allegedly committed since under CPL § 40.30(2)(a), a person is not deemed to have been prosecuted for an offense when such prosecution occurred in a court which lacked jurisdiction over the defendant. There is no burden of proof concerning age upon the prosecution, and further, a claim of double jeopardy would not lie, where the first trial or proceeding was aborted by a cause directly attributable to the defendant. Retrial could in no event be barred by circumstances directly attributable to defendant's own act of misrepresenting his age, an act which constituted an independent prima facie crime. People v Haynes (1985)  127 Misc 2d 188, 485 NYS2d 929.

Any error in trying a juvenile for manslaughter was harmless, where the juvenile court transferred juvenile to the Circuit Court to be tried for the third-degree felony of vehicular homicide resulting from the death of 2 passengers in juvenile's car after juvenile drove past a railroad barricade and collided with a train while driving with a suspended license, but juvenile was tried and convicted in Circuit Court for manslaughter and contended that the conviction for a second-degree felony was unlawful since the waiver of juvenile court jurisdiction had been for a third-degree felony, because the juvenile court did not have authority to control the charge brought after jurisdiction was waived; moreover, the sentence imposed was less than or the same as that allowed for vehicular homicide. Iglesias v State (1992, Fla App D3) 599 So 2d 248, 17 FLW D 1332.

The midtrial dismissal of the habitual driving while impaired charge on jurisdictional grounds did not amount to an "acquittal" of that offense so as to bar a second trial, since the dismissal was not based upon grounds of factual guilt or innocence. State v Priddy (1994) 115 NC App 547, 445 SE2d 610, review den (NC) 1994 NC LEXIS 608.

Footnotes

Footnote 34. Serfass v United States,  420 US 377,  43 L Ed 2d 265,  95 S Ct 1055; Grafton v United States,  206 US 333,  51 L Ed 1084,  27 S Ct 749; McCleary v Hudspeth (CA10 Kan) 124 F2d 445, cert den  316 US 670,  86 L Ed 1745,  62 S Ct 1043; People v Morillo, 90 Mich App 655, 282 NW2d 434; State v Dehler, 257 Minn 549, 102 NW2d 696,  89 ALR2d 496; State v Rose, 89 Ohio St 383, 106 NE 50; State v Nelson, 51 Ohio App 2d 31, 5 Ohio Ops 3d 158, 365 NE2d 1268; Wilson v State, 154 Tex Crim 39, 224 SW2d 234.

Fact that the court may not have been authorized under state jurisdictional rules to render a verdict of acquittal does not make the verdict void for double jeopardy purposes.  Block v State (Md) 407 A2d 320.

Annotation:  50 L Ed 2d 830, § 11[a].

Footnote 35. McCleary v Hudspeth (CA10 Kan) 124 F2d 445, cert den  316 US 670,  86 L Ed 1745,  62 S Ct 1043; State v Sefcheck, 261 Iowa 1159, 157 NW2d 128; State v Bartlett, 181 Iowa 436, 164 NW 757.

Annotation:  75 ALR2d 683, §§ 5 and 5.3.

A purported guilty plea entered at a preliminary hearing did not prevent a subsequent prosecution where there had been no bill of indictment or indictment to give the judge at the preliminary hearing subject-matter jurisdiction.  Commonwealth v Diaz, 235 Pa Super 352, 340 A2d 559.

A juvenile had not been placed in jeopardy of a second-degree murder charge in former proceedings in which he had been sentenced illegally upon his plea of guilty, since, under the applicable statute, the court had lacked jurisdiction to entertain criminal proceedings against any juvenile under the age of 17 without first dismissing delinquency proceedings based upon the same conduct. Commonwealth v Chase, 348 Mass 100, 202 NE2d 300.

Where a defendant who pleaded guilty when first arraigned in juvenile court was released on a writ of habeas corpus, following which the juvenile court determined that the case should be transferred to a criminal court, the defendant was not placed in jeopardy in a second time where he pleaded guilty again in the transferee court.  Neller v State, 79 NM 528, 445 P2d 949.

Where a defendant had served more than a year of his sentence on a larceny conviction before being released on habeas corpus, his retrial and conviction on the same offense was not improper since the habeas corpus proceeding had determined the original proceeding was void for lack of jurisdiction of the court.  State v Paris, 76 NM 291, 414 P2d 512.

Practice Aids: –Former jeopardy–Jurisdiction, procedural irregularities, and fraud.  1 Wharton's Criminal Law (14th ed) § 57.

Footnote 36. United States v Ball,  163 US 662,  41 L Ed 300,  16 S Ct 1192 (not followed on other grounds United States v Wiley 170 App DC 382, 517 F2d 1212); State v Fox, 83 Conn 286, 76 A 302; State v Hendren, 127 Kan 497, 274 P 274; Moquin v State, 216 Md 524, 140 A2d 914; Peterson v State, 79 Neb 132, 112 NW 306.

There is no double jeopardy where the court at the first trial had no jurisdiction of the cause.  State v Birckhead, 256 NC 494, 124 SE2d 838,  6 ALR3d 888.

Footnote 37. Ogle v State, 43 Tex Crim 219, 63 SW 1009.

Footnote 38. See  § 274, infra.

Footnote 39. See  § 266, infra.


§ 255  Defective accusatory pleading  [21 Am Jur 2d CRIMINAL LAW]

Neither a conviction 40  nor an acquittal 41  based on an accusatory pleading that fails to state any charge recognized by the law is a bar to a subsequent prosecution.  Nor does jeopardy attach where a defendant pleads guilty to a defective indictment that is voluntarily dismissed by the prosecution. 42   Similarly, the granting of a motion to quash a bad accusatory pleading, 43  or an acquittal secured under a decision of the court sustaining the defendant's objection to the accusation, 44  or a ruling, on a postconviction proceeding, that the original indictment was invalid, 45   will not bar a subsequent prosecution on a good pleading.  Thus, jeopardy does not result from a conviction under a fatally defective indictment since the conviction is a nullity and the court would have been justified on the motion of either party or its own motion to declare a mistrial at any stage of the trial. 46   But if the accused was first prosecuted under a defective but not void indictment, so that a valid and legal conviction could have been procured notwithstanding the defect, an acquittal may be pleaded in bar of a subsequent indictment for the same offense. 47   Nevertheless, where there is no substantial defect in the merits of the case but at most an insufficient drafting of the information, dismissal immediately following the impaneling and swearing of the jury does not place the accused in jeopardy within the meaning of the Fifth Amendment. 48  

Where during a trial under an indictment defective on its face the indictment is amended to cure the defect, an uninterrupted continuation of the trial does not place the defendant in jeopardy under two successive indictments for the same offense. 49   A defendant's conviction in a higher court on trial under an amended complaint has been reversed on grounds of double jeopardy, however, where the original trial, which had commenced in a municipal court on a complaint charging him with a lesser offense, had been interrupted by the trial judge to allow amendment of the complaint to the higher offense. 50   And, it has been held that a defendant whose motion for judgment of acquittal was granted on the ground that the state's proof departed from the bill of particulars in specifying an incorrect time of day for the offense could not be retried under a new information specifying the correct time. 51


§ 255  – Defective accusatory pleading [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Even without a determination of whether a state's offenses of sexual assault and incest are the "same" offenses for double jeopardy purposes, the double jeopardy clause of the Fifth Amendment to the United States Constitution does not bar a state from retrial, on a charge of sexual assault, of a criminal defendant whose initial conviction for incest with his stepdaughter was overturned on appeal by the state supreme court on the ground that the conviction violated an ex post facto provision of the state constitution–even though it is argued that the defendant was convicted of a crime that did not exist on the date of the charged offense–because (1) under the state supreme court's reading of the state's sexual assault statute, the defendant's conduct apparently was criminal at the time he engaged in it; (2) therefore, the state simply relied on the wrong statute in its information charging the defendant with incest; and (3) the double jeopardy clause permits retrial after a conviction is reversed because of a defect in the charging instrument. Montana v Hall (1987)  481 US 400,  95 L Ed 2d 354,  107 S Ct 1825.

No jeopardy attached at petitioner's second trial and his third trial was not barred, notwithstanding that the appellate brief filed with the trial court after petitioner's second trial alleged the evidence had been insufficient to convict him and the trial court had granted the motion for new trial on the briefs without any statement of its grounds, where the information on which the second trial was held was fatally defective in failing to allege a culpable mental state, and thus conferred no jurisdiction on the trial court. Schlang v Heard (1982, CA5 Tex) 691 F2d 796, cert den and app dismd (US)  77 L Ed 2d 1310,  103 S Ct 2419.

Defendant's guilty plea did not waive claim that information or indictment, judged on its face, was constitutionally deficient under double jeopardy clause. United States v Baugh (1986, CA7 Ill) 787 F2d 1131.

Inmate's second conviction of murdering parents of his ex-wife did not violate Double Jeopardy Clause of Fifth Amendment, where first conviction was overturned due to state's charging and trying inmate under wrong capital murder provision, because sufficiency of evidence to convict was never in doubt, killings were obviously form of criminal homicide of some degree, but were just not "in course of and in furtherance of" burglary, and second conviction under provision for causing death of 2 or more persons in course of same criminal episode need not be disturbed. Parker v Lockhart (1992, ED Ark) 797 F Supp 718.

Jeopardy did not attach with court's hearing of evidence in connection with defendants' pre-trial motion to dismiss indictment, since hearing did not constitute consideration of evidence of defense on merits for purpose of determining guilt or innocence. United States v Marchese (1995, CA10 Colo) 46 F3d 1020.

Where no material variance exists between first indictment which was dismissed and proof thereunder, coupled with absence of requisite elements of manifest necessity for terminating initial proceeding, second offense under which defendant was tried is same offense for which defendant had been indicted and put to trial earlier so that defendant's retrial violates double jeopardy clause of Fifth Amendment. Ex parte Allred (1980, Ala) 393 So 2d 1030.

Where defendant received a directed verdict of acquittal of the charge of burglary of apartment number 12 at a certain apartment complex on the ground that the evidence indicated that apartment number 125, not apartment number 12, had been burglarized, defendant would be estopped to claim that the filing of a new information charging defendant with burglary of apartment number 125 violated his right against double jeopardy. State v Jones (1981, Fla App D5) 404 So 2d 395.

Double jeopardy clause was not violated when defendant was reindicted for alleged burglary of premises in custody of second person after original charge alleging burglary of same premises in custody of first person was reversed for failure of state to prove possessory interest in first person. People v Holloway (1982) 92 Ill 2d 381, 65 Ill Dec 880, 442 NE2d 191.

The acquittal entered in defendant's prior trial, which was based upon an indictment which did not correctly set out the complainant's name, did not operate as a bar to defendant's prosecution under another indictment for the offense of indecency with a child which correctly identified the complainant. Fulmer v State (1987, Tex Crim) 731 SW2d 943.

Footnotes

Footnote 40. State v Bogard, 25 Ind App 123, 57 NE 722; State v Collins, 112 Wash 201, 191 P 831, adhered to 116 Wash 363, 199 P 745.

A person convicted on a complaint, information, or indictment which fails to state a public offense has not been in jeopardy within the rule that a former conviction or acquittal is a defense to a subsequent prosecution. State v Empey, 65 Utah 609, 239 P 25,  44 ALR 558.

Footnote 41. Ex parte Lange,  85 US 163,  21 L Ed 872; Bennett v Commonwealth, 150 Ky 604, 150 SW 806; State v Schyhart (Mo) 199 SW 205.

Footnote 42. United States v McClure (CA6 Tenn) 356 F2d 939.

Annotation:  75 ALR2d 683, § 5.5.

Jeopardy did not attach where the defendant entered and withdrew a guilty plea on two separate occasions prior to the selection and swearing of the jury under the first information, and, thereafter, the state filed a new information identical to the first except for omitting one charge and adding another.  Bell v Wainwright (CA5 Fla) 476 F2d 964, cert den  414 US 1000,  38 L Ed 2d 235,  94 S Ct 352.

Under a statute requiring that punishment be assessed by a jury, jeopardy did not attach when the defendant pleaded guilty to the offense charged that was dismissed subsequent to the defendant's plea but prior to sentencing on a nolle prosequi order by the attorney general; no judicial action had been taken on the plea nor was the defendant placed in jeopardy of punishment prior to dismissal of the indictment.  State v Sluder (Tenn) 493 SW2d 467, cert den  414 US 876,  38 L Ed 2d 121,  94 S Ct 85.

Footnote 43. United States v Oppenheimer,  242 US 85,  61 L Ed 161,  37 S Ct 68; State v Lloyd,  152 Wis 24, 139 NW 514.

Footnote 44. People ex rel. Weiner v Warden of City Prison, 237 App Div 28, 260 NYS 651, app dismd 261 NY 620, 185 NE 763.

Dismissal of an indictment for failure to show jurisdictional facts cannot bar prosecution under a subsequent good indictment where the court, under the first indictment, never addressed the merits of the case.  United States v Allied Towing Corp. (CA4 Va) 602 F2d 612.

Footnote 45. Shoener v Pennsylvania,  207 US 188,  52 L Ed 163,  28 S Ct 110; Tate v State, 236 Md 312, 203 A2d 882.

Annotation:  50 L Ed 2d 830, § 11[b].

Footnote 46. Ward v State (Tex Crim) 520 SW2d 395.

Footnote 47. Burke v United States (Mun Ct App Dist Col) 103 A2d 347; People ex rel. Weiner v Warden of City Prison, 237 App Div 28, 260 NYS 651, app dismd 261 NY 620, 185 NE 763.

Footnote 48. United States v Wagstaff (CA10 Utah) 572 F2d 270.

As to attachment of jeopardy upon impaneling and swearing of jury, see  § 260, infra.

Footnote 49. McKay v State, 90 Neb 63, 132 NW 741, mod on other grounds 91 Neb 281, 135 NW 1024.

Footnote 50. Commonwealth v Clemmons, 370 Mass 288, 346 NE2d 864 (original complaint charging defendant with simple possession of heroin amended to read "possession of heroin with intent to distribute").

Footnote 51. State v Witherspoon (Fla App D3) 366 So 2d 487.


§ 256  Invalid judgment of conviction  [21 Am Jur 2d CRIMINAL LAW]

A sentence based on an invalid conviction or verdict will not support a plea of former jeopardy. 52    And where a verdict is so defective that no valid judgment can be entered on it, a plea of former jeopardy will not prevent another trial before another jury. 53   On the other hand, a trial court's assessment of punishment below the statutory minimum does not invalidate the conviction, and a subsequent prosecution for the same offense is therefore barred on double jeopardy grounds. 54

Where a guilty plea is induced by injudicious remarks of the trial judge, the conviction may be set aside and a new trial had without involving double jeopardy. 55           
 

§ 256  – Invalid judgment of conviction [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Double jeopardy did not bar defendant's retrial after his conviction was reversed because of prosecutorial misconduct through presentation of perjured testimony where there was no showing of prosecutor's deliberate misconduct to avoid acquittal. United States v Wallach (1992, CA2 NY) 979 F2d 912.

Defendant's retrial after vacation of his conviction because of improper instruction was not barred on double jeopardy grounds, since Court of Appeals made no findings as to sufficiency of evidence. United States v Stevens (1994, CA5 Tex) 38 F3d 167.

Double jeopardy clause did not bar defendant's retrial after his conviction for structuring illegal financial transactions was reversed following change of law requiring defendant's knowledge that structuring was illegal. United States v Weems (1995, CA9 Wash) 49 F3d 528, 95 CDOS 1526, 95 Daily Journal DAR 2711.

Upon conviction of two counts of attempted grand theft from a person, the trial court's imposition of a full two-year enhancement of defendant's sentence contrary to statute constituted an unauthorized sentence. Accordingly, upon remand after defendant's successful appeal relating to the sentencing error, the trial court did not violate the prohibition against double jeopardy by imposing a longer sentence on remand which was authorized by statute. People v Brown (1987, 1st Dist) 193 Cal App 3d 957, 238 Cal Rptr 697.

People would be prohibited from any further prosecution of defendant where trial justice erroneously informed him, during jury deliberation, that jurors were voting to convict by 10-to-2 margin, defendant decided to plead guilty prior to rendering of verdict, and it was later learned that jurors had been leaning 10-to-2 in favor of acquittal; although trial justice acknowledged error and attempted to rectify harm done by vacating plea and judgment of conviction, vacatur could not restore defendant to status quo ante and his right to have particular deliberating jury determine his fate. Randall v Rothwax (1991)  78 NY2d 494, 577 NYS2d 211, 583 NE2d 924, cert den (US)  118 L Ed 2d 306,  112 S Ct 1588.

Retrial of defendant was not barred by his success in having his first conviction nullified by federal district court on ground of prosecutorial misconduct since claim of double jeopardy will not bar retrial under accusatory instrument following nullification of earlier conviction obtained under that instrument. People v Perkins (1989, 2d Dept)  156 AD2d 595, 549 NYS2d 103, app den  76 NY2d 740, 558 NYS2d 902, 557 NE2d 1198.

Footnotes

Footnote 52. Mitchell v Youell (CA4 Va) 130 F2d 880; Dubose v State, 13 Tex App 418; State v Bates, 22 Utah 65, 61 P 905.

To constitute a proper basis for the claim of former jeopardy a proceeding must be valid, and if lacking in any fundamental prerequisite, it will not constitute a proper foundation for former jeopardy.  Tilghman v Mayo (Fla) 82 So 2d 136, cert den  350 US 942,  100 L Ed 821,  76 S Ct 317.

There was no merit to defendant's contention that imposition of a life sentence after the U.S. Supreme Court vacated the imposition upon him of the death penalty was illegal and that having once been sentenced illegally he could not be retried for the same offense, since the action of the North Carolina Supreme Court in imposing the life sentence was consistent with the mandate of the U.S. Supreme Court pending its determination of whether Mullaney v Wilbur,  421 US 684, was retroactive, and a retrial of defendant after it was ultimately determined that he was entitled to rely on the Mullaney error in his original trial did not constitute double jeopardy. State v Sparks, 297 NC 314, 255 SE2d 373.

Footnote 53. People v Sachau, 78 Cal App 702, 248 P 960; Allen v State, 13 Okla Crim 533, 165 P 745; Marshall v State, 73 Tex Crim 531, 166 SW 722.

A verdict of guilty is a nullity where the jury also formally finds the defendant to be insane at the time of trial, and the defendant cannot successfully plead former jeopardy when rearraigned on the original criminal charge after the guilty verdict is set aside by the court.  Commonwealth v Endrukat, 231 Pa 529, 80 A 1049.

Footnote 54. Ramirez v State (Tex Crim) 587 SW2d 144.

Footnote 55. United States v Tateo,  377 US 463,  12 L Ed 2d 448,  84 S Ct 1587 (ovrld on other grounds Chapman v California  386 US 18,  17 L Ed 2d 705,  87 S Ct 824,  24 ALR3d 1065, reh den  386 US 987,  18 L Ed 2d 241,  87 S Ct 1283) as stated in Sumpter v De Groote (CA7 Ind) 552 F2d 1206.

Annotation:  6 L Ed 2d 1510, § 15 [New].


§ 257  Collusive conviction or acquittal  [21 Am Jur 2d CRIMINAL LAW]

Although generally a former conviction on a plea of guilty is sufficient to sustain a defense of double jeopardy in a subsequent prosecution for the same offense, 56   a plea of former jeopardy is not supported by a sham or collusive proceeding under which the defendant pleads guilty to a minor offense in order to avoid an anticipated prosecution on a more serious charge based on the same facts. 57    It has been held, however, that a plea of former jeopardy may be based on an acquittal procured by bribery of the prosecuting attorney, where the state was represented throughout the proceeding by its duly authorized attorney. 58


§ 257  – Collusive conviction or acquittal [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

In a felony prosecution for extortion (Pen. Code, §§ 519, 520) and receiving stolen property (Pen. Code, § 496), the trial court erred in denying defendant's motion to dismiss on the ground of double jeopardy, based on defendant's previous plea of nolo contendere to, and sentence upon, a misdemeanor charge of attempted extortion (Pen. Code, § 524) arising out of the identical underlying criminal conduct on which the felony charges were based. Defendant could reasonably have assumed that the city attorney's office, which acquiesced in his plea because the deputy city attorney who attended the misdemeanor proceedings had omitted to check the case file, which contained a note indicating that the misdemeanor case was to be dismissed due to the pendency of the felony proceedings, was aware of the pending felony and had made an informed prosecutorial decision to allow the plea. Defendant, who had not manipulated the proceedings but had merely entered his plea in due course, had no affirmative duty to safeguard against prosecutorial omissions, or to advise the misdemeanor court of the related felony prosecution. Crayton v Superior Court (1985, 2d Dist) 165 Cal App 3d 443, 211 Cal Rptr 605.

Footnotes

Footnote 56.  § 247, supra.

Footnote 57. Richards v State, 108 Ark 87, 157 SW 141; People v Woods, 84 Cal 441, 23 P 1119; Hampton v Municipal Court of Pasadena Judicial Dist. (2d Dist) 242 Cal App 2d 689, 51 Cal Rptr 760; Teague v Commonwealth, 172 Ky 665, 189 SW 908; State v Simpson, 28 Minn 66, 9 NW 78; State v Nardone, 114 RI 363, 334 A2d 208; Beasley v State, 84 Tex Crim 486, 208 SW 538; McFarland v State,  68 Wis 400, 32 NW 226.

Annotation:  75 ALR2d 683, § 4.

Footnote 58. Shideler v State, 129 Ind 523, 28 NE 537, reh overr 129 Ind 528, 29 NE 36.


3.  Stage Reached in Prior Proceeding; When Jeopardy Attaches [258-262]


§ 258  Generally; plea of guilty  [21 Am Jur 2d CRIMINAL LAW]

The constitutional policies underpinning the Fifth Amendment's prohibition against double jeopardy come into play when an accused in a criminal proceeding is put on trial before a trier of fact, 59    whether judge 60  or jury. 61    Where two indictments are returned against an accused before the first trial, and he is not brought to trial on the first indictment but only on the second, there is no question of double jeopardy on the two indictments. 62   In other words, the prohibition against double jeopardy is not implicated until "jeopardy attaches" in the proceedings. 63  Jeopardy means exposure to danger. 64   It does not attach unless there is a risk of a determination of guilt.  A conclusion that jeopardy has indeed attached begins, rather than ends, the inquiry as to whether the double jeopardy clause bars a retrial. 65    

Although a former conviction based on a plea of guilty is generally sufficient to sustain a defense of double jeopardy in a subsequent prosecution for the same offense, 66   the plea of guilty must be accepted by the court before jeopardy attaches. 67    Thus, where an accused merely informally gave an indication of his desire to plead guilty without the court's having read the complaint to him and without arraignment having been made, an erroneous entry of judgment on the inadequate plea did not establish former jeopardy. 68   A guilty plea that is only conditionally received subject to a presentence report 69  or that is erroneously accepted contrary to a statute regulating the time of acceptance 70    does not give rise to jeopardy.  Likewise, the double jeopardy provision does not apply where the trial court rejected or vacated a plea agreement. 71  


§ 258  – Generally; plea of guilty [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Because jeopardy attaches before a judgment becomes final, the constitutional protection against double jeopardy under the Fifth Amendment also embraces a criminal defendant's valued right to have his trial completed by a particular tribunal. United States v Di Francesco (1980, US)  66 L Ed 2d 328,  101 S Ct 426.

See Ohio v Johnson (1984, US)  81 L Ed 2d 425, § 269.

Even assuming that jeopardy has attached to a defendant's second-degree murder conviction and that double jeopardy would otherwise prevent subsequent prosecution on a charge of first-degree murder, the double jeopardy clause of the Fifth Amendment of the United States Constitution does not bar a state's prosecution of the defendant for first-degree murder following the vacation of the defendant's second-degree murder conviction due to the defendant's breach of his plea agreement with the state, because permitting the state to enforce the bargain the parties actually made does not violate double jeopardy, where (1) both parties bargained for and received substantial benefits: (a) the state, a plea of guilty to second-degree murder and the defendant's promise to testify against other suspects in certain circumstances, and (b) the defendant, a specified prison sentence and other benefits; (2) the agreement specified that if the defendant refused to testify, the entire agreement was null and void and the original first-degree murder charge would automatically be reinstated; (3) the defendant understood the meaning of those provisions; (4) after the defendant's breach of his obligation to testify, the defendant was returned to the position he had occupied prior to execution of the plea bargain: he stood charged with first-degree murder; (5) even though the breach occurred because the defendant disputed the extent of his obligation to testify, (a) the parties did not agree that the defendant would be relieved from the consequences of his refusal to testify if he were able to advance a colorable argument that a testimonial obligation was not owing, (b) the parties could have made a different bargain, and (c) the defendant chose to advance an interpretation of the agreement that proved erroneous, rather than submitting to the state's request that he testify and perhaps providing testimony that he had no obligation to provide; (6) there is no indication that the defendant did not fully understand the potential seriousness of the position he adopted; and (7) it was of no moment that, following a state supreme court decision that the defendant had breached the agreement, the defendant offered to comply with the terms of the agreement, because, at that point, the defendant's second-degree murder conviction had already been ordered vacated and the original charge reinstated. Ricketts v Adamson (1987)  483 US 1,  97 L Ed 2d 1,  107 S Ct 2860, on remand, en banc (CA9 Ariz) 865 F2d 1011.

Reprosecution of defendants for various drug offenses and tax fraud after court sua sponte declared mistrial on ground of manifest necessity because of prejudicial television news report which was broadcast after jury had been sworn in but before they were cautioned not to listen to news reports about the case, violated double jeopardy where court refused to poll jurors or to give cautionary instruction since court acted in abrupt and precipitate manner and did not consider less drastic alternatives. United States v Dixon (1990, CA8 Mo) 913 F2d 1305.

Petitioner's claim was not procedurally barred by his having failed to raise it in state post-conviction proceeding where Arkansas had no post-conviction remedy available at time of his conviction, it reinstated post-conviction review one year later, and one year after that Arkansas Supreme Court ruled that persons who pled guilty during no-review hiatus had right to petition for post-conviction relief but within 90 days of its reinstatement–which had passed by time of ruling–since federal due process clause requires that remedy state creates be reasonably accessible to those affected. Easter v Endell (1994, CA8 Ark) 37 F3d 1343.

Jeopardy attaches in double punishment context when defendant begins serving sentence; if defendant has not begun serving sentence pursuant to challenged order, jeopardy has not attached and if court reverses and remands for sentencing, sentence on remand would not constitute double jeopardy. United States v Von Moos (1981, CA9 Alaska) 660 F2d 748.

Defendant has not twice been placed in jeopardy as result of proceedings stemming from 1977 and 1982 indictments charging defendant with same conspiracy to import marijuana, where 1977 indictment was dismissed before trial in return for defendant's guilty plea to superseding charge of simple possession. United States v Vaughan (1983, CA9 Cal) 715 F2d 1373.

Double jeopardy did not attach so as to prohibit trial on 2 counts that had been dismissed pursuant to plea agreement and one count to which defendant had pleaded guilty pursuant to same plea bargain where defendant had been permitted to withdraw guilty plea at sentencing hearing when judge rejected sentencing agreement into which defendant had entered after jury was impaneled and sworn and prosecutor made opening statement. United States v Baggett (1990, CA11 Ala) 901 F2d 1546.

Acceptance of plea agreement by trial court places petitioner in jeopardy and plea agreement may not be vacated without his consent. Williams v Superior Court of County of Maricopa (1981, Ark) 635 P2d 497.

See Davis v State (1980, Fla App D3) 386 So 2d 1287, § 866.

The acceptance of a tendered guilty plea places the accused in jeopardy and prohibits the vacating of that plea without legal cause. Gamble v State (1984, Fla App D5) 449 So 2d 319.

Defendant's guilty plea in lower criminal court after grand jury voted indictment but before indictment was filed, and after prosecution requested adjournment at defendant's arraignment in local criminal court to present matter to grand jury, was nullity and did not prohibit his prosecution on same charges in Supreme Court on double jeopardy grounds, since local criminal court loses jurisdiction when indictment is voted where prosecutor applies in open court for adjournment for purpose of presenting matter to grand jury. People v Brancoccio (1990)  147 Misc 2d 1030, 558 NYS2d 803.

CLS CPL §  170.30(1)(c), providing for dismissal of certain accusatory instruments if prosecution is barred by reason of previous prosecution for same offense pursuant to CLS CPL §  40.20, applies where previous prosecution terminates in conviction on guilty plea or has reached trial stage. People v Paulino (1990)  148 Misc 2d 548, 560 NYS2d 743.

Accusatory instrument, charging crime which was contained in original indictment against defendant, was not subject to dismissal under CLS CPL §  170.30(1)(c) where first indictment was dismissed for defective grand jury proceedings prior to trial stage. People v Paulino (1990)  148 Misc 2d 548, 560 NYS2d 743.

It was error for a trial court to suppress evidence from a traffic stop of a person charged with DUI on the grounds that the person had been stopped and tested by another officer less than an hour previously and let go. The driver was never charged with a violation of RC § 4511.19(A) as a result of the first stop; there was no "acquittal" concerning the first incident and there was no prosecution resulting from the first incident, consequently Anderson is inapposite, and double jeopardy did not preclude the instant prosecution pursuant to RC § 4511.19(A)(3). State v Melvan (Gallia Co) 80 O App 3d 443, 609 NE2d 595.

Footnotes

Footnote 59. Collins v Loisel,  262 US 426,  67 L Ed 1062,  43 S Ct 618; United States v Celestine,  215 US 278,  54 L Ed 195,  30 S Ct 93; United States v Mann (CA5 Tex) 517 F2d 259, cert den  423 US 1087,  47 L Ed 2d 97,  96 S Ct 878; United States v Velazquez (CA2 NY) 490 F2d 29, cert den  421 US 946,  44 L Ed 2d 99,  95 S Ct 1675; Jones v State, 17 Md App 504, 302 A2d 638.

Annotation:  30 ALR Fed 655, § 5.

Footnote 60. See  § 259, infra.

Footnote 61. See  § 260, infra.

Practice Aids: –Former jeopardy–When jeopardy attaches.  1 Wharton's Criminal Law (14th ed) § 56.

Footnote 62. Terry v Commowealth (Ky) 371 SW2d 862 (ovrld on other grounds Mason v Commonwealth (Ky) 565 SW2d 140).

Footnote 63. United States v Martin Linen Supply Co.,  430 US 564,  51 L Ed 2d 642,  97 S Ct 1349, 1977-1 CCH Trade Cas ¶ 61354; Serfass v United States,  420 US 377,  43 L Ed 2d 265,  95 S Ct 1055; United States v Jorn,  400 US 470,  27 L Ed 2d 543,  91 S Ct 547 (plurality opinion).

Annotation:  50 L Ed 2d 830, § 10.

Footnote 64. Serfass v United States,  420 US 377,  43 L Ed 2d 265,  95 S Ct 1055; United States v Jorn,  400 US 470,  27 L Ed 2d 543,  91 S Ct 547; Kepner v United States,  195 US 100,  49 L Ed 114,  24 S Ct 797; Cornero v United States (CA9 Cal) 48 F2d 69,  74 ALR 797 (ovrld on other grounds Wade v Hunter  336 US 684,  93 L Ed 974,  69 S Ct 834, reh den  337 US 921,  93 L Ed 1730,  69 S Ct 1152).

Footnote 65. Serfass v United States,  420 US 377,  43 L Ed 2d 265,  95 S Ct 1055.

Footnote 66. See  § 247, supra.

Footnote 67. Reyes v Kelly (Fla) 224 So 2d 303, cert den  397 US 958,  25 L Ed 2d 142,  90 S Ct 961 (juvenile proceeding); State v Gibbs, 94 Idaho 908, 500 P2d 209; State v Linehan, 276 Minn 349, 150 NW2d 203, later app 282 Minn 254, 164 NW2d 616; People ex rel. Grogan v Morhous, 270 App Div 871, 60 NYS2d 326; State v Neas, 278 NC 506, 180 SE2d 12; State v Waldman,  57 Wis 2d 234, 203 NW2d 691.

Footnote 68. People v Sturdy (1st Dist) 235 Cal App 2d 306, 45 Cal Rptr 203.

Annotation:  75 ALR2d 683, § 3.

Jeopardy did not attach where the court dismissed an indictment against a defendant after he had agreed to plead guilty, but the prosecution failed to supply the court with information required to determine whether the defendant was guilty.  United States v Brown (CA8 Mo) 481 F2d 1035.

A defendant would be discharged from custody where the court had accepted his guilty plea to a misdemeanor and had entered a dismissal order, albeit inadvertently, since such order was tantamount to an acquittal after setting aside the guilty plea, and, having thus "acquitted" the defendant, the court's subsequent order purporting to reinstate the criminal proceedings and recertifying the defendant to superior court was null and void. Re Krieger (2d Dist) 272 Cal App 2d 886, 77 Cal Rptr 822.

A defendant who had entered a plea of guilty to a charge of drunk driving and had been convicted and sentenced thereon could not be subjected to a second trial without violating double jeopardy where in another drunk driving prosecution he had challenged the conviction's validity for enhancement purposes on the ground that he had not been fully advised of his constitutional rights prior to entry of his guilty plea and the court, on its own motion, set aside the plea of guilty.  Gonzalez v Municipal Court for San Jose-Milpitas Judicial Dist. (1st Dist) 32 Cal App 3d 706, 108 Cal Rptr 612.

A defendant's prior plea of guilty before a magistrate on a traffic offense alleging wrong lane usage prior to an accident in which three people were killed did not preclude the state from proceeding on an indictment for the offense of reckless homicide where the prosecuting officer had no knowledge of the prior traffic charge.  People v Bressegge, 124 Ill App 2d 469, 259 NE2d 592.

Footnote 69. Stowers v State, 266 Ind 403, 363 NE2d 978.

Footnote 70. People v Bartley (1st Dept)  60 App Div 2d 283, 401 NYS2d 71, affd  47 NY2d 965, 419 NYS2d 956, 393 NE2d 1029.

Footnote 71. United States v Sanchez (CA5 Tex) 609 F2d 761, holding that defendant's right against double jeopardy was not violated where the trial judge "temporarily" accepted the plea bargaining agreement, but reserved the final decision until she had time to study the probation report, and later rejected the plea agreement, and defendant was eventually convicted on a more serious charge.

United States v Black (CA9 Cal) 609 F2d 1330, cert den (US)  66 L Ed 2d 56,  101 S Ct 132, holding that prosecution is not precluded, on Fifth Amendment double jeopardy grounds, from charging defendant with new offenses after the plea agreement is vacated on the ground of lack of factual basis.


§ 259  Nonjury trial  [21 Am Jur 2d CRIMINAL LAW]

Formerly, there was a considerable divergence of opinion concerning when jeopardy attaches in a nonjury trial.  A few courts held, without attempting to fix precisely the point of attachment, that jeopardy arose when the trial commenced. 72    Other jurisdictions held that jeopardy attached when the first witness was sworn, 73   when the case was called for trial and began, either by the reading of the indictment to the court or the swearing in of the first witness, 74  or when the prosecution introduced testimony. 75   One court employing the latter phrasing held that the prosecution's introduction and testimony in a nonjury trial was equivalent to the swearing of the jury in other cases. It was recognized that the prosecution, after introducing its evidence and finding that it had failed to make a case against the accused, could not be permitted to nolle prosequi the indictment and subject him to another trial for the same offense. 76  The United States Supreme Court has held, however, that jeopardy attaches in a bench trial when "the court begins to hear evidence"; and this standard now applies in state as well as federal prosecutions. 77                               

The rule that jeopardy attaches when the court begins to hear evidence applies even though there has been no formal arraignment or plea to raise an issue of fact. 78  Jeopardy may attach when the court begins to hear or consider evidence in a preliminary proceeding.  Thus, for example, in a prosecution for depositing obscene matter in the mail, jeopardy attached when the trial judge, after arraignment and entry of not guilty pleas, "heard" written evidence at a pretrial hearing and determined that the materials forming the basis of the indictment were not obscene as a matter of law. 79    On the other hand, the filing of two factual stipulations prior to a hearing on a defendant's motion to dismiss, which stipulations are not related to the defendant's motion, does not put him in jeopardy under the rule that jeopardy attaches when the court begins to hear evidence. 80    Similarly, when the parties enter into a stipulation concerning superfluous testimony, which stipulation is a timesaving procedural device unrelated to key issues or elements of the case, jeopardy does not attach, since the stipulation is not in the nature of testimonial or demonstrative evidence. 81   

Likewise, jeopardy does not attach in a proceeding in which the court hears evidence for the purpose of assisting it in approving or disapproving a plea bargaining agreement. 82


§ 259  – Nonjury trial [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

See Ohio v Johnson (1984, US)  81 L Ed 2d 425, § 269.

Under the Tex Const, jeopardy attached in a bench trial when defendant pled "not guilty" to the indictment. State v Torres (1989, Tex App Corpus Christi) 780 SW2d 513, petition for discretionary review gr.

Defendant had been placed in jeopardy at the time the trial court, during cross-examination of the burglary complainant, sua sponte terminated proceedings and set the case down for a jury trial, and the trial court erred in overruling defendant's plea of former jeopardy to his conviction in the jury trial where the record did not demonstrate a manifest necessity or show that the ends of public justice would have been defeated had the bench trial continued. Allen v State (1983, Tex App 3d Dist) 656 SW2d 592.

Footnotes

Footnote 72. State v Vincent, 25 Conn Supp 96, 197 A2d 79; State v Pittsburg Paving Brick Co., 117 Kan 192, 230 P 1035; Baker v State, 15 Md App 73, 289 A2d 348, cert den  410 US 969,  35 L Ed 2d 705,  93 S Ct 1449; Boyer v Larson, 20 Utah 2d 121, 433 P2d 1015.

Annotation:  49 ALR3d 1039, § 3.

Footnote 73. State v Elias, 111 Ariz 195, 526 P2d 734; People v Upshaw, 13 Cal 3d 29, 117 Cal Rptr 668, 528 P2d 756 (court trial is "entered upon" when first witness is sworn); Blondes v State, 273 Md 435, 330 A2d 169; State v Cunningham, 166 Mont 530, 535 P2d 186; State v Stover, 271 Or 132, 531 P2d 258 (ovrld on other grounds State v Heintz 286 Or 239, 594 P2d 385); State v Daniels (Tenn Crim) 531 SW2d 795.

Annotation:  49 ALR3d 1039, § 4.

Footnote 74. State v Yokum, 155 La 846, 99 So 621.

Footnote 75. State v Blackwell, 65 Nev 405, 198 P2d 280, reh den 65 Nev 425, 200 P2d 698 and cert den  336 US 939,  93 L Ed 1097,  69 S Ct 742; State v Doyle, 11 Ohio App 2d 97, 40 Ohio Ops 2d 251, 228 NE2d 863; Rosser v Commonwealth, 159 Va 1028, 167 SE 257.

Annotation:  49 ALR3d 1039, § 5.

Footnote 76. Rossner v Commonwealth, 159 Va 1028, 167 SE 257.

Footnote 77. Lee v United States,  432 US 23,  53 L Ed 2d 80,  97 S Ct 2141; Serfass v United States,  420 US 377,  43 L Ed 2d 265,  95 S Ct 1055; United States v Martin Linen Supply Co. (CA5 Tex) 485 F2d 1143, 1973-1 CCH Trade Cas ¶ 74727, cert den  415 US 915,  39 L Ed 2d 470,  94 S Ct 1412 and later app (CA5 Tex) 534 F2d 585, 1976-2 CCH Trade Cas ¶ 60987, affd  430 US 564,  51 L Ed 2d 642,  97 S Ct 1349, 1977-1 CCH Trade Cas ¶ 61354; United States v Pecora (CA3 Pa) 484 F2d 1289; United States v Hill (CA9) 473 F2d 759; Clawans v Rives, 70 App DC 107, 104 F2d 240,  122 ALR 1436; United States v Pastor (SD NY) 419 F Supp 1318; United States v Frumento (ED Pa) 405 F Supp 23; Bunnell v Superior Court of Santa Clara County, 13 Cal 3d 592, 119 Cal Rptr 302, 531 P2d 1086; United States v Sedgwick (Dist Col App) 345 A2d 465, application den  423 US 1028,  46 L Ed 2d 402,  96 S Ct 558 and cert den  425 US 966,  48 L Ed 2d 210,  96 S Ct 1751; Bernard v State (Fla) 261 So 2d 133,  49 ALR3d 1035; People v Holmes, 54 Ill App 3d 843, 11 Ill Dec 498, 368 NE2d 1106; State v Fink, 217 Kan 671, 538 P2d 1390 (rule enunciated in statute); Commonwealth v Ludwig, 370 Mass 31, 345 NE2d 386; State v Harriman (Me) 259 A2d 752, supp op (Me) 265 A2d 706; People v Brooks,  50 App Div 2d 319, 376 NYS2d 928 (disapproved on other grounds People v Brown  40 NY2d 381, 386 NYS2d 848, 353 NE2d 811, cert den  433 US 913,  53 L Ed 2d 1099,  97 S Ct 2986 and revd on other grounds  42 NY2d 866, 397 NYS2d 792, 366 NE2d 879; State v Berger (ND) 235 NW2d 254, cert den  425 US 913,  47 L Ed 2d 764,  96 S Ct 1511; Commonwealth v Culpepper, 221 Pa Super 472, 293 A2d 122.

Annotation:  49 ALR3d 1039, § 6[a].

Footnote 78. People v Laws, 29 Ill 2d 221, 193 NE2d 806.

Footnote 79. United States v Hill, (CA9) 473 F2d 759.

Annotation:  49 ALR3d 1039, § 6[b].

In a prosecution for fishing on a portion of a river reserved for use by Crow Indians, jeopardy attached when the court dismissed the information for failure to state an offense after considering stipulated facts and reviewing applicable treaties, and an appeal by the government was barred.  Finch v United States,  433 US 676,  53 L Ed 2d 1048,  97 S Ct 2909, on remand (CA9 Mont) 558 F2d 555.

Where a court in a nonjury trial ruled, based upon the defendant's offer of proof and the government's admission as to the existence of facts to support the defense of necessity, that the proffered defense was available and that the proffered facts supported it, and ordered the defendant's discharge, a subsequent prosecution arising from the same transaction was barred by the doctrine of double jeopardy.  United States v Patrick (CA9 Wash) 532 F2d 142.

Under either the majority rule that a trial commences, and thus jeopardy attaches, when the judge begins to hear or receive evidence, or the minority rule that jeopardy attaches when the first witness is sworn, jeopardy attached in a nonjury trial where, before entering a nolle prosequi, the prosecution asked for a ruling on the chief documentary evidence against the defendant, began offering other documentary evidence, and offered a witness' testimony as a necessary condition to admitting that evidence. Blondes v State, 273 Md 435, 330 A2d 169.

Footnote 80. United States v Choate (CA9 Cal) 527 F2d 748, cert den  425 US 971,  48 L Ed 2d 794,  96 S Ct 2167 and on remand (CD Cal) 422 F Supp 261, revd on other grounds (CA9 Cal) 576 F2d 165, cert den  439 US 953,  58 L Ed 2d 344,  99 S Ct 350 and later app (CA9 Cal) 619 F2d 21, cert den (US)  66 L Ed 2d 214,  101 S Ct 354.

Footnote 81. People v Gingello,  84 Misc 2d 63, 374 NYS2d 276 (applying rule that jeopardy arises when first witness is sworn).

Annotation:  49 ALR3d 1039, § 6[c].

Footnote 82. Johnson v Simpson (WD Va) 421 F Supp 333.


§ 260  Jury trial; swearing jury  [21 Am Jur 2d CRIMINAL LAW]

It has long been established in the federal court system that jeopardy attaches in a jury trial when the jury is impaneled and sworn. 83   The United States Supreme Court has recognized that this rule lies in the need to protect the interest of an accused in retaining a chosen jury and that it forms an integral part of the constitutional guarantee against double jeopardy.  Since the same constitutional standards of double jeopardy apply to both federal and state prosecutions, 84   the federal rule is binding on the states through the Fourteenth Amendment. Accordingly, a state statute providing that jeopardy does not attach in a jury trial until the first witness is sworn has been held unconstitutional. 85    Thus, in a jury trial, a person is in legal jeopardy when he is put on trial before a court of competent jurisdiction, on an indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. 86          

A defendant is not in jeopardy, however, until the entire jury is selected and sworn. 87    Hence, a defendant is not in jeopardy where the trial starts at a time when one of the jurors has not been sworn. 88   And there has been no jeopardy in a case where a conviction is reversed because the verdict was rendered by an unsworn jury. 89   But as soon as a legal jury has been impaneled and sworn jeopardy attaches, 90  and an unauthorized dismissal of the case at that stage of the proceedings without the consent of the defendant is equivalent to an acquittal and constitutes former jeopardy that will bar a subsequent trial on the same charge. 91  

Where alternate jurors are used, jeopardy does not attach until after the full jury, including alternates, is sworn. 92   Thus, in a criminal prosecution in which the trial court properly excused a juror on the death of her brother before alternate jurors had been selected and then allowed unused peremptory challenges to the jurors already sworn, further proceedings against the defendants were not barred by the prohibition against double jeopardy where, before the alternate jurors were selected and sworn, no opening statement had been made, no witness had been sworn, and no evidence had been introduced. 93


§ 260  – Jury trial; swearing jury [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

For purposes of the double jeopardy clause of the Fifth Amendment, jeopardy does not attach until a jury is empaneled and sworn, or, in a bench trial, until the first witness is sworn. Willhauck v Flanagan (1980, US)  65 L Ed 2d 1147,  101 S Ct 10.

Principle announced in Crist v Bretz (1978)  437 US 28,  57 L Ed 2d 24,  98 S Ct 2156, that federal rule that jeopardy attaches when jury is impaneled and sworn is integral part of Fifth Amendment guarantee against double jeopardy and applies to states through Fourteenth Amendment, is retroactive. Von Burleson v Estelle (1982, CA5 Tex) 666 F2d 231.

Motion to dismiss on double jeopardy and due process grounds was denied where prosecution's conduct was questionable when, after a lengthy voir dire and jury selection but before the jury was sworn, the prosecution nolle prossed and then refiled all charges against defendant because of alleged witness problems; appellant argued that the prosecution was aware of this before the jury selection and could have moved for continuance but, instead, in bad faith violated the defendant's right to a trial completed by a particular tribunal; however, there was insufficient evidence in the record to conclude that the prosecution's conduct was motivated by bad faith. Fassi v State (1991, Fla App D5) 591 So 2d 977, 16 FLW D3051.

Election and swearing in of 3 jurors is insufficient to trigger attachment of jeopardy prior to trial court's declaration of mistrial. State v Sermon (1981, La) 404 So 2d 261.

Double jeopardy clause is not violated by state's capital punishment scheme, under which same felony may form basis of essential element of crime and aggravating circumstance for consideration by jury in recommending death sentence. State v Flowers (1983, La) 441 So 2d 707.

Where there was no manifest necessity for judge to declare mistrial after prosecutor became unavailable due to death in the family and judge refused to inquire into feasibility of jurors' returning one week later, defendant's right to be placed in jeopardy twice was violated and his motion to dismiss should have been allowed. Collins v Commonwealth (1992) 412 Mass 349, 589 NE2d 287.

Indictment would be dismissed on basis of double jeopardy where (1) court issued adverse ruling as to propriety of peremptory challenge exercised by prosecutor, seated challenged juror, had jury sworn and issued its preliminary instructions, (2) prosecutor then willfully refused to deliver opening statement, asserted that he could not be compelled to proceed with unacceptable juror and advised court that he would be happy to proceed if court would grant mistrial and call for new panel of jurors, and (3) court granted mistrial without defendant's consent and refused to address defendant's motion for dismissal because of prosecutor's failure to satisfy mandatory dictates of CLS CPL §  260.30(3); jeopardy clearly attached when jury was sworn, and prosecutor acted in bad faith in contumaciously refusing to deliver opening statement in contravention of court's direction and his statutory obligation. Mortillaro v Posner (1989, 2d Dept)  147 AD2d 701, 538 NYS2d 311.

A recent United States Supreme Court decision holding that a defendant's right to have his trial completed by a particular tribunal was within the protection of the constitutional guarantee against double jeopardy applied retroactively to state criminal proceedings; thus, defendant's second prosecution for theft was barred by the prohibition of double jeopardy where in his first trial a jury had been empaneled and sworn before the state had withdrawn its announcement of ready. Ex parte Myers (1981, Tex Crim) 618 SW2d 365.

Defense counsel's consent, and defendant's failure to object, to dismissal of two jurors shortly after jury was sworn, did not violate defendant's double jeopardy rights since they consented to de facto mistrial. Watkins v Kassulke (1996, CA6 Ky) 90 F3d 138.

Double jeopardy did not bar further prosecution of defendants when trial court conducted second round of jury selection to select alternates to prevent mistrial should jury's number be impermissibly diminished at later time, since no de facto mistrial occurred. United States v Isom (1996, CA11 Fla) 88 F3d 920, 10 FLW Fed C 127.

Footnotes

Footnote 83. Crist v Bretz,  437 US 28,  57 L Ed 2d 24,  98 S Ct 2156, 10 Ohio Ops 3d 466; United States v Martin Linen Supply Co.,  430 US 564,  51 L Ed 2d 642,  97 S Ct 1349, 1977-1 CCH Trade Cas ¶ 61354; Serfass v United States,  420 US 377,  43 L Ed 2d 265,  95 S Ct 1055; Downum v United States,  372 US 734,  10 L Ed 2d 100,  83 S Ct 1033.

Annotation:  50 L Ed 2d 830, § 10.

Footnote 84. See  § 244, supra.

Footnote 85. Crist v Bretz,  437 US 28,  57 L Ed 2d 24,  98 S Ct 2156, 10 Ohio Ops 3d 466.

Footnote 86. Cardenas v Superior Court of Los Angeles County, 56 Cal 2d 273, 14 Cal Rptr 657, 363 P2d 889,  100 ALR2d 371; Jackson v Superior Court of San Diego County, 10 Cal 2d 350, 74 P2d 243; State ex rel. Williams v Grayson (Fla) 90 So 2d 710,  63 ALR2d 777; Armentrout v State, 214 Ind 273, 15 NE2d 363; State v Slorah, 118 Me 203, 106 A 768; State v Williams, 30 NJ 105, 152 A2d 9; State v Birckhead, 256 NC 494, 124 SE2d 838; Green v State, 147 Tenn 299, 247 SW 84; State v Thompson, 58 Utah 291, 199 P 161; State v Brooks,  215 Wis 134, 254 NW 374.

A jury is "charged with due deliverance" when it has been impaneled and sworn.  People v Colon,  18 Misc 2d 1061, 184 NYS2d 537.

Jeopardy attaches in a criminal case where a defendant is placed on trial (1) on a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been impaneled and sworn to make true deliverance in the case. State v Birckhead, 256 NC 494, 124 SE2d 838,  6 ALR3d 888.

A person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction, upon an indictment or information that is sufficient in form and substance to sustain a conviction, when a jury has been impaneled, and when some evidence is taken.  People v Jackson,  20 NY2d 440, 285 NYS2d 8, 231 NE2d 722, cert den  391 US 928,  20 L Ed 2d 668,  88 S Ct 1815.

Defendant was entitled to a reversal of his murder conviction on the basis of the principle of double jeopardy, where an original indictment had been dismissed after a jury had been impaneled and the conviction had resulted from reindictment; a U. S. Supreme Court decision holding that there should be no variance between jurisdictions as to when jeopardy attaches in a jury trial invalidated the previous state guideline regarding when jeopardy attached.  McElwee v State (Tex Crim) 589 SW2d 455.

Footnote 87. Allen v State, 52 Fla 1, 41 So 593; O'Donnell v People, 224 Ill 218, 79 NE 639; People v Barker, 60 Mich 277, 27 NW 539; State v Savan, 148 Or 423, 36 P2d 594; Huey v State, 88 Tex Crim 377, 227 SW 186; McDonald v State,  79 Wis 651, 48 NW 863.

Footnote 88. State v Herold, 68 Wash 654, 123 P 1076.

Footnote 89. Huey v State, 88 Tex Crim 377, 227 SW 186.

Footnote 90. Krutka v Spinuzzi 153 Colo 115, 384 P2d 928; Maddox v State, 230 Ind 92, 102 NE2d 225; Baker v Commonwealth, 280 Ky 165, 132 SW2d 766.

Footnote 91. United States v Aurandt, 15 NM 292, 107 P 1064; Allen v State, 13 Okla Crim 533, 165 P 745.

Jeopardy that attaches when a jury is sworn is not erased where, over defendant's objection, a mistrial is immediately declared because of a harmless error in the antecedent proceedings.  Jackson v Superior Court of San Diego County, 10 Cal 2d 350, 74 P2d 243.

Once the jury has been impaneled and sworn jeopardy attaches, and a dismissal of the case, when not authorized by law and without the defendant's consent, after the jury has been sworn and the trial actually commenced, is equivalent to an acquittal of the charge and will constitute former jeopardy on a subsequent trial on the same charge.  Cardenas v Superior Court of Los Angeles County, 56 Cal 2d 273, 14 Cal Rptr 657, 363 P2d 889,  100 ALR2d 371.

Footnote 92. People v Burns, 84 Cal App 2d 18, 189 P2d 868, cert den  335 US 844,  93 L Ed 394,  69 S Ct 66; Commonwealth v Almeida, 362 Pa 596, 68 A2d 595,  12 ALR2d 183, cert den  339 US 924,  94 L Ed 1346,  70 S Ct 614, reh den  339 US 950,  94 L Ed 1364,  70 S Ct 798 and cert den  340 US 867,  95 L Ed 633,  71 S Ct 83 and (ovrld on other grounds Commonwealth v Redline 391 Pa 486, 137 A2d 472) as stated in Commonwealth v Allen 475 Pa 165, 379 A2d 1335 and (ovrld on other grounds Commonwealth ex rel. Smith v Myers 438 Pa 218, 261 A2d 550,  56 ALR3d 217).

Footnote 93. In Re Mendes, 23 Cal 3d 847, 153 Cal Rptr 831, 592 P2d 318.


§ 261  Preliminary proceedings  [21 Am Jur 2d CRIMINAL LAW]

Procedural matters preliminary to a trial do not constitute jeopardy. 94  Thus, jeopardy does not attach to proceedings before a grand jury 95   or to proceedings before a committing magistrate. 96   Nor does it attach to a trial court's entry of a preliminary order for the taking of testimony for use at a defendant's trial that has not yet commenced. 97   Similarly, the mere arraignment and pleading to an indictment does not put an accused in judicial jeopardy. 98   Thus, where a trial judge, acting without authority, refuses to accept a tendered plea of nolo contendere and enters an order finding the accused not guilty after an evidentiary hearing on the plea, further prosecution of the accused does not constitute a second or subsequent prosecution, but is merely part of the first and same prosecution that has been prematurely and improperly determinated by the court. 99   And, for example, it has been held that no jeopardy attached from a brief appearance in court where a prosecutor dismissed the original affidavit for want of a prosecuting witness at the time a case involving felonious assault was set for preliminary hearing. 1

Where there is a pretrial evidentiary hearing, the decisive inquiry is whether jeopardy has attached at the time the hearing is held, not simply whether the hearing takes place. 2    This issue may arise when a pretrial hearing is held on a motion to dismiss the indictment. The entry of a pretrial order dismissing an indictment based on a legal finding after an examination of records and an affidavit setting forth evidence to be adduced at trial does not have the effect of constructively attaching jeopardy.  It is not the functional equivalent of an acquittal on the merits where the accused has not waived his right to a jury trial and has not been put to trial before the trier of fact. 3    An accused who has not waived his right to a jury trial is not put in jeopardy at a pretrial hearing on a dismissal motion, since the trial court does not have authority to make any determination regarding guilt or innocence and cannot subject the accused to a risk of conviction. 4  Thus, jeopardy did not attach by the pretrial dismissal of an indictment on the ground that the government had failed to comply with its order to supply the court with additional information concerning the government's investigation and its proposed proof, which information the court desired in order to determine whether to accept the defendant's tendered plea of guilty, where the government never consented to a trial without a jury, where the court in its various orders made no mention that it was trying the case on the merits, and where the record indicated that the only issue before the court was the acceptance of the defendant's plea of guilty. 5   Jeopardy does not attach where certain evidence is received over government objection at a hearing on motions to dismiss the indictment and not on the general issue. 6    It has also been held that a defendant was not placed in jeopardy where criminal contempt proceedings against him were dismissed in the pretrial stages, notwithstanding the government had disclosed the nature of its case in extensive pretrial procedures. 7    Furthermore, jeopardy does not attach at a pretrial hearing to determine whether a defendant at the time of the offense charged was so clearly unable to appreciate the criminality of his conduct or conform it to the requirements of law that trial would be useless. 8

With respect to a prisoner held for trial under an indictment or information, a statute may provide for his release for failure to bring him to trial within a specified time.  This is sometimes no bar to a subsequent proceeding based on the same offense. 9   On the other hand, failure to bring a prisoner speedily to trial may result in a discharge that is the legal equivalent of an acquittal and a bar to further proceedings. 10   It has been held that although jeopardy did not attach to a dismissal with prejudice of a petition against a juvenile respondent for a violation of his right to a speedy trial, the discharge would constitute an estoppel against his prosecution for the same offenses previously charged. 11 


§ 261  – Preliminary proceedings [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

There is no violation of double jeopardy clause where defendant is brought to trial on superseding indictment before formal dismissal of original indictment since government proceeded only on superseding indictment, and jeopardy attached only to superseding indictment since there was only one jury, only one trial, and only one verdict. United States v Friedman (1981, CA3 Pa) 649 F2d 199.

Defendant claiming double jeopardy on grounds that his indictment for drug conspiracy in one federal district concerned same conspiracy in earlier conspiracy charge in other district to which he had pled guilty was entitled to pretrial evidentiary hearing where alleged conspiracy overlapped in time, defendants were common to both indictments, offenses charged in each case were similar, and there was similarity in geography, nature and scope of activities sought to be punished. United States v Benefield (1989, CA11 Ga) 874 F2d 1503.

Collateral estoppel against a state, as part of the US Const Fifth Amendment protection against double jeopardy, is applicable to pretrial orders only if jeopardy attaches in the first proceeding. Therefore in a felony prosecution for possession of a concealed weapon and narcotics, the circuit court was not precluded by the doctrine of collateral estoppel from considering a motion to suppress certain evidence, even though the county court had previously suppressed the same evidence on misdemeanor charges which arose from the same detention and search. State v McCord (1981, Fla) 402 So 2d 1147.

Jeopardy does not attach and further criminal proceedings arising from same incident are not precluded where at preliminary hearing magistrate declines to bind defendant over for trial on felony charge and instead binds defendant over on uncharged misdemeanor but, under applicable state law, lacks jurisdiction with respect to misdemeanor charge. State v Leslie (1985) 237 Kan 318, 699 P2d 510.

Defendant was not subjected to double jeopardy where the State initially proceeded against him by way of a magistrate's order, the district court judge presiding at defendant's probable cause hearing ruled that the proceedings were limited to a misdemeanor rather than the felony charged due to the wording of G.S. 90-108(b) and the fact that a magistrate's order formed the basis of the action, the case was dismissed by the district attorney's office on the same day as the probable cause hearing, and the next day the State obtained a warrant for defendant's arrest on the charges identical to those alleged in the original magistrate's order and an indictment was obtained against defendant for the felony, since jeopardy did not attach in the district court, defendant did not plead, nor was the case set for trial until sixteen days after the district attorney dismissed the case, and the prosecutor was free to institute felony charges against defendant by way of warrant and indictment. State v Lee, 51 NC App 344, 276 SE2d 501.

Footnotes

Footnote 94. Collins v Loisel,  262 US 426,  67 L Ed 1062,  43 S Ct 618.

Footnote 95. State v Swain, 147 Or 207, 31 P2d 745, reh den 147 Or 223, 32 P2d 773,  93 ALR 930.

Footnote 96. United States ex rel. Rutz v Levy,  268 US 390,  69 L Ed 1010,  45 S Ct 516; Collins v Loisel,  262 US 426,  67 L Ed 1062,  43 S Ct 618; People v Uhlemann, 9 Cal 3d 662, 108 Cal Rptr 657, 511 P2d 609; People v Dillon, 197 NY 254, 90 NE 820.

Annotation:  50 L Ed 2d 830, § 10.

As to the effect under the Federal Rules of Criminal Procedure of res judicata and collateral estoppel after a decision on the merits in a proceeding before a magistrate, see  § 429, infra.

Footnote 97. United States v Goldman,  277 US 229,  72 L Ed 862,  48 S Ct 486.

Footnote 98. Bassing v Cady,  208 US 386,  52 L Ed 540,  28 S Ct 392.

Footnote 99. Vinson v State (Fla) 345 So 2d 711.

Footnote 1. State v Climer, 42 Ohio Misc 3, 71 Ohio Ops 2d 51, 325 NE2d 920.

Footnote 2. United States v Mann (CA5 Tex) 517 F2d 259, cert den  423 US 1087,  47 L Ed 2d 97,  96 S Ct 878.

Footnote 3. Serfass v United States,  420 US 377,  43 L Ed 2d 265,  95 S Ct 1055.

Where a pretrial dismissal of an indictment was based solely on motion papers submitted prior to trial, before either the selection or waiver of a jury and without any opportunity for counsel on either side to be heard, the defendant was not placed in jeopardy. United States v Velasquez (CA2 NY) 490 F2d 29, cert den  421 US 946,  44 L Ed 2d 99,  95 S Ct 1675.

Jeopardy had not attached where, following a prehearing conference, the government and a defendant charged with an offense under the Labor-Management Relations Act entered into a stipulation as to the facts upon which the indictment was returned, and the district court then granted the defendant's motion to dismiss the indictment.  United States v Pecora (CA3 Pa) 484 F2d 1289.

Footnote 4. Serfass v United States,  420 US 377,  43 L Ed 2d 265,  95 S Ct 1055; United States v Lewis (CA5 La) 519 F2d 98.

Footnote 5. United States v Brown (CA8 Mo) 481 F2d 1035.

Footnote 6. United States v Mann (CA5 Tex) 517 F2d 259, cert den  423 US 1087,  47 L Ed 2d 97,  96 S Ct 878.

Footnote 7. United States v Martin Linen Supply Co. (CA5 Tex) 485 F2d 1143, 1973-2 CCH Trade Cas ¶ 74727, cert den  415 US 915,  39 L Ed 2d 470,  94 S Ct 1412 and later app (CA5 Tex) 534 F2d 585, 1976-2 CCH Trade Cas ¶ 60987, affd  430 US 564,  51 L Ed 2d 642,  97 S Ct 1349, 1977-1 CCH Trade Cas ¶ 61354.

Footnote 8. State v Hagerud, 174 Mont 361, 570 P2d 1131.

Footnote 9. Re Begerow, 136 Cal 293, 68 P 773.

Footnote 10. McGuire v Wallace, 109 Ind 284, 10 NE 111.

Footnote 11. Rawlins v Kelley (Fla) 322 So 2d 10

As to collateral estoppel in criminal prosecutions, generally, see  §§ 321 et seq., infra.


§ 262  Finality of prior proceeding; effect of appeal  [21 Am Jur 2d CRIMINAL LAW]

In some jurisdictions a judgment of conviction of a crime is a bar to a prosecution for the same offense even though an appeal from the judgment is pending. 12  It has been held that a defendant may file a motion during a second trial while an appeal is pending from a prior conviction for the same offense and obtain a mistrial or a stay of the further proceedings until a final determination of the appeal from the first conviction. 13   In other jurisdictions, a plea of former conviction does not bar a subsequent prosecution while an appeal is pending from a judgment of conviction. 14   

A verdict of acquittal, express 15   or implied, 16  is, without entry of a judgment, a bar to a subsequent prosecution for the same offense. 17  


§ 262  – Finality of prior proceeding; effect of appeal [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Defendant's due process rights were not violated by retroactive application to pending criminal appeal of newly announced rule regarding double jeopardy principles, where lower court's decision was contrary to plain language of applicable statute, since it was forseeable that state supreme court would overrule lower court's decision. Hagan v Caspari (1995, CA8 Mo) 50 F3d 542.

Where, following the conclusion of a defendant's direct case at his nonjury trial, the court, rather than inquiring as to the prosecution's desire to present any further evidence or calling for summations, proceeded without objection to review the evidence and render a verdict acquitting the defendant, and where only then did the prosecution request and was granted leave to present a rebuttal witness, on the basis of which testimony the court reversed its decision and found the defendant guilty, the initial pronouncement of a verdict acquitting the defendant constituted a factual determination on the issue of guilt or innocence in the defendant's favor and rendered the subsequent grant of leave by the court to reopen the prosecution's case a violation of the defendant's constitutional protection against double jeopardy. By failing to register a timely protest when the trial court began to render its verdict, the prosecution acquiesced in the court's consideration of the merits of the case on the then-existing state of the record. People v Warren (1981, 2d Dept)  80 App Div 2d 905, 436 NYS2d 19.

Enhancement of criminal defendant's sentence from 6 months to 12 months by the court, after defendant had already begun to serve her sentence, violated defendant's rights under the Double Jeopardy Clause of the United States Constitution, where there was no statutory authority granting the trial court the power to increase the sentence, because the Double Jeopardy Clause prevents a trial court from modifying a completed sentence by increasing it after execution of that sentence has commenced. State v Ballard (1991, Clermont Co) 77 Ohio App 3d 595, 602 NE2d 1234.

Footnotes

Footnote 12. United States v Olsen (DC Cal) 57 F 579; Bustamante v People, 136 Colo 362, 317 P2d 885,  61 ALR2d 1217; State v Bockman, 344 Mo 80, 124 SW2d 1205; State v Glover (Mo App) 500 SW2d 271.

Where an accused's appeal from a federal court conviction arising out of the hijacking of a truck was pending, his state prosecution would be stayed providing the accused consented to the stay and the consequent delay.  People v De Sisto,  27 Misc 2d 217, 214 NYS2d 858, revd on other grounds (2d Dept)  17 App Div 2d 31, 230 NYS2d 384, app dismd  13 NY2d 1180, 248 NYS2d 59, 197 NE2d 545 and mod on other grounds  14 NY2d 374, 251 NYS2d 953, 200 NE2d 622.

Annotation:  61 ALR2d 1224, § 2.

Footnote 13. State v Bockman, 344 Mo 80, 124 SW2d 1205.

Footnote 14. Commonwealth v Fraher, 126 Mass 265; Fay v State, 62 Okla Crim 350, 71 P2d 768; Dailey v State, 162 Tex Crim 387, 285 SW2d 733; Sackheim v State (Tex Crim) 224 SW 377.

Annotation:  61 ALR2d 1224, § 2.

The fact that the defendant's Kansas conviction was pending on appeal would not foreclose his plea of former jeopardy in a Missouri prosecution. State v Glover (Mo App) 500 SW2d 271.

Footnote 15. Kepner v United States,  195 US 100,  49 L Ed 114,  24 S Ct 797; United States v Ball,  163 US 662,  41 L Ed 300,  16 S Ct 1192 (not followed on other grounds United States v Wiley 170 App DC 382, 517 F2d 1212).

Footnote 16. Green v United States,  355 US 184,  2 L Ed 2d 199,  78 S Ct 221, 77 Ohio L Abs 202,  61 ALR2d 1119.

Footnote 17. As to prosecution's right to appeal verdict or judgment of acquittal, see  §§ 319-320, infra.


4.  Manner in Which Prior Proceeding Was Terminated or Suspended [263-265]

§ 263  Generally; new trial granted on court's own motion  [21 Am Jur 2d CRIMINAL LAW]

Where a trial court has the power to grant a new trial on its own motion, and properly exercises it, it is generally held that the defendant will not be placed in double jeopardy by a second trial. 18  It has also been held that a court does not place a defendant in double jeopardy when it grants a new trial on its own motion with the defendant's "advice and consent." 19    On the other hand, an order of the trial court granting a new trial in a criminal case upon its own motion places the defendant in double jeopardy where the court lacks the power to enter such an order or improperly exercises its power. 20   

A defendant has been said to waive his constitutional protection against double jeopardy where the court goes beyond his request to vacate a judgment against him and orders a new trial. 21


§ 263  – Generally; new trial granted on court's own motion [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Double jeopardy doesn't apply to a fixed murder case, judge rules, 140 Chi Daily L Bull 200:1 (1994).

Contemplating the successive prosecution phenomenon in the federal system, 85 J Crim L & Crim 3:625 (1995).

Insufficient attention to insufficient evidence: some double jeopardy implications, 79 Va LR 1381 (1993).

Case authorities:

State court's grant of demurrer to criminal defendant at close of prosecution's case in chief during bench trial, constituted acquittal under double jeopardy clause, since on demurrer trial court rules as matter of law that prosecution's evidence is insufficient to establish defendant's actual guilt. Smalis v Pennsylvania (1986, US)  90 L Ed 2d 116,  106 S Ct 1745.

Former jeopardy does not take hold where accused himself brings about termination of proceeding on basis other than adjudication of guilt or innocence. Wilkett v United States (1981, CA10 Okla) 655 F2d 1007.

Double jeopardy did not bar the trial court on August 19, 1982, from vacating defendant's nolo plea of June 2, 1982, and proceeding to trial against him on a charge of carrying a concealed firearm, notwithstanding that defendant had been sentenced on August 6, 1982, on that charge pursuant to the nolo plea agreement, where defendant failed to comply with one of the terms by which the judge had agreed to probation and a cap on jail time, that is, that he not get arrested for anything carrying jail time, where the court presumed defendant had not been arrested when it sentenced him, and where defendant's failure to disclose his arrest of June 29, 1982, at the sentencing hearing amounted to a misrepresentation to the court of his compliance with the plea agreement. Lerman v Cornelius (1982, Fla App D5) 423 So 2d 437.

Where the defendant sought a trial de novo before a jury after he was tried and found guilty at a bench trial, the court would reject the contention that double jeoprady principles barred his retrial on charges of possession with intent to distribute a controlled suibstance and possession with intent to distribute a controlled substance within 1,000 feet of a school since, contrary to the defendant's assertion, he was convicted of such offenses at the bench trial and was not convicted merely of possessory offenses. Epps v Commonwealth (1994) 419 Mass 97, 642 NE2d 1026.

Retrial of defendant was barred by principles of double jeopardy where prosecution witness testified to documents which had not been made available to defendant, defendant moved to dismiss charges or preclude witness from testifying, and trial court denied motions, declared mistrial sua sponte, and ordered new trial; mistrial was declared without defendant's consent, judge did not show manifest necessity or serving of ends of justice, and judge failed to consider alternatives other than those proposed by defense counsel. Lamondie v Main (1989, 3d Dept)  152 AD2d 902, 544 NYS2d 248.

Under state criminal procedure code, state had 15 days in which to appeal grant of new trial in criminal prosecution. State v Bates (1994, Tex Crim) 889 SW2d 306.

Defendant's conviction under the second paragraph of an indictment which charged theft by appropriating property without the owner's consent did not violate his constitutional right to be free of double jeopardy though the prosecutor had initially expressed a desire to proceed on paragraph one only which charged theft by receiving stolen property, since the state, acting alone, could not abandon a paragraph by making an election, but required the court's consent, and since even if the prosecutor's action could constitute an election without the court's approval, the prosecutor did not make an election in that he immediately changed his position and expressed a desire to proceed on both paragraphs. Foster v State (1983, Tex App Houston (1st Dist)) 661 SW2d 205.

See Allen v State (1983, Tex App 3d Dist) 656 SW2d 592, § 259.

Footnotes

Footnote 18. Sanders v State, 239 Miss 874, 125 So 2d 923,  85 ALR2d 481; Commonwealth v Endrukat, 231 Pa 529, 80 A 1049; Commonwealth v Gabor, 209 Pa 201, 58 A 278; Commonwealth ex rel. Wallace v Burke, 169 Pa Super 633, 84 A2d 254.

Annotation:  85 ALR2d 486, § 4[a].

A retrial of a larceny prosecution did not put the accused in jeopardy twice where the court, sua sponte, had granted a new trial, thereby correcting its own error in not notifying the jury that state law required it to ascertain the value of the property stolen, thus giving the defendant a second chance to defend himself.  Houp v Nebraska (CA8 Neb) 427 F2d 254, cert den  401 US 924,  27 L Ed 2d 827,  91 S Ct 887.

Retrial on charges of assault and battery did not place the defendants in double jeopardy where the trial court on its own motion had granted a new trial after having discovered during trial that the defendants had not been arraigned and that no pleas had been entered for them.  State v Berger (ND) 235 NW2d 254, cert den  425 US 913,  47 L Ed 2d 764,  96 S Ct 1511.

Where a defendant was first tried and convicted under a sexual deviate law, committed for examination, later sentenced and committed to prison, the court could order a new trial and vacate its judgment when it discovered it had no jurisdiction to sentence since the jury had been improperly waived, and the defendant was not thereby placed in double jeopardy.  State v Schmear,  28 Wis 2d 126, 135 NW2d 842.

Footnote 19. United States v Harding (CC Pa) F Cas No 15301; State v Harper, 353 Mo 821, 184 SW2d 601.

Annotation:  85 ALR2d 486, § 4[b].

Footnote 20. Crymes v State, 52 Ga App 195, 182 SE2d 856; State v Whitbeck, 134 La 812, 64 So 759.

Where defendant had been convicted and had not filed a motion for new trial or given notice of appeal, the trial court was without authority to grant a new trial on its own motion; nor could the trial court alter the verdict once it had been accepted and the jury discharged, despite the fact that the sentence was below the statutory minimum provided for the crime. The assessment of punishment below the statutory minimum did not invalidate the conviction, and subsequent prosecution for the same offense was therefore barred on double jeopardy grounds.  Ramirez v State (Tex Crim) 587 SW2d 144.

Annotation:  85 ALR2d 486, § 4[a].

Footnote 21. State v Squires, 248 SC 239, 149 SE2d 601.


§ 264  Mistrial, dismissal, or nolle prosequi  [21 Am Jur 2d CRIMINAL LAW]

The double jeopardy proscription of the United States Constitution does not prevent a state from forcing a defendant to submit to a second trial where during the first trial the court, at the request and for the convenience of the prosecutor, but over the objection of the defendant, declared a mistrial and continued the cause. 22    And, the defense of double jeopardy is unavailable to bar a proposed retrial of a defendant where his previous trial has come to an early, abortive end when the trial court, sua sponte, properly declared a mistrial over the objections of both the state and the defendant. 23    It has been said that the constitutional provision against double jeopardy does not prohibit retrial of the accused after mistrial since there is a "continuity" of the proceeding or jeopardy involved. 24   Nevertheless, although the jeopardy that attaches when a jury is sworn may be dissipated by the declaration of a mistrial, there must be a "manifest necessity" for discharging the jury and no unfair conduct by the prosecuting attorney or abuse of discretion by the court.  An improperly declared mistrial will place a defendant in jeopardy. 25  

A nolle prosequi, or a dismissal, before jeopardy attaches, does not operate as an acquittal or prevent further prosecution of the offense. 26    If a nolle prosequi is entered before a jury is sworn, the defendant has not been placed in jeopardy and another prosecution for the same offense is permissible. 27   Conversely, the entry of a nolle prosequi without the accused's consent after jeopardy has attached operates as an acquittal and precludes further prosecution for the same offense. 28   Thus, there are many holdings that a dismissal at that stage of the proceedings, without the consent of the defendant, amounts to an acquittal and bars further prosecution for the same crime. 29   A nolle prosequi with the defendant's consent, however, even one entered after the evidence is in, does not bar a subsequent prosecution for the same offense. 30          

An injunction proceeding of a remedial nature, following a criminal prosecution that was terminated by nolle prosequi, does not violate double jeopardy principles. 31

Where a judgment of nonsuit is entered in a criminal prosecution on the ground that the evidence offered by the state is insufficient to warrant submission to the jury, the defendant has been subjected to jeopardy. 32


§ 264  – Mistrial, dismissal, or nolle prosequi [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Unlimited power: Rule 29(A) and the unreviewability of directed judgments of acquittal, 44 Am U LR 2:433-463 (1995).

A Resolution of the Mistrial-Dismissal Dichotomy in Double Jeopardy Contexts. 64 Ia LR 903, May, 1979.

What constitutes "manifest necessity" for state prosecutor's dismissal of action, allowing subsequent trial despite jeopardy's having attached.  14 ALR4th 1014.

Propriety of court's dismissing indictment or prosecution because of failure of jury to agree after successive trials.  4 ALR4th 1274.

Case authorities:

With regard to the double jeopardy clause of the Fifth Amendment, the government may bring a second prosecution against a criminal defendant where a mistrial has been occasioned by manifest necessity, and reprosecution of a defendant who has successfully moved for a mistrial is not barred, so long as the government did not deliberately seek to provoke the mistrial request. United States v Di Francesco (1980, US)  66 L Ed 2d 328,  101 S Ct 426.

A mistrial may be declared without the defendant's consent and even over his objection, where, for reasons deemed compelling by the trial judge, the ends of substantial justice cannot be obtained without discontinuing the trial, and the defendant may be retried consistently with the Fifth Amendment. Oregon v Kennedy (1982, US)  72 L Ed 2d 416,  102 S Ct 2083.

Where the jury trying a defendant acquits him of one of several counts but is unable to agree as to the others, and the trial court declares a mistrial as to these counts, and sets them for retrial, the defendant has no valid double jeopardy claim to prevent his retrial, there having been no termination of the original jeopardy. Richardson v United States (1984, US)  82 L Ed 2d 242,  104 S Ct 3081.

The protection of the double jeopardy clause of the Fifth Amendment by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy; a jury's failure to reach a verdict or a trial court's declaration of mistrial following a hung jury is not an event which terminates the original jeopardy. Richardson v United States (1984, US)  82 L Ed 2d 242,  104 S Ct 3081.

Trial judge properly exercised her discretion in declaring mistrial over defendant's objection, and thus defendant could be properly retried on same charge, where jurors had deliberated approximately 27 hours on relatively simple case dealing with alleged sale of heroin to undercover agent, jury sent note to court stating that they were in stalemate and could not reach unanimous decision, and court conducted inquiry of jurors as to their ability to reach decision. White v Keane (1992, CA2 NY) 969 F2d 1381.

Application of Double Jeopardy Clause to mistrial situations requires focus on presence or absence of oppressive prosecutorial practices since clause is not intended to preclude reprosecution and create insuperable obstacle to administration of justice when events make continuation of trial impossible or simply unfair; barriers to reprosecution are normally removed when defendant requests mistrial and it is when defendant is deprived of this choice by gross negligence or intentional misconduct of government that possibility of bar to reprosecution arises. United States v Westoff (1981, CA5 La) 653 F2d 1047.

Defendant was twice placed in jeopardy where the state dismissed the enhancement counts of his indictment for burglary just before the punishment phase of his first trial, joined in his successful motion for a new trial, again indicted him as a habitual offender, charging the same burglary but different prior convictions for enhancement, and obtained a conviction and life sentence. Briggs v Procunier (1985, CA5 Tex) 764 F2d 368.

Defendant's retrial was not barred on double jeopardy grounds after prosecution moved for earlier dismissal under rule permitting prosecution to file dismissal without prejudice with leave of court and defendant did not object since defendant waived his right to have his first jury decide his guilt by acquiescing in dismissal. United States v Terry (1993, CA5 Miss) 5 F3d 874, reh den United States v Terry (1993, CA5 Miss) 1993 US App LEXIS 33414.

Where defendant had moved for mistrial on numerous occasions during trial and his motions had properly been denied, then, when it subsequently became apparent that there was conflict between defenses, trial judge severed defendant's case from that of codefendant and granted mistrial as to defendant, stating that she was granting defendant's pending motion, and defendant did not tell judge that he had changed his mind, court was entitled to treat mistrial as consensual, and double jeopardy clause did not bar retrial. United States v Buljubasic (1987, CA7 Ill) 808 F2d 1260, 22 Fed Rules Evid Serv 642.

Defendant was not placed in double jeopardy by government's appeal from dismissal with prejudice when case was called for trial where trial was to be bench trial and no witnesses had been called before dismissal of case. United States v Giannattasio (1992, CA7 Wis) 979 F2d 98.

Counts arising out of sick, old veterinarian's alleged involvement with illegally imported animal drugs are dismissed with prejudice under Fed R Cri P 48, where case has been tried twice and majority of jurors in both cases found veterinarian not guilty, because court exercises its discretion to protect harassed, ailing defendant and to prevent waste of court resources since government should not be given continued bites at apple in hopes that conviction will eventually result. United States v Rossoff (1992, CD Ill) 806 F Supp 200.

Second trial resulting in murder defendant's conviction did not violate double jeopardy clause after court had granted defendant's motion for mistrial based on one juror's statement during poll that guilty verdict in first trial was not his separate individual verdict since defendant did not allege prosecutorial or judicial overreaching. Grubbs v Delo (1991, CA8 Mo) 948 F2d 1459, reh, en banc, den (1992, CA8) 1992 US App LEXIS 1145.

Double jeopardy barred defendant's retrial after court sua sponte declared mistrial without defendant's consent because of judicial economy and because of court's belief that combined trial would benefit defendant where, at time of mistrial, neither court nor prosecution knew whether codefendants would go to trial or would plead guilty, since there was no manifest necessity for mistrial. United States v Allen (1993, CA8 Iowa) 984 F2d 940.

Defendant's reindictment and retrial following court's dismissal of his first indictment without prejudice under Speedy Trial Act did not violate double jeopardy clause. United States v Newman (1993, CA9 Ariz) 6 F3d 623, 93 CDOS 7247, 93 Daily Journal DAR 12310.

In trial of multiple defendants involving both cocaine and marijuana-related offenses, trial court soundly exercised its discretion in granting severance of marijuana counts where, as trial progressed, it became apparent that it was difficult to separate various conspiracies, so that retrial of defendants on marijuana counts was not barred by double jeopardy clause. United States v Bradley (1990, CA11 Fla) 905 F2d 1482.

In a prosecution for unlawful cultivation and unlawful possession for sale of marijuana (Health & Saf. Code, §§ 11358, 11359), the trial court's action in rejecting defendant's pleas of once in jeopardy and former judgment of acquittal (Pen. Code, § 1016, subds. 4 and 5) and in setting the identical charges of which defendant had been acquitted pursuant to Pen. Code, § 1118.1, for a second trial subjected defendant to double jeopardy in violation of U.S. Const., Fifth Amend., and Cal. Const., art. I, § 15. Trial by jury had previously been commenced against defendant and two codefendants on the same charges, and all three defendants had joined in a motion for acquittal pursuant to Pen. Code, § 1118.1, at the close of the prosecution's case. Although the trial court initially granted the motion only as to the two codefendants and denied it as to defendant, it granted the motion as to all three defendants after defendant made a motion for a mistrial and the district attorney stated he thought there might be some merit to defendant's motion. Although the trial court may have misunderstood the district attorney's remarks to apply to the motion for judgment of acquittal rather than to the motion for mistrial, it could not thereafter correct the record by granting the motion for mistrial and resetting the matter for a new trial. The granting of the motion for judgment of acquittal pursuant to § 1118.1 barred another prosecution for the same offenses (Pen. Code, § 1118.2). Mouser v Superior Court (1982, 1st Dist) 136 Cal App 3d 110, 186 Cal Rptr 21.

There was no manifest necessity for declaration of mistrial at defendant's first trial on charges of failing to appear, and thus retrial of defendant would violate prohibition against double jeopardy, where declaration of mistrial was based on fact that defendant's attorney was simultaneously representing state's witness, but record indicated that trial court was made aware before jury was sworn that attorney represented state's witness. State v Buell (1992) 221 Conn 407, 605 A2d 539, cert den (US) 61 USLW 3264.

A burglary defendant was not entitled to a dismissal of his second trial on double jeopardy grounds, though his first trial had ended in a mistrial, since the double jeopardy clause applies only if there has been some event, such as an acquittal, that terminates the original jeopardy; neither the failure of a jury to reach a verdict nor a trial court's declaration of a mistrial following a hung jury is an event that terminates the original jeopardy. Berry v State (1984, Fla App D1) 458 So 2d 1155, 9 FLW 2312.

A full hearing was required on a speedy trial issue, where initial charges of grand theft involving checks were nolle prossed after accused filed a motion for discharge on speedy trial grounds, but accused was subsequently convicted of forgery, although accused moved for discharge relying on the rule that the state could not avoid speedy trial rights by entering a nolle prosequi and then prosecuting a new charge grounded on the same criminal conduct, because although accused did not demonstrate at trial that the 2 prosecutions involved the same funds, accused was never afforded a full hearing on the speedy trial issue. Roberts v State (1992, Fla App D4) 599 So 2d 235, 17 FLW D 1285.

It did not constitute double jeopardy to indict defendant for burglary, proceeds of which formed basis for misdemeanor complaint charging him with possession of stolen property, which was then dismissed, since defendant had not pleaded guilty to misdemeanor complaint and there was otherwise no adjudication on merits. People v Walker (1992, 2d Dept)  181 AD2d 703, 581 NYS2d 219, app den  79 NY2d 10.

While pleading not formally entitled as nolle prosequi may be considered to be such pleading in substance, plea of nolle prosequi in dismissal with prejudice is quite different in effect, in that dismissal with prejudice forecloses filing of second indictment on same charge; although nolle prosequi filed before jeopardy attaches does not bar another prosecution for same offense, that second prosecution must be instituted in same term and cannot be reinstated in subsequent term, as person cannot be threatened with prosecution at whim of prosecutor indefinitely. People v Newell (1980) 83 Ill App 3d 133, 38 Ill Dec 544, 403 NE2d 775.

Defendant's constitutional right of freedom from double jeopardy was not violated by forcing him to undergo third trial for armed assault with intent to rob after two earlier prosecutions had ended when juries failed to reach verdict since defendant had not been placed in unconstitutional double jeopardy by being brought to trial for same offense second time after jury in first trial had been unable to reach verdict, so that there was no reason he could not be tried third time. Cornwell v Commonwealth (1975, Ky) 523 SW2d 224.

Double Jeopardy Clause will bar defendant's retrial on 2 felony indictments when during initial trial, judge declared mistrial over defendants' objections on grounds of bias of 2 jurors and judge failed to explore severence fully before declaring mistrial as well as failing to make further inquiry concerning remaining jurors' ability to render impartial verdict. Barton v Commonwealth (1982) 385 Mass 517, 432 NE2d 524.

The retrial of a juvenile for murder was not barred by principles of double jeopardy where the trial judge declared that the original trial was a nullity because the juvenile had not waived his right to an indictment; the declaration of nullity was equivalent to a mistrial, and a mistrial was unavoidable if the juvenile insisted on an indictment. Commonwealth v Perry P. (1994) 418 Mass 808, 641 NE2d 1313.

The fact that the trial judge declared a mistrial at the defendant's request did not bar the defendant from raising the sufficiency of the evidence issue by asserting double jeopardy principles on state common law grounds. Kater v Commonwealth (1995) 421 Mass 17, 653 NE2d 576.

Prosecutorial misconduct resulting in a mistrial at request of a defendant will normally not prevent reprosecution, absent a showing that the misconduct was motivated by "bad faith" for the purpose of provoking defendant's motion in order to avoid an acquittal. Thus, in a prosecution of an attorney charged with bribing an Assistant District Attorney in order to obtain favorable treatment for his clients which ended following the defendant's motion for a mistrial based on prosecutorial misconduct, retrial was not barred where the evidence showed that the prosecutor had vigorously opposed the motion for mistrial, and where the misconduct appeared to have been the result of negligence rather than design. Potenza v Kane (1981, 4th Dept)  79 App Div 2d 467, 437 NYS2d 189.

When the trial court elected not to submit the lesser-included offense of attempted second-degree rape and the offense of assault on a female to the jury (assault on a female not being a lesser-included offense of second-degree rape, but submitted pursuant to G.S. § 15- 144.1), defendant was not acquitted of those charges, given that the trial later resulted in a mistrial because of a hung jury, and given that defendant was indicted only on second-degree rape. State v Hatcher (1994) 117 NC App 78, 450 SE2d 19, app dismd, review den (NC) 1995 NC LEXIS 49.

The State's appeal from the trial court's dismissal of first-degree murder charges against defendant due to the State's alleged failure to comply with discovery rules did not violate defendant's double jeopardy rights because the dismissal was based on grounds unrelated to defendant's factual guilt or innocence. State v Shedd (1994) 117 NC App 122, 450 SE2d 13.

In a prosecution for aggravated assault, the defendant's earlier request for a mistrial on the grounds of a witness' hearsay testimony did not bar the defendant from challenging reprosecution after the trial court later declared a mistrial on the basis of the judge's belief that a witness had been intimidated; the defendant's consent to be retried could not be implied from his failure to object to the court's declaration of a mistrial where the defendant had no opportunity to object in that one of defendant's attorneys wanted the trial to proceed and the other attorney wanted to consult with the defendant when the judge declared the mistrial. Torres v State (1981, Tex Crim) 614 SW2d 436.

When a person is detained, placed under restraint, or taken into custody by a peace officer, all such chargeable voluntary conduct in which the person was then and there engaged, constituting an offense continuing in nature, arises out of the same transaction for purposes of CCP Art 28.061, providing that a discharge of an accused from one offense is a bar to any further prosecution for any other offense arising out of the same transaction. Thus, dismissal of a complaint for public intoxication by the county court barred defendant's prosecution under an indictment for possession of cocaine where the two offenses were committed contemporaneously and were of the same transaction. Kalish v State (1983, Tex Crim) 662 SW2d 595.

Prosecutorial misconduct in defendant's first trial which required the declaration of a mistrial would not preclude retrial for murder unless defendant could show that the misconduct was deliberately designed to result in a mistrial. Gibson v State (1985, Fla App D1) 475 So 2d 1346, 10 FLW 2299.

Criminal defendant's ineptitude in representing himself was not valid reason for court's declaration of mistrial without defendant's consent; thus, subsequent information charging defendant with same offense violated defendant's right against double jeopardy. State v DeGrate (1994, La App 2d Cir) 634 So 2d 965, cert den (La) 1994 La LEXIS 2355.

Footnotes

Footnote 22. Brock v North Carolina,  344 US 424,  97 L Ed 456,  73 S Ct 349.

Practice Aids: –Schulhofer, Jeopardy and Mistrials.  1977, 125 U Pa L Rev 449.

Footnote 23. State v Farmer, 48 NJ 145, 224 A2d 481, cert den  386 US 991,  18 L Ed 2d 335,  87 S Ct 1305.

Footnote 24. State v Elkinton,  56 Wis 2d 497, 202 NW2d 28.

Footnote 25.  § 285, infra.

Footnote 26. Bassing v Cady,  208 US 386,  52 L Ed 540,  28 S Ct 392; Henwood v People, 57 Colo 544, 143 P 373; State v Barnes, 4 Conn Cir 464, 234 A2d 649; O'Donnell v People, 224 Ill 218, 79 NE 639; Commonwealth ex rel. Montgomery v Myers, 422 Pa 180, 220 A2d 859, cert den  385 US 963,  17 L Ed 2d 308,  87 S Ct 405 (mere fact defendant is placed on trial before a competent tribunal does not preclude reprosecution if the proceeding fails to terminate in a verdict), cert den  385 US 963,  17 L Ed 2d 308,  87 S Ct 405; State v Richardson, 47 SC 166, 25 SE 220.

Jeopardy does not attach when the District Court hears evidence in the course of deciding motions to dismiss the indictment. United States v McInnis (CA5 Tex) 601 F2d 1319, reh den (CA5 Tex) 608 F2d 524 and reh den (CA5 Tex) 608 F2d 524 and cert den  445 US 962,  64 L Ed 2d 237,  100 S Ct 1649.

Practice Aids: –Former jeopardy–Dismissal of prosecution.  1 Wharton's Criminal Law (14th ed) § 60.

Footnote 27. Sander v Ohio (SD Ohio) 365 F Supp 1251, 70 Ohio Ops 2d 418, affd without op (CA6 Ohio) 500 F2d 1403, cert den  419 US 1026,  42 L Ed 2d 301,  95 S Ct 505.

Footnote 28. Blondes v State, 273 Md 435, 330 A2d 169.

Footnote 29. Cornero v United States (CA9 Cal) 48 F2d 69,  74 ALR 797 (ovrld on other grounds Wade v Hunter  336 US 684,  93 L Ed 974,  69 S Ct 834 reh den  337 US 921,  93 L Ed 1730,  69 S Ct 1152); Lee v State, 26 Ark 260; People v Brown, 273 Ill 169, 112 NE 462; United States v Aurandt, 15 NM 292, 107 P 1064; State v Richardson, 47 SC 166, 25 SE 220; Carroll v State, 50 Tex Crim 485, 98 SW 859; Rosser v Commonwealth, 159 Va 1028, 167 SE 257.

Footnote 30. Craig v United States (CA9 Cal) 81 F2d 816, reh den (CA9) 83 F2d 450 and cert dismd  298 US 637,  80 L Ed 1371,  56 S Ct 670 and cert den  298 US 690,  80 L Ed 1408,  56 S Ct 959 and reh den  299 US 620,  81 L Ed 457,  57 S Ct 6.

Footnote 31. State ex rel. Gerstein v Walvick Theatre Corp. (Fla) 298 So 2d 406.

Footnote 32. State v Bland, 34 NC App 384, 238 SE2d 199, cert den 294 NC 183, 241 SE2d 518.


§ 265  Stopping trial for lower offense to permit prosecution for higher  [21 Am Jur 2d CRIMINAL LAW]

Since jeopardy attaches when a competent jury is impaneled and sworn, 33   it is generally held, absent a statute governing the matter, that the stopping of a trial to permit the defendant to be charged with a higher offense, or with the same offense before a higher tribunal so that a more severe sentence may be imposed, is the equivalent of an acquittal and bars any subsequent prosecution for a higher offense that embraces the offense first tried. 34   However, where each of two crimes requires an element of proof that the other does not, so that an acquittal of the lesser offense would not necessarily require an acquittal of the higher one, and evidence introduced for the higher offense would not warrant a conviction of the lesser, the crimes are not regarded as the "same offense" as that term is used in connection with double jeopardy. 35    In such instance, the dismissal of a prosecution for the lesser offense does not bar a subsequent prosecution for the greater. 36  

Certain statutes authorize a justice of the peace or a magistrate to act either as a trial court or as a court of inquiry and empower such official to bind an accused over to a higher court if the evidence shows that a greater offense has been committed or that the authorized sentence is inadequate. Such statutes have been held or recognized as constitutional since the lower court has elected to act only as a court of inquiry and no jeopardy has attached. 37     

Statutes permitting the dismissal of one charge in order to try an accused for another, higher offense have been held unconstitutional in cases where dismissal occurs after jeopardy has attached.  Thus, dismissal of a lower felony charge for the prosecution of a higher one is not permitted, unless each crime contains an element not required by the other and constitutes a distinct and separate offense. 38    There is some conflict, however, concerning the constitutionality of statutes permitting the dismissal of a misdemeanor proceeding to permit a second prosecution for felony.  Although such statutes have been upheld, 39  their validity would appear to be in question in light of the United States Supreme Court's holding that a misdemeanor conviction serves to bar prosecution for a felony offense where the misdemeanor is a lesser included offense of the felony and the offenses are the same for double jeopardy purposes. 40    Thus, courts applying the "same transaction test" have held that a defendant could not be tried for felony after a misdemeanor charge had been withdrawn from the jury, notwithstanding a statute permitting the court to bind the defendant over to a higher court if it determined that he was guilty of a felony rather than a misdemeanor. 41  

Footnotes

Footnote 33.  § 260, supra.

Footnote 34. State v Blevins, 134 Ala 213, 32 S 637; People v Ny Sam Chung, 94 Cal 304, 29 P 642; Bell v State, 103 Ga 397, 30 SE 294; Franklin v State, 85 Ga 570, 11 SE 876; People v Lem,  11 Misc 2d 35, 170 NYS2d 25 (trial in magistrate's court stopped after first witness had been sworn so that defendant could be charged with higher crime); People v Goldfarb, 152 App Div 870, 138 NYS 62, affd 213 NY 664, 107 NE 1083; State v Birckhead, 256 NC 494, 124 SE2d 838,  6 ALR3d 888.

Annotation:  6 ALR3d 905, § 3.

Footnote 35. See  §§ 266 et seq., infra.

Footnote 36. Larson v State, 93 Neb 242, 140 NW 176; State v Campbell, 40 Wash 480, 82 P 752; State v Reiff, 14 Wash 664, 45 P 318.

Annotation:  6 ALR3d 905, § 3.

Where a husband and wife had been charged with misdemeanors including contributory dependency, neglect, and permitting the life or health of their child to be imperiled by neglect or abuse and where the trial judge had dismissed the three misdemeanor counts in a bench trial and directed the county attorney to file a complaint charging aggravated assault in addition to the three misdemeanor counts, a subsequent trial and conviction did not place the defendants in double jeopardy since the defendants had not been in jeopardy in the first trial and the count of permitting the life or health of the child to be imperiled by neglect or abuse was not a lesser included offense in the felony count of aggravated assault.  State v Carpenter, 1 Ariz App 522, 405 P2d 460.

Dismissal of a case for arraignment in district court does not constitute jeopardy, though defendant was tried and convicted in city court for violating an ordinance.  Boyer v Larson, 20 Utah 2d 121, 433 P2d 1015.

Footnote 37. Stoner v State, 7 Ind App 620, 35 NE 133; Commonwealth v Harris, 74 Mass 470; Thompson v State, 6 Neb 102; State v Friedlander, 141 Wash 1, 250 P 453, writ dismd  275 US 573,  72 L Ed 433,  48 S Ct 17.

Annotation:  6 ALR3d 905, § 7.

Footnote 38. Application of Williams, 85 Ariz 109, 333 P2d 280; People v Hunckeler, 48 Cal 331; People ex rel. Blue v Kearney, 181 Misc 981, 34 NYS2d 691, affd 292 NY 679, 56 NE2d 102.

Annotation:  6 ALR3d 905, § 5.

Footnote 39. People v Smith, 143 Cal 597, 77 P 449; State v Buente, 256 Mo 227, 165 SW 340.

Footnote 40. See  § 269, infra.

Footnote 41. Ingram v State, 124 Ga 448, 52 SE 759; Griffin v State, 28 Ga App 767, 113 SE 66.

Annotation:  6 ALR3d 905, § 6.

Where a trial in municipal court on a complaint charging the defendant with simple possession of heroin was interrupted by the judge to allow the complaint to be amended to read possession of heroin with an intent to distribute, the defendant's conviction in a higher court on a trial under the amended complaint was reversed on double jeopardy grounds.  Commonwealth v Clemmons, 370 Mass 288, 346 NE2d 864.


5.  Identity of Offenses [266-284]

§ 266  Generally  [21 Am Jur 2d CRIMINAL LAW]

The common-law rule and the constitutional provisions against a second jeopardy apply only to a second prosecution for the same act and crime both in law and fact on which the first prosecution was based. 42    The double jeopardy clause is not properly invoked to bar a second prosecution unless the same offense is involved in both the first and second trial. 43                This does not require absolute identity, substantial identity being sufficient. 44   Separate statutory crimes need not be identical, either in constituent elements or in actual proof, in order to be the same within the meaning of the double jeopardy prohibition. 45    

It is not a second jeopardy for the same act, but a second jeopardy for the same offense that is prohibited. 46   The question is whether the two offenses are essentially independent and distinct 47  or – whether one offense can be committed without necessarily committing the other. 48   A defendant has been in jeopardy if on the first charge he could have been convicted of the offense charged in the second proceeding. 49  In other words, the offenses are the same where the elements required to support a conviction on one of them would have been sufficient to warrant a conviction on the other. 50

One test of identity of offenses is whether the same evidence is required to prove them. 51  Two offenses are "the same" for double jeopardy purposes unless each requires proof of an additional fact that the other does not. 52  If proof of the matter set out in the second indictment is admissible as evidence under the first indictment, and if a conviction could be properly sustained on such evidence, the offenses are considered identical. 53   Jeopardy is not the same when two indictments are so diverse as to preclude the same evidence from sustaining both. 54    If the same evidence is not required, then the fact that both charges relate to, and grow out of, one transaction, does not make a single offense where two are defined by the statutes. 55              The correct test is not solely concerned with the question whether the offense charged in the second prosecution arose out of the same criminal transaction as the original charge; the real issue is whether the evidence in support of the original charge is absolutely essential to a conviction of the second. 56  

If there was one act, one intent, and one volition, and the defendant has been tried on a charge based on that act, intent, and volition, no subsequent charge can be based thereon, 57  but there is no identity of offenses if on the trial of one offense proof of some fact is required that is not necessary to be proved in the trial of the other, although some of the same acts may necessarily be proved in the trial of each. 58  The presentation of the same acts and basically the same testimony in two separate trials does not, in and of itself, establish double jeopardy. 59   There is no former jeopardy where the testimony necessary to sustain the second charge would not be admissible to sustain the former. 60

It has been observed by some authorities that the "same evidence" test does not provide adequate protection under modern conditions from the evils contemplated by the double jeopardy guaranty.  Even though two statutory violations contain different elements and require proof of different facts, one state court has held that they may be the "same offense" where they arose out of the same act or transaction and the prosecutor knew or reasonably should have known of the facts relative to the second charge at the time of the original prosecution on the first, such that the two charges could have been tried in the same court. 61

Where two offenses are the same for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. 62   Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings.  Unless each separate statute requires proof of an additional fact that the other does not, the double jeopardy clause prohibits successive prosecutions as well as cumulative punishment. 63    

The United States Supreme Court has held that a greater and a lesser included offense constitute the "same offense" under the double jeopardy clause where the lesser offense does not require any proof beyond that which is required for conviction of the greater.  Thus, the felony of auto theft and the misdemeanor of "joyriding" by taking or operating the same vehicle without the owner's consent constitute the "same offense" for double jeopardy purposes where, under state law, every element of the lesser offense is also an element of the greater offense, which requires an additional element of intent to deprive the owner of possession permanently. 64 


§ 266  – Generally [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Double jeopardy–prosecution of related offenses in separate trials: State v. Woodfork [478 NW2d 248 (Neb. 1991)], 26 Creight LR 169 (1992).

Thomas, the Prohibition of Successive Prosecutions for the Same Offense: In Search of a Definition. 71 Ia LR 323, January, 1986.

The Double Jeopardy Clause and the appropriate test for determining what constitutes the same offense, 20 J Contemporary L 1:225 (1994).

Fifth & fourteenth amendments–double jeopardy clause–a state capital sentencing proceeding involving the examination of an aggravating circumstance that is not precluded at trial does not violate the double jeopardy clause of the fifth amendment– Schiro v. Farley,  127 LEd2d 47 (1994), 4 Seton Hall Const LJ 817 (1994).

Conspiring drug kingpins: Twice in jeopardy? 61 U Chi LR 197 (1994).

California Penal Code § 654 and the Neal doctrine, 26 U West LA LR 335 (1995).

Solicitation to commit crime against more than one person or property, made in single conversation as single or multiple crimes.(see also §§ 20, 21 supra.)  24 ALR4th 1324.

Case authorities:

Under the same-elements test–which states that two offenses are not the same, for purposes of the double jeopardy clause of the Federal Constitution's Fifth Amendment, if each offense contains an element not contained in the other offense–the double jeopardy clause does not, in a case where a defendant has been prosecuted for contempt for disruption of judicial business, bar subsequent prosecution of the defendant for a criminal assault that was part of the disruption, because (1) the contempt offense does not require the element of criminal conduct, and (2) the criminal offense does not require the element of disrupting judicial business. United States v Dixon (US)  125 L Ed 2d 556, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.

Under the same-elements test, which provides that two offenses are not the same if each offense contains an element not contained in the other, the double jeopardy clause of the Federal Constitution's Fifth Amendment, which provides that no person may be twice put in jeopardy for the same offense, does not bar criminal prosecutions of an accused for three counts of threatening to injure another and one count of assault with intent to kill, where all four counts are based on events for which the accused previously has been tried in the same jurisdiction for contempt of court for violating a civil protection order requiring that the accused not "molest, assault, or in any manner threaten or physically abuse" his estranged wife. [per Scalia and Kennedy, JJ., Rehnquist, Ch. J., and O'Connor and Thomas, JJ. Dissenting: White, Stevens, and Souter, JJ.] United States v Dixon (US)  125 L Ed 2d 556, 93 CDOS 4852, 93 Daily Journal and DAR 8205, 7 FLW Fed S 599.

Double jeopardy challenge to conspiracy conviction must fail, even though convict alleges that prior plea agreement, resolving substantive offenses which occurred in 1985, should have barred prosecution on conspiracy charge since those offenses are charged as overt acts of conspiracy, because those overt acts were not elements of 21 USCS §  846 conspiracy and cannot be considered "same offense" for double jeopardy purposes. Feliciano v United States (1996, DC Puerto Rico) 914 F Supp 776.

Defendant was impermissibly sentenced to consecutive terms under 18 USCS §§  659 and  1951, in violation of Double Jeopardy Clause, for interstate theft, since neither section appears to require proof of fact which other does not; imposition of punishment for conviction under 18 USCS §  1951 for movement of article and interstate commerce by robbery and for bank robbery under 18 USCS §  2113 was not precluded by Double Jeopardy Clause, since each statute requires proof of fact which others does not; defendant's 2 sentences for general conspiracy under 18 USCS §  371 and sentence for conspiracy under Hobbs Act, 18 USCS §  1951, did not violate Double Jeopardy Clause, since § 1951, unlike § 371, requires proof that object of conspiracy was obstruction of flow of commerce, while § 371, unlike § 1951, requires proof of overact. United States v Maldonado-Rivera (1990, CA2 Conn) 922 F2d 934, stay den (US) 59 USLW 3635.

Convictions of defendants for both conspiring to defraud United States and conspiring to defraud United States by obtaining payment of false claims did not violate double jeopardy clause even though convictions arose from single conspiracy since the 2 statutes were intended to address 2 different crimes and despite substantial overlap call for elements not required by other statute. United States v Lanier (1991, CAll Ga) 920 F2d 887.

Double jeopardy did not bar prosecution of defendants for transportation of guns from Florida to New York subsequent to convictions arising out of purchase and transportation of guns from New York to Puerto Rico, although charge at issue may have been related to conduct that formed basis of first charges, since any overlap in conduct charged in second conspiracy is irrelevant for purposes of double jeopardy, conspiracy to commit crime being separate from crime itself, and present indictment does not rely on same conduct as substantive counts in Puerto Rico indictment. United States v Prusan (1992, CA2 NY) 967 F2d 57.

Double Jeopardy Clause prevented multiple convictions for violations of 18 USCS §§  542,  1001 for making false statements and misrepresentations to Customs officials, since every element needed to prove violation of § 1001 is element of § 542, and there is no clear indication of congressional intent to provide for cumulative punishments under both statutes. United States v Avelino (1992, CA2 NY) 967 F2d 815.

Subsequent wire and mail fraud charges based on false reporting of automobile theft in scheme to defraud insurance company were not barred, on double jeopardy grounds, by earlier dismissal of conspiracy and vehicle identification number alteration charges because of insufficient evidence where subsequent charges made no reference to charges in earlier indictment. United States v Alegria (1992, CA2) 980 F2d 850, later proceeding (CA2 NY) 981 F2d 664.

Double jeopardy clause was not violated by defendant's dual convictions for first-degree armed robbery and for possession of weapons for unlawful purpose since 2 crimes have different elements and each statute requires proof of additional facts which the other does not. Hakeem v Beyer (1993, CA3 NJ) 990 F2d 750.

Double jeopardy test as to what constitutes same offense is satisfied if each offense requires proof of fact that other does not, even though there may be substantial overlap in proof offered to establish crimes. Brown v Alabama (1980, CA5 Ala) 619 F2d 376.

Statute providing for sentence of 10 years or $10,000 fine, or both, for forging treasury check of more than $500 or forging multiple checks with aggregate value of more than $500 does not constitute double jeopardy, even though defendant charged is forging multiple checks is sentenced for each check and sentenced again for the aggregate amount of all the checks, since Congress authorized court to aggregate values of checks for purposes of sentencing. United States v Taylor (1989, CA5 Miss) 869 F2d 812.

Descheduling of certain forms of methamphetamine did not invalidate convictions for the illegal manufacture and possession of drug, because descheduling did not extend to all forms, or all amounts, of drug; furthermore, conviction for use of telephone to facilitate possession of drug and conviction for possession was not barred by double jeopardy, because each conviction required different elements of proof; and imposition of consecutive sentences was proper where total maximum statutory sentence was below the minimum guideline sentence. United States v Martinez (1991, CA5 Tex) 950 F2d 222, cert den (US)  118 L Ed 2d 582,  112 S Ct 1984.

For purposes of prosecution under 21 USCS §  856(a)(2), maintenance of crack house constituted separate offense for each day it was continued, where on at least six occasions, narcotics officers legally searched house, seized all drugs and firearms, arrested suspects and effectively closed down crack house, and after each raid defendant and accomplices further fortified house and reopened it. United States v Cooper (1992, CA5 Tex) 966 F2d 936, cert den (US)  121 L Ed 2d 386,  113 S Ct 481.

Counts against defendant for executing scheme to defraud federally insured bank by opening account and attempts to withdraw funds constituted improper "multiplicity" creating danger that defendant may receive more than one sentence for single offense in violation of double jeopardy clause. United States v Hord (1993, CA5 Tex) 6 F3d 276.

Evidence of prior narcotics violations of which defendant had been acquitted introduced in heroin conspiracy and distribution prosecution did not violate defendant's rights against double jeopardy because legal issues were not identical where in prior jury trial had found that defendant had committed acts necessary for criminal liability but also found that necessary criminal intent was vitiated by successful entrapment defense, and where prior acquittal conduct was introduced in present proceeding only for purpose of satisfying overt act element of conspiracy charge. United States v Davis (1987, CA6 Mich) 809 F2d 1194.

Defendant's prosecution for drug conspiracy was not barred by double jeopardy where defendant was charged in prior indictment with different non-overlapping conspiracy since 2 conspiracies were not mutually dependent on each other. United States v Dortch (1993, CA7 Ill) 5 F3d 1056, 37 Fed Rules Evid Serv 1033, cert den Dortch v United States (1994, US)  127 L Ed 2d 394,  114 S Ct 1077.

Imposition of multiple sentences for violations of 18 USCS §  111 and 18 USCS §  924(c), and for punishment in addition to that prescribed in § 111, did not violate Double Jeopardy Clause, even though conduct constituted "same offense" under each statute, since Congress clearly intended multiple sentences. United States v Handford (1994, CA7 Ill) 39 F3d 731, reh den (1994, CA7 Ill) 1994 US App LEXIS 33071.

Although defendant may be charged with committing completed offense and with attempting to commit same offense and those charges may be submitted to trier of fact if evidence supports both offenses, defendant may not be convicted of both attempt and completed crime, because all elements of attempt are included in completed offense and dual conviction would amount to double jeopardy. United States v Rust (1981, CA8 Mo) 650 F2d 927.

Narcotics possession offenses occurring nine months apart were properly joined since evidence of each would be admissible in separate trials to show motive, intent, or common scheme or plan. United States v Valentine (1993, CA8 Mo) 984 F2d 906.

Double jeopardy did bar defendant's prosecution on drug conspiracy indictment after his prior conviction on substantive offense since substantive crime and conspiracy to commit such crime are not "same offense" for double jeopardy purposes. United States v Miller (1993, CA8 Minn) 995 F2d 865, reh, en banc, den (CA8) 1993 US App LEXIS 19753.

Federal "kingpin" statute (21 USCS §  848) may be applied to one whose criminal conduct consists solely of aiding and abetting criminal conduct of others, if that individual is otherwise a kingpin in his own right and if criminal conduct aided and abetted itself qualified under § 881; thus, operator of chemical supply house that made precurser chemicals for methamphetamine available for cash with knowledge that they would be used for illegal purpose and who took affirmative steps to enable customers to conceal identity and evade surveillance could be convicted under § 848. United States v Miskinis (1992, CA9 Cal) 966 F2d 1263, 92 CDOS 3074, 92 Daily Journal DAR 4950.

Conspiracy to violate Hobbs Act and substantive violation of Hobbs Act based on same conduct were two separate offenses and defendant could be punished by consecutive sentences without violation of double jeopardy clause. United States v Freeman (1993, CA9 Cal) 6 F3d 586, 93 CDOS 7051, 93 Daily Journal DAR 12045, digest op at (CA9 Cal) RICO Bus Disp Guide (CCH) ¶ 8414.

Offenses of "distributing" and "dispensing" controlled substances in violation of 21 USCS §  841(a)(1) are "same offense" for double jeopardy purposes, where there is only one element not present in both offenses–that of status, which must be proved in prosecution for "dispensation;" and thus defendant's prosecution for distribution is barred by earlier prosecution for dispensation. United States v Genser (1983, CA10 Colo) 710 F2d 1426.

Test for determining whether separate statutory crimes constitute same offense for purposes of prohibiting double punishment is where differences in intent or conduct between statutory offenses are substantial in relation to basic social interests protected or vindicated by statutes. Calder v State (1980, Alaska) 619 P2d 1026.

Determination of whether successive prosecution for same statutory offense is barred by double jeopardy principles involves, first, examination of scope of prosecution authorized by statutory prescription, and, next, examination of factual components of each prosecution and evidence in support thereof. People v Williams (1982, Colo) 651 P2d 899.

Defendant's convictions on a count charging him with possession of a short-barrelled shotgun, which was or could readily have been made operable, and on another count charging possession of a shotgun by a previously convicted felon did not constitute double jeopardy where, although the allegation and proof of defendant's possession of a shotgun was common to both counts, on each count the state alleged and proved an additional element not necessary for conviction on the other. Ziegler v State (1980, Fla App D1) 385 So 2d 1168.

Where, in a prosecution for aggravated assault and attempted sexual battery with a deadly weapon, the information and bill of particulars alleged that the two offenses occurred on or between December 26th and 27th but the proof at trial established that the offenses occurred on December 24th and 25th and the trial court granted defendant's motion for a judgment of acquittal on the basis of this variance, the trial court erred, in a subsequent prosecution in which the State alleged that defendant committed the offenses on December 25th, in granting defendant's motion to dismiss based on the plea of former jeopardy, since in the second prosecution the State did not charge defendant with the same offense. State v Brown (1981, Fla App D2) 404 So 2d 805.

A defendant cannot be convicted of both felony murder and the underlying felony which serves as the basis for the felony murder count. Goss v State (1981, Fla App D5) 398 So 2d 998.

The State was not barred from prosecuting defendant on a murder charge where defendant had been acquitted on RICO charges in federal court for the "same offense" since the State would be required to prove the elements of murder, a fact not required of the Federal government, and the Federal government had to prove the elements of either obstruction of justice or narcotics conspiracy, neither of which would be required of the State. People v Porter (1993) 156 Ill 2d 218, 189 Ill Dec 413, 620 NE2d 381, reh den (Oct 4, 1993).

In a criminal prosecution, the beginning point in the analysis of a double jeopardy claim appears to be the statute or statutes under which the defendant was convicted and the determination of whether the legislature intended to impose multiple or cumulative punishments for the same act or course of conduct. Cooley v Commonwealth (1991, Ky) 821 SW2d 90.

In a criminal prosecution for reckless homicide and driving under the influence, the defendants constitutional protection against double jeopardy were violated, where the defendant was found guilty of reckless homicide and of second offense driving under the influence and where he was sentenced separately on the both the charges, as the Commonwealth relied on the level of intoxication to prove the eliminate of reckless conduct, therefore, the defendant's DUI punishment must be vacated. Hall v Commonwealth (1991, Ky App) 819 SW2d 39.

Two offenses are same for double jeopardy purposes if same evidence is required for conviction of each offense; if one offense requires proof of additional facts which other does not, then accused may be tried and convicted on both offenses unless gravamen of second offense is essentially included within offense for which first tried, in which case second prosecution is barred because of former jeopardy. State v Solomon (1980, La) 379 So 2d 1078.

Trial court, in prosecution for vehicular manslaughter arising from head-on collision that resulted from defendant driving while intoxicated on wrong side of divided highway, erred in dismissing manslaughter count on double jeopardy ground arising from defendant's prior guilty plea to infraction of driving on wrong side of road, where prosecution indicated in response to demand for bill of particulars that it would not rely on evidence that defendant drove on wrong side, but rather on more general evidence of grossly negligent conduct, to establish manslaughter charge. State v Glaser (1992) 93 Md App 579, 613 A2d 1011.

In a prosecution for felony-murder, and for criminal possession of a weapon, conviction was proper where double jeopardy principles did not bar a retrial, after the trial court in defendant's first trial withdrew the underlying robbery count from the jury's consideration on the ground of insufficient evidence, since the completion of the underlying felony is not an essential element of felony-murder, and since an acquittal of the underlying felony is not inconsistent with a conviction for felony-murder. People v Murray (1983, 2d Dept)  92 App Div 2d 617, 459 NYS2d 810.

If the facts alleged in one indictment, if given in evidence, would sustain a conviction under a second indictment, or if the same evidence would support a conviction in each case, a defendant may not be tried, convicted and punished for both offenses; if, however, a single act constitutes an offense against two statutes and each statute requires proof of an additional fact which the other does not, the offenses are not the same in law and in fact, and a defendant may be convicted and punished for both. State v Martin, 47 NC App 223, 267 SE2d 35.

Double jeopardy did not apply where the trial court dismissed 11 of 20 indictments and petitioner contended that when the trial court dismissed the 11 indictments, all of the remaining indictments should have been dismissed under the doctrine of collateral estoppel, because the counts on which petitioner was convicted were separate offenses from the counts that were dismissed. Wilson v Rogers, 68 OS3d 130, 623 NE2d 1210, reh den 68 OS3d 1448, 626 NE2d 689.

Addition of sentence for underlying felony of robbery constitutes double jeopardy where bank robber has previously been sentenced for the same incident upon greater offense of felony murder committed while robbing bank. Commonwealth v Tarver (1981, Pa) 426 A2d 569.

The defendant could be prosecuted for homicide by vehicle after he was prosecuted for failure to drive at a safe speed since each offense required an element not required by the other; homicide by vehicle requires that there have been a death caused by a criminally negligent or reckless violation of law, which is not required for driving at an unsafe speed, and driving at an unsafe speed requires driving at excessive speed, which is not required for homicide by vehicle. Commonwealth v Caufman (1995, Pa) 662 A2d 1050.

Double jeopardy did not bar prosecution on charge first-degree murder and second-degree murder after guilty plea to third-degree murder was withdrawn by court sua sponte after probation report revealed that there was no factual basis for third-degree plea, since jeopardy had not attached as to greater offenses. Commonwealth v Rosario (1992) 418 Pa Super 196, 613 A2d 1244.

Defendant's state prosecution for murder was not barred by former RICO conviction even though murder at issue had originally been listed among predicate acts for RICO prosecution, where murder was dropped as predicate act prior to federal trial in order to preserve state's case. Commonwealth v Scarfo (1992, Pa Super) 611 A2d 242.

Since proof of possession of cocaine with intent to deliver requires proof of no additional fact that is not essential fact of proof of delivery of cocaine, all elements of one offense are present in other; thus, offenses must merge under Double Jeopardy Clause. State v Anil (1980, RI) 417 A2d 1367.

Driver's license suspension is not an "offense" for jeopardy purposes. Previous license suspension hearing does not bar trial for driving while intoxicated. Fact finding at suspension heating does not bar relitigation of facts at DWI trial. Walton v State (1992, Tex App Houston (14th Dist)) 831 SW2d 488.

"Same evidence" test is used in determining whether double jeopardy concept is violated; under this test, if elements of one crime are different from those other, no violation occurs. State v Jones (1980, Wash App) 610 P2d 934.

Footnotes

Footnote 42. United States v Adams,  281 US 202,  74 L Ed 807,  50 S Ct 269; Hattaway v United States (CA5 Fla) 399 F2d 431; Wilkerson v State, 41 Ala App 265, 130 So 2d 348, cert den 272 Ala 712, 130 So 2d 350; Harris v State, 193 Ga 109, 17 SE2d 573, (superseded by statute in another point as stated in Pryor v State 238 Ga 698, 234 SE2d 918, cert den  434 US 935,  54 L Ed 2d 294,  98 S Ct 422, reh den  434 US 1003,  54 L Ed 2d 500,  98 S Ct 650; recognizing partial application of both the "same-evidence" and the "same-transaction" rule); Spears v People, 220 Ill 72, 77 NE 112; State v Ragan, 123 Kan 399, 256 P 169; Mann v Commonwealth, 118 Ky 67, 80 SW 438; People v Beverly, 247 Mich 353, 225 NW 481; State v Toombs, 326 Mo 981, 34 SW2d 61.

Footnote 43. United States v Ewell,  383 US 116,  15 L Ed 2d 627,  86 S Ct 773 (ovrld on other grounds Chapman v California  386 US 18,  17 L Ed 2d 705,  87 S Ct 824,  24 ALR3d 1065, reh den  386 US 987,  18 L Ed 2d 241,  87 S Ct 1283) as stated in Sumpter v De Groote (CA7 Ind) 552 F2d 1206; United States v Williams,  341 US 58,  95 L Ed 747,  71 S Ct 595 (stating that identity of offense is required to support the defense of double jeopardy).

Where it is made to appear that there was a former prosecution in the same state for the same offense, that the same person was in jeopardy on the first prosecution, that the parties are identical in the same prosecution, and that the particular offense on the prosecution of which the jeopardy attached was such an offense as to constitute a bar, double jeopardy has been proved. Where defendant was arrested for the sale of marijuana to a deputy, where the information related to a sale to a confidential informant not involved in the transaction in question, where the information was not corrected, and where the defendant was acquitted at a trial in which the state proved the sale to the deputy but not the sale to the confidential informant, a subsequent information relating to the sale to the deputy put defendant in double jeopardy and further prosecution on that transaction would be prohibited. State ex rel. Volkers v Blount (Fla App D1) 336 So 2d 377, cert den (Fla) 341 So 2d 1079.

Practice Aids: –Former jeopardy–Same offense.  1 Wharton's Criminal Law (14th ed) § 58.

Footnote 44. Teague v Commonwealth, 172 Ky 665, 189 SW 908; State v Roberts, 152 La 283, 93 So 95.

Footnote 45. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221.

Footnote 46. People v Allen, 368 Ill 368, 14 NE2d 397, app dismd  308 US 511,  89 L Ed 436,  60 S Ct 132; State v Fredlund, 200 Minn 44, 273 NW 353.

Footnote 47. State v Shannon, 136 Me 127, 3 A2d 899.

Footnote 48. State v Westbrook, 79 Ariz 116, 285 P2d 161,  53 ALR2d 619; People v Winchell (1st Dist) 248 Cal App 2d 580, 56 Cal Rptr 782.

Footnote 49. Morgan v Devine,  237 US 632,  59 L Ed 1153,  35 S Ct 712; Whitton v State (Alaska) 479 P2d 302 (only one sentence could be imposed where crimes of robbery and robbery with firearm constituted the same offense); State v Miller, 53 Del 80, 164 A2d 690; People v Allen, 368 Ill 368, 14 NE2d 397, app dismd  308 US 511,  84 L Ed 436,  60 S Ct 132; State v Midgeley, 15 NJ 574, 105 A2d 844, revg 28 NJ Super 491, 101 A2d 51; State v Rose, 89 Ohio St 383, 106 NE 50; Commonwealth v Comber, 374 Pa 570, 97 A2d 343,  37 ALR2d 1058 (superseded by statute on another point as stated in Commonwealth v Garcia 474 Pa 449, 378 A2d 1199 (ovrld on other grounds Commonwealth v Thomas 482 Pa 312, 393 A2d 1122)).

Footnote 50. State ex rel. Wikberg v Henderson (La) 292 So 2d 505 (conviction of defendant for attempted armed robbery following conviction for felony-murder arising out of same incident would violate prohibition against double jeopardy).

Where conviction of grand theft in violation of one statute does not require proof of any element not required to be proved for a conviction of robbery in violation of a second statute, both are the same offense for purposes of double jeopardy.  State v Harris, 58 Ohio St 2d 257, 12 Ohio Ops 3d 265, 389 NE2d 1121.

Footnote 51. Morgan v Devine,  237 US 632,  59 L Ed 1153,  35 S Ct 712; Oddo v United States (CA2 NY) 171 F2d 854, cert den  337 US 943,  93 L Ed 1747,  69 S Ct 1498; Richards v State, 108 Ark 87, 157 SW 141; State v McAninch, 172 Iowa 96, 154 NW 399; State v Labato, 7 NJ 137, 80 A2d 617; Spannell v State, 83 Tex Crim 418, 203 SW 357; Jones v Commonwealth, 208 Va 370, 157 SE2d 907; State ex rel. Zirk v Muntzing, 146 W Va 878, 122 SE2d 851,  94 ALR2d 1033.

Annotation:  95 L Ed 755.

 50 L Ed 2d 830, § 15.

Footnote 52. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221; Jeffers v United States,  432 US 137,  53 L Ed 2d 168,  97 S Ct 2207, reh den  434 US 880,  54 L Ed 2d 164,  98 S Ct 241 (plurality opinion); Blockburger v United States,  284 US 299,  76 L Ed 306,  52 S Ct 180.

Footnote 53. United States v Marable (CA5 Ga) 578 F2d 151 (ovrld on other grounds United States v Rodriguez (CA5 Fla) 612 F2d 906, reh den (CA5 Fla) 617 F2d 1214 and affd (US)  67 L Ed 2d 275,  101 S Ct 1137); Arnold v United States (CA9 Wash) 336 F2d 347, cert den  380 US 982,  14 L Ed 2d 275,  85 S Ct 1348.

Footnote 54. Burton v United States,  202 US 344,  50 L Ed 1057,  26 S Ct 688.

Footnote 55. Runyon v Commonwealth (Ky) 393 SW2d 877, cert den  384 US 906,  16 L Ed 2d 359,  86 S Ct 1341; State v Winger, 204 Minn 164, 282 NW 819.

A criminal information composed of three counts, each charging defendant with conspiracy to permit gambling, place bets, and related offenses at a place under the control of defendant and coconspirators, each count of which was identical with the exception of the names of the alleged coconspirators and the description of the premises, was sufficient and did not subject the defendant to the possibility of double jeopardy.  State v Kugel (Fla App D4) 342 So 2d 1012, cert den (Fla) 353 So 2d 676.

The double jeopardy clause of the Fifth Amendment was not violated where (1) after the defendant was convicted on an indictment charging that the defendant, assuming leadership, and nine codefendants conspired, in violation of 21 USCS §  846, to distribute heroin and cocaine during a specified period, the defendant was then tried and convicted on a second indictment charging that the defendant alone, in violation of 21 USCS §  848, conducted a "continuing criminal enterprise" in concert with five or more other persons with respect to whom the defendant occupied a position of organizer, supervisor, and manager, during the same specified period, to distribute and possess heroin and cocaine, and that as the result of such activity, the defendant had obtained a substantial income, and (2) the trial court had denied the government's motion to try both indictments at the same trial when the defendant (and his codefendants in the conspiracy case) objected on the ground that neither the parties nor the charges were the same.  Jeffers v United States,  432 US 137,  53 L Ed 2d 168,  97 S Ct 2207, reh den  434 US 880,  54 L Ed 2d 164,  98 S Ct 241.

The doctrine of carving did not bar an accused's conviction of sodomy following his conviction of rape where both the rape and the act of sodomy upon the prosecutrix were not proven by the same evidence and where the act of sodomy was completed prior to the commission of the act of rape.  Ex parte Joseph (Tex Crim) 558 SW2d 891.

Footnote 56. State v Heitter (Sup) 57 Del 595, 203 A2d 69,  9 ALR3d 195.

Footnote 57. Hurst v State, 86 Ala 604, 6 So 120; People v Cook, 236 Mich 333, 210 NW 296; Jones v State, 66 Miss 380, 6 So 231; State v Toombs, 326 Mo 981, 34 SW2d 61; State v Bell, 205 NC 225, 171 SE 50; Cook v State, 43 Tex Crim 182, 63 SW 872; Henson v Commonwealth, 165 Va 829, 183 SE 438.

Footnote 58. Blockburger v United States,  284 US 299,  76 L Ed 306,  52 S Ct 180; Ebeling v Morgan,  237 US 625,  59 L Ed 1151,  35 S Ct 710; State v Freeman, 162 NC 594, 77 SE 780.

Footnote 59. Hattaway v United States (CA5 Fla) 399 F2d 431 (prosecution under Federal Kidnapping Act did not preclude prosecution under Mann Act, since consent would be a complete defense to a charge under the kidnapping statute but not under the Mann Act).

Footnote 60. Commonwealth v Vaughn, 101 Ky 603, 42 SW 117; United States v Aurandt, 15 NM 292, 107 P 1064.

Footnote 61. State v Brown, 262 Or 442, 497 P2d 1191 (not followed State v Shields 28 Or App 719, 560 P2d 690, revd on other grounds 280 Or 471, 571 P2d 892) (limiting decision to instances of successive prosecution).

Footnote 62. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221; In Re Neilsen,  131 US 176,  33 L Ed 118,  9 S Ct 672.

Footnote 63. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221.

Footnote 64.  § 269, infra.


§ 267  Continuing crimes; offenses consisting of series of acts  [21 Am Jur 2d CRIMINAL LAW]

It seems that as a general rule there can be only one prosecution for a continuing crime, 65  where an offense as charged consists of a series of acts extending over a period of time, a conviction or acquittal for a crime based on a portion of that period will bar a subsequent prosecution covering the entire period. 66   The test is whether the evidence that would have warranted a conviction on the first charge would warrant a conviction on the second charge. 67

If a violation of law is not continuous in its nature, separate indictments may be maintained for each violation. 68   Thus, a distinct repetition of a prohibited act constitutes a second offense and subjects the offender to an additional penalty. 69    Furthermore, where the offenses are distinct and separate, a plea of former jeopardy will not be sustained, even though evidence supporting conviction on a second offense may have been admitted in a prior prosecution on the other. 70    

A continued refusal to act may constitute successive offenses. 71       


§ 267  – Continuing crimes; offenses consisting of series of acts [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Double jeopardy, conspiracy and continuing criminal enterprises, 1994 Ann Surv Am L 125 (1994).

Possession of stolen property as continuing offense  24 ALR5th 132.

Double jeopardy; various acts of weapons violations as separate or continuing offense.  80 ALR4th 631.

Solicitation to commit crime against more than one person or property, made in single conversation as single or multiple crimes.(see also 20, 21 supra.)  24 ALR4th 1324.

Case authorities:

A prosecution for engaging in a continuing criminal enterprise (CCE) in violation of 21 USCS §  848 does not violate the double jeopardy clause of the Fifth Amendment even though facts underlying a prior conviction are offered to prove one of three predicate offenses that must be shown to make out a CCE violation, where the evidence indicates that the continuing criminal enterprise charged by the government had not been completed at the time the earlier indictment for the predicate offense was returned and even included acts that took place after the date of such indictment. Garrett v United States (1985, US)  85 L Ed 2d 764,  105 S Ct 2407.

With respect to the continuing criminal enterprise prohibited under the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCS §  848), Congress intended separate punishments for the underlying substantive predicate offenses and for the continuing criminal enterprise offense, and imposition of such cumulative punishments does not impose greater punishment than Congress intended in violation of the double jeopardy clause of the Fifth Amendment to the United States Constitution. Garrett v United States (1985, US)  85 L Ed 2d 764,  105 S Ct 2407.

Consecutive sentences to run concurrently for violation of 18 USCS §  2 and 21 USCS  841 does not violate Double Jeopardy where each count clearly requires proof of facts that other does not and sentence was not unconstitutionally out of proportion to severity of crime. United States v Talavera (1982, CA1 Puerto Rico) 668 F2d 625.

Double jeopardy clause is violated by charging defendant after his prior conspiracy conviction for violating federal narcotics laws with subsequent continuing criminal enterprise (CCE) based upon defendant's same conduct during same period of time where, although the two conspiracy indictments specified conduct during different time periods, government had arbitrarily assigned different dates to single conspiracy since conspiracy is included within necessary elements of CCE. United States v Aguilar (1988, CA3 Pa) 849 F2d 92.

Consecutive sentences for possession of counterfeit money and for transferring counterfeit funds does not violate double jeopardy clause, where the indictment to which defendant pleaded guilty charged that he possessed certain funds on date of his arrest and that he had previously transferred counterfeit bills to 2 persons, since mere fact that defendant would first have to possess the counterfeit funds before they could be transferred does not render his continued possession after the transfer a lesser included offense. United States v Shear (1987, CA4 W Va) 825 F2d 783.

Subsequent prosecutions for separate mailings in different jurisdictions under federal obscenity statutes do not violate double jeopardy clause, even if physical act of mailing, or obscene materials mailed, might have been same, since each mailing represented separate offense. United States v Easley (1991, CA6 Ky) 942 F2d 405.

Double jeopardy clause is not violated by conviction and sentence on 2 counts of violating Racketeer Influenced and Corrupt Organizations Act, where 2 counts involve activity taking place during different time periods, involving different persons in racketeering activity, and where nature and scope of activity is somewhat different under each count. United States v Dean (1981, CA8 Ark) 647 F2d 779, 8 Fed Rules Evid Serv 26, on reh (CA8 Ark) 667 F2d 729, cert den  456 US 1006,  73 LEd 2d 1300,  102 S Ct 2296.

Imposition of separate sentences for transporting in foreign commerce motor vehicle known to be stolen and for possessing stolen vehicle which had crossed United States boundary did not violate double jeopardy clause of Fifth Amendment, since defendant's illegal possession of stolen van extended well beyond time necessary to complete offense of transporting van in foreign commerce. United States v Wolf (1987, CA9 Cal) 813 F2d 970.

Same evidence test is not always adequate for testing applicabiliaty of former jeopardy principle where two crimes charged are both conspiracies; conspiracies frequently involve several overt acts and may extend over several months or years and it may frequently be impossible to show existence of single conspiracy through proof of more than one set of facts; if 2 charges of conspiracy are in fact based on defendant's participation in single conspiracy, former jeopardy clause bars second prosecution and as consequence, it may be necessary to look beyond question of what evidence will be offered in proof of 2 conspiracies to determine whether under all circumstances only single conspiracy is present; fact that 2 conspiracies overlap with regard to members and time period does not necessarily mean that conspiracies are not same for double jeopardy purposes. Wilkett v United States (1981, CA10 Okla) 655 F2d 1007.

Trial court's convicting and sentencing defendant on both continuing criminal enterprise charge and underlying predicate offenses of violating various federal drug laws did not violate double jeopardy clause. United States v Stallings (1987, CA10 Okla) 810 F2d 973.

Imposition of 6 sentences for 6 separate counts of solicitation by itself did not constitute double jeopardy since each count was based on solicitation of separate tint-degree murder and fact that all 6 solicitations took place at one time did not negate fact that convictions on which sentencing was based were for soliciting murders of 6 separate persons. Martin v Kaiser (1990, CA10 Okla) 907 F2d 931.

The conviction and sentencing of defendant for three counts of discharging a firearm into occupied property did not violate double jeopardy principles, although the three indictments were identical and did not describe in detail the specific events or evidence that would be used to prove each count, where the evidence showed that defendant fired three shots from one pistol into the victim's occupied automobile within a short period of time; each act was distinct in time and required that defendant employ his thought process each time he fired his weapon; each shot struck the vehicle in a different place; and defendant was thus not charged three times with the same offense for the same act. State v Rambert (1995) 341 NC 173, 459 SE2d 510.

A defendant who obtained property by means of a stolen credit card from one store and who then attempted to return the property to another store for cash or other property committed 2 separate crimes with a separate animus and thus, under RC § 2941.25(B), could be convicted of both. State v Liston (1991, Lake Co) 70 Ohio App 3d 663, 591 NE2d 879.

Double jeopardy was not violated by convicting an accused for robbery by firearms and murder with malice, both offenses arising from the same transaction and involving the same victim. Ex parte Mike (1980, Tex Crim) 632 SW2d 594.

Footnotes

Footnote 65. Re Nielsen,  131 US 176,  33 L Ed 118,  9 S Ct 672; Re Snow,  120 US 274,  30 L Ed 658,  7 S Ct 556; Burke v United States (Mun Ct App Dist Col) 103 A2d 347.

Footnote 66. Bustamante v People, 136 Colo 362, 317 P2d 885,  61 ALR2d 1217; State ex rel. Garvey v Whitaker, 48 La Ann 527, 19 So 457; Commonwealth v Peretz, 212 Mass 253, 98 NE 1054; State v Freeman, 162 NC 594, 77 SE 780; Muckenfuss v State, 55 Tex Crim 229, 116 SW 51.

Where defendant was convicted on three counts of five count indictment charging him with possession of firearm on five separate occasions, multiple convictions violated double jeopardy clause of Fifth Amendment since defendant committed only one offense because of his continuous and uninterrupted possession of same weapon. United States v Jones (CA6 Ky) 533 F2d 1387, cert den  431 US 964,  53 L Ed 2d 1059,  97 S Ct 2919.

For purposes of determining whether defendant's prosecution for drug conspiracy was barred by acquittal in prior drug conspiracy prosecution, "same evidence" test was not appropriate and proper test would be whether totality of circumstances demonstrated that two alleged conspiracies are in reality part of single conspiracy. United States v Tercero (CA8 Minn) 580 F2d 312.

Mere fact that same parties are charged with being members of two conspiracies, and that both conspiracies concern transactions in same items and overlapped in time, does not establish that two conspiracies are same for purposes of double jeopardy clause of Fifth Amendment.  United States v Martinez (CA10 Okla) 562 F2d 633.

The state improperly carved both robbery and murder with malice out of a single transaction where the accused, who upon entering a grocery store shot and robbed a clerk and who upon exiting the store shot and killed that same clerk, had committed continuous and uninterrupted assaultive acts directed at a single victim in the same place and at the same time.  Ex parte Birl (Tex Crim) 545 SW2d 169.

As to trial of defendants for gambling in one city as double jeopardy after their conviction for gambling operation in another city where gambling businesses were interconnected, see 38 Am Jur 2d,  Gambling § 167.

Footnote 67. Commonwealth v Robinson, 126 Mass 259.

Footnote 68. United States v Alaimo (CA3 Pa) 297 F2d 604, 49 BNA LRRM 2327, 44 CCH LC ¶ 17331, cert den  369 US 817,  7 L Ed 2d 784,  82 S Ct 829; Hamilton v State, 129 Fla 219, 176 So 89; State v Freeman, 162 NC 594, 77 SE 780.

Footnote 69. Wilkes v Dinsman,  48 US 89,  12 L Ed 618.

An acquittal of the crime of carnal knowledge of a female under the age of consent, committed on a specified date, is not a bar to a prosecution for a similar offense with the same girl on a particular date six months later. State v Healy, 136 Minn 264, 161 NW 590.

Each successive cutting into the different mailbags with intent to rob is a distinct offense.  Ebeling v Morgan,  237 US 625,  59 L Ed 1151,  35 S Ct 710.

Footnote 70. Sanchez v United States (CA9 Cal) 341 F2d 225, cert den  382 US 856,  15 L Ed 2d 94,  86 S Ct 109 (defendant unexpectedly acquitted on charge of having sold narcotics during month of July could be indicted for similar offense allegedly occurring in previous February, notwithstanding evidence concerning February transaction had been admitted in July prosecution).

Footnote 71. Dapper v Municipal Court of San Diego Judicial Dist. (4th Dist) 276 Cal App 2d 816, 81 Cal Rptr 340 (conviction for maintaining nuisance did not bar subsequent prosecution for maintaining same nuisance), cert den  399 US 910,  26 L Ed 2d 562,  90 S Ct 2200, reh den  400 US 855,  27 L Ed 2d 93,  91 S Ct 25.


§ 268  Prosecution for part of crime  [21 Am Jur 2d CRIMINAL LAW]

The legislative branch of government, not the prosecuting authority, establishes and defines criminal offenses.  The double jeopardy clause imposes few, if any, limitations on this legislative power. 72  Once the legislature has defined a statutory offense by prescribing the "allowable unit of prosecution," that prescription determines the scope of protection afforded by a prior conviction or acquittal.  In short, whether a particular course of conduct involves one or more distinct "offenses" under a statute depends on this legislative choice. 73    

The prosecution cannot avoid the double jeopardy prohibition by dividing a single crime into a series of "temporal or spatial units" 74   or "discreet bases of liability" not defined as such by the legislature. 75   The government may not fragment a single crime into its components, 76  or make one offense into two offenses for which two separate punishments are imposed. 77    Thus, in a prosecution under a federal statute with an allowable unit of prosecution defined as participation in a single "illegal gambling business," acquittal of the accused on a horse-betting count absolutely barred any further prosecution of him for participation in that same business under another count alleging numbers-betting. 78    

It has been said that a prosecutor may carve as large an offense out of the criminal transaction as he can, but is not at liberty to cut more than once.  Thus, where the essential ingredient of an offense was a publication of an article containing several alleged libels, there was only one criminal offense, which could not be split up and prosecuted in parts without violating the doctrine of double jeopardy. 79   And the rule is that a prosecution for any part of a single crime bars any further prosecution based on the whole or a part of the same offense. 80   Thus, a prosecution for perjury with respect to certain evidence by a witness in a judicial investigation is a bar to a prosecution for perjury with respect to other evidence on the same trial under the same oath. 81   


§ 268  – Prosecution for part of crime [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Double jeopardy was not violated by punishing defendant for aiding and abetting armed bank robbery and aiding and abetting use of firearm in commmission of violent felony since Congress clearly intended that person liable for use of firearm be liable for both underlying felony and use of gun charge. United States v Simpson (1992, CA8 Minn) 979 F2d 1282, petition for certiorari filed (Jan 5, 1993).

State statute which prohibits commission of felony while released on bail or recognizance violates double jeopardy clause of Fifth Amendment since element of conviction required for proof under statute subsumes elements of underlying felony. Dixon v Dupnik (1982, CA9 Ariz) 688 F2d 682.

Double jeopardy precludes retrial of defendants on charge of second-degree assault where jury in first trial returned verdict of guilty only on charge of menacing without resolving charge of second-degree assault. Ortiz v District Court of Las Animas (1981, Colo) 626 P2d 642.

Rule of Grady v Corbin (1990)  495 US 508,  109 L Ed 2d 548,  110 S Ct 2084 , that double jeopardy bars subsequent prosecution in which State, to establish essential element of offense charged, will prove conduct constituting offense for which defendant has already been prosecuted, is not limited to situations in which previously prosecuted conduct is element of offense charged in subsequent prosecution. Double jeopardy bars subsequent prosecution if previously prosecuted conduct will be proved by State as part of its evidence to establish element of offense charged in subsequent prosecution. In this case, defendant's conviction for failing to drive in a single lane did not bar her subsequent prosecution for driving while intoxicated because State announced that it would not prove defendant's erratic driving as evidence of intoxication. State v Houth (1992, Tex Crim) 845 SW2d 853, motion for rehearing on PDR denied (Jan 27, 1993).

Defendant's conviction for attempted capital murder, based on evidence which was effectively identical to the evidence presented at a previous trial at which he was convicted of aggravated kidnapping arising out of the same incident, violated defendant's rights against double jeopardy, notwithstanding that by application of the Blockburger test, defendant was not placed in double jeopardy for the same offense because each statute required proof of a fact which the other did not. January v State (1985, Tex App Corpus Christi) 695 SW2d 215.

Footnotes

Footnote 72. Sanabria v United States,  437 US 54,  57 L Ed 2d 43,  98 S Ct 2170; Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221.

Footnote 73. Sanabria v United States,  437 US 54,  57 L Ed 2d 43,  98 S Ct 2170.

Footnote 74. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221.

Footnote 75. Sanabria v United States,  437 US 54,  57 L Ed 2d 43,  98 S Ct 2170.

Footnote 76. United States v Jackson (CA2 NY) 560 F2d 112, cert den  434 US 941,  54 L Ed 2d 301,  98 S Ct 434 and cert den  434 US 1017,  54 L Ed 2d 762,  98 S Ct 736.

Footnote 77. People v Stephens, 79 Cal 428, 21 P 856; Bustamante v People, 136 Colo 362, 317 P2d 885,  61 ALR2d 1217; State v Sampson, 157 Iowa 257, 138 NW 473; State v Cotner, 87 Kan 864, 127 P 1; Patterson v State, 96 Ohio St 90, 117 NE 169.

Footnote 78. Sanabria v United States,  437 US 54,  57 L Ed 2d 43,  98 S Ct 2170.

Footnote 79. People v Stephens, 79 Cal 428, 21 P 856.

Footnote 80. Re Nielsen,  131 US 176,  33 L Ed 118,  9 S Ct 672; Hurst v State, 86 Ala 604, 6 So 120; State v McLaughlin, 121 Kan 693, 249 P 612; Runyon v Morrow, 192 Ky 785, 234 SW 304; State v Fredlund, 200 Minn 44, 273 NW 353,  113 ALR 215; State v Toombs, 326 Mo 981, 34 SW2d 61; State v Mowser, 92 NJL 474, 106 A 416; State v Birckhead, 256 NC 494, 124 SE2d 838; Usary v State, 172 Tenn 305, 112 SW2d 7.

An acquittal of the crime of libel in the use of certain words in a published article will bar a subsequent prosecution for libel in using other words in the same article published at the same time in the same newspaper. People v Stephens, 79 Cal 428, 21 P 856.

A prosecution for the offense of possessing, and for the offense of transporting, intoxicating liquor, committed at the same time, does not violate the rule that the state cannot split up one crime and prosecute it in parts.  Pivak v State, 202 Ind 417, 175 NE 278,  74 ALR 406.

A prosecution for any part of a single crime bars any additional prosecution or sentence for the whole crime or any other constituent elements of the whole crime.  State v Jamison, 64 NJ 363, 316 A2d 439.

Footnote 81. 60 Am Jur 2d,  Perjury § 52.

As to acquittal of defendant in criminal trial as bar to his subsequent prosecution for perjury committed by him in the former trial, see 60 Am Jur 2d,  Perjury § 51.


§ 269  Trial for lesser offense as bar to prosecution for greater  [21 Am Jur 2d CRIMINAL LAW]

Where a single transaction constitutes two or more offenses but the lesser offense is not necessarily involved in the greater and the facts necessary to convict on the second prosecution would not necessarily have convicted on the first, then the first prosecution is not a bar to the second. 82    As the United States Supreme Court has stated, under the double jeopardy clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, the mere possibility that the state, in a criminal prosecution, may seek to rely on all of the ingredients necessarily included in a lesser offense for which the accused has already been convicted to establish an element of a greater offense is not sufficient to bar the latter prosecution; the greater offense is not the "same" for purposes of the rule that the double jeopardy clause bars successive prosecutions for the "same offense" if the greater offense does not always entail proof of the lesser offense 83   For example, it has been held that the double jeopardy proscription was not violated by the prosecution of a defendant for vehicular manslaughter following his prior conviction of making an unsafe lane change, since a person may violate the lane change statute without committing vehicular manslaughter, and vice versa. 84   Likewise, a prior conviction of the alleged lesser included offense of failing to reduce speed to avoid an accident will not bar subsequent prosecution of the driver for involuntary manslaughter. 85    

On the other hand, the double jeopardy clause prohibits a state or the federal government from trying a defendant for a greater offense after obtaining his conviction of a lesser included one, since to permit both prosecutions would be to subject him to two trials for the "same offense." 86   An offense is a lesser included one of another only if, in order to commit the greater offense, it is necessary to commit the lesser. 87   The offenses are the same if proof of every fact necessary to show the lesser offense must be proven to show the greater, notwithstanding the greater offense may require proof of several additional elements. 88    Thus, for example, the double jeopardy clause of the Fifth Amendment, applicable to the states under the Fourteenth Amendment, bars prosecution and punishment for the felony of auto theft following the defendant's conviction for the misdemeanor of "joyriding", where, under state law, the latter crime is a lesser included offense of the former and where every element of the lesser offense is also an element of the greater.  Since the lesser offense of joyriding requires no proof beyond that required for conviction of the greater offense of auto theft, the greater offense is therefore, by definition, the "same" offense for purposes of double jeopardy as any lesser offense included in it. 89     It has been held that any adjustment in punishment for a greater offense in recognition of a defendant's prior punishment for a lesser one is inadequate to cure the injury resulting from multiple prosecutions for the "same" offense. 90   Accordingly, a conviction of a minor included offense will bar a subsequent prosecution for a higher crime embracing the minor offense, 91   unless the first conviction was procured by the fraud, connivance, or collusion of the defendant. 92

Where an attempt is included in, or is a part of, the offense charged, a conviction of the attempt is an acquittal of the principal or major offense. 93


§ 269  – Trial for lesser offense as bar to prosecution for greater [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: United States v. Dixon [ 125 LEd2d 556 (1993)]: The Supreme Court returns to the traditional standard for double jeopardy clause analysis, 69 Notre Dame LR 575 (1994).

Retrial on greater offense following reversal of plea-based conviction of lesser offense. (See also infra, 314.)  14 ALR4th 970.

Case authorities:

The double jeopardy clause does not prohibit a state from continuing its prosecution of a defendant on the charges of murder and aggravated robbery where the defendant, who was indicted on four related charges growing out of a murder and robbery, pleaded guilty to charges of involuntary manslaughter and grand theft but pleaded not guilty to the more serious offenses of murder and aggravated robbery and where the trial court accepted the guilty pleas to the lesser offenses over the state's objection. Ohio v Johnson (1984, US)  81 L Ed 2d 425,  104 S Ct 2536.

The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending has none of the implications of an implied acquittal which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses. Ohio v Johnson (1984, US)  81 L Ed 2d 425,  104 S Ct 2536.

Double jeopardy clause bars motorists from being tried in state court on charges of reckless or negligent homicide and reckless assault arising out of traffic accident where motorist has previously pleaded guilty to traffic tickets arising out of same accident, which tickets charged motorists with DWI and failing to keep right of median, and prosecutors in homicide and assault case have filed bill of particulars which states that they will show recklessness or negligence by proving that motorist operated motor vehicle on public highway while intoxicated and failed to keep right of median, thereby proposing to prove entirety of conduct for which motorist has already been convicted. Grady v Corbin (1990, US)  109 L Ed 2d 548,  110 S Ct 2084.

Defendant's double jeopardy rights were violated by his prosecution for continuing criminal enterprise following his conviction for conspiracy to import cocaine since earlier conviction was for lesser offense which was included in greater offense of continuing criminal enterprise. United States v Reed (1993, CAll Fla) 980 F2d 1568, 6 FLW Fed C 1522.

A judgment of acquittal of a greater offense does not encompass an acquittal of a lesser included offense when the lesser included offense is alleged as a separate count in a complaint or information, or when the information charges only the greater offense and the jury is asked to return a separate verdict on the lesser. However, when the information charges only the greater offense, and the question of the lesser included offense is not submitted to the jury, an acquittal of the greater offense not only bars subsequent prosecution, but also constitutes an acquittal of the lesser included offense. People v Garcia (1985, 2d Dist) 166 Cal App 3d 1056, 212 Cal Rptr 822.

In an attempted murder prosecution in which the jury acquitted defendant of all charges with respect to one victim and found him not guilty of attempted murder of the other victim, the trial court did not err in permitting the jury to return a verdict on assault with a deadly weapon as to that victim before deciding guilt or innocence on the lesser included offense of attempted voluntary manslaughter. Assault with a deadly weapon satisfied the requirements of a lesser related offense, and the verdict amounted to an implied acquittal of the attempted voluntary manslaughter lesser offense, as to which a mistrial was declared. Defendant's rights were fully protected in that he could not be tried again for attempted voluntary manslaughter (or attempted murder), since, for both statutory and constitutional purposes, the assault verdict worked an implied acquittal of the greater charges. The People may forgo their right to have a decision on a principal or a greater offense, in favor of a verdict on a lesser offense; that was the effect of what happened in defendant's case. Former jeopardy principles gave defendant no right to be free of the lesser related offense of assault with a deadly weapon, and it would make no sense to order a retrial for that crime; it was fully tried and the jury unanimously agreed to a verdict. People v Zapata (1992, 2nd Dist) 9 Cal App 4th 527, 12 Cal Rptr 2d 118, 92 CDOS 7831, 92 Daily Journal DAR 12643.

The jury in a criminal case may consider the principal and lesser offenses in any order it may wish, but must acquit the defendant of the greater offense before returning a verdict on a lesser included offense. That procedure protects the People's interest in obtaining a verdict on the charged offense, as well as the defendant's right to have a decision of acquittal recorded and not to be placed in jeopardy twice for the same offense. It is also consistent with the statutory rule that a failure of a jury to agree on the degree of a crime that is divided into degrees results in a conviction being deemed to be of the lesser degree (Pen. Code, §§ 1156, 1192, and 1097), and with the provision that declares that conviction of a lesser included offense bars a retrial of the greater offense (Pen. Code, § 1023), which provision is mandated by former jeopardy principles. People v Zapata (1992, 2nd Dist) 9 Cal App 4th 527, 12 Cal Rptr 2d 118, 92 CDOS 7831, 92 Daily Journal DAR 12643.

The bar against double jeopardy prevented defendant's prosecution for the greater crime of introducing or possessing marijuana in a county detention facility after his conviction of the lesser offense of possession of the same marijuana. Dees v State (1981, Fla App D2) 397 So 2d 1145.

Defendant was placed in double jeopardy, and both his conviction and sentence for grand theft were required to be set aside, where defendant was also convicted of third-degree murder, and grand theft was charged only in the context of an underlying basis for the murder charge and the jury was so instructed. Snowden v State (1984, Fla App D5) 449 So 2d 332.

See State v Martin, 47 NC App 223, 267 SE2d 35, § 277.

Defendant was not placed in double jeopardy by his trial on charges of assault upon a law officer with a firearm while he was in the performance of his duties and assault on the same officer with a deadly weapon with intent to kill inflicting serious injuries, and the State was not required to elect between the two assault charges. However, where defendant was convicted upon both charges, judgment must be arrested in the case charging the defendant with the lesser included offense of assault upon the officer with a firearm while he was in the performance of his duties. State v Byrd, 50 NC App 736, 275 SE2d 522.

Where defendant entered a plea of guilty to a charge of failing to yield the right-of-way in violation of G.S. 20-158 which arose out of an automobile accident and a passenger thereafter died from injuries received in the accident, the trial of defendant on a charge of death by vehicle "in that he did unlawfully and willfully fail to yield the right-of-way ... in violation of General Statute 20-158'' would place defendant in jeopardy for a second time on the charge of failure to yield the right-of-way in violation of the Fifth Amendment to the U.S. Constitution. State v Griffin, 51 NC App 564, 277 SE2d 77.

Defendant's trial on greater offense of felony-murder subsequent to his plea of guilty to escape from prison, which was used as predicate felony in felony-murder prosecution, contravenes double jeopardy protections. Hall v State (1982, Okla Crim) 650 P2d 893.

The Double Jeopardy Clause of the Fifth Amendment to the US Const barred defendant's conviction for both the theft and the unauthorized use of the same pickup truck. Ex parte Jefferson (1984, Tex Grim) 681 SW2d 33.

An indictment charging defendant with involuntary manslaughter, as worded, placed defendant m jeopardy for the same offense and had to be dismissed where defendant had previously been convicted of driving while intoxicated arising out of the same automobile accident, and where the PC § 19.05 indictment clearly showed that the state would rely on and seek to prove in the involuntary manslaughter case the same reckless act of driving while intoxicated that was necessary to prove the lesser DWI charge. Ex parte Peterson (1987, Tex Crim) 738 SW2d 688.

The state did not elect to forego prosecution of attempted capital murder charges by acquiesing in defendant's guilty plea to the lesser included offenses of aggravated assault with a deadly weapon where there was no proof that a plea bargain had been reached; thus, the double jeopardy clause did not bar defendant's subsequent prosecution for the greater offense. Kham v State (1985, Tex App Fort Worth) 689 SW2d 324.

Footnotes

Footnote 82. Blockburger v United States,  284 US 299,  76 L Ed 306,  52 S Ct 180; Thomas v United States (CA8 Mo) 156 F 897; Spears v People, 220 Ill 72, 77 NE 112; Pivak v State, 202 Ind 417, 175 NE 278; State v Moore, 326 Mo 1199, 33 SW2d 905; Usary v State, 172 Tenn 305, 112 SW2d 7; State v Brooks,  215 Wis 134, 254 NW 374.

Footnote 83. Illinois v Vitale,  447 US 410,  65 L Ed 2d 228,  100 S Ct 2260.

Footnote 84. Re B., 18 Cal 3d 687, 135 Cal Rptr 82, 557 P2d 514.

Footnote 85. Illinois v Vitale,  447 US 410,  65 L Ed 2d 228,  100 S Ct 2260, holding that the double jeopardy clause of the Fifth Amendment, applicable to the states under the Fourteenth Amendment, will not prohibit a state criminal prosecution for involuntary manslaughter of the driver of an automobile which struck and killed two individuals, on the ground that the driver had previously been convicted under state law of the alleged lesser included offense of failing to reduce speed to avoid an accident, if–although manslaughter by motor vehicle may sometimes be proven by showing that a death resulted from a failure to slow a vehicle to avoid colliding with the victim–the offense of manslaughter does not always entail proof of a failure to reduce speed, the mere possibility that the state might seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case not being sufficient to bar the latter prosecution; conversely, if, as a matter of state law, a careless failure to slow is always a necessary element of manslaughter by motor vehicle, a trial on the latter charge would constitute double jeopardy, and furthermore, if the state relies on and proves a failure to reduce speed to avoid an accident in its manslaughter prosecution as the reckless act necessary to prove manslaughter, a substantial claim of double jeopardy would arise.  The court further stated that while an exception to the rule that the double jeopardy clause of the Fifth Amendment bars successive prosecutions for a greater and a lesser included offense where the lesser offense is always a necessary element of the greater offense may exist where the government is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence, this exception does not apply to a state criminal proceeding for involuntary manslaughter arising from an automobile accident–such accident already having resulted in the conviction of the driver under state law for failing to reduce speed to avoid an accident–where the prosecution was aware that the accident had resulted in two deaths at the time the driver was prosecuted for failing to reduce speed.

Footnote 86. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221; Jeffers v United States,  432 US 137,  53 L Ed 2d 168,  97 S Ct 2207, reh den  434 US 880,  54 L Ed 2d 164,  98 S Ct 241 (plurality opinion).

Annotation:  50 L Ed 2d 830, § 14[b].

Conviction or acquittal of lesser offense necessarily included in greater offense bars a subsequent prosecution for greater offense.  State v Tanton, 88 NM 333, 540 P2d 813.

When an offense is a necessary element in and constitutes an essential part of another offense, and both are in fact only one transaction, a conviction or acquittal of one is a bar to a prosecution of the other.  State v Urban, 31 NC App 531, 230 SE2d 210.

As to trial for lesser offense as acquittal of, or bar to prosecution for, greater offense in prosecutions for homicide, see 40 Am Jur 2d,  Homicide § 185.

Practice Aids: –Former jeopardy–Subsequent prosecution for greater offense. 1 Wharton's Criminal Law (14th ed) § 64.

Footnote 87. Eisenberg v United States,  410 US 992,  36 L Ed 2d 190,  93 S Ct 1515; United States v Barket (CA8 Mo) 530 F2d 181 (disagreed with on other grounds United States v Young (CA9 Cal) 544 F2d 415, cert den  429 US 1024,  50 L Ed 2d 626,  97 S Ct 643) and cert den  429 US 917,  50 L Ed 2d 282,  97 S Ct 308.

Footnote 88. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221; Jeffers v United States,  432 US 137,  53 L Ed 2d 168,  97 S Ct 2207, reh den  434 US 880,  54 L Ed 2d 164,  98 S Ct 241.

Footnote 89. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221.

Footnote 90. Jeffers v United States,  432 US 137,  53 L Ed 2d 168,  97 S Ct 2207, reh den  434 US 880,  54 L Ed 2d 164,  98 S Ct 241.

Footnote 91. Kellett v Superior Court of Sacramento County, 63 Cal 2d 822, 48 Cal Rptr 366, 409 P2d 206; Harris v State, 193 Ga 109, 17 SE2d 573,  147 ALR 980 (superseded by statute as stated in Pryor v State 238 Ga 698, 234 SE2d 918, cert den  434 US 935,  54 L Ed 2d 294,  98 S Ct 422, reh den  434 US 1003,  54 L Ed 2d 500,  98 S Ct 650); State v Sampson, 157 Iowa 257, 138 NW 473; State v McLaughlin, 121 Kan 693, 249 P 612; State v Williams, 152 Mo 115, 53 SW 424; State v Birckhead, 256 NC 494, 124 NE2d 838,  6 ALR3d 888; Johnson v  State, 78 Okla 251, 190 P 897; Commonwealth v Thatcher, 364 Pa 326, 71 A2d 796.

Where the lesser offense (knowing possession of contraband) is necessarily involved in the greater (possession with criminal intent), either an acquittal or conviction of the lesser offense is a bar to a prosecution of the greater.  State v Labato, 7 NJ 137, 80 A2d 617.

Footnote 92. People v McDaniels, 137 Cal 192, 69 P 1006; State v McLaughlin, 121 Kan 693, 249 P 612; Johnson v State, 17 Okla Crim 558, 190 P 897.

Footnote 93. Cates v Commonwealth, 111 Va 837, 69 SE 520.


§ 270  Where defendant obtains retrial after overturning conviction of lesser offense  [21 Am Jur 2d CRIMINAL LAW]

Where a defendant successfully appeals his conviction of a lesser included offense, the prohibition against double jeopardy bars a prosecution against him for the greater crime on remand of the matter to the trial court, even though the defendant has obtained the new trial at his instance. 94   Although statutes have provided that the granting of a new trial at the instance of the defendant places the parties in the same position as though no trial had taken place and although, under such a statute, it has been held that the accused waives any right to set up former jeopardy to prevent a complete new trial on the original charge, 95   the United States Supreme Court has held that a state's retrial of an accused on a greater charge after his earlier guilty verdict on the lesser included offense has been set aside because of a trial error, constitutes double jeopardy in violation of the Fifth and Fourteenth Amendments. 96 In so holding, the courts have recognized that a conviction of the lesser offense at the prior trial acts as an acquittal of the greater offense, 97 and that the defendant, in asking for a new trial or reversal on appeal, does not waive his claim to double jeopardy with regard to the greater offense of which he was implicitly acquitted. 98    Thus, a conviction of a lesser degree of the crime charged involves a complete acquittal of the higher degrees for all purposes and a new trial granted on motion or appeal of the defendant is not a new trial for the greater offense of which he was acquitted, but must be confined to a retrial of the offense of which he was convicted. 99     Statutes authorizing retrial on the higher offense after reversal of the conviction of the lower offense are therefore unconstitutional. 1    Furthermore, since the double jeopardy clause protects against the risk or hazard of trial and conviction and not merely against the ultimate legal consequences of a verdict, 2   a defendant who undergoes a second trial on the original indictment after reversal of his initial conviction of a lesser offense is still subjected to double jeopardy even though he is convicted at the second trial of the same lesser offense. Although he suffers no greater punishment on the subsequent conviction, the second jeopardy is by no means harmless error.  The United States Supreme Court has noted that the ordeal of being charged and subjected to a second trial on the higher offense is not to be viewed lightly and that it is impossible to determine whether a charge against the defendant on the higher offense might have induced the jury to find him guilty of the less serious offense rather than to continue to debate his innocence. 3    

In applying the rule that a defendant who obtains a new trial from a conviction of a lesser included crime may not be retried on the greater crime, it has been noted that no distinction should be drawn between lesser included but differently defined crimes, on the one hand, and grades of an offense defined by degrees, on the other.  In either case, an accused may not be retried on the greater offense for which he was originally charged where he has been convicted on the lesser and necessarily included offense. 4  

The prohibition against retrial of a greater offense after a prior conviction of a lesser included one has been set aside does not apply to certain situations.  Thus, it has been held that no double jeopardy was involved where a defendant was retried in a state court for both involuntary manslaughter and reckless homicide following a reversal of his prior conviction under a verdict reciting only that he was guilty of reckless homicide where, under the state law, the jury's silence as to involuntary manslaughter could not be deemed an acquittal on such charge and where the two crimes involved were treated as one offense with different penalties. Hence, a verdict of guilty of reckless homicide did not logically exclude the possibility of such a verdict on the charge of involuntary manslaughter. 5  Furthermore, where an erroneous instruction withdraws from the consideration of the jury the minor grades of the offense charged, the defendant has not been in jeopardy as to the minor grades, and on reversal of a conviction of a more serious grade the defendant may be convicted of one of the minor offenses. 6    Other exceptions arise where the defendant elects to have the two offenses tried separately 7   or where the state was unable to proceed on the more serious charge at the prior trial because additional facts necessary to sustain that charge had not then occurred or had not been discovered despite the exercise of due diligence. 8  


§ 270  – Where defendant obtains retrial after overturning conviction of lesser offense [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Retrial on greater offense following reversal of plea-based conviction of lesser offense. (See also infra, 314.)  14 ALR4th 970.

Case authorities:

Government's failure to disclose, in its application for "roving bug" order to tape-record La Cosa Nostra induction ceremony, information it had regarding possibility that residence in which ceremony was eventually held would be site of ceremony did not require suppression of recording of ceremony where such information was not essential for permitting interceptions because there was enough independent information of nature of suspects' crimes and their evasive methods to justify issuing order even without information about residence, and latter information would not have eliminated need for order because members of enterprise were trying to avoid detection and could easily have changed location at last minute. United States v Bianco (1993, CA2 Conn) 998 F2d 1112.

Double jeopardy clause does not prohibit trial on offense not put in issue in first proceeding, once original conviction on lesser varient has been set aside, since state is not required to join in single criminal proceeding all charges arising from one criminal episode, and thus double jeopardy clause was not violated when state prosecuted defendant for robbery with firearms after defendants conviction for a lesser offense of robbery by assault was set aside. Lowery v Estelle (1983, CA5 Tex) 696 F2d 333.

Where the jury, in a prosecution for resisting arrest with violence, was erroneously instructed on attempted resisting arrest with violence as a lesser-included offense, despite the fact that FS § 843.01 makes the attempt a part of the substantive crime, defendant's conviction for the so-called lesser-included offense was properly reversed but did not preclude his retrial on the original charge, in that his conviction had been for a non-existent offense which included all the elements of the offense initially charged. Jordan v State (1983, Fla) 438 So 2d 825.

Defendant's double jeopardy rights were not violated by reindictment for first-degree murder after second-degree murder conviction based on guilty plea was vacated because defendant had failed to understand the consequences of his plea agreement where plea bargain occurred after jury had been sworn in and prosecutor was not responsible for withdrawal of guilty plea. Taylor v Kincheloe (1990, CA9 Wash) 920 F2d 599, 90 CDOS 8989, 90 Daily Journal DAR 13991.

Footnotes

Footnote 94. Price v Georgia,  398 US 323,  26 L Ed 2d 300,  90 S Ct 1757, conformed to 122 Ga App 293, 176 SE2d 671; Green v United States,  355 US 184,  2 L Ed 2d 199,  78 S Ct 221, 77 Ohio L Abs 202,  61 ALR2d 1119; United States v Jamison, 164 App DC 300, 505 F2d 407 (disagreed with on other grounds United States v Andrews (CA6 Mich) 612 F2d 235, on reh, en banc (CA6 Mich) 633 F2d 449); Ward v Page (CA10 Okla) 424 F2d 491, cert den  400 US 917,  27 L Ed 2d 157,  91 S Ct 178, reh den  400 US 1002,  27 L Ed 2d 455,  91 S Ct 463; Galloway v Beto (CA5 Tex) 421 F2d 284, cert den  400 US 912,  27 L Ed 2d 151,  91 S Ct 137 (applying Texas law); Booker v Phillips (CA10 Kan) 418 F2d 424, cert den  399 US 910,  26 L Ed 2d 564,  90 S Ct 2194; United States ex rel. Hetenyi v Wilkins (CA2 NY) 348 F2d 844, cert den  383 US 913,  15 L Ed 2d 667,  86 S Ct 896; United States v Lee (ED Tenn) 435 F Supp 974; Grizzle v Turner (WD Okla) 387 F Supp 1; Pettry v Boles (ND W Va) 275 F Supp 744 (applying West Virginia law); McCart v State, 50 Ala App 387, 279 S2d 558, cert den 291 Ala 788, 279 S2 565; Caton v State, 252 Ark 420, 479 SW2d 537; Re McCartney, 64 Cal 2d 830, 51 Cal Rptr 894, 415 P2d 782; Kellett v Superior Court of Sacramento County, 63 Cal 2d 822, 48 Cal Rptr 366, 409 P2d 206; State v Karney, 164 Conn 135, 318 A2d 100; State v Munson (Del) 243 A2d 691; Greene v Gulf Port (Fla) 103 So 2d 115 (dictum); State v Hart (Fla App D1) 253 So 2d 150; Reyes v Kelly (Fla App D2) 204 So 2d 534, quashed in part on other grounds (Fla) 224 So 2d 303, cert den  397 US 958,  25 L Ed 2d 142,  90 S Ct 961; Perkins v State, 143 Ga App 124, 237 SE2d 658; Causey v State, 256 Ind 19, 266 NE2d 795; Bennett v State (Ind App) 369 NE2d 949; State v Sullivan (Iowa) 215 NW2d 491; State v Osburn, 216 Kan 638, 533 P2d 1229; State v Gunzelman, 210 Kan 481, 502 P2d 705,  58 ALR3d 522; Hemphill v Commonwealth (Ky) 448 SW2d 60; State v Chaplin (Me) 286 A2d 325; State v Barger, 242 Md 616, 220 A2d 304; People v McMiller, 389 Mich 425, 208 NW2d 451, cert den  414 US 1080,  38 L Ed 2d 486,  94 S Ct 599; Ray v State (Mo App) 532 SW2d 478; State v Williams, 30 NJ 105, 152 A2d 9; State v Sandoval (App) 90 NM 260, 561 P2d 1353, cert den 90 NM 637, 567 P2d 486; People v Ressler,  17 NY2d 174, 269 NYS2d 414, 216 NE2d 582; State v Cousin, 292 NC 461, 233 SE2d 554; Patty v State (Okla Crim) 497 P2d 478; Commonwealth ex rel. Light v Cavell, 422 Pa 215, 220 A2d 883; McGlothlin v State (Tenn Crim) 521 SW2d 51; Welcome v State (Tex Crim) 438 SW2d 99; Kuckenbecker v Commonwealth, 199 Va 619, 101 SE2d 523; State v Schoel, 54 Wash 2d 388, 341 P2d 481.

Annotation:  50 L Ed 2d 830, § 26[d].

Retrial of the accused for first-degree murder after his previous conviction for manslaughter had been reversed violated the double jeopardy provisions of the Fifth Amendment.  Booker v Phillips (CA10 Kan) 418 F2d 424, cert den  399 US 910,  26 L Ed 2d 564,  90 S Ct 2194.

In jurisdiction recognizing rule that, when new trial is awarded upon defendant's appeal from conviction of lesser degree of crime charged, prosecution for greater degree is barred, and also recognizing rule that, in such circumstances, new trial will be upon original indictment charging greater offense, defendant who at first trial was indicted for first degree murder and convicted of second-degree was properly retried under original indictment and prosecuted for second-degree murder only.  State v Castor, 28 NC App 336, 220 SE2d 819, cert den and app dismd 289 NC 453, 223 SE2d 161.

The double jeopardy provisions of the Fifth Amendment of the Federal Constitution are applicable to state criminal proceedings and preclude a reprosecution for second-degree murder, after reversal of judgment of conviction, when the defendant had been found guilty only of the included crime of first-degree manslaughter in the first prosecution for second-degree murder. People v Ressler,  17 NY2d 174, 269 NYS2d 414, 216 NE2d 582.

Footnote 95. Brantley v State, 132 Ga 573, 64 SE 676, affd  217 US 284,  54 L Ed 768,  30 S Ct 514; People v Palmer, 109 NY 413, 17 NE 213.

Footnote 96. Price v Georgia,  398 US 323,  26 L Ed 2d 300,  90 S Ct 1757, conformed to 122 Ga App 293, 176 SE2d 671, ovrlg Brantley v State, 132 Ga 573, 64 SE 676, affd  217 US 284,  54 L Ed 768,  30 S Ct 514.

Footnote 97. Price v Georgia,  398 US 323,  26 L Ed 2d 300,  90 S Ct 1757, conformed to 122 Ga App 293, 176 SE2d 671; Green v United States,  355 US 184,  2 L Ed 2d 199,  78 S Ct 221, 77 Ohio L Abs 202,  61 ALR2d 1119; State v Chaplin (Me) 286 A2d 325.

Where jury had been instructed on law of malice aforethought, verdict in first trial finding accused guilty of murder without malice constituted prior acquittal on charge of murder with malice in second trial based on same incident.  Turner v State (Tex Crim) 518 SW2d 243 (ovrlg Hill v State, 126 Tex Crim 79, 69 SW2d 409, to extent it is in conflict).

Footnote 98. Green v United States,  355 US 184,  2 L Ed 2d 199,  78 S Ct 221, 77 Ohio L Abs 202,  61 ALR2d 1119; Causey v State, 256 Ind 19, 266 NE2d 795; State v Barger, 242 Md 616, 220 A2d 304.

Footnote 99. Corbett v State, 38 Ala App 536, 91 So 2d 503, cert den 265 Ala 394, 91 So 2d 509; People v Henderson, 60 Cal 2d 482, 35 Cal Rptr 77, 386 P2d 677; State v Munson (Del) 243 A2d 691; State v Williams, 30 NJ 105, 152 A2d 9; People v Ressler,  17 NY2d 174, 269 NYS2d 414, 216 NE2d 582; Cates v Commonwealth, 111 Va 837, 69 SE 520.

Annotation:  61 ALR2d 1141, § 6.

Footnote 1. United States ex rel. Hetenyi v Wilkins (CA2 NY) 348 F2d 844, cert den  383 US 913,  15 L Ed 2d 667,  86 S Ct 896 (holding that to the extent that a state's code of criminal procedure authorized such reprosecution it was inconsistent with the due process clause of the Fourteenth Amendment of the United States Constitution); People v Ressler,  17 NY2d 174, 269 NYS2d 414, 216 NE2d 582 (holding that a defendant who obtains a new trial on appeal from a conviction of a lesser degree of a crime stated in the indictment may not later be convicted of the greater degree, even where a statute would appear to permit it).

Footnote 2.  § 244, supra.

Footnote 3. Price v Georgia,  398 US 323,  26 L Ed 2d 300,  90 S Ct 1757, conformed to 122 Ga App 293, 176 SE2d 671.

Footnote 4. Gomez v Superior Court of Mendocino County, 50 Cal 2d 640, 328 P2d 976.

Annotation:  61 ALR2d 1141, § 10.

Footnote 5. Cichos v Indiana,  385 US 76,  17 L Ed 2d 175,  87 S Ct 271, reh den  385 US 1020,  17 L Ed 2d 559,  87 S Ct 699.

Footnote 6. Montgomery v State,  136 Wis 119, 116 NW 876.

Footnote 7. See  § 272, infra.

Footnote 8. See  § 273, infra.


§ 271  –  Plea of guilty to lesser offense  [21 Am Jur 2d CRIMINAL LAW]

Since a plea of guilty constitutes jeopardy just as if the defendant were convicted after trial, 9   a plea of guilty to a lesser included offense bars a subsequent prosecution on the greater offense. 10   Nevertheless, there is a divided authority on the question whether a guilty plea to a lesser offense will preclude prosecution for a greater offense after the guilty plea has been set aside. One line of authority has held that acceptance of the guilty plea to the lesser offense bars a later prosecution on the greater offense, even though the guilty plea is subsequently overturned or set aside. 11   It has been held that upon acceptance of a plea of guilty, as a matter of policy, the state may not thereafter charge a higher offense arising out of the same transaction, and may only try him on the charge to which the plea was offered if the conviction on the plea is set aside. 12    On the other hand, it has been held that an accused may be prosecuted for a more serious crime after his guilty plea to a lesser included offense has been vacated.  In so holding, a court has noted that, unlike a jury verdict of guilty on a lesser offense, a plea of guilty to a lesser offense does not amount to an implicit acquittal on the greater charge.  Under this view, the acceptance of the guilty plea to the lesser offense does not constitute an unequivocal relinquishment by the government of its right to prosecute on the greater charge.  When the plea is vacated the condition precedent to the government's agreement not to prosecute no longer exists and the government is free to prosecute the accused for the greater charge without placing him twice in jeopardy. 13       


§ 271  – Plea of guilty to lesser offense [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Retrial on greater offense following reversal of plea-based conviction of lesser offense. (See also infra, § 314.)  14 ALR4th 970.

Case authorities:

Defendant does not, for double jeopardy purposes, receive equivalent of acquittal on more serious charges, precluding retrial of such charges, when prosecution agrees to accept defendant's plea of guilty to lesser offense and conviction @s later overturned by appellate court. Hawk v Berkemer (1979, CA6 Ohio) 610 F2d 445.

Double jeopardy clause prohibits reprosecution for aggravated murder after state appellate court reversed plea-bargain conviction on lesser included offense of murder, where defendant obtained reversal of his conviction on ground that his guilty plea had not been knowingly given, trial court had not been given full opportunity to return verdict on greater charge and parties had presented no evidence relating to distinct elements of greater charge. Hawk v Berkemer (1979, CA6 Ohio) 610 F2d 445, 18 Ohio Ops 3d 396.

Double jeopardy clause does not preclude jury conviction for engaging in continuing criminal enterprise in violation of 21 USCS §  848 following plea of guilty to lesser included charges of conspiracy to import and distribute marijuana in violation of 21 USCS §§  963,  846, but lesser convictions merge into greater offense. United States v Schuster (1985, CA6 Ohio) 769 F2d 337.

No double jeopardy violation exists in charging and trying defendant for both driving while intoxicated and driving with blood alcohol content of 0.10 percent or more, since it is possible to have less than 0.10 blood alcohol content and still be under influence of intoxicating liquor. Anderjeski v City Court of Mesa (1983, Ariz) 663 P2d 233.

Footnotes

Footnote 9.  § 247, supra.

Footnote 10. A plea of guilty to attempted arson is a bar to a subsequent prosecution for the crime of arson.  State v Vincent, 25 Conn Supp 96, 197 A2d 79.

Since the county court had jurisdiction to prosecute the relator for a misdemeanor charge of leaving the scene of an accident, his plea of guilty to that charge precluded the state from subsequently prosecuting him on a felony charge in which the misdemeanor charge was included.  State ex rel. Miller v Patterson (Fla App D2) 284 So 2d 9 (disapproved on other grounds Stanfill v State (Fla) 384 So 2d 141).

Footnote 11. People v McMiller, 389 Mich 425, 208 NW2d 451, cert den  414 US 1080,  38 L Ed 2d 486,  94 S Ct 599.

Footnote 12. People v McMiller, 389 Mich 425, 208 NW2d 451, cert den  414 US 1080,  38 L Ed 2d 486,  94 S Ct 599.

Footnote 13. United States v Anderson (CA7 Ind) 514 F2d 583.

With respect to a defendant who entered pleaded of not guilty to a first-degree murder charge, then withdrew the pleas and pleded guilty to second-degree murder, was found guilty, obtained reversal of the judgment on appeal, entered not guilty pleas at his second trial and was found guilty of murder in the first degree, since the second trial was a continuing proceeding on the same indictment, defendant's plea of guilty to second-degree murder at the first trial did not operate as an aquittal on the first-degree murder charge, and the second trial on that charge did not place defendant in double jeopardy.  Clark v State, 294 Ala 485, 318 So 2d 805, on remand 56 Ala App 67, 318 So 2d 813, cert quashed 294 Ala 493, 318 So 2d 822, cert den  423 US 937,  46 L Ed 2d 270,  96 S Ct 298, reh den  423 US 1081,  47 L Ed 2d 93,  96 S Ct 872.


§ 272  – Where defendant elects to have two offenses tried separately  [21 Am Jur 2d CRIMINAL LAW]

Where a defendant expressly asks for and receives separate trials on the greater and lesser offenses, or, in connection with his opposition to their trial together, fails to raise the issue that one offense might be a lesser included one of the other, the double jeopardy clause does not prohibit a state or the federal government from trying him for a greater offense after it has convicted him of a lesser one.  This exception to the general rule has arisen where separate indictments for conspiracy to violate federal drug laws and for conducting a criminal enterprise were returned and the government filed a motion to consolidate them for trial, but a defendant and his codefendants opposed the motion on the ground that neither the parties nor the charges were the same. Under such circumstances, the United States Supreme Court has held that the defendant's first conviction of the lesser included offense of conspiracy did not serve to bar his subsequent trial on the continuing criminal enterprise charge.  Although recognizing that a defendant is normally entitled to have charges on a greater and lesser offense resolved in one proceeding, the Supreme Court held that there was no violation of the double jeopardy clause since the defendant had elected to have the two offenses tried separately and had persuaded the trial court to honor his election. The Supreme Court has stated in dictum, however, that the propriety of a second trial would be much different if any action by the government contributed to the separate prosecutions on the lesser and greater charges. 14      
 

§ 272  – Where defendant elects to have two offenses tried separately [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Criminal defendant seeking severance of criminal counts has burden of demonstrating that manifest prejudice would result from trial involving all counts and that prejudice would outweigh concern for judicial economy. State v Kalakosky (1993) 121 Wash 2d 525.

Footnotes

Footnote 14. Jeffers v United States,  432 US 137,  53 L Ed 2d 168,  97 S Ct 2207, reh den  434 US 880,  54 L Ed 2d 164,  98 S Ct 241 (plurality opinion).

Annotation:  50 L Ed 2d 830, § 14(b).

But see the dissenting opinion to Jeffers v United States, in which Justice Stevens expressed the view that the defendant's joining with his codefendants in the conspiracy case to oppose the government's motion to consolidate the cases for trial should not result in the loss of his double jeopardy rights.


§ 273  – Where new fact intervenes after first prosecution  [21 Am Jur 2d CRIMINAL LAW]

Where the state is unable to proceed on a more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence, the United States Supreme Court has recognized another exception to the general rule that prosecution for a lesser included offense precludes a subsequent prosecution for the greater offense. 15   Thus, if, following a prosecution, a new fact develops for which the defendant is responsible, and the new fact plus those previously existing constitute a new crime not susceptible of adjudication in the first prosecution, the determination of the first proceeding is not a bar to a prosecution for the newly developed crime. 16  For example, a conviction for involuntary manslaughter was not barred by a prior prosecution and conviction for driving while intoxicated, notwithstanding both convictions were proven by the same facts in evidence, where the injured victim has been alive at the time of the earlier prosecution and, hence, the state could not have proceeded on the involuntray manslaughter charge at that time. 17  And, neither an acquittal nor a conviction for assault while the person assaulted is still living will bar a prosecution for murder or manslaughter instituted after the person assaulted dies from the injuries received.  The trial for murder does not place the defendant twice in jeopardy. 18  

Although the development of an additional fact or circumstance following the first prosecution does not bar a second prosecution for the newly developed crime, a statute may prohibit multiple punishment of the accused in such circumstances. 19


§ 273  – Where new fact intervenes after first prosecution [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Even if evidence of defendant's attorney's disbarment seven days before trial were kind of newly discovered evidence triggering Rule's extended time period, defendant was not entitled to new trial since attorney's bar status was not material to principal issue of defendant's involvement in another's attempted jailbreak. United States v Stevens (1992, CA10 Kan) 978 F2d 565.

New trial was properly denied where new evidence was merely impeaching of witness in drug prosecution, would have been cumulative, and would not have produced acquittal in view of overwhelming evidence of defendant's guilt. United States v Youngpeter (1993, CA10 Okla) 986 F2d 349.

Evidence of investigating police officer's drug use 10 months after defendants' trial for offenses arising from major drug conspiracy did not constitute newly discovered evidence to support new trial motion. United States v Lafayette (1993, App DC) 983 F2d 1102.

An exception to the constitutional and statutory protections against double jeopardy exists in the case of conviction for a lesser included offense where the state is unable to proceed on a more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. Accordingly, where a victim of attempted murder died from the same injuries more than two years after a juvenile court delinquency petition (Welf. & Inst. Code, 602) was sustained for attempted murder and the fact of death had therefore not occurred at the time of the prior prosecution, the state could properly charge minor with murder in a petition filed after the death and the trial court erred in dismissing the later prosecution on grounds of double jeopardy. In re Saul S. (1985, 5th Dist) 167 Cal App 3d 1061, 213 Cal Rptr 541.

Because habitual impaired driving is a substantive felony offense, the superior court had jurisdiction pursuant to GS § 7A-271 to also try defendant for the misdemeanor of driving while impaired. State v Baldwin (1995) 117 NC App 713, 453 SE2d 193.

Footnotes

Footnote 15. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221; Jeffers v United States,  432 US 137,  53 L Ed 2d 168,  97 S Ct 2207, reh den  434 US 880,  54 L Ed 2d 164,  98 S Ct 241; Diaz v United States,  223 US 442,  56 L Ed 500,  32 S Ct 250.

Annotation:  50 L Ed 2d 830, § 14(b).

Footnote 16. Wyatt v Municipal Court of Los Angeles Judicial Dist. (2d Dist) 242 Cal App 2d 845, 51 Cal Rptr 862 (prosecution for misdemeanor violation of vehicle code which results in death will not bar later prosecution for manslaughter); State v Poland, 255 La 746, 232 So 2d 499, vacated in part on other grounds  408 US 936,  33 L Ed 2d 754,  92 S Ct 2862, conformed to 263 La 269, 268 So 2d 221; State v Wheeler, 173 La 753, 138 So 656; State v Littlefield, 70 Me 452; Carmody v Seventh Judicial Dist. Court, 81 Nev 83, 398 P2d 706,  11 ALR3d 828 (double jeopardy not defense to murder prosecution where death of victim of robbery occurred after robbery conviction); State v Thomas, 114 NJ Super 360, 276 A2d 391, mod on other grounds 61 NJ 314, 294 A2d 57.

Annotation:  37 ALR2d 1068, § 1.

Footnote 17. Graves v State (Tex Crim) 539 SW2d 890.

Footnote 18. 40 Am Jur 2d,  Homicide § 186.

Footnote 19. State v Brusseau, 96 Idaho 558, 532 P2d 563.


§ 274  – Where inferior court trying defendant on lesser offense lacked jurisdiction to determine greater offense  [21 Am Jur 2d CRIMINAL LAW]

There has been authority for the view that a conviction of a minor offense in an inferior court does not bar a prosecution for a higher crime of which the inferior court has no jurisdiction. 20   In certain jurisdictions, this rule has been codified by statute. 21   It is said that a subsequent prosecution in a higher court after a conviction 22  or an acquittal 23  in the lower court is permissible on the theory that the defendant was not in jeopardy as to the greater offense, since the lower court had no jurisdiction over it. 24    Likewise, a prior acquittal or conviction of a defendant on a lesser included or minor offense before an inferior court has been held not to bar a subsequent prosecution of him before a superior court on a greater charge, even though both offenses arose out of the same facts, where the jurisdictions of the two courts were mutually exclusive – the jurisdiction of the inferior court not extending to the greater offense and the jurisdiction of the superior court not extending to the lesser one. 25   

On the other hand, it has been held that the state cannot, after prosecuting the accused before an inferior court for an offense within its jurisdiction, avoid the jeopardy effect of the judgment on the theory that the offense was an ingredient of a higher crime of which the lower court had no jurisdiction. 26    Thus, it has been held that a defendant's previous conviction 27   or acquittal 28   before an inferior court having no jurisdiction of the subsequently charged greater offense serves to bar his prosecution before a superior court of a greater offense, notwithstanding the inferior court's lack of jurisdiction prevented the defendant from having been in jeopardy of the greater offense in the inferior court.  In so holding, the courts have variously recognized, depending on the facts, that the lesser offense was included within the greater crime for which the accused was subsequently charged in the higher court, 29  that both charges arose out of the same transaction, 30  or that the same evidence was used in both cases. 31

One jurisdiction, disavowing its earlier decisions, has held, in light of a United States Supreme Court decision dealing with successive prosecutions in municipal and state courts, 32   that a judgment on a lesser offense will bar a further prosecution for the same offense, regardless of whether the lower court was without jurisdiction to try the higher grade of the offense. 33 

Footnotes

Footnote 20. Bennett v State, 229 Md 208, 182 A2d 815,  4 ALR3d 862; State v Shoopman, 11 NJ 333, 94 A2d 493; State v Butler, 230 SC 159, 94 SE2d 761; Bowman v State, 160 Tenn 305, 23 SW2d 658.

Annotation:  4 ALR3d 874, § 3.

Footnote 21. Harris v State, 2 Ala App 116, 56 So 55; Chester v State, 216 Miss 748, 63 So 2d 99; Huffman v State, 84 Miss 479, 36 So 395; Harris v State, 160 Tenn 396, 25 SW2d 586.

Annotation:  4 ALR3d 874, § 5.

Footnote 22. Larson v State, 93 Neb 242, 140 NW 176; State v Goodson, 54 NM 184, 217 P2d 262; State v Birckhead, 256 NC 494, 124 SE2d 838,  6 ALR3d 888; Crowley v State, 94 Ohio St. 88, 113 NE 658; Bowman v State, 160 Tenn 305, 23 SW2d 658.

Annotation:  4 ALR3d 874, § 4(a).

Footnote 23. State v Fox, 83 Conn 286, 76 A 302; State v Simmons, 48 Del 166, 99 A2d 401 (ovrld on other grounds State v Heitter (Sup) 57 Del 595, 203 A2d 69,  9 ALR3d 195); State v Midgett, 214 NC 107, 198 SE 613; State v Rose, 89 Ohio St. 383, 106 NE 50; State v Pearson, 49 RI 386, 143 A 413.

Annotation:  4 ALR3d 874, § 4(b).

Footnote 24. The jeopardy incident to a trial before a justice of the peace does not extend to an offense beyond his jurisdiction.  Diaz v United States,  223 US 442,  56 L Ed 500,  32 S Ct 250.

Defendants who were convicted in a county court that did not have jurisdiction over the offense of unlawful taking of an automobile could be tried again, for the same offense in a court having jurisdiction.  State v Covington, 267 NC 292, 148 SE2d 138 (dictum).

To be in jeopardy there must be not only a sufficient legal charge, but sufficient jurisdiction to try the charge.  So, where a court trying a defendant on a lesser charge would have no jurisdiction of a greater offense involving such charge, there can be no jeopardy.  State v Rose, 89 Ohio St 383, 106 NE 50.

A conviction for indecent assault, the court having no jurisdiction finally to try or convict of rape, is no bar to a prosecution for rape based upon the same occurrence.  Commonwealth v McCan, 277 Mass 199, 178 NE 633.

A conviction of contributing to the delinquency of a minor did not bar prosecution and conviction of statutory rape, arising from the same act, where offenses were punishable under different statutes and the lower court did not have jurisdiction to try the greater offense.  Bennett v State, 229 Md 208, 182 A2d 815,  4 ALR3d 862.

Where a state court was without jurisdiction to convict for escape, the subsequent conviction in a federal court did not constitute former jeopardy. State v Price, 15 NC App 599, 190 SE2d 403.

A defendant could be convicted a second time for the same crime where his former conviction was void because of his minority. State ex rel. Austin v Johnson, 218 Tenn 433, 404 SW2d 244.

Conviction of the accused of negligent homicide in a justice court that did not have jurisdiction did not place him in double jeopardy with respect to a conviction of the same charge in a court of competent jurisdiction. State v Haye, 72 Wash 2d 461, 433 P2d 884.

An acquittal in municipal court for burglary and arson did not preclude a subsequent conviction in another court on identical charges where the municipal court was without jurisdiction.  Majors v State, 252 Ind 672, 251 NE2d 571.

An acquittal in a magistrate's court of felonious assault with intent to murder did not bar subsequent prosecution in another court for assault with intent to murder where the magistrate's court did not have jurisdiction. Tipton v State, 8 Md App 91, 258 A2d 606.

Where one county court was without jurisdiction to try the defendant for burglary of a motor vehicle and receiving stolen goods, acquittal in such county did not preclude a conviction in another county for the offense. Commonwealth v Simeone, 222 Pa Super 376, 294 A2d 921.

Footnote 25. Boswell v State, 20 Fla 869; Bennett v State, 229 Md 208, 182 A2d 815,  4 ALR3d 862; Commonwealth v Bergen, 134 Pa Super 62, 4 A2d 164.

Annotation:  4 ALR3d 874, § 9.

But see State v Labato, 7 NJ 137, 80 A2d 617, which rejected, without discussion, the state's contention that an accused's conviction as a disorderly person in a police court did not constitute jeopardy, notwithstanding the lower court did not have jurisdiction of the greater offense and the county court did not have jurisdiction of the lesser crime.

Footnote 26. State v Heitter (Sup) 57 Del 595, 203 A2d 69,  9 ALR3d 195; State v Sampson, 157 Iowa 257, 138 NW 473.

Footnote 27. Powell v State, 89 Ala 172, 8 So 109; Moore v State, 71 Ala 307; People v McDaniels, 137 Cal 192, 69 P 1006, State v Anonymous, 31 Conn Supp 292, 329 A2d 136; Sanford v State, 75 Fla 393, 78 So 340; State ex rel. Seal v Shepard (Fla App D1) 299 So 2d 644 (disapproved on other grounds Stanfill v State (Fla) 384 So 2d 141); State v Purdin, 206 Iowa 1058, 221 NW 562; State v Berry, 41 NJ 547, 197 A2d 687; State v Dixon, 40 NJ 180, 191 A2d 39; Rouzie v Commonwealth, 215 Va 174, 207 SE2d 854.

Annotation:  4 ALR3d 874, § 7.

Footnote 28. Storrs v State, 129 Ala 101, 29 So 778; State v Lingner, 183 Md 158, 36 A2d 674; People v Purcell (Gen Sess) 16 NYS 199.

Annotation:  4 ALR3d 874, § 8.

Footnote 29. Moore v State, 71 Ala 307; State v Purdin, 206 Iowa 1058, 221 NW 562.

Footnote 30. People v McDaniels, 137 Cal 192, 69 P 1006, Sanford v State, 75 Fla 393, 78 So 340; State v Berry, 41 NJ 547, 197 A2d 687.

Footnote 31. State v Dixon, 40 NJ 180, 191 A2d 39.

Footnote 32. See  § 284, infra.

Footnote 33. Bernard v State (Tex Crim) 481 SW2d 427 (declaring former Texas rule untenable).

Annotation:  4 ALR3d 874, § 5.


§ 275  --Under statutory right to trial de novo  [21 Am Jur 2d CRIMINAL LAW]

Certain statutes entitle an accused who is convicted of an offense in a lower court to have a trial de novo in a higher court by way of appeal.  The United States Supreme Court has held that a person is entitled to pursue his statutory right to a trial de novo without apprehension that the state will retaliate by substituting a more serious charge for the original one and thus subjecting him to a significantly increased potential period of incarceration.  Accordingly, upon a defendant's appeal from a misdemeanor conviction, the state denies due prosess of law by bringing, in a trial de novo, a felony charge against the defendant for the same conduct, unless the state shows that it was impossible to proceed on a felony charge at the outset. 34    Thus, for example, a defendant who was tried on a charge of driving under the influence of alcohol and convicted of the lesser included offense of impaired driving in a court not of record could not be tried and convicted of driving under the influence of intoxicants on appeal of his conviction to a court of record, notwithstanding the applicable code provision granted him right to an appeal de novo. 35  

Footnotes

Footnote 34. Blackledge v Perry,  417 US 21,  40 L Ed 2d 628,  94 S Ct 2098.

Footnote 35. Buck v Danville, 213 Va 387, 192 SE2d 758.

Annotation:  61 ALR2d 1141, § 8.


§ 276  Trial for greater offense as bar to prosecution for lesser  [21 Am Jur 2d CRIMINAL LAW]

An accused who has been tried and convicted for a crime that has various incidents included in it cannot be tried a second time for one of those incidents without being twice put in jeopardy for the same offense. 36   Thus, if under the indictment for the first offense, the defendant could have been convicted of the lesser offense, 37   the conviction of the greater offense bars the subsequent prosecution for the lesser included offense since it was necessarily involved in, and part of, the first charge. 38      In other words, when conviction for a greater crime cannot be had without conviction for a lesser one, the double jeopardy clause bars prosecution for the lesser crime after conviction for the greater one.  Thus, prosecution of an accused for the lesser offense of robbery with firearms is barred after he has been convicted of the greater offense of felony murder where, under the state's law, proof of the underlying felony is required to prove the intent necessary for the felony murder conviction. 39     Where the gravamen of the second offense is essentially included in the offense for which the accused was first tried, the second prosecution is barred. 40  Since a greater offense and a lesser one included in it are the same for double jeopardy purposes, 41   the sequence of prosecution is immaterial. Accordingly, whether conviction of a greater offense precedes conviction of the lesser, or vice versa, the second prosecution is barred. 42   Whatever the sequence of prosecution may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for greater and lesser included offenses. 43  But a second prosecution is not barred by a prior prosecution unless the second charge is necessarily an offense included in the first indictment. 44          

In a homicide case, where the lesser offense of manslaughter was erroneously withdrawn from the jury's consideration, and the defendant was convicted of first-degree murder, and the conviction was reversed for the error in not submitting the manslaughter question, it was held that the conviction of first-degree murder, which required a finding of premeditated design, did not constitute an acquittal of manslaughter, in which heat of passion was the essential element insofar as the defendant's mental state was concerned. 45  

Where a conviction of an offense is reversed on appeal for insufficient evidence, the double jeopardy clause protects the accused from retrial on that offense, but there is authority that he may still be tried on a lesser offense if the evidence at the first trial was sufficient to support a conviction of the lesser offense. 46  

The trial of an individual on a charge of being an accessory after the fact of armed robbery does not violate the prohibition against double jeopardy, even though a directed verdict of not guilty was entered in a previous trial of that individual for armed robbery.  Being an accessory after the fact of armed robbery is not a lesser included offense of the robbery and the directed verdict of not guilty does not decide the issue whether the defendant joined the criminal scheme after the robbery had been completed. 47    


§ 276  – Trial for greater offense as bar to prosecution for lesser [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Where conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery, the double jeopardy clause bars prosecution for the lesser offense after conviction of the greater one. Payne v Virginia (1984, US)  82 L Ed 2d 801,  104 S Ct 3573.

Double jeopardy clause was not violated when trial court submitted to jury lesser included offense of simple possession of narcotic substance after court's oral decision granted defendant's motion for judgment of acquittal on greater offense of possession with intent to distribute, where court's oral decision was followed promptly by modification providing for reduction instead of elimination of greater count, and where reduced count was submitted in normal course of trial to original jury. United States v Lo Russo (1982, CA2 NY) 695 F2d 45.

Defendant's acquittal on first-degree murder count does not preclude retrial on 3 lesser included offenses, where jury was instructed that, under indictment's explicit first-degree murder charge, it could also find defendant guilty of one of 3 lesser included offenses, and where jury could not decide as to lesser offenses; such lesser included offenses should be treated as if they had been specified in separate counts of indictment. United States v Gooday (1983, CA9 Ariz) 714 F2d 80.

Since Double Jeopardy is violated by conviction of both offense and lesser included offense, unless convictions arise from separate conduct, and since lesser included offense may differ in terms of conduct or intent from greater offense, governing principle is whether facts in evidence demonstrate one could have committed greater offense without also having committed offense of lesser magnitude. Tuckfield v State (1981, Alaska) 621 P2d 1350.

Test for determining whether one offense is lesser included offense is whether greater offense is one that cannot be committed without necessarily committing lesser. State v Moroyoqui (1980, Ariz App) 611 P2d 566.

The constitutional prohibition against double jeopardy (Cal. Const., art. I, § 15) does not apply only to "successive" prosecutions. Logic militates against limiting the bar of double jeopardy to prosecutions which are instituted only after the first prosecution is concluded. Such a rule would allow the People to file multiple complaints charging the same offense and prosecute each one, thus avoiding a double jeopardy bar. This directly contradicts the constitutional prohibition. Ellsworth v Superior Court (1985, 4th Dist) 170 Cal App 3d 967, 216 Cal Rptr 589.

The double jeopardy clause would require reversal of defendant's conviction of attempted robbery, since the offense was a necessarily lesser included offense within felony-murder, of which defendant was also convicted. Small v State (1984, Fla App D4) 458 So 2d 1136, 9 FLW 2015.

In a prosecution for armed robbery, conspiracy to commit a felony, and grand larceny, the conviction of defendant for the grand larceny that arose out of the robbery would be reversed since the larceny was a lesser included offense of the higher offense of robbery and arose out of the same transaction. Brown v State (1981, Fla App D4) 392 So 2d 329.

A conviction for possession of cannabis was reversed on double jeopardy grounds, where accused was convicted of possession of cannabis with intent to sell, conspiracy to possess cannabis with intent to sell, and possession of cannabis, because possession is a lesser included offense of possession with the intent to sell the same quantum of contraband. Keene v State (1992, Fla App D2) 600 So 2d 513, 17 FLW D 1467.

A defendant's right to be shielded from double jeopardy was violated where the defendant was convicted and punished for both kidnapping under one statute and capital murder while engaged in the crime of kidnapping under second provision; since the defendant was indicted, tried and found guilty of capital murder with the kidnapping as the underlying felony, and thereafter exposed to trial for his life, the State was precluded from punishing him further for the kidnapping. Meeks v State (1992, Miss) 604 So 2d 748.

Where defendant had been convicted in federal RICO prosecution based on participation in gang murder, federal jury had rendered special verdict finding him guilty of such murder and sentence had been fixed to include punishment therefor, he could not be separately prosecuted in state court on indictment charging him with murder of same victim, since charge constituted lesser offense included within federal RICO charge and thus was barred by double jeopardy considerations incorporated in CLS CPL §  40.20(1). People v Bokun (1989)  145 Misc 2d 860, 548 NYS2d 604.

See State v Martin, 47 NC App 223, 267 SE2d 35, 277.

When a verdict in a criminal case is composed of inclusory concurrent counts, a verdict of guilty on the highest count is deemed a dismissal of every lesser count. Thus, where defendant was indicted for the crimes of criminal sale of a controlled substance in the second-degree and criminal possession of a controlled substance in the third-degree, based upon the same transaction, the third-degree possession count, being a lesser inclusory concurrent count of the second-degree sale, should have been dismissed following the rendition of a guilty verdict on the greater count. People v Wheeler (1980, 2d Dept)  79 App Div 2d 622, 433 NYS2d 470.

Where defendants were charged with assault on a law enforcement officer with a firearm and assault with a deadly weapon with intent to kill, arrest of judgment upon their conviction of the lesser offense of assault with a deadly weapon was required, since assault and the use of a deadly weapon were necessarily included in the offense of assault on a law enforcement officer with a firearm, and this result would punish defendants twice for the same offense. State v Partin, 48 NC App 274, 269 SE2d 250.

Double jeopardy did not bar prosecution on charge first-degree murder and second-degree murder after guilty plea to third-degree murder was withdrawn by court sua sponte after probation report revealed that there was no factual basis for third-degree plea, since jeopardy had not attached as to greater offenses. Commonwealth v Rosario (1992) 418 Pa Super 196, 613 A2d 1244.

When conviction of greater crime cannot be had without conviction of lesser crime, Double Jeopardy Clause bars prosecution for lesser crime after conviction for greater one; since person cannot be punished for both lesser included offense and greater crime, defendant's motion to sever will not amount to waiver of multiple trial aspects of double jeopardy where prosecution elects to proceed with greater offense first and achieves conviction. State ex rel. Hall v Strickler (1981, W Va) 285 SE2d 143.

Footnotes

Footnote 36. Illinois v Vitale,  447 US 410,  65 L Ed 2d 228,  100 S Ct 2260; In Re Nielsen,  131 US 176,  33 L Ed 118,  9 S Ct 672.

Footnote 37. Re Nielsen,  131 US 176,  33 L Ed 118,  9 S Ct 672; State v Lismore, 94 Ark 211, 126 SW 855; Commonwealth v Comber, 374 Pa 570, 97 A2d 343,  37 ALR2d 1058 (superseded by statute in another point as stated in Commonwealth v Garcia 474 Pa 449, 378 A2d 1199 (ovrld on other grounds Commonwealth v Thomas 482 Pa 312, 393 A2d 1122)).

Footnote 38. Re Nielsen,  131 US 176,  33 L Ed 118,  9 S Ct 672; People v McDaniels, 137 Cal 192, 69 P 1006; Gilpin v State, 142 Md 464, 121 A 354; State v Fredlund, 200 Minn 44, 273 NW 353; Jones v State, 66 Miss 380, 6 So 231.

Where defendant was convicted of homicide by motor vehicle in the first degree and the basis for such conviction was violation of statute which prohibits operation of a motor vehicle while under the influence of alcohol, operation while under the influence was necessarily a lesser included offense and defendant was placed in jeopardy with respect thereto and could not be prosecuted thereafter for driving while under the influence of alcohol under a municipal ordinance which was identical to the statute.  State v Best, 42 Ohio St 2d 530, 71 Ohio Ops 2d 517, 330 NE2d 421.

Practice Aids: –Former jeopardy–Subsequent prosecution for lesser offense.  1 Wharton's Criminal Law (14th ed) § 65.

Footnote 39. Harris v Oklahoma,  433 US 682,  53 L Ed 2d 1054,  97 S Ct 2912, on remand (Okla Crim) 572 P2d 245.

Footnote 40. State ex rel. Wikberg v Henderson (La) 292 So 2d 505 (conviction of defendants for attempted armed robbery following conviction for felony-murder arising out of same incident would violate prohibition against double jeopardy).

Footnote 41. See  § 269, supra.

Footnote 42. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221; Jeffers v United States,  432 US 137,  53 L Ed 2d 168,  97 S Ct 2207, reh den  434 US 880,  54 L Ed 2d 164,  98 S Ct 241.

Footnote 43. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221; Jeffers v United States,  432 US 137,  53 L Ed 2d 168,  97 S Ct 2207, reh den  434 US 880,  54 L Ed 2d 164,  98 S Ct 241.

Footnote 44. State v Hall, 86 Idaho 63, 383 P2d 602; Usary v State, 172 Tenn 305, 112 SW2d 7.

Charge of possession of heroin with intent to distribute cannot be regarded as lesser included offense of charge of conspiracy to distribute heroin and, therefore, conspiracy prosecutions subsequent to conviction on distribution charge will not violate double jeopardy clause of Fifth Amendment.  United States v Cruz (CA1 Mass) 568 F2d 781.

For purposes of double jeopardy clause of Fifth Amendment, grand larceny is lesser-included offense of robbery only when it is theft expressly charged in robbery indictment; fact that grand larceny penalty was made to run concurrently with robbery penalty does not defeat defendant's constitutional claim as double jeopardy clause forbids not only subsequent punishment but subsequent prosecution. Jones v Commonwealth, 218 Va 757, 240 SE2d 658, cert den  435 US 909,  55 L Ed 2d 500,  98 S Ct 1459 and cert den  439 US 892,  58 L Ed 2d 238,  99 S Ct 249.

The trial court properly refused to dismiss charges against defendant for solicitation to commit murder on the ground that the solicitation charges were not joined with a murder charge at defendant's first murder trial, which ended in a mistrial, since at the time of defendant's first murder trial no indictments for solicitation had yet been returned against him; nor should the solicitation charges have been dismissed under the doctrine of collateral estoppel, which is a part of the Fifth Amendment guarantee against double jeopardy, since no issue of ultimate fact had been determined by a valid and final judgment which was sought to be relitigated in the solicitation cases. State v Furr, 292 NC 711, 235 SE2d 193, cert den  434 US 924,  54 L Ed 2d 281,  98 S Ct 402.

Footnote 45. 40 Am Jur 2d,  Homicide § 184.

Footnote 46.  § 309, infra.

Footnote 47. State v Cox, 37 NC App 356, 246 SE2d 152, cert den 295 NC 649, 248 SE2d 253 and cert den  440 US 930,  59 L Ed 2d 487,  99 S Ct 1268.


§ 277  Separate offenses committed at same time  [21 Am Jur 2d CRIMINAL LAW]

Placing a defendant in jeopardy for one act is no bar to prosecuting him for a separate and distinct act, even though the other act is so closely connected in point of time that it is impossible to separate the evidence relating to either on the first trial. 48   This is the situation where two distinct crimes are committed in one transaction. 49   Thus, for example, a conviction for the use of abusive words is no bar to a prosecution for assault and battery on the person to whom the words were addressed, as part of the same transaction. 50   And, since the offenses of rape and burglary with intent to commit rape are separate and distinct, the conviction of an accused for rape will not bar a subsequent conviction of him for burglarly with intent to commit rape involving the same transaction. 51   Similarly, a conviction for burglary or robbery does not bar subsequent prosecution for murder committed in the perpetration of the burglary or robbery. 52   Likewise, an acquittal on the charge of breaking and entering with intent to commit larceny does not bar prosecution for larceny based on the same occurrence. 53   

Prosecutions for separate offenses based on the same transaction do not involve double jeopardy where there are distinct elements in one offense that are not included in the other. 54   Thus, a defendant who had been acquitted of charges of assault on one store detective arising out of a shoplifting episode would not be placed in double jeopardy by a trial on an indictment arising out of the same episode and charging him with larceny, shoplifting, receiving stolen property, and carrying a weapon openly, since all the charges required different evidence and had different elements from the previous charge of assault. 55    Likewise, it has been held that a state prosecution for attempted murder was not barred under the double jeopardy doctrine by a federal prosecution for bank robbery during which the attempted murder occurred since the state offense required proof of intent to kill, a fact not necessary to sustain a charge of aggravated federal bank robbery, and since the federal charge required proof of robbery of an insured bank, a fact not required for proof of attempted murder. 56    An indictment charging the defendant with aiding and abetting and as committing a particular crime as principal does not subject the defendant to double jeopardy. 57   In some jurisdictions, however, multiple prosecutions are not permitted, where, an assault upon, or the murder of, two or more persons, is committed by one and the same act, as, for example, by the single discharge of a firearm or by one stroke of a knife or other similar weapon. 58     And, where an accused was convicted of murder with malice aforethought and thereafter entered a guilty plea to robbery by assault with firearm growing out of the same transaction upon the same victim, it has been held that the robbery conviction was obtained in violation of the double jeopardy provisions of the state and federal constitutions and should be set aside, notwithstanding the accused's failure to object to the robbery trial. 59  


§ 277  – Separate offenses committed at same time [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Solicitation to commit crime against more than one person or property, made in single conversation as single or multiple crimes.(see also §§ 20, 21 supra.)  24 ALR4th 1324.

Case authorities:

See Grady v Corbin (1990, US)  109 L Ed 2d 548,  110 S Ct 2084, § 244.

In determining whether 2 conspiracies charged actually are same, 5 factors are to be considered: (1) time during which activities occurred; (2) persons involved in conspiracies; (3) places involved; (4) whether same evidence was used to prove 2 conspiracies; and (5) whether same statutory provision was involved in both conspiracies. United States v Booth (1982, CA1 Me) 673 F2d 27.

Defendant's conviction for felony theft did not violate the collateral estoppel component of the guarantee against double jeopardy where a rational jury in his first trial for felony assault with intent to kill an officer of the peace could have based its verdict of acquittal solely on grounds other than those necessary to support the second conviction, that is, that defendant, though a participant in the theft and assault, did not intend at any time to kill the officer, notwithstanding that the most lengthy and artful defense examination and cross-examination at the first trial concerned an identification issue. Martin v Estelle (1982, CA5 Tex) 691 F2d 202, reh den (CA5 Tex) 693 F2d 133 and cert den (US)  75 L Ed 2d 497,  103 S Ct 1277.

Double jeopardy did not prohibit defendant's conviction and punishment for both offenses charged in separate counts, namely receipt of revolver and possession of unregistered sawedoff shotgun, even though counts referred to defendants possession of both weapons at same time and same place since counts involved different statutes, subject matters of which were clearly distinct from each other. United States v Parker (1992, CA5 Miss) 960 F2d 498.

Double jeopardy clause was not violated by defendant's conviction for obstruction of commerce by robbery and for using and carrying firearm during crime of violence for same robberies. United States v Laury (1995, CA5 Tex) 49 F3d 145.

It is acceptable procedure for government to aggregate amount of checks of separate transactions to give rise to liability provided they are substantially related and charged as single offense but not where indictment characterized each transaction as separate offense. United States v Lagerquist (1984, CA8 ND) 724 F2d 693.

Double jeopardy was not violated by successive prosecutions of defendants in Washington and in Minnesota for mailing obscene material where the 2 indictments, although underlying conduct was same, charged mailings occurring at different times since Minnesota prosecutions required proof of fact not present in Washington prosecutions and did not involve conduct for which defendants had already been prosecuted. United States v Easley (1991, CA8 Minn) 927 F2d 1442, motion gr (CA8) 1991 US App LEXIS 8980 and reh, en banc, den (CA8) 1991 US App LEXIS 9755.

Double jeopardy did not bar punishment of armed carjacker under both Anti-Car Theft Act and statute prohibiting use or carrying of firearm during commission of crime of violence, since Congress intended to authorize cumulative punishment for violation of two different criminal statutes based on same course of conduct. United States v Martinez (1995, CA9 Cal) 49 F3d 1398, 95 CDOS 1719, 95 Daily Journal DAR 3032.

Defendant did not present colorable claim of double jeopardy, where he appealed indictment on counts of mail fraud under 18 USCS §  1341 and conspiracy to defraud United States under 18 USCS §  371, subsequent to charges, to which defendant's plea agreement was set aside, of conspiracy to commit mail fraud under 18 USCS §§  1341 and  371 since conspiracy to commit mail fraud requires proof of use of mails, whereas conspiracy to defraud Government requires proof of agreement to defraud United States; similarly, neither charge can be considered lesser included offense of other, because each conspiracy offense includes element that other does not. United States v Thompson (1987, CA10 Okla) 814 F2d 1472.

Maintaining place to manufacture controlled substance in violation of 21 USCS  856 and attempting to manufacture controlled substance in violation of 21 USCS §  846 are separate offenses for double jeopardy purposes, and therefore, two consecutive 30-year sentences were properly imposed under 18 USCS §  924(c), even though Underlying offenses arose out of same cumulative episode, and even though same gun was paired with each underlying offense. United States v Sturmoski (1992, CA10 NM) 971 F2d 452.

Where information and bill of particulars charge defendant with possession and with transportation of narcotics at one and same time and place, possession and transportation constitute same statutory offense within meaning of Double Jeopardy Clause such that defendant cannot constitutionally be convicted of both transportation and possession. State v Goldson (1979, Conn) 423 A2d 114.

Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of the facts which the other does not. Thus, murder in the first-degree and sexual battery constitute violations of two distinct statutory provisions in that murder in the first-degree requires proof of a fact not required in sexual battery–premeditated design to kill–and, although the double jeopardy clause protects against multiple punishments for the same offense, these two offenses are sufficiently distinguishable so as to permit two convictions and two punishments. Buford v State (1981, Fla) 403 So 2d 943.

In a criminal prosecution for reckless homicide and driving under the influence, the defendants constitutional protection against double jeopardy were violated, where the defendant was found guilty of reckless homicide and of second offense driving under the influence and where he was sentenced separately on the both the charges, as the Commonwealth relied on the level of intoxication to prove the eliminate of reckless conduct, therefore, the defendant's DUI punishment must be vacated. Hall v Commonwealth (1991, Ky App) 819 SW2d 39.

Defendant placed in jeopardy on charge of committing fourth-degree sexual offense may be subjected to second prosecution for attempted fourth-degree sexual offense when both charges arise out of same criminal episode but state alleges separate acts by defendant in each charging document. State v Boozer (1985) 304 Md 98, 497 A2d 1129.

Overlap of evidence in 2 trials is permissible and fact that one has been in jeopardy for one act is no bar to prosecution for separate and distinct act though acts are so closely connected in point of time that it is impossible to separate evidence relating to either; guarantee against double jeopardy does not extend to different prosecutions for different offenses but only to repeated prosecutions for same offense. Hughes v State (1981, Miss) 401 SO 2d 1100.

Defendant's conviction of felonious larceny, armed robbery, burglary, and rape, all of which arose out of the same series of events, did not place defendant in double jeopardy, since the four offenses were legally separate and distinct crimes, no one of which was a lesser included offense of the other; each clearly required the proof of at least one essential element not embodied in any of the other three offenses at issue; and the four felonies were factually distinct and independent crimes in this case. State v Revelle, 301 NC 153, 270 SE2d 476.

The conviction and sentencing of defendant for three counts of discharging a firearm into occupied property did not violate double jeopardy principles, although the three indictments were identical and did not describe in detail the specific events or evidence that would be used to prove each count, where the evidence showed that defendant fired three shots from one pistol into the victim's occupied automobile within a short period of time; each act was distinct in time and required that defendant employ his thought process each time he fired his weapon; each shot struck the vehicle in a different place; and defendant was thus not charged three times with the same offense for the same act. State v Rambert (1995) 341 NC 173, 459 SE2d 510.

There are essentially three contexts in which the North Carolina Supreme Court has held that conviction and punishment of a defendant for more than one offense results in impermissible multiple punishment: (1) where a dependent is convicted and sentenced for both felony murder and the underlying felony; (2) where a defendant is convicted and sentenced for two offenses, one being a lesser included offense of the other; and (3) where a defendant is convicted and sentenced for two offenses each arising out of the same conduct but to which the legislature has affixed two criminal labels and prosecutorial abuse is evident. State v Martin, 47 NC App 223, 267 SE2d 35.

Defendant was not placed in double jeopardy by his convictions of armed robbery and assault with a deadly weapon inflicting serious injury not resulting in death arising out of the same conduct since a conviction of armed robbery does not establish defendant's guilt of the felonious assault. State v Edwards, 49 NC App 547, 272 SE2d 384.

The double jeopardy statute of the Controlled Substances Act, G.S. 90-97, was not violated by the State's prosecution of defendant for conspiracy to manufacture, to possess with intent to sell or deliver, or to sell or deliver heroin after defendant had pled guilty in a federal court to conspiracy to import heroin in violation of 21 U.S.C. §  963, since "the same act" was not involved in both prosecutions within the meaning of G.S. 90-97. State v Overton (1982) 60 NC App 1, 298 SE2d 695, app dismd, petition den (NC) 299 SE2d 652 and app dismd, petition den (NC) 299 SE2d 653.

The trial court violated defendant's right against double jeopardy by allowing three separate convictions for three separate shots fired by defendant at the victim's vehicle at three different times and at different ranges where the indictments did not specifically allege the factual basis for the separate events of the three shots. State v Rambert (1994) 116 NC App 89, 446 SE2d 599, review gr (NC) 1994 NC LEXIS 658.

Defendant was not put twice in jeopardy by being sentenced both for trafficking in cocaine by possession and for failure to pay excise tax on a controlled substance, since successive criminal prosecutions were not an issue; defendant was charged with two distinct criminal statutes which required proof of different elements; and neither of the crimes in question was a lesser included offense of the other. State v Morgan (1995) 118 NC App 461, 455 SE2d 490.

Defendant's involuntary manslaughter trial for the death of the second of two women killed when defendant, who was driving while intoxicated, struck an automobile in which the women were riding, was not barred by the prohibition against double jeopardy (defendant having previously been convicted of the involuntary manslaughter of the first woman); defendant had violated PC § 19.05(a)(2) twice by causing the death of two individuals, such that two distinct and separate offenses had been committed. Ex parte Rathmell (1986, Tex Crim) 717 SW2d 33.

Defendant's conviction under RS Art 6701d §§ 38 and 40 for failure to stop and render aid to a second victim did not violate his right to be protected against multiple prosecutions and multiple punishments for the same offense, though he had previously been convicted under an indictment charging him with failure to stop and render aid to another victim, since the legislature intended to aid all victims in a hit and run offense and to enforce that intent through appropriate punishment for each individual not so aided. Spradling v State (1989, Tex Grim) 773 SW2d 553.

The trial court did not violate the double jeopardy clause of the Fifth Amendment to the Constitution in assessing punishment for both the aggravated kidnapping offense and the aggravated robbery offense following defendant's prosecution on the two indictments in a single trial even if it were assumed that the state, in proving the robbery allegations made in the aggravated kidnapping indictment, relied upon the same evidentiary facts as those relied upon to prove the aggravated robbery case, such that the aggravated kidnapping case enveloped the aggravated robbery case. Ex parte Herron (1990, Tex Crim) 790 SW2d 623.

The trial and sentencing of defendant for the offense of sexual assault (a lesser included offense of the indicted aggravated sexual assault charge), following defendant's trial and burglary of a habitation, was not barred on double jeopardy grounds, though the same sexual assault incident was involved in both cases, since the Blockburger test did not bar the subsequent prosecution for sexual assault, and since conduct which constituted the offense of burglary of a habitation was not used to establish an essential element of the subsequent sexual assault offense, in that intent to commit sexual assault is not criminal conduct, and although entering a habitation (without the owner's consent) with such intent is criminal conduct, such was not used to establish an essential element of the subsequent offense. Ex parte Ramos (1991, Tex Crim) 806 SW2d 845.

Evidence showed that during burglary of residence, property belonging to home owner and to his nonresident daughter was taken. Defendant's conviction for theft of father's property did not bar subsequent prosecution for theft of daughter's property. Theft from each owner constituted a separate offense for jeopardy purposes. Iglehart v State (1992, Tex Crim) 837 SW2d 122.

Defendant's convictions for both delivery of 1.5 grams of cocaine to an undercover officer and possession with intent to deliver approximately 25 grams of cocaine recovered from the roof on which defendant tossed it when approached by a uniformed patrol officer following that sale were not violative of double jeopardy protection since the charges required proof of two separate quantities of cocaine. Torrez Diaz v State (1988, Tex App Houston (14th Dist)) 762 SW2d 701.

Defendant was not entitled to pre-trial habeas corpus relief barring his prosecution for driving while intoxicated from proceeding to trial on double jeopardy grounds, though defendant had previously been prosecuted for and convicted in municipal court of running a stop sign and operating a vehicle with an expired license plate, since it was possible for the State to prosecute defendant for DWI without proving conduct that constituted an offense for which he had already been convicted, and it would be assumed that the State would seek to prove the DWI at trial without relying on the conduct of running a stop sign or displaying an expired plate. Burke v State (1991, Tex App Houston (1st Dist)) 811 SW2d 209, petition for discretionary review ref (Sep 11, 1991).

Double jeopardy does not prevent multiple convictions for multiple offenses committed against multiple victims since convictions are not for same offense even though they arise from same criminal episode; law may specifically provide that defendant be prosecuted in single criminal actions for all separate offenses arising out of single criminal episode. State v James (1981, Utah) 631 P2d 854.

Where problems of double jeopardy or multiplicity arise, question is one of fundamental fairness or prejudice to defendant; defendant should not be charged, tried, or convicted for offenses that are substantially alike when they are part of same general transaction or episode, for to do so imposes jeopardy of multiple trials or convictions for single offense. State v Eisch (1980, Wis) 291 NW2d 800.

Footnotes

Footnote 48. Gunter v State, 111 Ala 23, 20 So 632; Dutton v Smart, 222 Ga 35, 148 SE2d 396 (prosecution for burglary did not bar prosecution for assault with intent to rape based on same evidence); People v Stingley, 414 Ill 398, 111 NE2d 548, cert den  345 US 959,  97 L Ed 1379,  73 S Ct 945 and (ovrld on other grounds People v Schlenger 13 Ill 2d 63, 147 NE2d 316) and (ovrld on other grounds People v Duszkewycz 27 Ill 2d 257, 189 NE2d 299) and (not followed on other grounds People v Aliwoli 42 Ill App 3d 1014, 1 Ill Dec 609, 356 NE2d 891) as stated in People v Johnson 47 Ill App 3d 60, 5 Ill Dec 445, 361 NE2d 768; State v Taylor, 138 Kan 407, 26 P2d 598; Wallace v Commonwealth, 207 Ky 122, 268 SW 809; State v Moton (Mo) 476 SW2d 785,  51 ALR3d 684; Orcutt v State, 52 Okla Crim 217, 3 P2d 912; Wilkerson v State, 211 Tenn 32, 362 SW2d 253, cert den  373 US 926,  10 L Ed 2d 425,  83 S Ct 1529.

Acquittal of accused on a charge of assault with intent to commit murder in the first degree, wherein a weapon was involved, did not preclude, on the ground that the two offenses arose out of or occurred during the same transaction, a prosecution of accused for carrying a concealed firearm. State v Williams (Fla App D1) 254 So 2d 798, affd (Fla) 268 So 2d 361.

Defendant was not subjected to double jeopardy where he was charged with communicating threats and assault by pointing a gun though the two charges arose out of the same incident, since the elements of the two offenses differed.  State v Evans, 40 NC App 730, 253 SE2d 590, cert gr 297 NC 456, 256 SE2d 809.

Footnote 49. American Tobacco Co. v United States,  328 US 781,  90 L Ed 1575,  66 S Ct 1125; Albrecht v United States,  273 US 1,  71 L Ed 505,  47 S Ct 250; Morgan v Devine,  237 US 632,  59 L Ed 153,  35 S Ct 712; Burton v United States,  202 US 344,  50 L Ed 1057,  26 S Ct 688; State v Taylor, 138 Kan 407, 26 P2d 598; Wallace v Commonwealth, 207 Ky 122, 268 SW 809; State v Moore, 86 Minn 422, 90 NW 787; Dodge v State, 124 Ohio St 580, 11 Ohio L Abs 320, 180 NE 45; Orcutt v State, 52 Okla Crim 217, 3 P2d 912; State v Watson, 20 RI 354, 39 A 193, affd  179 US 679,  45 L Ed 383,  21 S Ct 915; Morgan v State, 220 Tenn 247, 415 SW2d 879 (robbery of three victims at same time); State v Taylor, 185 Wash 198, 52 P2d 1252.

Annotation:  50 L Ed 2d 830, § 16.

Defendants were not placed in double jeopardy by their trial in city court on charges of open profanity and subsequent trial in county court for resisting arrest, notwithstanding the offenses occurred almost contemporaneously, since they were not "identical" offenses and the elements of each offense were different and the proof of each offense not dependent upon evidence of the other. State v Lamons (Fla App D2) 251 So 2d 907.

Imposition of separate sentences for defendant's convictions of (1) possession with intent to deliver a controlled substance and (2) delivery of the same controlled substance did not violate the prohibitions against former jeopardy, since two separate and distinct crimes were established, though they both arose from the same transaction.  State v Lewis, 32 NC App 298, 231 SE2d 693.

Footnote 50. 6 Am Jur 2d,  Assault and Battery § 64.

Footnote 51. 13 Am Jur 2d,  Burglary § 65.

Footnote 52. 40 Am Jur 2d,  Homicide § 190.

Footnote 53. 50 Am Jur 2d,  Larceny § 138.

As to application of double jeopardy principles to successive prosecutions for robbery and some other crime committed in the course of perpetrating the robbery, see 67 Am Jur 2d,  Robbery § 48.

Footnote 54. Holder v Fraser, 215 Ark 67, 219 SW2d 625; Jeppesen v State, 154 Neb 765, 49 NW2d 611; State v Birckhead, 256 NC 494, 124 SE2d 838,  6 ALR3d 888; State ex rel. Percy v Erickson, 83 SD 257, 158 NW2d 241; State v Empey, 65 Utah 609, 239 P 25; State v Brooks,  215 Wis 134, 254 NW 374.

Defendant, convicted for conspiracy to violate 18 USCS §  2314, forbidding knowing transportation of stolen securities, and conspiracy to forge endorsements on savings bonds to obtain money from United States was not subjected to double jeopardy merely because both offenses arose out of same criminal episode but were charged in separate indictments in different judicial districts since each statute violated required proof which other did not, and government is not required to join in one proceeding all charges arising out of same transaction.  United States v Garner (CA6 Tenn) 529 F2d 962, cert den  426 US 922,  49 L Ed 2d 376,  96 S Ct 2630 and cert den  429 US 850,  50 L Ed 2d 124,  97 S Ct 138.

Footnote 55. 6 Am Jur 2d,  Assault and Battery § 64.

Footnote 56. 40 Am Jur 2d,  Homicide § 190.

Footnote 57. United States v Wood (CA6 Mich) 609 F2d 246 (bank robbery).

Footnote 58. 6 Am Jur 2d,  Assault and Battery § 64.

40 Am Jur 2d,  Homicide § 188.

Footnote 59. 67 Am Jur 2d,  Robbery § 48.

§ 278  Necessity of bringing all charges in one indictment; "same transaction" theory  [21 Am Jur 2d CRIMINAL LAW]

Although, as a general rule, two or more offenses committed by the same person and growing out of the same transaction or series of transactions may be joined in the same indictment or information, 60   the Fourteenth Amendment does not always forbid a state to prosecute separate criminal offenses at consecutive trials, even though the offenses are of the same character and arise out of the same occurrence. 61  The question in any given case is whether such a course of multiple prosecution has led to fundamental unfairness. 62   Thus, a defendant convicted on a misdemeanor charge of permitting a room to be used for gambling could be subsequently indicted on a felony charge of possessing numbers game tickets, notwithstanding both charges arose out of a single transaction, since the double jeopardy clause does not require that all charges growing out of a single criminal act be joined at one trial. 63    

A minority of the United States Supreme Court, however, has taken the view that the double jeopardy clause requires the prosecution, except in the most limited circumstances, to join at one trial all the charges against the defendant that grow out of a single criminal act, occurrence, episode, or transaction.  The nationale underlying this "same transaction" approach is that it not only enforces the ancient prohibition against multiple prosecutions embodied in the double jeopardy clause, but consolidates in one lawsuit all issues arising out of the single transaction or occurrence, thereby promoting justice, economy, and convenience. 64   Adhering to this view, some states have held that the double jeopardy clause requires a prosecutor to bring against a defendant in a single proceeding all known charges arising from a single criminal episode. 65         One court taking this approach has stated that the use of the "same transaction" test as the standard in evaluating claims of double jeopardy promotes the best interests of justice and sound judicial administration.  According to this view, joining all charges arising out of the same criminal episode at one trial enables the defendant to consider the matter closed, saves the costs of redundant litigation, helps to equalize the adversary capabilities of grossly unequal litigants, and prevents prosecutorial sentence shopping. 66

A statute may provide that no person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of the commencement of the first prosecution and proper venue in a single court can be established. 67   Such statutes have not been held to preclude multiple prosecutions, however, where strict adherence to the statute might permit a defendant to escape punishment for a more serious crime, a risk outweighing the possibility of harassing the defendant, wasting public funds, or straining judicial resources. 68   Moreover, under a statute prescribing separate prosecution of two or more offenses growing out of the same criminal episode, it has been held that an accused's plea of guilty to one offense, although barring a subsequent prosecution for the same offense, will not preclude prosecution for other offenses arising out of the same episode. Accordingly, the accused's plea of guilty to the crime of the theft of guns used in a homicide has been held not to bar his subsequent prosecution for murder of the victim. 69

It has been held that a statutory provision precluding multiple prosecutions is separate and distinct from another provision precluding multiple punishments.  Double prosecution may be precluded even when double punishment is permissible. 70

Even though a majority of the United States Supreme Court has held that successive prosecutions for separate offenses arising out of a single criminal transaction are permissible, and that all charges need not be joined in one indictment, the principle of "collateral estoppel" incorporated in the Fifth Amendment guaranty against double jeopardy may bar relitigation, between the same parties, of issues actually determined at a previous prosecution of the accused. 71  

Although the Constitution dos not require it, the United States Department of Justice has a general internal policy of alleging and trying together several offenses that arise from a single transaction, rather than bringing multiple prosecutions.  This voluntary policy is dictated by considerations both of fairness to the accused and of efficient and orderly law enforcement. 72       

§ 278  – Necessity of bringing all charges in one indictment; "same transaction" theory [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Supreme Court's Grady decision setting forth "same conduct" test for determining double jeopardy claims announced new rule which would not be retroactively applied in collateral proceeding. United States v Salerno (1992, CA2 NY) 964 F2d 172, later proceeding (SD NY) 1992 US Diet LEXIS 11089.

The single-transaction rule did not preclude convictions for robbery and assault with intent to commit murder, where accused's acts involved the same victim and arose out of the same criminal episode during which accused robbed the victim and shot at him with a shotgun, because accused's acts and crimes were independent of each other. Jackson v State (1992, Fla App D4) 599 So 2d 752, 17 FLW D 1406.

In a prosecution for burglary, grand larceny, and criminal possession of stolen property following defendant's guilty plea on a misdemeanor complaint charging him with criminal possession of stolen property, defendant could not be prosecuted on a later indictment for criminal possession of the same stolen property since the offense was identical to the one charged in the misdemeanor complaint, and defendant could not be prosecuted for grand larceny since the acts establishing the prior charge of criminal possession, and the harms intended to be prevented by the larceny and possession statutes, were not dearly distinguishable, despite the fact that the police were unable to procure sufficient evidence to indict defendant on the grand larceny charge until after he had pleaded guilty on the criminal possession charge. However, defendant could be prosecuted on the burglary charge since proof that was substantially different from the criminal possession prosecution was required for the burglary prosecution, and since evidence to indict defendant on the burglary charge was not procured until after he had pleaded guilty on the criminal possession charge, notwithstanding the fact that all charges stemmed from the same burglary of a doctor's office. People v Fletcher (1982)  113 Misc 2d 5, 448 NYS2d 366.

Where defendant was charged under a valid indictment with failing to give required information to people involved in an automobile accident and by failing to render reasonable assistance, but the trial court did not instruct the jury that it could find defendant guilty of violating the statute by failing to render assistance to a pedestrian whom he had struck and killed, defendant could not thereafter be tried for that offense, since he could not be put in jeopardy for any offense of which he could lawfully have been convicted under that indictment. State v Gatewood, 46 NC App 28, 264 SE2d 375.

Double jeopardy clause barred multiple convictions of defendant for concealing stolen property in violation of state law where all of stolen items found were commingled in defendant's house during one search; state could not divide cache of stolen property received or concealed by defendant by number of victims of thefts, and could not, thereby, obtain that number of indictments absent some other evidence that identified goods had been received or concealed separately. State v Goins (1986, Term) 705 SW2d 648.

Footnotes

Footnote 60. 41 Am Jur 2d,  Indictments and Information § 223.

Footnote 61. Hoag v New Jersey,  356 US 464,  2 L Ed 2d 913,  78 S Ct 829, reh den  357 US 933,  2 L Ed 2d 1375,  78 S Ct 1366.

Footnote 62. Ciucci v Illinois,  356 US 571,  2 L Ed 2d 983,  78 S Ct 839, reh den  357 US 924,  2 L Ed 2d 1375,  78 S Ct 1367; Hoag v New Jersey,  356 US 464,  2 L Ed 2d 913,  78 S Ct 829, reh den  357 US 933,  2 L Ed 2d 1375,  78 S Ct 1366.

Footnote 63. State ex rel. Susi v Flowers, 43 Ohio St 2d 11, 72 Ohio Ops 2d 6, 330 NE2d 662, cert den  423 US 1006,  46 L Ed 2d 378,  96 S Ct 436.

Footnote 64.
Annotation:  2 L Ed 2d 2020, § 6.

See Justice Brennan's concurring opinion to Ashe v Swenson,  397 US 436,  25 L Ed 2d 469,  90 S Ct 1189.

Footnote 65. People v White, 390 Mich 245, 212 NW2d 222 (limiting decision to same facts where crimes were committed in continuous time sequence and displayed single intent and goal); Commonwealth v Campana, 452 Pa 233, 304 A2d 432, vacated on other grounds,  414 US 808,  38 L Ed 2d 44,  94 S Ct 73, on remand 455 Pa 622, 314 A2d 854, cert den  417 US 969,  41 L Ed 2d 1139,  94 S Ct 3172.

Footnote 66. People v White, 390 Mich 245, 212 NW2d 222.

Footnote 67. State v Hammang, 19 Or App 265, 527 P2d 137, affd 271 Or 749, 534 P2d 501 (ovrld on other grounds State v Shields 280 Or 471, 571 P2d 892) and (ovrld on other grounds State v Knowles (Or) 618 P2d 1245).

Even if it were assumed that a defendant prosecuted in one county for sex offenses with a 17-year-old girl could also have been prosecuted in that county for rape and other offenses against the girl's mother that occurred in another county, joinder was not mandatory under the statute proscribing miltiple prosecutions for the same act or omission, where, though the crimes all occurred in defendant's vehicle during the same night, it could not be said that the same acts or course of conduct committed against the mother played a significant part in the offenses against the daughter, and where the reasons for the rule against multiple prosecution (harassment of defendant, needless repetition of evidence, and waste of time and money) were not present in the case.  People v Ward (2d Dist) 30 Cal App 3d 130, 105 Cal Rptr 67.

Trial of defendant on charges of hit-and-run, reckless driving, and having an open container of beer in his vehicle, after he had previously pleaded guilty in response to a citation for possession of less than an ounce of marijuana based on contraband retrieved from his car after his arrest on the vehicle charges, did not violate the statutory proscription against separate prosecutions for offenses in which the same act or course of conduct plays a significant part, where defendant was arraigned on the vehicle charges 17 days before his appearance in response to the marijuana citation and could have consolidated the actions at some time prior to his appearance on the citation.  Stackhouse v Municipal Court for Downey Judicial Dist. (2d Dist) 63 Cal App 3d 243, 133 Cal Rptr 694.

The trial court erred in dismissing, as to defendant, an indictment charging her and others with various crimes, including grand theft and unlawful practice of medicine and psychotherapy, on the theory that prosecution was precluded under the multiple prosecution provision of the penal code, by defendant's prior misdemeanor conviction of practicing medicine without a license, where the misdemeanor charge related to an identifiable single incident and was prosecuted by the city attorney, while the indictment was based on testimony before the grand jury indicating widespread and active involvement of defendant and her codefendants in defrauding the Medi-Cal program, and where there was no showing that the city attorney was aware of the massive fraud when the misdemeanor charge was brought or that the district attorney whose responsibility it was to prosecute the felony charges was aware that the misdemeanor charge had been filed until after it had been disposed of.  People v Eckley (2d Dist) 33 Cal App 3d 91, 108 Cal Rptr 52.

Footnote 68. Stackhouse v Municipal Court for Downey Judicial Dist. (2d Dist) 63 Cal App 3d 243, 133 Cal Rptr 694; People v Eckley (2d Dist) 33 Cal App 3d 91, 108 Cal Rptr 52.

Footnote 69. State v Hammang, 271 Or 749, 534 P2d 501 (ovrld on other grounds State v Shields 280 Or 471, 571 P2d 892) and (ovrld on other grounds State v Knowles (Or) 618 P2d 1245).

Footnote 70. Re Hayes, 70 Cal 2d 604, 75 Cal Rptr 790, 451 P2d 430 (punishment of accused for driving with suspended license and driving while intoxicated did not violate statute proscribing double punishment).

Footnote 71. See  §§ 321 et seq., infra.

Practice Aids: –Multiple Verdicts and Double Jeopardy.  74 Harvard L Rev 16.

Footnote 72. Rinaldi v United States,  434 US 22,  54 L Ed 2d 207,  98 S Ct 81; Petite v United States,  361 US 529,  4 L Ed 2d 490,  80 S Ct 450.


§ 279  Single act as constituting more than one offense  [21 Am Jur 2d CRIMINAL LAW]

Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not. 73   It has been said that the constitutional prohibition against double jeopardy is directed to the identity of the offense and not to the act. 74   Accordingly, there is no constitutional prohibition against legislation providing for multiple crimes arising from a single act against multiple victims. 75   If each statutory provision requires proof of a fact that the other does not, they are not the same, even though there may be a substantial overlap in the proof offered to establish the crimes. 76    Where a single transaction comprises two or more offenses but the lesser offense is not necessarily involved in the greater and the facts required to convict on the second prosecution would not necessarily have convicted on the first, then the first prosecution does not bar the second. 77    Thus, a single act may constitute two or more distinct and separate offenses, 78   and a person charged with such an act as two separate offenses may in some jurisdictions be convicted and punished for both. 79   Stated differently, a former prosecution, although it has been for violation of a different statutory provision, will bar a subsequent prosecution for an offense based on the same conduct, unless the offense requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil. 80   Where two statutorily defined crimes are committed during the commission of a single criminal transaction and are inextricably intertwined, prosecution for one crime has been held to bar a subsequent prosecution for the other; and, where a defendant has one objective and commits several crimes in preparing for and in attaining that objective, the prosecution may initiate only one prosecution. 81                 

Without citing a statute, it has been held that where two or more offenses of the same nature are carved out of the same transaction, an acquittal or conviction of either bars a prosecution for the other offenses. 82   On the other hand, the doctrine of "carving" has been held not to apply to convictions for separate offenses relating to one uninterrupted sequence of events.  Thus, where a defendant and other prisoners in a county jail robbed a sheriff and escaped, the offenses of robbery and escape were separate, since the escape from custody was not a criminal offense against the sheriff and, although an assault was made against him in the course of the escape, it was not a necessary element of the offense of escaping from jail. 83

In certain jurisdictions, statutes may prohibit successive prosecutions for different offenses arising out of the same transaction or act 84  or prohibit multiple punishment for a single course of conduct that violates more than one statute and constitutes an indivisible transaction. 85  


§ 279  – Single act as constituting more than one offense [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Fifth Amendment - The adoption of the "same elements" test: the Supreme Court's failure to adequately protect defendants from double jeopardy, 84 J Crim L & Crim 769 (1994).

United States v. Deal [ 124 LEd2d 44 (1993)]–"if you can't do the time, don't do the crime," 39 Loy LR 673 (1993).

The death of the Grady v. Corbin "same conduct" test for double jeopardy, 47 Rutgers LR 1:247 (1994).

Solicitation to commit crime against more than one person or property, made in single conversation as single or multiple crimes.(see also §§ 20, 21 supra.)  24 ALR4th 1324.

Single act affecting multiple victims as constituting multiple assaults or homicides. (See also infra, 56.)  8 ALR4th 960.

Case authorities:

A single transaction can give rise to distinct offenses under separate statutes without violating the double jeopardy clause of the Fifth Amendment, even if the single transaction is an agreement or conspiracy. Albernaz v United States (1981, US)  67 L Ed 2d 275,  101 S Ct 1137.

The conviction and sentencing of a criminal defendant in a single trial for both armed criminal action and first-degree robbery under two state statutes, pursuant to which the legislature intended that punishment for violations of the statutes be cumulative, does not violate the double jeopardy clause of the Fifth Amendment, where with respect to cumulative sentences imposed in a single trial, the double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended, and when, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial. Missouri v Hunter (1983, US)  74 L Ed 2d 535,  103 S Ct 673 (not followed Anderjeski v City Court of Mesa (1983, Ariz) 663 P2d 233).

Simply because two criminal statutes may be construed to proscribe the same conduct does not mean that the double jeopardy clause of the Fifth Amendment precludes the imposition in a single trial of cumulative punishments pursuant to those statutes; the rule of statutory construction that cumulative punishments may not be imposed under two statutory provisions proscribing the same offense unless there is a clear indication of contrary legislative intent is not a constitutional rule requiring courts to negate clearly expressed legislative intent; legislatures, not courts, prescribe the scope of punishments. Missouri v Hunter (1983, US)  74 L Ed 2d 535, 103 S Gt 673 (not followed Anderjeski v City Court of Mesa (1983, Ariz) 663 P2d 233).

See Garrett v United States,  85 L Ed 2d 764, 267.

The double jeopardy clause of the Federal Constitution's Fifth Amendment prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes whenever each statute does not require proof of a fact which the other does not; to determine whether a subsequent prosecution is barred by the double jeopardy clause, a court must first apply this test, and, if it is determined that the offenses in question have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred; however, this test, developed in the context of multiple punishments imposed in a single prosecution–wherein the double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended–is simply a rule of statutory construction, a guide to determining whether the legislature intended multiple punishments, and is not an exclusive definition of the term "same offence" in the double jeopardy clause; even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first. Grady v Corbin (1990, US)  109 L Ed 2d 548,  110 S Ct 2084.

A mere overlap in proof between two prosecutions does not establish a violation of the double jeopardy clause of the Federal Constitution's Fifth Amendment. United States v Felix (1992, US)  118 L Ed 2d 25,  112 S Ct 1377, 92 CDOS 2539, 92 Daily Journal DAR 4007, 34 Fed Rules Evid Serv 315.

Prosecution of a defendant for conspiracy, where certain of the overt acts relied on by the government are based on substantive offenses for which the defendant has been previously convicted, does not violate the double jeopardy clause of the Federal Constitution's Fifth Amendment, because a substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes; thus, double jeopardy does not bar the prosecution of a defendant in a federal court in Oklahoma on charges of conspiracy to manufacture, possess, and distribute methamphetamine, even though (1) the defendant previously has been convicted in a federal court in Missouri of the offense, committed subsequent to the alleged Oklahoma offenses, of attempting to manufacture methamphetamine, based on his accepting delivery in Missouri of chemicals and equipment required for that activity, and (2) two of the nine overt acts charged in the Oklahoma indictment and naming the defendant are based on conduct that was the subject of the Missouri prosecution, namely, the defendant's (a) making a downpayment in Oklahoma on the chemicals and equipment later delivered in Missouri, and (b) receiving those materials in Missouri. United States v Felix (1992, US)  118 L Ed 2d 25,  112 S Ct 1377, 92 CDOS 2539, 92 Daily Journal DAR 4007, 34 Fed Rules Evid Serv 315.

Double jeopardy clause bars prosecution of accused for possession of narcotics where, on basis of alleged narcotics offense, accused previously had been tried for criminal contempt for violating his pretrial release with respect to unrelated charge which subjected accused to prosecution for contempt if he committed any criminal offense. United States v Dixon (1993, US)  125 L Ed 2d 556,  113 S Ct 2849, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.

Double Jeopardy Clause applies to nonsummary criminal contempt prosecutions. Prosecution for criminal contempt based on violation of a criminal law incorporated into a court order bars subsequent prosecution for the criminal offense if the contempt offense and the criminal offense have the same elements. Blockburger v United States (1932)  284 US 299,  76 L Ed 306,  52 S Ct 180, Thus, prosecution for criminal contempt based on violation of court order prohibiting commission of any criminal offense barred later prosecution for the criminal offense committed, as the latter was in the nature of a lesser included offense of the former. But criminal contempt prosecution based on violation of court order prohibiting commission of simple assault did not bar later prosecution for assault with intent to kill and threats to injure or kidnap, as elements were not the same. United States v Dixon (1993, US)  125 L Ed 2d 556,  113 S Ct 2849, 93 CDOS 4853, 93 Daily Journal DAR 8205, 7 FLW Fed S 599.

Double jeopardy clause did not bar cumulative punishment for carjacking and using firearm in conjunction with crime of violence, even though both counts arose out of single transaction, since Congress by enacting Comprehensive Crime Control Act authorized cumulative punishments in such case. United States v Centeno-Torres (1995, CA1 Puerto Rico) 50 F3d 84.

Making of false statements on loan application under 18 USCS §  1014 is not lesser included offense of bank larceny under 18 USCS §  2113, and therefore, defendant's prosecution for both offenses did not subject him to double jeopardy, since each statute required proof of facts which other did not. U.S. v Bradley (1987, CA2 NY) 812 F2d 774.

Defendant's convictions for conspiracy to commit money laundering and for conducting illegal gambling business did not violate double jeopardy, since statutes did not proscribe same offense, even though there may have been some overlap in alleged conduct. United States v Conley (1994, CA3 Pa) 37 F3d 970.

State court felony conviction for possession of controlled narcotic substance after earlier misdemeanor conviction for obtaining same substance with forged prescription violates Double Jeopardy Clause since same evidence suffices to sustain both convictions; Double Jeopardy Clause protects not only against multiple punishment but against multiple trials for same offense and if evidence required to convict upon one prosecution would be sufficient to support conviction on another, there is only one offense. Jordan v Virginia (1980, CA4 Va) 653 F2d 870.

Defendant's convictions for obstructing commerce by robbery and for knowingly using and carrying firearm did not violate double jeopardy, since statutes under which defendant was convicted specifically authorized cumulative punishments. United States v Gonzales (1994, CA5 Tex) 40 F3d 735.

Defendant's convictions for burglary and for robbery did not violate double jeopardy, since under Mississippi law the two offenses consist of different elements so that each offense requires proof of fact which the other does not. Grabowski v Jackson County Pub. Defenders Office (1995, CA5 Miss) 47 F3d 1386.

There was no double jeopardy bar to defendant's multiple convictions on 2 separate and distinct counts of drug trafficking of different drugs, both of which involved "use" of same 2 firearms, since it is number of predicate offenses which controls, not number of firearms. United States v Johnson (1993, CA6 Mich) 986 F2d 134, cert den (US) 1993 US LEXIS 4350.

Prosecution of defendant for RICO violation after conviction of predicate acts does not violate double jeopardy clause. United States v O'Connor (1992, CA7 Wis) 953 F2d 338, cert den (US)  118 L Ed 2d 578,  112 S Ct 1979.

Double jeopardy was not violated by imposition of consecutive sentences for use of firearm in commission of violent felony and for armed assault on federal officer since use of firearm is crime separate from underlying felony and is not simply penalty provision. Bear Heels v United States (1993, CA8 SD) 993 F2d 1325.

Prosecuting defendant for robbery under 18 USCS §§  2113(a) and (b) and use of weapon during violent crime under 18 USCS §  924(c) for same incidents does not constitute double jeopardy. United States v McQuiston (1993, CA8 Ark) 998 F2d 627.

Defendant's conviction for bank fraud and his conviction for misapplication of bank funds did not violate double jeopardy clause as separate punishments for same offense, since each offense required proof of element that other did not. United States v Wolfswinkel (1995, CA9 Ariz) 44 F3d 782, 95 CDOS 181.

Defendant's conviction for both conversion and money-laundering in connection with sale of cattle which was collateral for loan did not violate double jeopardy as multiple punishment for same offense since Congress intended money-laundering statute to be separate crime from underlying offense that generated money to be laundered. United States v Edgmon (1991, CA10 Okla) 952 F2d 1206, cert den (US)  120 L Ed 2d 906,  112 S Ct 3037.

Cumulative punishment under 18 USCS §§  924 and  2119 does not violate Double Jeopardy Clause, since Congress clearly indicated its intent that 18 USCS §  924(c)(1) apply cumulatively to all crimes of violence, including § 2119. United States v Overstreet (1994, CA10 Okla) 40 F3d 1090.

Defendant's separate convictions for two checks forged and deposited on same day violated double jeopardy clause, since under New Mexico's single larceny doctrine multiple counts constituted single offense. Thomas v Kerby (1995, CA10 NM) 44 F3d 884.

Defendant's earlier prosecution and plea agreement, under which he pied guilty to receiving kickbacks in violation of statute [18 USCS §  1954] prohibiting offer or solicitation to influence operation of employee benefit plan, did not preclude, on double jeopardy grounds, prosecution for conspiracy to violate 18 USCS §  1962 through kickback scheme involving union insurance and health care plan, since earlier conviction required proof that substantive offense was actually committed, while RICO conspiracy required proof only that defendant agreed to commit substantive offense, and conspiracy conviction required proof that defendant agreed to participate in enterprise affecting interstate commerce, an element not required for earlier conviction. United States v Caporale (1986, CA11 Fla) 806 F2d 1487, 124 BNA LRRM 2232.

Imposition of cumulative sentences for assault on protected United States employee and for using firearm during crime of violence did not violate double jeopardy since Congress clearly intended to provide additional punishment for individuals convicted under statutes already providing for weapons enhancement. United States v Martin (1992, CA11 Ala) 961 F2d 161.

Imposition of multiple sentences for receiving stolen goods constitutes double jeopardy where prosecution fails to prove separate intent to steal, sufficiently different acts of conduct to constitute separate offenses, and receipt of stolen goods on more than one occasion. Nelson v State (1981, Alaska) 628 P2d 884.

Although defendant could be convicted of two counts of manslaughter when he killed two pedestrians with his car simultaneously, statute permitting consecutive sentences for these convictions was impermissible under double jeopardy clause of state constitution. Dunlop v State (1985, Alaska App) 696 P2d 687, later app (Alaska) 721 P2d 604, rereported (Alaska) 723 P2d 70, withdrawn, rereported.

Defendant was properly adjudged guilty of two counts of aggravated assault, where shot he fired traveled through body of one victim and lodged in body of second victim. State v Henley (1984) 141 Ariz 465, 687 P2d 1220.

In prosecution for first-degree murder after deliberation, felony murder by arson, extreme indifference murder, and first-degree arson, prosecutor was not required to elect counts where jury could conclude without inconsistent reasoning that defendant's actions of starting fire by gasoline in apartment which caused his wife's and son's death manifested extreme indifference toward human life, caused death in connection with knowing perpetration of felony arson, and constituted taking of human life after deliberation, but only one conviction for first-degree murder for each victim could be imposed. People v Bowman (1983, Colo) 669 P2d 1369.

Where three heroin counts against defendant are based on single act of possession alleged to have occurred on single date and time, defendant's receipt of sentence on greater offense, possession with intent to sell by non-drug dependent person, and more severe sentence on lesser included offense, possession of heroin with intent to sell, violates double jeopardy prohibition against multiple punishments because defendant received additional punishment for single offense. State v Amaral (1979) 179 Conn 239, 425 A2d 1293.

Imposition of multiple sentences as result of single trial for 2 offenses of assault and possession of deadly weapon during commission of felony does not violate double jeopardy where it is legislative intent to subject defendant to multiple penalties for single criminal act. Hunter v State (1981, Del) 430 A2d 476.

In a prosecution for extortion and second-degree grand theft for threatening to have the victim arrested if she did not give defendant money, defendant could properly be convicted both of extortion and grand theft for taking only one sum of money, since neither extortion nor grand theft was a necessarily lesser included offense of the other. State v O'Hara (1985, Fla) 478 So 2d 24, 10 FLW 522.

Thief could not be separately convicted for grand theft of cash and theft of a firearm where defendant snatched a purse which contained both cash and a firearm because thief only had one intent and committed one act of taking; the value of the cash or the taking of the firearm merely defines the degree of the felony and separate crimes only occur when there are separate distinct acts of seizing property. Johnson v State (1992, Fla) 597 So 2d 798, 17 FLW S 259.

Defendant's conviction on two offenses, attempted robbery with a firearm and unlawful possession of a firearm during the commission of a felony (the attempted robbery with a firearm), arising from the same act violated the double jeopardy clause since the essential elements of both crimes were identical; although both convictions would be affirmed because defendant had failed to attack the information through a motion to dismiss and/or elect, the imposition of two sentences was a fundamental error which could be raised for the first time on appeal; the sentence imposed for the firearm conviction, the less serious of the two offenses, would be reversed. Williams v State (1981, Fla App D3) 397 So 2d 438.

Sexual offender was improperly convicted of unlawful possession of a firearm while engaged in criminal conduct where offender was also convicted of sexual battery with a firearm and aggravated assault since the unlawful possession conviction was based upon the same facts supporting the assault conviction. Washington v State (1992, Fla App D3) 597 So 2d 840, 17 FLW D 790.

A conviction for use of a weapon while committing a felony was barred under the double jeopardy clause, where while accused was being arrested for shoplifting, she sprayed officers with mace and was given an enhanced sentence for the robbery owing to use of a weapon, but also was sentenced for engaging in a crime with a weapon, because the single act involving the use of a weapon in a robbery cannot form the basis for a separate conviction involving the same weapon. Pedrick v State (1992, Fla App DS) 599 So 2d 200, 17 FLW D 1171, corrected, remanded (Fla App D5) 17 FLW D 1415.

Convictions for second-degree murder with a firearm and unlawful possession of a firearm during the commission of a felony, based on the same act, were impermissibly duplicitous. Galban v State (1992, Fla App D3) 605 So 2d 579, 17 FLW D 2259.

Separate sentences were proper for defendant who was convicted of five counts of aggravated assault on five people for fire bombing house in which they resided since multiple sentences could be imposed when more than one person was affected by defendant's conduct, as long as sentences did not unfairly exaggerate criminality of defendant's conduct. State v Rieck (1979, Minn) 286 NW2d 724.

See State v Clements (1980, Miss) 383 So 2d 818, 330.

Conviction for both first-degree robbery and armed criminal action places defendant twice in jeopardy by assessing multiple punishments for same offense. State v McCall (1980, Me App) 602 SW2d 702.

Court did not violate defendant's right to protection against double jeopardy in considering manslaughter and assault charges when setting sentence in trial for cocaine possession or in considering cocaine charge when setting sentence in trial for manslaughter and assault, which charges all arose from single incident, where (1) court acknowledged that penalty imposed for cocaine possession was severe for first offense but stated that possession was aggravated by defendant's ingestion of cocaine while driving and that danger that this created, which was amply demonstrated by violence that followed, justified sentence, and (2) defendant received lenient manslaughter sentence reflecting, in part, court's assessment that he subjectively feared his victims. People v Bacalocostantis (1989, 3d Dept)  148 App Div 2d 842, 539 NYS2d 115.

Defendant was not subjected to double jeopardy or double punishment where 2 crimes of which he was convicted resulted from single trial pursuant to one indictment, and concurrent sentences were imposed. People v Mabry (1989, 2d Dept)  151 AD2d 507, 542 NYS2d 297, app den  74 NY2d 813, 546 NYS2d 571,545 NE2d 885.

There was no double jeopardy in defendant's having been convicted of and sentenced for armed robbery and kidnapping of the same person. State v Handsome, 300 NC 313, 266 SE2d 670.

Even if the acts of defendant violated both the child abuse statute, G.S. 14-318.2, and the assault with a deadly weapon inflicting serious injury statute, G.S. 14-32(b), neither statute proscribes a crime which is a lesser included offense of the other, and a conviction or acquittal of one will not support a plea of former jeopardy against a charge for a violation of the other. State v Walden (1982) 306 NC 466, 293 SE2d 780.

Defendant's conviction of first-degree murder under theories of accomplice liability based on (1) premeditation and deliberation and (2) felony murder did not violate defendant's right against double jeopardy. State v Gay (1993) 334 NC 467, 434 SE2d 840.

Although larceny is a lesser-included offense of armed robbery, separate convictions of defendant for armed robbery and larceny of a firearm did not violate defendant's right to be free of double jeopardy for the same offense because the armed robbery and the larceny involved separate takings where the victim's wallet and automobile were taken in the armed robbery and the firearm was later taken from the victim's automobile. State v Barton (1994) 335 NC 741, 441 SE2d 306.

Defendant was properly convicted of, and punished for, both conspiracy to commit first-degree murder and first-degree murder. The crime of conspiracy is a separate offense from the accomplishment or attempt to accomplish the intended result. State v Morston (1994) 336 NC 381, 445 SE2d 1.

Defendant's convictions and punishments for trafficking in cocaine by possession and felonious possession of cocaine, based on the same contraband, do not violate the principles of double jeopardy because an examination of the subject, language and history of the statutes indicates that the legislature intended that these offenses be punished separately. Under State v Gardner, 315 N.C. 444, examining Blockburger v United States,  284 U.S. 299, where a legislature clearly expresses its intent to proscribe and punish exactly the same conduct under two separate statutes, a trial court in a single trial may impose cumulative punishments under the statutes. GS § 90-95(a)(3) combats the perceived evil of individual possession of controlled substances and GS § 90-95(h)(3) is intended to prevent the large-scale distribution of controlled substances to the public; because the perceived evils these statutes attempt to combat are distinct, the legislature's intent was to proscribe and punish separately the offenses of felonious possession of cocaine and of trafficking in cocaine by possession. Certain conflicting holdings from the Court of Appeals are overruled. State v Pipkins (1994) 337 NC 431, 446 SE2d 360.

Defendant's conviction of involuntary manslaughter and unlawful burning arising out of the same transaction did not constitute double jeopardy. State v Jeffries (1982) 55 NC App 269, 285 SE2d 307, app dismd (NC) 290 SE2d 367.

Defendant's previous acquittal in the district court of misdemeanor charges of possession of marijuana and drug paraphernalia found in a cigarette case did not collaterally estop the State under double jeopardy principles from prosecuting defendant for felonious possession of cocaine also found in the cigarette case where no transcript was made of the district court proceedings, and the basis of defendant's acquittal of the misdemeanor charges is a matter of speculation. State v Solomon (1995) 117 NC App 701, 453 SE2d 201, review den (NC) 1995 NC LEXIS 185.

Defendant could be properly charged and convicted of carrying a concealed weapon under RC § 2923.12, a third-degree felony, instead of being charged with improperly handling firearms in a motor vehicle under RC § 2923.16, a misdemeanor, where defendant's firearm was located in a motor vehicle, because defendant's conduct violated both sections and the prosecution could choose the section under which to prosecute, even where, as here, RC § 2923.16 applied specifically to motor vehicle cases. State v Bowman (1992, Franklin Co) 79 Ohio App 3d 407, 607 NE2d 516.

Because only one of offenses of arson and murder requires proof of fact that other does not, underlying arson-felony necessarily merges with murder and defendant's separate though concurrent sentences for both offenses constitute double punishment for same offense, thereby violating double jeopardy clause of Fifth Amendment. State v Doyon (1980, RI) 416 A2d 130.

Defendant's double jeopardy rights were not violated by conviction on two counts of driving to endanger with resulting death, following head-on collision in which driver and passenger of other car were killed, where element of "death resulting" was proved by separate deaths of two individuals. State v Timms (1986, RI) 505 A2d 1132.

There is no violation of double jeopardy clause by imposition of consecutive sentences where single act of operating motor vehicle produces multiple fatalities; although each conviction was for violation of same statute, each count of first-degree manslaughter required proof of additional fact that other count did not i.e., death of particular victim named in that count. State v Seidschlaw (1981, SD) 304 NW2d 102.

An applicant for pretrial habeas relief was entitled to dismissal of an information charging her with driving while intoxicated since she had previously been convicted of involuntary manslaughter arising out of the same accident, since the allegation of the greater offense of involuntary manslaughter required proof of the lesser offense, and since the record clearly showed the state would rely on and seek to prove in the DWI case the same act of driving while intoxicated on a public roadway as the reckless act necessary to prove involuntary manslaughter, notwithstanding that involuntary manslaughter and driving while intoxicated each presented an element of offense that the other did not. May v State (1987, Tex Grim) 726 SW2d 573.

The imposition of consecutive sentences on a defendant charged separately and convicted, in a consolidated trial, of the aggravated assault of two victims injured as a result of defendant's committing one unlawful act, did not violate state and federal double jeopardy law since each offense requires proof of a fact which the other did not, i.e., the identity of each victim, and the two offenses were thus not the "same offense" under Blackburger, and since the Legislature, in enacting PC § 22.02, intended the offense of assault to be complete with the injury of a single individual, such that an actor commits a distinct offense against any person who injures and each of those injured constitutes a separate allowable unit of prosecution; the double jeopardy clause has no application to a multiple victim offense when, as here, it is the legislative intent to prohibit serious bodily injury to persons and, accordingly, to enforce this intent by proscribing the appropriate penalty for each such offense. Phillips v State (1990, Tex Crim) 787 SW2d 391.

Defendant clubbed victim to death with a baseball bat and stole his wallet. State prosecuted him for murder, alleging that he caused death by hitting the victim with a bat. Defendant was convicted of the lesser offense of negligent homicide. State then initiated prosecution for aggravated robbery, alleging that defendant caused serious bodily injury to victim by hitting him with a bat. Held, because State had to prove component offenses of assault and aggravated assault in order to prove murder, and will have to prove the same component offenses in prosecution for aggravated robbery, double jeopardy bars second prosecution. Ex parte Lowery (1992, Tex App Dallas) 840 SW2d 550, supp op (Tex App Dallas) 1992 Tex App LEXIS 2472, petition for discretionary review gr (Oct 14, 1992).

Defendant's previous conviction for possession of cocaine with intent to deliver did not bar her subsequent prosecution and conviction for engaging in organized criminal activity by conspiring to commit delivery of cocaine. Double jeopardy does not bar successive prosecutions for substantive offense and conspiracy to commit that offense. Lindley v State (1993, Tex App Tyler) 855 SW2d 729.

In prosecution on two counts of assault with intent to do great bodily harm less than murder, trial court properly found defendant guilty as charged where defendant fired pistol at one person and bullet missed him and hit another victim, and where defendant shot at his intended victim intending to hurt him. People v Lovett (1979) 90 Mieh App 169, 283 NW2d 357,  8 ALR4th 952.

Defendant's prosecution for food stamp fraud under both Food Stamp Act and federal fraudulent claims statute was barred, on double jeopardy grounds, since fraudulent claims statute did not require proof of fact that was not required by Food Stamp Act. United States v Hebeka (1996, CA6 Ohio) 89 F3d 279.

Footnotes

Footnote 73. State v Best, 42 Ohio St 2d 530, 71 Ohio Ops 2d 517, 330 NE2d 421.

Footnote 74. See  § 266, supra.

Footnote 75. State v Miranda, 3 Ariz App 550, 416 P2d 444 (question of former jeopardy not involved).

Footnote 76. Brown v Ohio,  432 US 161,  53 L Ed 2d 187,  97 S Ct 2221; Iannelli v United States,  420 US 770,  43 L Ed 2d 616,  95 S Ct 1284.

Footnote 77.  § 269, supra.

Footnote 78. Gore v United States,  357 US 386,  2 L Ed 2d 1405,  78 S Ct 1280, reh den  358 US 858,  3 L Ed 2d 92,  79 S Ct 13; Roark v United States (CA8 Colo) 17 F2d 570; Harris v State, 193 Ga 109, 17 SE2d 573 (superseded by statute as stated in Pryor v State 238 Ga 698, 234 SE2d 918, cert den  434 US 935,  54 L Ed 2d 294,  98 S Ct 422, reh den  434 US 1003,  54 L Ed 2d 500,  98 S Ct 650); Pivak v State, 202 Ind 417, 175 NE 278; State v Fredlund, 200 Minn 44, 273 NW 353.

Defendant charged in separate indictments with the shotgun murder of one victim and maliciously shooting a second victim, by the same blast, with the intent to maim, disfigure, disable, or kill, who was convicted of involuntary manslaughter under the first indictment, thus negating a finding of malice, was not placed in double jeopardy by a subsequent conviction for malicious wounding of the second victim.  Jones v Blankenship (CA4 Va) 602 F2d 650.

Footnote 79. Morgan v Devine,  237 US 632,  59 L Ed 1153,  35 S Ct 712, ovrlg Munson v McClaughry (CA8 Kan) 198 F 72; Roark v United States (CA8) 17 F2d 570,  51 ALR 870; Roark v United States (CA8 Colo) 17 F2d 570,  51 ALR 870; Murry v State, 48 Ala App 89, 261 So 2d 922; Thomas v Indianapolis, 195 Ind 440, 145 NE 550; State v Fredlund, 200 Minn 44, 273 NW 353; People v Florio, 301 NY 46, 92 NE2d 881,  17 ALR2d 993 (ovrld on other grounds People v Levy  15 NY2d 159, 256 NYS2d 793, 204 NE2d 842, remittitur amd  15 NY2d 910, 258 NYS2d 646, 206 NE2d 653 and reh den  15 NY2d 1037, 260 NYS2d 187, 207 NE2d 872 and cert den  381 US 938,  14 L Ed 2d 701,  85 S Ct 1770); Jones v Commonwealth, 208 Va 370, 157 SE2d 907 (conviction of defendant for breaking and entering with intent to commit robbery as charged in one indictment did not bar his prosecution for attempted robbery as charged in second indictment).

A conviction for reckless driving under an applicable motor vehicle act was not a bar to a subsequent prosecution and conviction for an atrocious assault with the automobile arising from the same transaction.  State v Currie, 41 NJ 531, 197 A2d 678.

A conviction for possession of marijuana does not bar a subsequent prosecution upon the same facts for unlawfully bringing marijuana upon the grounds of a penal institution.  London v State (Fla App D4) 347 So 2d 639.

Stealing from one vehicle cases of merchandise belonging to different owners may be regarded as separate offenses for which separate punishments may be imposed.  Oddo v United States (CA2 NY) 171 F2d 854, cert den  337 US 943,  93 L Ed 1747,  69 S Ct 1498.

Double jeopardy does not bar consecutive sentencing where different elements are required to be proved in order to sustain multiple convictions and different evidence is admitted to prove different elements.  State v Manus, 93 NM 95, 597 P2d 280.

Where a juvenile delinquency petition alleging that respondent assaulted a fellow student on board a school bus with a razor blade in violation of state statute was dismissed for lack of evidence, respondent was twice put in jeopardy for the same offense when she was adjudicated delinquent upon a subsequent petition based on the same incident alleging that she committed an affray by assaulting a fellow student on board a school bus with a razor blade, since the assault was an essential element of the affray charge, and respondent's acquittal on the assault charge barred further petitions based on that charge.  Re Drakeford, 32 NC App 113, 230 SE2d 779.

Two or more distinct offenses may emanate from the same transaction or act, and the rule that a person cannot be put twice in jeopardy for the same offense has no application where two separate and distinct crimes are committed by one and the same act; defendant may be prosecuted both for killing an unborn child during assault and battery on a pregnant woman and for assault and battery on the pregnant woman without violating the rule against double jeopardy.  Goodman v State (Wyo) 601 P2d 178.

A prosecution for violation of 18 USCS §§  111 (assaulting an officer) and 924(c) (use of a firearm to commit a felony) does not violate the double jeopardy clause of the Constitution.  United States v Busic (CA3 Pa) 587 F2d 577, revd on other grounds  446 US 398,  64 L Ed 2d 381,  100 S Ct 1747.

Footnote 80. State v Ahuna, 52 Hawaii 321, 474 P2d 704 (ovrld on other grounds State v Aiu 59 Hawaii 92, 576 P2d 1044).

Footnote 81. Brown v Ohio,  432 US 161,  53 L Ed 187,  97 S Ct 2221; Jeffers v United States,  432 US 137,  53 L Ed 2d 168,  97 S Ct 2207, reh den  434 US 880,  54 L Ed 2d 164,  98 S Ct 241; Iannelli v United States,  420 US 770,  43 L Ed 2d 616,  95 S Ct 1284; People v White, 390 Mich 245, 212 NW2d 222 (prosecution for kidnapping barred subsequent prosecution for rape where both crimes were the product of a single criminal intent).

Although the offense of kidnapping a foreign official included the offense of simple imprisonment within the meaning of 18 USCS §§  112, but the court erroneously gave the jury an additional charge of armed imprisonment upon which defendants were convicted, the principles of double jeopardy do not allow retrial for the offense of armed imprisonment.  United States v Kelava (CA7 Ill) 610 F2d 479.

A defendant may not properly be tried for both armed robbery and violation of 18 USCS §  2113 and use of a firearm to commit a felony under 18 USCS §  924.  United States v Hearst (ND Cal) 466 F Supp 1068.

A defendant cannot be convicted under both 18 USCS §  924(c)(2) (carrying a firearm during commission of a felony) and 2113 (armed robbery). United States v Roach (CA5 Ga) 590 F2d 181.

Convictions for aggravated rape and aggravated robbery of a single victim arising out of the same facts and occurring in the same transaction were violative of the double jeopardy clauses of both the state and federal constitutions, since the initial assault with a knife continued throughout the episode and provided aggravating circumstances in both the rape and the robbery.  Orosco v State (Tex Crim) 590 SW2d 121.

Footnote 82. Melville v State, 10 Md App 118, 268 A2d 497; State v Pennsylvania R. Co., 9 NJ 194, 87 A2d 709; Coffey v State, 207 Tenn 260, 339 SW2d 1,  83 ALR2d 1000.

Footnote 83. Ex parte Fitch (Tex Crim) 580 SW2d 372.

Where defendant's automobile was pursued by police officers in high-speed chase and ran stop sign resulting in collision injuring occupants of automobile crossing intersection, prosecution and conviction for offense of fleeing from police officer did not preclude prosecution for aggravated assault with motor vehicle and doctrine of carving did not apply.  Muncy v State (Tex Crim) 505 SW2d 925.

Footnote 84.  § 278, supra.

Footnote 85.  § 551, infra.


§ 280  Act violating both military and civil laws  [21 Am Jur 2d CRIMINAL LAW]

An acquittal by a court-martial is a bar to subsequent prosecution in a civil court charging the same offense and based on the same acts when both courts derive their authority from the same government, 86   but a court-martial conviction of an officer for conduct to the prejudice of good order and military discipline does not bar prosecution of a criminal indictment for conspiracy to defraud the United States, the same facts being the basis of each proceeding. 87       

An acquittal of a United States soldier of the charge of murder by a state court does not bar the soldier's subsequent trial by a military court on a charge of conduct to the prejudice of good order and military discipline based on the identical killing involved in the civilian court proceeding. 88   A state statute may, however, bar prosecution in the state courts of any offense for which the defendant has previously been acquitted by a court-martial. 89

Footnotes

Footnote 86. Grafton v United States,  206 US 333,  51 L Ed 1084,  27 S Ct 749.

Footnote 87. United States v Bayer,  331 US 532,  91 L Ed 1654,  67 S Ct 1394, reh den  332 US 785,  92 L Ed 368,  68 S Ct 29.

Footnote 88.
Annotation:  93 L Ed 985.

Re Stubbs (CC Wash) 133 F 1012 (further holding that acquittal in state court only determined charge of murder and included offenses, and had no bearing on military charges and specifications).

Footnote 89. State ex rel. Cobb v Mills, 82 Okla Crim 155, 163 P2d 558, reh den 82 Okla Crim 187, 167 P2d 669.


§ 281  Act violating laws of two governments or jurisdictions  [21 Am Jur 2d CRIMINAL LAW]

Prosecutions under the laws of separate sovereigns do not subject a defendant to double jeopardy. 90    Where the same act is an offense or transgression of the laws of both sovereigns, either or both may punish the offender and it cannot be said that he has been twice punished for the same offense.  By one act he committed two offenses. 91   It has been said that imposing the bar of double jeopardy in such circumstances and refusing to recognize the "dual sovereignty" concept would result in "undesirable consequences" in that prosecution by one sovereign for a relatively minor offense could bar prosecution by the other for a much graver one, thereby effectively depriving a sovereign of the right to enforce its own laws. 92    Thus, under the concept of "dual sovereignty" a defendant may be prosecuted and convicted in successive proceedings brought by the federal and state governments, 93   by a foreign country and a state, 94  or by two different states, 95  in the absence of a statute providing otherwise. 96  On the other hand, successive prosecutions in different federal courts for the same offense are not permitted, since both courts are "arms of the same sovereign." 97        

The concept of "dual sovereignty" does not apply, however, in every instance where successive actions are brought by nominally different prosecuting entities. 98   A single sovereign cannot impose multiple punishment for a single offense merely by establishing multiple political subdivisions with the power to punish crimes. 99    Where the different jurisdictions or courts are "creations emanating from the same sovereignty," successive prosecutions are impermissible. 1   Thus, successive prosecutions by federal and territorial courts contravene the prohibition against double jeopardy since the two courts emanate from the same sovereignty. 2     Successive prosecutions and convictions for the same offense in different courts of the same state likewise constitute double jeopardy violative of the Fifth and Fourteenth Amendments. Hence, a city and the state of which it is a political subdivision cannot bring successive prosecutions for unlawful conduct growing out of the same episode, even though state law treats the two courts as separate sovereignties. 3    On the other hand, the double jeopardy clause of the Fifth Amendment does not bar the prosecution of an American Indian in a federal district court under a federal statute even though he has previously been convicted in a tribal court of a lesser included offense arising out of the same incident, since the power of the tribal court to punish tribal offenders is a part of the inherent tribal sovereignty, rather than an aspect of the sovereignty of the federal government that has been delegated to the tribe by Congress.  In convicting the defendant, the tribe acts as an independent sovereign, not as an arm of the federal government, and the two prosecutions are thus not "for the same offense" for purposes of the double jeopardy clause. 4    And, a contumacious witness has been held not to be subjected to jeopardy although he might be punished for contempt of the Senate and also be indicted for a misdemeanor under a federal statute for refusing to testify before a committee of the United States Senate.  In so holding, the United States Supreme Court has noted that the witness was not subject to jeopardy twice for the same offense since the same act may be an offense against two jurisdictions. 5     

It is said that in determining whether the double jeopardy clause of the Federal Constitution applies, two questions must be answered:  1) whether both tribunals before which the defendant was tried derived their authority and jurisdiction from the same sovereign, and 2) whether both prosecutions were for the same offense. 6


§ 281  – Act violating laws of two governments or jurisdictions [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Murchison, The Dual Sovereignty Exception to Double Jeopardy. 14 NYU Rev L & Soc Ch 383, 1986.

Case authorities:

Under the dual sovereignty doctrine, which is founded on the common-law conception of crime as an offense against the sovereignty of the government, when a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offences" for double jeopardy purposes, so that successive prosecutions by two states for the same conduct are not barred by the double jeopardy clause of the Fifth Amendment; thus, a state is not barred by the double jeopardy clause from trying a defendant for the capital offense of murder during a kidnapping after another state has convicted him of murder based on the same homicide. Heath v Alabama (1985, US)  88 L Ed 2d 387,  106 S Ct 433.

In applying the dual sovereignty doctrine, the crucial determination is whether the two entities seeking successively to prosecute a defendant for the same course of conduct can be termed separate sovereigns, and this determination turns on whether the two entities draw their authority to punish the offender from distinct sources of power; thus, for purposes of this doctrine, the states are separate sovereigns with respect to the Federal Government because each state's power to prosecute is derived from its own inherent sovereignty, not from the Federal Government, and they (the states) are sovereign with respect to each other because their powers to undertake criminal prosecutions are derived from separate and independent sources of power and authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment. The application of the dual sovereignty principle cannot be restricted to cases in which two governmental entities, having concurrent jurisdictions and pursuing quite different interests, can demonstrate that allowing only one entity to exercise jurisdiction over the defendant will interfere with the unvindicated interests of the second entity; a state's interest in vindicating its sovereign authority through enforcement of its laws by definition can never be satisfied by another state's enforcement of its own laws, and just as the Federal Government has the right to decide that a state prosecution has not vindicated a violation of the "peace and dignity" of the Federal Government, a state must be entitled to deride that a prosecution by another state has not satisfied its legitimate sovereign interest. Heath v Alabama (1985, US)  88 L Ed 2d 387,  106 S Ct 433.

Double jeopardy clause did not bar federal prosecution of defendants for civil rights violations for assaulting and beating three men although defendants previously had been convicted in Puerto Rico of aggravated assault and involuntary manslaughter, since Puerto Rico is treated as state for double jeopardy purposes and since according to "dual sovereignty" doctrine successive prosecutions are not prohibited by Fifth Amendment if brought by separate sovereigns. United States v Lopez Andino (1987, CA1 Puerto Rico) 831 F2d 1164.

Even though states are free to punish criminal conduct after federal government has successfully prosecuted same individual under federal law for similar offense growing out of same occurrence, this is not true in case of territories since territories do not have independent sovereignty but derive governmental powers from congressional grant; when territorial government enacts and enforces criminal laws to govern its inhabitants, it is not acting as independent political community but as agency of federal government as such "dual sovereignty" concept prohibits imposition of multiple punishment for single offense. Government of Virgin Islands v Dowling (1980, CA3 VI) 633 F2d 660.

Accused's Fifth Amendment right not to be twice put in jeopardy for same offense is not violated by federal prosecution following punishment by foreign sovereign for same acts. United States v McRary (1980, CA5 Fla) 616 F2d 181.

Double jeopardy principles do not bar substantive marihuana counts, under Alabama indictment, and interstate travel in aid of racketeering (ITAR) violations, under Louisiana indictment, even though there wre no ITAR violations charged in Alabama indictment, where ITAR violation was charged as overt act to Alabama conspiracy to possess with intent to distribute cocaine and marijuana, since overt acts charged in conspiracy count may also be charged as substantive offenses, as agreement to do act is distinct from act itself. Jackson v Speer (1992, CA5 Tex) 974 F2d 676.

Conviction on various drug-related charges that were committed in Malaysia and for which petitioner had been convicted in Malaysia did not violate double jeopardy proscription; prosecution by foreign sovereign does not preclude United States from bringing criminal charges. Chua Hart Mow v United States (1984, CA9 Cal) 730 F2d 1308.

Under Pen. Code, § 656 (providing that it is a sufficient defense whenever on the trial of an accused it appears that upon a criminal prosecution under the laws of another state, government, or country, founded upon the act or omission in respect to which he is on trial, the accused has been acquitted or convicted), defendant's prosecution in California for robbery (Pen. Code, § 211), to which he pled guilty, was not barred under the guarantee against being twice placed in jeopardy for the same offense, although defendant had previously been convicted in Nevada of receiving stolen property, based on his possession of traveler's checks taken in the incident which also formed the basis of the California prosecution, since the evidence required for the California conviction was founded on acts different than those required for the Nevada conviction. The California offense of robbery, which arose out of defendant's pointing a gun at an American Express employee and by force and fear compelling him to hand over all the traveler's checks that he had in his drawer, was not the same act complained of in the Nevada court, namely, defendant's possession of the checks taken in the American Express robbery. Moreover, it was of no legal significance that defendant also relied on Pen. Code, § 793 (providing that a conviction or acquittal of an act charged as a public offense within the jurisdiction of another state is a bar to prosecution or indictment in California), since neither statute provides greater protection than the other. People v Walker (1981, 2d Dist) 123 Cal App 3d 981, 177 Cal Rptr 147.

Defendant was not subjected to double jeopardy because same incident giving rise to criminal indictment for first-degree promoting prison contraband likewise gave rise to prison disciplinary proceeding. People v Breighner (1992, 3d Dept)  186 AD2d 318, 587 NYS2d 1021.

It was not a violation of the double jeopardy provisions of the United States and Ohio Constitutions for a person who was tried and convicted of murder in Indiana to be retried and convicted in Ohio where the evidence showed that the victim was murdered in Ohio and then the body was dumped in Indiana. Heath is controlling. Prosecutions under the laws of separate sovereigns do not improperly subject an accused twice to prosecutions for the same offense. When the same act violates the laws of 2 sovereigns, the offender has not been punished twice for the same offense, because the one act constituted 2 offenses, for each of which he can be punished. State v McKinney (Miami Co) 80 O App 3d 470, 609 NE2d 613.

Footnotes

Footnote 90. United States v Wheeler,  435 US 313,  55 L Ed 2d 303,  98 S Ct 1079.

Footnote 91. United States v Wheeler,  435 US 313,  55 L Ed 2d 303,  98 S Ct 1079; Moore v Illinois,  55 US 13,  14 L Ed 306.

Footnote 92. United States v Wheeler,  435 US 313,  55 L Ed 2d 303,  98 S Ct 1079; Abbate v United States,  359 US 187,  3 L Ed 2d 729,  79 S Ct 666.

Footnote 93.  § 282, infra.

Footnote 94. People v Papaccio, 140 Misc 696, 251 NYS 717.

But see Coumas v Superior Court of San Joaquin County, 31 Cal 2d 682, 192 P2d 449, holding that a conviction in a foreign country of one of its citizens is a bar to a subsequent prosecution in this country for an act committed within the jurisdiction of a state court.

Footnote 95. People v Frank, 134 Cal App 61, 24 P2d 905; Slater v Commonwealth, 239 Ky 620, 40 SW2d 389; Marshall v State, 6 Neb 120.

Footnote 96.
Practice Aids: –Former jeopardy–Offenses against different governments.  1 Wharton's Criminal Law (14th ed) § 71.

Footnote 97. Grafton v United States,  206 US 333,  51 L Ed 1084,  27 S Ct 749.

Annotation:  25 L Ed 2d 968, § 3[c].

The second prosecution forbidden by the Fifth Amendment to the Federal Constitution is one under authority of the federal government after a first trial for the same offense under the same authority.  United States v Lanza,  260 US 377,  67 L Ed 314,  43 S Ct 141.

Footnote 98. United States v Wheeler,  435 US 313,  55 L Ed 2d 303,  98 S Ct 1079.

Footnote 99. United States v Wheeler,  435 US 313,  55 L Ed 2d 303,  98 S Ct 1079.

Footnote 1. United States v Wheeler,  435 US 313,  55 L Ed 2d 303,  98 S Ct 1079; Puerto Rico v Shell Co.,  302 US 253,  82 L Ed 235,  58 S Ct 167.

Footnote 2. Puerto Rico v Shell Co.,  302 US 253,  82 L Ed 235,  58 S Ct 167; Grafton v United States,  206 US 333,  51 L Ed 1084,  27 S Ct 749.

Annotation:  50 L Ed 2d 830, § 19.

Footnote 3.  § 284, infra.

Footnote 4. United States v Wheeler,  435 US 313,  55 L Ed 2d 303,  98 S Ct 1079.

As to criminal jurisdiction over Indians generally, see 41 Am Jur 2d,  Indians §§ 66 et seq.

Footnote 5. Re Chapman,  166 US 661,  41 L Ed 1154,  17 S Ct 677.

Annotation:  50 L Ed 2d 830, § 20.

Footnote 6. United States v Vaughan (CA5 Ala) 491 F2d 1096.

Practice Aids: –Offenses against different governments.  1 Wharton's Criminal Law (14th ed) § 71.


§ 282  – State and federal  [21 Am Jur 2d CRIMINAL LAW]

For purposes of the prohibition against double jeopardy, state and federal governments are considered as separate sovereigns. Each derives power from the organic law that established it and each has the power to determine independently what shall be an offense against its authority and to punish such offenses by exercising its own sovereignty. 7   A state's own sovereignty is the source of its power, even though there is a degree of federal control over the exercise of state governmental power in that both the federal and state governments are subject to the requirements of the Federal Constitution, and Congress, under the Supremacy Clause, may enact certain laws superseding conflicting laws of the states. 8    

Under the concept of "dual sovereignty," the same act may constitute a violation of both federal and state laws, and it has been held that a conviction or acquittal in one jurisdiction will not prevent a subsequent prosecution in the other 9   if the case is one over which both sovereignties have jurisdiction. 10  In other words, a prosecution in federal court based on the same act or transaction for which the accused has previously been convicted 11  or acquitted in a state court 12  does not violate the double jeopardy provision of the Fifth Amendment.  Conversely, a defendant's conviction or acquittal in a federal court on charges under federal law does not bar a criminal prosecution in a state court for violation of a state penal statute arising from the same criminal acts. 13      

The general rule permitting successive federal and state prosecution for the same act may be affected by statute, however. Thus, an acquittal or conviction in a state court will bar federal prosecution based on the same act or transaction involved in the state proceeding where the particular federal law forming the basis of the federal prosecution expressly provides that a judgment of conviction or acquittal on the merits under the laws of any state shall be a bar to any prosecution under such federal law for the same act or acts. 14     And, under a state statute providing that a federal conviction or acquittal is an affirmative defense to a state prosecution when the same conduct constitutes an offense within the current federal and state jurisdiction unless each offense requires proof of a fact not required by the other and the law defining each is intended to prevent a substantially different harm or evil, it has been held that a defendant convicted in a federal court for illegal interstate transportation of stolen firearms could not be charged in a state court with theft by receiving the same firearms. 15   One court, in construing state statutes providing for immunity to one previously acquitted or convicted on the merits under the laws of "another state or country" for the same act or omission, has held that such statutes refer to acquittals or convictions in federal courts as well as in courts of foreign countries, and in part based its holding on its obligation to construe statutes so as to avoid constitutional doubts. 16   And where a state constitutional provision prohibits a second prosecution for an offense arising out of the same criminal act unless it appears from the record that the interests of the state and the jurisdiction which initially prosecuted are substantially different, it has been held that the following nonexclusive factors may be considered in determining whether a federal prosecution satisfies the state's interest:  whether the maximum penalties of the two jurisdictions' statutes are greatly disparate; whether some reason exists why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction's interest in securing a conviction; and whether differences in the statutes are substantive, as well as jurisdictional. 17   In any event, the rule permitting dual prosecutions has no application where one of the governments has exclusive jurisdiction of the subject matter and therefore the exclusive power to punish, 18        such as the situation where Congress has excluded state action in a matter affecting the nation as a whole. 19       

Where a prosecution in a court of one jurisdiction, state or federal, does not bar prosecution in a court of the other, based on the same act or transaction, it does not follow that punishment will necessarily be imposed and executed in the courts of both jurisdictions.  A sentence in one jurisdiction may be taken into consideration in fixing the penalty in the other, where the court has a discretion in the matter, or the execution of the subsequent sentence may be suspended. 20   

§ 282  – State and federal [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Double jeopardy law after Rodney King, 95 Colum LR 1:1 (1995).

The myth of dual sovereignty: Multijurisdictional drug law enforcement and double jeopardy, 73 NC LR 3:1159 (1995).

The future of state and federal civil rights prosecutions: The lessons of the Rodney King trial, 41 UCLA LR 509 (1994).

The Rodney King trials: Civil rights prosecutions and double jeopardy, 41 UCLA LR 509 (1994).

Double jeopardy wars: The case for a civil rights "exception," 41 UCLA LR 649 (1994).

The Rodney King trials and the double jeopardy clause: Some observations on original meaning and the ACLU's schizophrenic views of the dual sovereign doctrine, 41 UCLA LR 693 (1994).

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts–modern view;  6 ALR4th 802. superseding  16 ALR 1231,  22 ALR 1551 and  48 ALR 1106.

Case authorities:

Risk of successive prosecutions by state and federal authorities for identical conduct is acceptable cost of federalism; "dual sovereignty" principle is equally applicable whether first proscution results in acquittal or conviction; second prosecution is barred under narrow exception where one prosecuting sovereign can be said to be acting as "tool" of other or where second prosecution amounts to sham and cover for first. United States v Aboumoussallem (1984, CA2 NY) 726 F2d 906.

RICO prosecution based on predicate acts of murder and attempted murder for which defendants had been tried in state court did not violate double jeopardy clause regardless of when racketeering activity occurred since under "dual sovereignty right doctrine" federal indictment charging conduct subject to previous state prosecution does not implicate clause. United States v Giovanelli (1991, CA2 NY) 945 F2d 479.

No violation of double jeopardy by defendant's conviction of federal murder charges and on state charge of injury to a child since both offenses required proof of additional fact that other did not require where under state child injury statute victim must be 14 years old or younger for conviction which is not required by federal murder statute, and where death of human being is required for federal charge of murder and not for proof of state charge of injury to a child under 14. United States v Webb (1986, CA5 Tex) 796 F2d 60.

Defendant's federal prosecution for assaulting federal officer after prosecution in state court for assaulting city police officer did not violate double jeopardy since defendant committed two separate and independent acts, one against state officer and other against federal official, violating laws of 2 different sovereigns. United States v Moore (1992, CA5 Tex) 958 F2d 646.

Indictment, trial, and conviction by United States on charges under Mann Act (18 USCS §  2421) stemming from same event which form basis of charges on which defendant has been acquitted in state court does not violate double jeopardy. United States v Mitchell (1985, CA7 Ill) 778 F2d 1271.

Prosecution of defendant for violation of 18 USCS Appendix  1202(a)(1) does not violate double jeopardy clause of Fifth Amendment to US Constitution notwithstanding that one week after federal indictment was returned state court jury acquitted defendant of charge of carrying concealed weapon in violation of state statute and that state charge arose from same incident. United States v Staples (1984, CA8 Mo) 747 F2d 489.

Defendant's due process rights are not violated by referral of his case for federal rather than state prosecution unless defendant can prove that federal prosecutors' decision is based on impermissible considerations even where motive of federal prosecution is that harsher penalties are possible. United States v Nance (1992, CA9 Or) 962 F2d 860, 92 CDOS 3270, 92 Daily Journal DAR 5145, amd (CA9) 92 CDOS 4208, 92 Daily Journal DAR 6654.

Murder prosecution would not violate accused's rights against double jeopardy under CLS US Const Amend  5 and CLS CPL §  40.20(1), and thus he could not maintain Article 78 proceedings to prohibit murder trial in state court, even though he had been acquitted in federal court on charges that he had violated Federal Racketeer Influenced and Corrupt Organizations Act in connection with same murders, since federal act did not charge commission of predicate crimes but only charged furtherance of criminal enterprise by pattern of racketeering activity. Cooper v Sheindtin (1989, 1st Dept)  154 AD2d 288, 546 NYS2d 589, app den  75 NY2d 705, 552 NYS2d 927, 552 NE2d 175.

Federal convictions for kidnapping of armored car guards and robbery of armored car did not bar state prosecution of same defendants for murder of guards, since crimes were against separate sovereigns, since state statute barring prosecution in cases where parallel prosecution took place in another jurisdiction did not apply, in that prosecutions were for separate and distinct crimes taking place at different times, and since prosecution would not constitute double punishment under "identical elements" test, in that state and federal crimes had sufficient separate factual bases to stand alone and state was not seeking convictions for more than one crime arising out of same transaction. State v Poland (1982) 132 Ariz 269, 645 P2d 784.

In a criminal proceeding defendant's murder conviction was not barred under Pen. Code, § 656, by his prior federal conviction of conspiracy to injure a federal witness (the murder victim), although his conviction of conspiracy to murder was barred. The acts upon which defendant's federal conspiracy conviction were based were not the same acts upon which the murder conviction was based. However, there was only one conspiracy to murder the victim, even though the federal indictment cast it as a conspiracy to "injure" the victim, rather than murder him. Under Pen. Code, § 656, which provides that in a criminal prosecution, a defendant's acquittal or conviction in a criminal prosecution in another jurisdiction is a sufficient defense if the prior prosecution was founded upon the same act, a defendant may not be convicted if all the acts constituting the offense in this state were necessary to prove the offense in the prior prosecution. However, a conviction in this state is not barred if the offense committed is not the same act, but involves an element not present in the prior prosecution. People v Galloway (1990, 2nd Dist) 223 Cal App 3d 971, 273 Cal Rptr 167.

Defendant's conviction on charges of unlawful possession of explosives, attempted first-degree murder, first-degree arson and the unlawful discharge of a destructive device was not barred by the double jeopardy clauses of the Florida or United States Constitutions, although he had previously been acquitted in a federal prosecution on charges based on the same conduct, his allegedly placing bombs in Miami International Airport, where the interests of Florida in the state prosecution were different from those of the United States in the prior federal prosecution, in that the state's interests in protecting the property of the airport and the lives of the citizens who sought services from the airport had not been advanced by the federal prosecution. Hernandez v State (1981, Fla App D1) 397 So 2d 715.

A state trial of defendants for a killing that occurred during the commission of a bank robbery violated the state constitutional prohibition against double jeopardy where the interest of the state in trying defendants for murder did not differ substantially from the interest previously addressed in defendants' earlier federal prosecution arising out of the same killing. People v Gay (1980) 407 Mich 681, 289 NW2d 651.

There was no violation of double jeopardy where (1) in September, 1989, defendants used stolen credit card to purchase merchandise at department store and were thereafter arraigned in state court on charges of grand larceny, possession of stolen property, forgery, and possession of forged instrument, and (2) during unrelated federal investigation in December, 1989, defendants bought stolen credit cards and were indicted in federal court for conspiracy to use unauthorized access devices; crimes were not closely related or connected in time, and fact that crimes showed same modus operandi did not insulate defendant from separate prosecutions. People v Vesprey (1992, 1st Dept)  183 AD2d 212, 590 NYS2d 91.

The prosecution of defendant under a state statute providing for enhanced punishment for those who commit certain crimes with the use of a firearm as well as under a state statute proscribing bank robbery did not subject defendant to double jeopardy where neither the federal nor Tennessee constitutions prohibited defendant's trial in state court on a charge of bank robbery after his previous conviction in federal court for the same offense on the basis of the same act, and where the state statute providing for enhanced punishment did not merge into the offense of bank robbery. Lavon v State (1979, Tenn) 586 SW2d 112,  6 ALR4th 794.

Conviction for conspiracy to commit premeditated first-degree murder was affirmed while conviction for conspiracy to commit arson was reversed where conspiracy to commit arson was charged and proved as one crime underlying federal racketeering charge previously prosecuted, but federal racketeering indictment made no mention of conspiracy to commit murder. State v Caliguri (1983) 99 Wash 2d 501,664 P2d 466.

Footnotes

Footnote 7. United States v Wheeler,  435 US 313,  55 L Ed 2d 303,  98 S Ct 1079; United States v Lanza,  260 US 377,  67 L Ed 314,  43 S Ct 141.

Footnote 8. United States v Wheeler,  435 US 313,  55 L Ed 2d 303,  98 S Ct 1079.

Footnote 9. United States v Wheeler,  435 US 313,  55 L Ed 2d 303,  98 S Ct 1079; Abbate v United States,  359 US 187,  3 L Ed 2d 729,  79 S Ct 666; Bartkus v Illinois,  359 US 121,  3 L Ed 2d 684,  79 S Ct 676, reh den  360 US 907,  3 L Ed 2d 1258,  79 S Ct 1283; Screws v United States,  325 US 91,  89 L Ed 1495,  65 S Ct 1031; Jerome v United States,  318 US 101,  87 L Ed 640,  63 S Ct 483; Herbert v Louisiana,  272 US 312,  71 L Ed 270,  47 S Ct 103; United States v Lanza,  260 US 377,  67 L Ed 314,  43 S Ct 141; Turley v Wyrick (CA8 Mo) 554 F2d 840, cert den  434 US 1033,  54 L Ed 2d 780,  98 S Ct 765; United States v Embry (CA3 Pa) 546 F2d 552, cert den  430 US 948,  51 L Ed 2d 797,  97 S Ct 1587; Goode v McCune (CA10 Kan) 543 F2d 751; United States v Villano (CA10 Colo) 529 F2d 1046, cert den  426 US 953,  49 L Ed 2d 1193,  96 S Ct 3180; Speed v United States (CA8 Ark) 518 F2d 75, cert den  423 US 988,  46 L Ed 2d 306,  96 S Ct 398; United States v Johnson (CA8 Minn) 516 F2d 209, cert den  423 US 859,  46 L Ed 2d 85,  96 S Ct 112; United States v Addington (CA10 Kan) 471 F2d 560; United States v Jackson (CA5 Fla) 470 F2d 684, cert den  412 US 951,  37 L Ed 2d 1004,  93 S Ct 3019; United States v Barone (CA2 NY) 467 F2d 247; United States ex rel. Hill v United States (CA5 La) 452 F2d 664; United States v Smith (CA4 Va) 446 F2d 200; Whatley v United States (CA5 Ala) 428 F2d 806; United States v Hutul (CA7 Ill) 416 F2d 607,  18 ALR Fed 364, cert den  396 US 1007,  24 L Ed 2d 499,  90 S Ct 562, cert den  396 US 1012,  24 L Ed 2d 504,  90 S Ct 573, reh den  397 US 1081,  25 L Ed 2d 820,  90 S Ct 1519, cert den  396 US 1024,  24 L Ed 2d 517,  90 S Ct 599; United States v Feinberg (CA2 NY) 383 F2d 60, cert den  389 US 1044,  19 L Ed 2d 836,  88 S Ct 788; United States v Sutton (CA4 Md) 363 F2d 845, cert den  385 US 1014,  17 L Ed 2d 550,  87 S Ct 727; Hoopengarner v United States (CA6 Mich) 270 F2d 465; Rios v United States (CA9 Cal) 256 F2d 173, vacated on other grounds,  364 US 253,  4 L Ed 2d 1688,  80 S Ct 1431; Smith v United States (CA6 Ohio) 243 F2d 877; State v Garcia, 198 Iowa 744, 200 NW 201 (disapproved on other grounds Waller v Florida  397 US 387,  25 L Ed 2d 435,  90 S Ct 1184, 52 Ohio Ops 2d 320, reh den  398 US 914,  26 L Ed 2d 79,  90 S Ct 1684 and later app (Fla App D2) 270 So 2d 26, cert den (Fla) 276 So 2d 489 and cert den  414 US 945,  38 L Ed 2d 168,  94 S Ct 256); Melville v State, 10 Md App 118, 268 A2d 497; State v Gauthier, 121 Me 522, 118 A 380; State v Shimman, 122 Ohio St 522, 8 Ohio L Abs 386, 172 NE 367; State v Rhodes, 146 Tenn 398, 242 SW 642.

Annotation:  18 ALR Fed 393, § 3.

Footnote 10. Abbate v United States,  359 US 187,  3 L Ed 2d 728,  79 S Ct 666; Bartkus v Illinois,  359 US 121,  3 L Ed 2d 684,  79 S Ct 676, reh den  360 US 907,  3 L Ed 2d 1258,  79 S Ct 1283.

Footnote 11. Abbate v United States,  359 US 187,  3 L Ed 2d 729,  79 S Ct 666; Bartkus v Illinois,  359 US 121,  3 L Ed 2d 684,  79 S Ct 676, reh den  360 US 907,  3 L Ed 2d 1258,  79 S Ct 1283; United States v James (CA7 Wis) 532 F2d 1161, cert den  429 US 840,  50 L Ed 2d 107,  97 S Ct 112; United States ex rel. Stanbridge v Zelker (CA2 NY) 514 F2d 45, cert den  423 US 872,  46 L Ed 2d 102,  96 S Ct 138 and (disagreed with on other grounds Hodges v Rose (CA6 Tenn) 570 F2d 643, cert den  436 US 909,  56 L Ed 2d 408,  98 S Ct 2243,  98 S Ct 2244) and (disagreed with on other grounds Randolph v Parker (CA6 Tenn) 575 F2d 1178, affd in part and revd in part on other grounds  442 US 62,  60 L Ed 2d 713,  99 S Ct 2132); Brinlee v United States (CA8 ND) 496 F2d 351, cert den  419 US 878,  42 L Ed 2d 118,  95 S Ct 142; United States v Burke (CA5 Fla) 495 F2d 1226, cert den  419 US 1079,  42 L Ed 2d 673,  95 S Ct 667; United States v Barone (CA2 NY) 467 F2d 247; United States v Sutton (CA4 Md) 363 F2d 845, cert den  385 US 1014,  17 L Ed 2d 550,  87 S Ct 727; Hoopengarner v United States (CA6 Mich) 270 F2d 465; United States v Scarlata (CA3 Pa) 214 F2d 807; United States v Regan (DC NH) 273 F 727.

Annotation:  18 ALR Fed 393, § 4(a).

50 L Ed 2d 830, § 19.

The double jeopardy clause of the Federal Constitution was not violated by a charge against a defendant for violation of a federal statute proscribing armed robbery, following a conviction of him for armed robbery in a state court; although both convictions were for the same act, they were obtained by separate sovereigns under separate laws.  Brown v United States (CA5 La) 551 F2d 619.

The double jeopardy clause of the Federal Constitution was not violated by a charge against a defendant for violation of a federal statute prohibiting the carrying of an explosive during the commission of a felony, as well as unlawful possession of firearms, following his conviction for murder involving use of a bomb, since both offenses were separate, elements of their proof were dissimilar, and the proscriptions emanated from different sovereigns.  Brinlee v United States (CA8 ND) 496 F2d 351, cert den  419 US 878,  42 L Ed 2d 118,  95 S Ct 142.

The petitioner's convictions in both federal and state courts based upon the same bank robbery did not constitute violation of the double jeopardy clause since separate sovereigns were involved; the elements of proof under the federal and state charges differing in one aspect had no effect.  Goode v McCune (CA10 Kan) 543 F2d 751.

Footnote 12. United States v Smith (CA4 Va) 446 F2d 200; United States v Hutul (CA7 Ill) 416 F2d 607,  18 ALR Fed 364, cert den  396 US 1007,  24 L Ed 2d 499,  90 S Ct 562, cert den  396 US 1012,  24 L Ed 2d 504,  90 S Ct 573, reh den  397 US 1081,  25 L Ed 2d 820,  90 S Ct 1519, cert den  396 US 1024,  24 L Ed 2d 517,  90 S Ct 599; Ferina v United States (CA8 Mo) 340 F2d 837, cert den  381 US 902,  14 L Ed 2d 284,  85 S Ct 1446; Cummings v United States (CA10 Kan) 289 F2d 904, cert den  368 US 850,  7 L Ed 2d 48,  82 S Ct 83; Smith v United States (CA6 Ohio) 243 F2d 877; Jolley v United States (CA5 Ga) 232 F2d 83; Serio v United States (CA5 La) 203 F2d 576, cert den  346 US 887,  98 L Ed 391,  74 S Ct 144; United States v Wapnick (ED NY) 198 F Supp 359, affd (CA2 NY) 315 F2d 96, cert den  374 US 829,  10 L Ed 2d 1052,  83 S Ct 1868, reh den  375 US 871,  11 L Ed 2d 100,  84 S Ct 30 and reh den  383 US 923,  15 L Ed 2d 680,  86 S Ct 879 and cert den  374 US 829,  10 L Ed 2d 1052,  83 S Ct 1871, reh den  375 US 872,  11 L Ed 2d 102,  84 S Ct 30.

Annotation:  18 ALR Fed 393, § 4(b).

A federal prosecution for the acceptance of bribes did not violate double jeopardy, notwithstanding the defendants had previously been acquitted in a state court on similar charges growing out of the same alleged activity. United States v Frumento (ED Pa) 426 F Supp 797, affd (CA3 Pa) 552 F2d 534 and affd (CA3 Pa) 563 F2d 1083, cert den  434 US 1072,  55 L Ed 2d 775,  98 S Ct 1256 and cert den  434 US 1072,  55 L Ed 2d 776,  98 S Ct 1258.

An accused's rights against double jeopardy were not violated by his federal prosecution on extortion charges arising out of a kidnapping, notwithstanding his acquittal on state kidnapping charges.  United States v Johnson (CA8 Minn) 516 F2d 209, cert den  423 US 859,  46 L Ed 2d 85,  96 S Ct 112.

No double jeopardy problem was presented by a federal conviction under 18 USCS §  659 for possessing articles from baggage that had been stolen from a common carrier in interstate commerce, following a Louisiana prosecution, since the state information had charged the accused with fraudulent use of a stolen credit card and not possession of stolen property as alleged in the federal indictment. Packnett v United States Government (CA5 La) 503 F2d 949.

Under a state statute providing that when conduct constitutes an offense within the concurrent jurisdiction of the state and the United States, a federal prosecution is a bar to subsequent state prosecution when the subsequent prosecution is based on an offense arising out of the same transaction, a federal prosecution of a university professor for making false statements with regard to claims against grant funds barred subsequent state prosecution where charges in state court were based on a series of acts by the defendant motivated by a common purpose or plan resulting in the repeated commission of the seame offense against the same person or entity and its property.  State ex rel. Zimmerman v District Court of Fourth Judicial Dist., 168 Mont 289, 541 P2d 1215, later app 175 Mont 179, 573 P2d 174.

A defendant's acquittal in municipal court on charges of bribery, extortion, and conspiracy to accept bribes and avoid paying state cigarette taxes did not bar, on double jeopardy grounds, a later federal prosecution of the defendant on charges of racketeering, conspiracy, and income tax fraud, even though both prosecutions grew out of the same alleged cigarette smuggling conspiracy.  United States v Frumento (CA3 Pa) 563 F2d 1083, cert den  434 US 1072,  55 L Ed 2d 775,  98 S Ct 1256 and cert den  434 US 1072,  55 L Ed 2d 776,  98 S Ct 1258.

Footnote 13. Sappington v United States (CA8 Mo) 523 F2d 858; State v Fletcher, 26 Ohio St 2d 221, 55 Ohio Ops 2d 464, 271 NE2d 567, cert den  404 US 1024,  30 L Ed 2d 675,  97 S Ct 699.

A defendant's acquittal on a federal charge of conspiracy to transport stolen goods does not bar a state prosecution for conspiracy to receive and conceal identical stolen goods on double jeopardy grounds, since the state may have a distinct and special interest to protect.  People v Morillo, 90 Mich App 655, 282 NW2d 434.

The state was entitled to prosecute and punish an accused for delivery of a controlled substance, notwithstanding the accused had previously been prosecuted in federal court for the same conduct, since the state's controlled substances act contained no prohibition against reprosecuting narcotics or controlled substances cases that had previously been litigated in federal court.  Reynolds v State (Tex Crim) 548 SW2d 733.

A defendant was not placed in double jeopardy where he was convicted of armed robbery of a bank in violation of 18 USCS §  2113 and was subsequently tried in state court for the same offense.  State v Ivory (Mo App) 578 SW2d 62.

Footnote 14. United States v Scarlata (CA3 Pa) 214 F2d 807; United States v Porria (DC Wash) 255 F 172.

Annotation:  18 ALR Fed 393, § 7.

Following a Louisiana prosecution, an accused's federal conviction for possessing articles from baggage that had been stolen from a common carrier in interstate commerce, under 18 USCS §  659, did not violate that section's prohibition against federal duplication of state charges since the state information had charged the accused with fraudulent use of a stolen credit card and not with possession of stolen property as alleged in the federal indictment.  Packnett v United States Government (CA5 La) 503 F2d 949.

Footnote 15. Bateman v State (Ark) 578 SW2d 216.

The state was entitled to prosecute and punish an accused for delivery of a controlled substance, notwithstanding that the accused had previously been prosecuted in federal court for the same conduct, since the state's controlled substances act contained no prohibition against reprosecuting narcotics or controlled substances cases that had previously been litigated in federal court.  Reynolds v State (Tex Crim) 548 SW2d 733.

Neither the double jeopardy clauses of the state and United States constitutions, nor a state statute prohibiting maintenance of both federal and state prosecutions for violation of federal and state statutes by the same act, was applicable to bar a state prosecution of defendant for attempted murder after his acquittal in a federal prosecution for aggravated bank robbery; since the state offense required proof of an additional fact, intent to kill, not necessary for conviction of the federal offense, two separate offenses and two separate acts, within the meaning of the state statute, were involved even though both had arisen out of the same incident. Epps v Commonwealth, 216 Va 150, 216 SE2d 64.

Footnote 16. People v Lo Cicero,  14 NY2d 374, 251 NYS2d 953, 200 NE2d 622.

Footnote 17. People v Formicola, 407 Mich 293, 284 NW2d 334.

Footnote 18. Southern R. Co. v Railroad Com. of Indiana,  236 US 439,  59 L Ed 661,  35 S Ct 304; Pettibone v United States,  148 US 197,  37 L Ed 419,  13 S Ct 542.

Footnote 19. Pennsylvania v Nelson,  350 US 497,  100 L Ed 640,  76 S Ct 477, reh den  351 US 934,  100 L Ed 1462,  76 S Ct 785; Re Squires, 114 Vt 285, 44 A2d 133.

Footnote 20. Fox v Ohio,  46 US 410,  12 L Ed 213; United States v Holt (DC ND) 270 F 639; Re Murphy, 5 Wyo 297, 40 P 398.


§ 283  --"Petite" policy  [21 Am Jur 2d CRIMINAL LAW]

Although both a state and the federal government may constitutionally prosecute a defendant for the same criminal act, the United States Supreme Court has noted that it may be necessary for a prosecuting authority to exercise "self-restraint" to prevent unfairness to the defendant. 21   Accordingly, the United States Department of Justice has adopted a policy of refusing to bring a federal prosecution following a state prosecution, except when necessary to advance the compelling interests of federal law enforcement.  Under this policy, known as the "Petite" policy, which also encompasses successive federal prosecutions arising out of the same transaction, 22   a United States attorney contemplating a federal prosecution is required to obtain authorization from an appropriate assistant attorney general.  The policy fosters the efficient management of federal prosecution resources, encourages local responsibility in law enforcement, and serves the important purpose of protecting the defendant from any unfairness associated with successive prosecutions based on the same conduct which, absent the "dual sovereignty" principle inherent in the federal system, would otherwise fall within the protection of the double jeopardy clause. 23   When a prosecution has been initiated and a conviction obtained in violation of the Petite policy, the solicitor general, upon discovering such a violation in a case pending before the Supreme Court, has sought to remedy it by having the case remanded to allow the government to dismiss the indictment.  The Supreme Court has often granted the government's motion. 24          

Since the Petite policy has a purpose parallel to the constitutional guaranty against double jeopardy, the United States Supreme Court has held that the federal courts should be receptive, not circumspect, when the government asks a court's leave to implement that policy. 25      It is said that a defendant should receive the benefit of the policy whenever its application is urged by the government.  Thus, where a government attorney, in violation of the Petite policy, had pursued a federal prosecution out of concern that the defendant's prior state conviction might be reversed on appeal, the United States Supreme Court has granted the government's motion to have the case remanded to the district court for the purpose of dismissing the indictment.  In so holding, the Supreme Court has noted that the issue was not whether the decision to maintain the federal prosecution had been made in bad faith, but rather whether the government's later efforts to terminate the prosecution were also tainted with impropriety.  Under the circumstances, the Supreme Court held that the decision to terminate the prosecution based on the Petite policy was not contrary to the public interest. 26     

§ 283  – "Petite" policy [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Effect on federal criminal prosecution or conviction of prosecutor's noncompliance with Petite policy requiring prior authorization of attorney general for federal trial where accused has been previously prosecuted for same acts in state court.  51 ALR Fed 852.

Case authorities:

Petite policy, housekeeping provision of Department of Justice relating to further prosecution in federal court of defendant already prosecuted by state, is at most policy guide for Attorney General and United States Attorneys and is not capable of conferring any rights barring prosecution on defendant. United States v Thompson (1978, CA10 Okla) 579 F2d 1184,  51 ALR Fed 839, cert den  439 US 896,  58 L Ed 2d 243,  99 S Ct 257.

Footnotes

Footnote 21. Rinaldi v United States,  434 US 22,  54 L Ed 2d 207,  98 S Ct 81; Bartkus v Illinois,  359 US 121,  3 L Ed 2d 684,  79 S Ct 676, reh den  360 US 907,  3 L Ed 2d 1258,  79 S Ct 1283.

Footnote 22. See  § 278, supra.

Footnote 23. Rinaldi v United States,  434 US 22,  54 L Ed 2d 207, 207,  98 S Ct 81.

Footnote 24. Watts v United States,  422 US 1032,  45 L Ed 2d 688,  95 S Ct 2648; Ackerson v United States,  419 US 1099,  42 L Ed 2d 796,  95 S Ct 769; Hayles v United States,  419 US 892,  42 L Ed 2d 136,  95 S Ct 168.

Footnote 25. Rinaldi v United States,  434 US 22,  54 L Ed 2d 207, 207,  98 S Ct 81.

Footnote 26. Rinaldi v United States,  434 US 22,  54 L Ed 2d 207, 207.  98 S Ct 81.

As to federal government's motion under PRCrP, Rule 48(a), to dismiss an indictment, see 32 Am Jur 2d,  Federal Practice and Procedure § 425.


§ 284  – State and municipal  [21 Am Jur 2d CRIMINAL LAW]

Although many state court decisions have treated municipalities and the state as separate sovereigns for double jeopardy purposes, the United States Supreme Court has held that cities are not sovereign entities, but rather are subordinate governmental instrumentalities whose judicial power to try an accused in a municipal court springs from the same organic law that created the state court of general jurisdiction.  The relationship between municipal and state governments is, therefore, analogous to that between a federal territory and the federal government. 27   Accordingly, the "dual sovereignty" concept does not apply to successive prosecutions for the same offense in municipal courts and other courts of the state, 28                    and a trial of an accused in a municipal court will bar his subsequent prosecution for the same offense in another court of the same state. 29   Furthermore, a conviction in a municipal court will bar subsequent state prosecution for the same offense even though the municipal prosecution was expedited by the defendant's counsel for the express purpose of barring the state prosecution. 30  Since a proceeding in a municipal court to impose a fine for an alleged violation of a city ordinance is criminal rather than civil, in that it seeks punishment to vindicate public justice, the alleged offender, whether convicted or acquitted in a municipal court, has thereby been placed in jeopardy and cannot be tried again for the same offense in a state trial court of general jurisdiction. 31

In dictum, the Supreme Court has observed that if an accused has committed other offenses not embraced within the charges against him in a municipal court, he may be subject to further prosecution for those different offenses, depending on statutes of limitation and other restrictions not covered by the double jeopardy restraints of the state or United States Constitution. 32   Thus, the issue is whether the successive prosecutions in the municipal and state courts are for the same offense.  Where a single act violates both a city ordinance and a state statute, but the statute requires proof of an additional fact that the ordinance does not, an acquittal or conviction under the ordinance will not exempt the defendant from prosecution and punishment under the state statute. 33   Accordingly, even though municipal and state governments are not considered separate entities, a defendant's plea of guilty to a charge of failing to yield the right-of-way in violation of a municipal ordinance does not bar his trial on a charge of vehicular homicide arising out of the same incident, since the homicide offense involves matters in addition to the right-of-way offense and since the plea of guilty does not involve any determination of ultimate facts in the defendant's favor. 34   And, where defendant ripped a mural from an interior wall of a city hall and carried it through the city streets, his conviction in local municipal court for violation of two ordinances proscribing destruction of city property and disorderly breach of the peace did not preclude his conviction in a state court on charges of grand larceny. 35      

Where a statute provides that if a person's conduct constitutes more than one offense he may be punished for only one of such offenses, and that a conviction or acquittal of any one of them is a bar to a prosecution for any other, a conviction under a complaint charging a violation of a municipal ordinance, for which conviction only a preponderance of the evidence is required, does not involve an "offense" within the meaning of the statute, under which proof beyond a reasonable doubt is required for conviction. 36

§ 284  – State and municipal [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

State's prosecution of defendant on state charge of possession of marijuana following prior prosecution of defendant for violation of metropolitan ordinance prohibiting possession of instruments adapted for use of controlled substance did not violate double jeopardy clause, since metropolitan ordinance charge stemmed from defendant's possession of pipe which contained traces of marijuana on it and state charge arose from defendant's possession of separate quantity of marijuana, thus constituting 2 separate and distinct offenses that did not merge for purpose of double jeopardy analysis and thereby remained subject to multiple prosecutions. Lee v Probate Court of Davidson County (1986, CA6 Tenn) 807 F2d 512.

Accused's prior conviction ex parte for violation of ordinance prohibiting interference with police officer and subsequent conviction for aggravated battery on police officer violate double jeopardy clause. United States ex rel. Woollums v Greer (1984, CA7 Ill) 728 F2d 918.

Defendants' conviction under municipal ordinance for disorderly conduct following fight in tavern did not bar subsequent prosecution for state felony offense of aggravated battery. People v Crabtree (1980) 82 Ill App 3d 87, 37 Ill Dec 527, 402 NE2d 417.

Footnotes

Footnote 27. As to inapplicability of concept of "dual sovereignty" to prosecutions by federal and territorial governments for same offense, see  § 281, supra.

Footnote 28. United States v Wheeler,  435 US 313,  55 L Ed 2d 303,  98 S Ct 1079; Waller v Florida,  397 US 387,  25 L Ed 2d 435,  90 S Ct 1184, 52 Ohio Ops 2d 320, reh den  398 US 914,  26 L Ed 2d 79,  90 S Ct 1684 and later app (Fla App D2) 270 So 2d 26, cert den (Fla) 276 So 2d 489 and cert den  414 US 945,  38 L Ed 2d 168,  94 S Ct 256.

The United States Supreme Court decision in Waller v Florida,  397 US 387,  25 L Ed 2d 435,  90 S Ct 1184, 52 Ohio Ops 2d 320, reh den  398 US 914,  26 L Ed 2d 79,  90 S Ct 1683 and later app (Fla App D2) 270 So 2d 26, cert den (Fla) 276 So 2d 489 and cert den  414 US 945,  38 L Ed 2d 168,  94 S Ct 256, holding that a state and a municipality may not be treated as separate sovereignties for purposes of double jeopardy, is to be accorded full retroactive effect. Robinson v Neil,  409 US 505,  35 L Ed 2d 29,  93 S Ct 876, reh den  410 US 959,  35 L Ed 2d 694,  93 S Ct 1423 and on remand (ED Tenn) 366 F Supp 924.

Footnote 29. Waller v Florida,  397 US 387,  25 L Ed 2d 435,  90 S Ct 1184, 52 Ohio Ops 2d 320, reh den  398 US 914,  26 L Ed 2d 79,  90 S Ct 1684 and later app (Fla App D2) 270 So 2d 26, cert den (Fla) 276 So 2d 489 and cert den  414 US 945,  38 L Ed 2d 168,  94 S Ct 256.

Footnote 30. Weaver v Schaaf (Mo) 520 SW2d 58.

Footnote 31. Metropolitan Government of Nashville & Davidson County v Miles (Tenn) 524 SW2d 656.

Footnote 32. Waller v Florida,  397 US 387,  25 L Ed 2d 435,  90 S Ct 1184, 52 Ohio Ops 2d 320, reh den  398 US 914,  26 L Ed 2d 79,  90 S Ct 1684 and later app (Fla App D2) 270 So 2d 26, cert den (Fla) 276 So 2d 489 and cert den  414 US 945,  38 L Ed 2d 168,  94 S Ct 256.

Footnote 33. State v Ikner, 44 Ohio St 2d 132, 73 Ohio Ops 2d 444, 339 NE2d 633.

Footnote 34. Toledo v Romstadt, 44 Ohio Misc 55, 73 Ohio Ops 2d 220, 337 NE2d 188.

Footnote 35. Waller v State (Fla App D2) 270 So 2d 26, cert den (Fla) 276 So 2d 489 and cert den  414 US 945,  38 L Ed 2d 168,  94 S Ct 256.

Annotation:  25 L Ed 2d 968, § 3(c).

As to identity of offenses for purposes of double jeopardy, generally, see  §§ 266 et seq., supra.

Footnote 36. Bloomington v Kossow, 269 Minn 467, 131 NW2d 206 (conviction under complaint charging defendant with being intoxicated in public place contrary to municipal ordinance held not to bar prosecution under state statute for driving while under influence of intoxicating liquor).


6.  Discharge of Jury or Substitution of Juror: Mistrial [285-308]

§ 285  Generally; manifest necessity for mistrial; effect of continuance  [21 Am Jur 2d CRIMINAL LAW]

The early common-law rule was that the discharge of an impaneled jury in a criminal case for any cause before the verdict would sustain a plea of former jeopardy and operate practically as a discharge of the prisoner. 37  The modern rule, however, permits the court to discharge a jury without working an acquittal of the defendant in any case where the ends of justice would otherwise be defeated. 38   This calls for the exercise of sound discretion on the part of the court, 39   and the power to discharge is to be exercised only where there is a cogent reason 40  or a manifest necessity. 41               

Employing such terms as "manifest necessity," "legal necessity," and "necessity not to frustrate the ends of justice," various courts have held that the trial judge in a criminal case should not order a mistrial without the accused's consent unless there are compelling reasons for doing so. 42  The court's discretionary power cannot be arbitrarily exercised. 43   Since the prohibition of the double jeopardy clause is not only against being twice punished but against being twice put in jeopardy, the trial court's discretion to discharge the jury before it has reached a verdict is to be exercised only in "very extraordinary and striking circumstances." 44     

Because the declaration of a mistrial affects a defendant's constitutionally protected interest in having his trial completed by a particular tribunal, the trial judge must always "temper" his decision to end the proceeding by considering the importance to the defendant of being able, once and for all, to conclude his trial through the verdict of a jury he might believe to be favorably disposed to his fate. 45  To protect the defendant's interest adequately, a reviewing court has the obligation to satisfy itself that the trial judge exercised "sound discretion" in declaring a mistrial.  If a trial judge acts irrationally or irresponsibly, his action cannot be condoned. 46    He may not arbitrarily discharge and impanel juries until one is obtained that will render a verdict desired by the state or the prosecution. 47    In applying the double jeopardy clause to proceedings ending in mistrial, the public interest in ensuring that the prosecutor is afforded a full opportunity to present his case against the accused and that both sides receive a fundamentally fair trial completed before a particular tribunal. 48    Thus, although jeopardy attaches when the jury is sworn, 49   and, unless some overriding necessity arises after jeopardy begins, the trial must proceed until it ends in a conviction or acquittal, 50  jeopardy is dissipated by the declaration of a mistrial so long as there is no abuse of discretion by the court in declaring it. 51   Where a trial court exercises "sound discretion" and his declaration of a mistrial is supported by "manifest necessity," the public's interest in fair trials and just judgments must prevail over the defendant's right to have his trial concluded before the first jury is impaneled. 52   Absent unfair conduct by the prosecuting attorney or the court, mistrial of a criminal case does not prevent subsequent retrial and conviction of the accused. 53    On the other hand, a defendant whose first trial ends in an improperly called mistrial is placed in jeopardy twice in violation of his constitutional right, and his subsequent conviction on a guilty plea cannot stand since a second trial should not have taken place at all. 54       

In view of an accused's valued right to have the trial concluded by a particular jury, the prosecutor must shoulder the burden of justifying the mistrial in order to avoid the double jeopardy bar. It has been said that this burden is a heavy one and that the words "manifest necessity" appropriately characterize the magnitude of it. 55    The United States Supreme Court has noted that the word "necessity" as used in the phrase cannot be interpreted literally, but that a "high degree" of necessity is required before a declaration of a mistrial is appropriate.  The question whether that "high degree" exists is answered more easily in some kinds of cases than in others. 56   It has been said that the concept of manifest necessity is not to be limited to certain categories, but exists where prejudice to either the defendant or the state may be found. 57   No mechanical formula applies in the determination whether manifest necessity exists for the declaration of a mistrial; the trial judge has broad discretion in making such a determination in light of the unique facts and circumstances of the particular trial. 58    All circumstances are taken into consideration by the trial court in exercising its discretion to discharge a jury for manifest necessity. 59   Yet, although the existence of a manifest necessity for the declaration of a mistrial depends on the particular facts of each case, certain general principles do apply. Although recognizing that virtually all the cases turn on the particular facts and thus escape meaningful categorization, the United States Supreme Court has stated that a trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction if reached would have to be reversed on appeal due to an obvious procedural error in the trial that would make reversal on appeal a certainty. 60   Generally speaking, the ordering of a new trial after originally declaring a mistrial on motion of the trial judge without the consent of the defendant, under circumstances deemed necessary to protect the interest of the defendant, does not violate the double jeopardy provisions of the Constitution. 61   And, urgent or necessarily reasons justifying the discharge of a jury after it has been impaneled and sworn have been said to include:  (1) illness of a judge, the accused, or a juror requiring the absence of any of them from the court; (2) the inability of the jury to agree on a verdict after deliberation; or (3) the consent of the accused himself. 62   On the other hand, the required degree of necessity has been said not to result from an error of law committed by the trial judge, 63     or the judge's fear that there is reversible error in the record. 64    Nor is the fact that the verdict is a mere nullity a legal reason for discharging the jury; in such a case the jury should be instructed and sent back to render a proper verdict. 65

Absent a showing that the trial judge abused his discretion in declaring a mistrial, the trial court's ruling will not be disturbed on appeal. 66   The United States Supreme Court has observed, however, that appellate scrutiny may vary according to the particular trial problem warranting the mistrial. 67   At one extreme is a mistrial premised upon the unavailability of critical prosecution evidence; in such cases, the appellate court may exercise strict scrutiny in reviewing the mistrial order. 68    On the other hand, a trial judge may exercise broad discretion in deciding whether or not a manifest necessity justifies the discharge of a jury when it is unable to reach a verdict after deliberation.  His decision under those circumstances is accorded deference by a reviewing court, since the public interest in just judgments would be frustrated if coercive means to break a deadlocked jury were employed. 69    Similarly, a trial judge's decision to declare a mistrial on the ground of improper and prejudicial argument resulting in possible juror bias is also entitled to great deference by a reviewing court. 70    

In the absence of necessity, the defendant may reasonably demand that a discharge of the jury be regarded as an acquittal 71  of every offense on which the jury might have returned a verdict if they had not been discharged. 72

Without the consent of the accused, the discharge of a jury which convicts as to some but is silent as to other counts in an indictment is equivalent in effect to acquittal as to the latter counts. 73        

It has been provided by statute in some states that a court may grant a continuance in a criminal case where some unexpected occasion arises after the commencement of the trial whereby it appears that the state or the defendant is so taken by surprise that a fair trial cannot be had. 74   A continuance in a criminal prosecution is not analogous to a mistrial and does not raise an issue of double jeopardy. 75


§ 285  – Generally; manifest necessity for mistrial; effect of continuance [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Holleman, Mistrials and the Double Jeopardy Clause. 14 Ga LR 45, Fall, 1979.

Criminal law: propriety of reassembling jury to amend, correct, clarify, or otherwise change verdict after jury has been discharged, or has reached or sealed its verdict and separated.  14 ALR5th 89.

Former jeopardy as bar to retrial of criminal defendant after original trial court's sua sponte declaration of a mistrial–state cases.  40 ALR4th 741.

What constitutes "manifest necessity" for state prosecutor's dismissal of action, allowing subsequent trial despite jeopardy's having attached.  14 ALR4th 1014.

Case authorities:

See Richardson v United States (1984, US)  82 L Ed 2d 242, § 264.

Manifest necessity requiring mistrial does not exist and retrial is barred unless trial judge engages in scrupulous exercise of discretion prior to declaring mistrial; judge must consider alternatives and consult with counsel in order to be able to make studied and careful considerations and balance constitutional rights of defendant with rights of public. Brady v Samaha (1981, CA1 NH) 667 F2d 224.

Retrial of 2 defendants after court declared mistrial over their objections in their prosecution for kidnapping and interstate travel in aid of racketeering on ground that trial translator was not properly certified under Court Interpreter Act violated double jeopardy where declaration of mistrial over their objections was not manifestly necessary in view of their attempts to waive their rights to object. United States v Huang (1992, CA2 NY) 960 F2d 1128.

Defendant's retrial was barred under double jeopardy clause, where trial judge granted mistrial over defendant's objection because jury inadvertently was allowed to view photographs of crime scene which had not been admitted into evidence, since manifest necessity did not require mistrial. Gilliam v Foster (1996, CA4 SC) 75 F3d 881, cert den (1996, US) 64 USLW 3793.

In a prosecution for possession of marijuana with intent to distribute, reasons for trial court's dismissal of misdemeanor case brought against defendant in which jeopardy attached, did not amount to manifest necessity where sole reason offered by prosecutor for not going forward with evidence at misdemeanor trial was his desire to prosecute defendant on felony charge instead and where dismissal, after jeopardy had attached should have barred any subsequent prosecution; therefore defendant's petition for habeas corpus concerning subsequent felony conviction would be granted. Coolshy v Hutto (1981, ED Va) 529 F Supp 92, affd (CA4 Va) 691 F2d 199.

Since defendant was placed in jeopardy in his first trial, retrial was barred in the absence of any legally sufficient reason for the trial judge to have declared a mistrial, and thus defendant was entitled to a writ of prohibition preventing retrial. The record indicated that an essential state witness had been stabbed in front of the courthouse and that the witness was observed in a pool of blood prior to being taken away in an ambulance, and that the circumstances may have suggested that the proceedings could not continue in accordance with a fair trial. However, defendant objected to the declaration of a mistrial which obligated the trial judge to consider whether a reasonable alternative such as a recess might not alleviate the problem. Instead, without any inquiry into the seriousness of the witness' injury or as to the length of time required for the witness' recovery, the trial judge, over defendant's objection, declared a mistrial. As it happened, the witness would have been available after a short recess, a fact discoverable upon inquiry. Ostane v Hickey (1980, Fla App D3) 385 So 2d 110.

District court abused its discretion in finding that manifest necessity justified sua sponte declaration of mistrial for prosecution's failure to produce exculpatory material relating to defendant's two codefendants since neither considerations of judicial economy nor alleged problems in having separate trial for defendant constituted manifest necessity. United States v Allen (1993, CA8 Iowa) 984 F2d 940.

Defendant is not subjected to double jeopardy by retrial after first court declared mistrial when defendant failed to appear on second day of trial, where defendant had adequate notice trial would reconvene, and court recessed for 2 hours when defendant failed to appear, after which defense counsel informed court defendant's location was unknown, he could not be contacted at home, and had not responded to any messages. United States v Willis (1981, CA9 Cal) 647 F2d 54.

Where judge granted mistrial after one juror responded in negative during polling whether jury could reach unanimous verdict on any count, there was no final verdict to bar retrial on double jeopardy grounds. United States v Anzalone (1989, CA9 Cal) 886 F2d 229.

Retrial of defendant after state trial court's declaration of mistrial over defendant's repeated objections violated double jeopardy clause, since it deprived defendant of his right to retain primary control over course of proceedings. Weston v Kernan (1995, CA9 Cal) 50 F3d 633, 95 CDOS 1368, 95 Daily Journal DAR 2453.

Retrial of criminal defendants following hung jury does not violate double jeopardy clause when there has been superseding indictment which expands upon original charges, where superseding indictment allows time sufficient for defendant's preparation prior to retrial, in which case it is analogous to superseding indictment before trial, rather than superseding indictment during trial. United States v Corona (1986, CAll Fla) 804 F2d 1568.

Defendant's retrial after court, over defendant's objection, declared mistrial because court was concerned about defendant's ability to interview all codefendants who had changed their pleas to guilty during trial was barred by double jeopardy clause, where defense counsel stated he required only one evening for interviews, since there was no manifest necessity justifying mistrial. United States v Butler (1995, CA11 Ala) 41 F3d 1435.

In prosecution for grand larceny and for buying, receiving or concealing stolen heat pump, dismissal of action by prosecution was not due to manifest necessity, and thus defendant was unconstitutionally subjected to second trial where, although prosecutor's action in dismissing indictment when defendant refused to consent to amendment to correct variance was authorized by statute, there had been no material variance between indictment and proof in case and thus there had been no manifest necessity for dismissing proceedings; record showed that state could have presented prima facie case at first trial and jury might have acquitted defendant; dismissing prosecution because indictment contains any variance, no matter how slight, is inconsistent with manifest necessity doctrine. Ex parte Collins (1980, Ala) 385 So 2d 1005,  14 ALR4th 1006, on remand (Ala App) 385 So 2d 1010.

Under Pen. Code, § 1123, permitting the retrial of a defendant after the jury has been discharged for good cause, and further providing that the inability of a juror to perform his duty constitutes good cause or legal necessity, good cause for discharge of a juror, and subsequent discharge of the entire jury, was established where substantial evidence supported the trial court's finding that a juror was unable to concentrate on the evidence. Good cause existed even though the initiating or precipitating factors of the inability to concentrate may have had their origin in matters not themselves constituting legal necessity. Mitchell v Superior Court (1984, 2d Dist) 155 Cal App 3d 624, 202 Cal Rptr 284.

Misconduct of bailiff made mistrial "manifest necessity" where court found, after personally questioning and observing each juror, that bailiff's comment that reason defendant, who was confined to wheelchair, was disabled was because of stabbing injury which occurred while he was incarcerated on previous offense was, beyond any reasonable doubt, prejudicial not only to defendant but to prosecution as well; where mistrial was required by manifest necessity, public interest in fair trial and just verdict outweighed defendant's dual interests in proceeding to verdict or avoiding retrial on same offense. People v Moore (1985, Colo App) 701 P2d 1249, cert den, en banc (Colo) 706 P2d 802.

There was no manifest necessity for declaration of mistrial at defendant's first trial on charges of failing to appear, and thus retrial of defendant would violate prohibition against double jeopardy, where declaration of mistrial was based on fact that defendant's attorney was simultaneously representing state's witness, but record indicated that trial court was made aware before jury was sworn that attorney represented state's witness. State v Buell (1992) 221 Conn 407, 605 A2d 539, cert den (US) 61 USLW 3264.

Manifest necessity justified terminating defendant's first trial, thus not subjecting defendant to double jeopardy on retrial, where confused witness during first trial referred mistakenly to someone other than defendant as killer. People v Chaffin (1971) 49 Ill 2d 356, 274 NE2d 68.

There was manifest necessity for trial court's sua sponte declaration of mistrial at defendant's trial on child molestation charges, and thus double jeopardy did not bar defendant's retrial, where juror, who was mother of alleged victim in another child molestation case that prosecutor had prosecuted week before in same court, misstated truth on her jury questionnaire and misled court during voir dire regarding county in which her daughter's case had been prosecuted: (1) although juror testified that she was not biased, given that she had misstated truth on her jury questionnaire and during voir dire, trial court had no reason to believe her when she stated she could base her decision solely on evidence; (2) although replacing juror with alternate was less drastic measure, double jeopardy statute allowed court to discharge jury without jeopardy attaching in event juror's false statement during voir dire prevented fair trial, even if alternate juror was available; and (3) although prosecutor had failed to disclose details of daughter's case to court or to correct misunderstanding that her case was not associated with his office, juror's bias, if any, stemmed from fact that her daughter was victim of child molestation and, since defendant was aware of her background but did not strike her, her presence on juror was not solely due to prosecutorial error within prosecutor's control. Ried v State (1993, Ind App) 610 NE2d 275, superseded, transf (Ind) 615 NE2d 893.

Although double jeopardy clause reserves defendant's valued right to have his trial completed by particular tribunal and protection from considerable burdens imposed by successive prosecutions for same offense, clause does not bar retrial of defendant when mistrial has been declared, even over his objection, if there is manifest necessity for declaring mistrial. State v Pierce (1983, Me) 459 A2d 148,  40 ALR4th 732.

Manifest necessity for terminating original prosecution for robbery with use of deadly weapon, which would preclude defense of double jeopardy, is shown where mistrial was necessitated by critical prosecution witness' attempted suicide on day before trial, prosecutor was fully prepared to present his evidence at trial, was unaware that critical witness would not appear at trial until after jeopardy had attached, and had no reason to anticipate that witness would not appear, and record does not suggest that prosecution was in any way responsible for unavailability of witness. State v Connery (1984, Nev) 679 P2d 1266.

Retrial violated defendant's right not to be tried for same crime twice where, over defendant's objection, court granted prosecutor's motion for mistrial on ground that People's ballistics expert was ill and could not testify until 2 days later, but people could have arranged for another expert to testify without requiring more than brief adjournment; under circumstances, there was no manifest necessity for mistrial. People v Innis (1992, 2d Dept)  182 AD2d 641, 582 NYS2d 245.

Further prosecution of defendant was not barred by double jeopardy where it was discovered that defense counsel at first trial had been suspended from practice of law, and thus there was manifest necessity for sua sponte declaration of mistrial. People v Anderson (1992, 2d Dept)  186 AD2d 140, 587 NYS2d 430, app den  80 NY2d 1025, 592 NYS2d 674, 607 NE2d 821.

In prosecution of grandmother for custodial interference, which was based on allegations that she had kept her two grandchildren from their lawful custodian, her daughter, trial court granted prosecutor's motion for mistrial on grounds of manifest necessity where defendant deliberately and repeatedly sought to undermine court's pretrial ruling, which excluded all testimony relating to alleged abuse of children, and eventually circumvented it. Thus, former prosecution did not bar defendant's retrial on same charges. State v Bayse (1993) 122 Or App 608, 859 P2d 542.

Illness of prosecution witness was not sufficient to constitute manifest necessity for mistrial, thus precluding double jeopardy protections, where mistrial was granted after telephone call from wife of witness stating that witness had pneumonia, since there was no definite diagnosis of sickness, and since trial court could have granted continuance until witness' condition was known. Commonwealth v Ferguson (1971) 446 Pa 24, 285 A2d 189.

In prosecution for involuntary deviate sexual intercourse, statutory rape, incest, and indecent assault arising from claim by defendant's daughter that, during visit with her father, he forced her to engage in sexual relations, there was manifest necessity for trial court's sua sponte declaration of mistrial, and thus defendant's retrial on same charges did not violate his double jeopardy rights, where, during cross-examination by district attorney, defendant stated that district attorney had represented him at time visitation order was signed. Information prejudiced defendant by implying to jury that he was guilty of crimes, for why else would person who had previously represented him now be willing to prosecute him. Trial court properly considered and rejected other less drastic alternatives during two hour recess, and there was no showing district attorney intentionally induced remark concerning his prior representation of defendant. Commonwealth v Diehl (1992) 532 Pa 214, 615 A2d 690.

No manifest necessity was shown for the declaration of a mistrial in defendant's prosecution for hindering apprehension, and the trial court abused its discretion in declaring the mistrial, such that defendant's right not to be twice put in jeopardy for the same offense was violated, where even if defense counsel should not have asked questions implying that counsel believed the police officer did not have a black eye as a result of the struggle as he had claimed because those questions injected counsel's personal knowledge into the case, the questions were of merely tangential importance to the case and did not irreversibly inject counsel's credibility as an issue in the trial, and the trial judge failed to consider any less drastic alternative to the declaration of a mistrial; the fact that defense counsel may have made himself a potential witness in the case by his questioning of the officer did not call for a different result. Harrison v State (1990, Tex Crim) 788 SW2d 18.

Trial court's declaration of mistrial, after court found that its voir dire comments had irreparably exposed jury to preview of anticipated evidence and tipped court's hand as to its view of case, was "manifest necessity" precluding double-jeopardy attack on second trial. Alvarez v State (1993, Tex Crim) 864 SW2d 64.

Retrial of defendant after trial court in first trial declared mistrial sua sponte violated defendant's right against double jeopardy, where defendant had not consented to mistrial and there was no manifest necessity for it; court had declared mistrial after waiting 3 hours for juror for initial assembly of jury, but court had failed to consider less drastic alternatives, such as continuance. Little v State (1994, Tex Crim) 887 SW2d 62.

Under the circumstances presented in this case, the absence of a State witness was a manifest necessity for declaring a mistrial and thus retrial did not constitute double jeopardy. The absence of the witness was the result of a series of events, including defendant's previous request for a delay of trial, that were partially beyond the control of the prosecutor. Further, the record demonstrated that the court gave full consideration to all conceivable options before declaring mistrial. Ex parte Brown (1992, Tex App Fort Worth) 839 SW2d 164, petition for discretionary review gr (Jan 27, 1993).

After jury was selected, defendant objected to alleged racial strikes by State. Objection was overruled and jury was sworn. Defendant then reurged his Batson objection, it was upheld, and jury was discharged. Held, because defendant asked for new jury, his retrial was not barred by double jeopardy. There was no claim that prosecutor caused defendant to reurge his Batson claim or intended to subvert defendant's double jeopardy rights. Black v State (1992, Tex App Houston (lst Dist)) 845 SW2d 368.

In prosecution for sexual assault of foster child, mistrial was not manifest necessity where prosecutor did nothing to make sure that physician who was key witness would remain present following swearing of jury. State v Barthels (1993)  174 Wis 2d 173, 495 NW2d 341.

Double jeopardy barred retrial of two defendants after declaration of mistrial based on ground that attorney for third defendant might have to be called as witness to impeach government witness, since mistrial was not manifestly necessary, but declaration of mistrial as to third defendant was manifestly necessary and double jeopardy did not bar his retrial. United States v Givens (1996, CA8 Mo) 88 F3d 608.

Footnotes

Footnote 37. State v Beal, 199 NC 278, 154 SE 604; State v Barnes, 54 Wash 493, 103 P 792.

Footnote 38. Brock v North Carolina,  344 US 424,  97 L Ed 456,  73 S Ct 349; Cornero v United States (CA9 Cal) 48 F2d 69, (ovrld on other grounds Wade v Hunter  336 US 684,  93 L Ed 974,  69 S Ct 834, reh den  337 US 921,  93 L Ed 1730,  69 S Ct 1152); United States v Taulman, 7 Alaska 211; Martin v State, 163 Ark 103, 259 SW 6; Fails v State, 60 Fla 8, 53 So 612; Dreyer v People, 188 Ill 40, 58 NE 620, reh den 188 Ill 64, 59 NE 424, affd  187 US 71,  47 L Ed 79,  23 S Ct 28; State v Hansford, 76 Kan 678, 92 P 551; State v Slorah, 118 Me 203, 106 A 768; Commonwealth v McCormick, 130 Mass 61; Re Ascher, 130 Mich 540, 90 NW 418; Green v State, 147 Tenn 299, 247 SW 84; Oborn v State,  143 Wis 249, 126 NW 737.

Annotation:  6 L Ed 2d 1510, § 2.

Footnote 39. Keerl v Montana,  213 US 135,  53 L Ed 734,  29 S Ct 469; State v Cypher, 92 Idaho 159, 438 P2d 904; State v Slorah, 118 Me 203, 106 A 768; Re Ascher, 130 Mich 540, 90 NW 418; State v Barnes, 54 Wash 493, 103 P 792.

Footnote 40. Allen v State, 52 Fla 1, 41 So 593; State v Smith, 44 Kan 75, 24 P 84; Mullins v Commonwealth, 258 Ky 529, 80 SW2d 606; Hutchens v District Court of Pottawatomie County (Okla Crim) 423 P2d 474 (state's refusal to waive its right to 12-person jury was not cogent or compelling reason for discharge of jury); Commonwealth v Fitzpatrick, 121 Pa 109, 15 A 466 (ovrld on other grounds Commonwealth v Simpson 310 Pa 380, 165 A 498 (not followed on another point Commonwealth v Boerner (Pa Super) 422 A2d 583)); Upchurch v State, 36 Tex Crim 624, 38 SW 206.

Footnote 41. United States v Sanford,  429 US 14,  50 L Ed 2d 17,  97 S Ct 20, on remand (CA9 Mont) 547 F2d 1085; United States v Jorn,  400 US 470,  27 L Ed 2d 543,  91 S Ct 547; Wade v Hunter,  336 US 684,  93 L Ed 974,  69 S Ct 834, reh den  337 US 921,  93 L Ed 1730,  69 S Ct 1152; State ex rel. Williams v Grayson (Fla) 90 So 2d 710,  63 ALR2d 777; Baker v Commonwealth, 280 Ky 165, 132 SW2d 766; State v Slorah, 118 Me 203, 106 A 768; State v Williams, 30 NJ 105, 152 A2d 9; People v Colon,  18 Misc 2d 1061, 184 NYS2d 537; State v Connors, 59 Wash 2d 879, 371 P2d 541; State v Little, 120 W Va 213, 197 SE 626.

Practice Aids: –Former jeopardy–Termination of trial without verdict.  1 Wharton's Criminal Law (14th ed) § 61.

Footnote 42. Curry v Superior Court of San Francisco, 2 Cal 3d 707, 87 Cal R 361, 470 P2d 345; People v Gardner, 37 Mich App 520, 195 NW2d 62; State v White, 295 Minn 217, 203 NW2d 852; Commonwealth v Shaffer, 447 Pa 91, 288 A2d 727,  77 ALR3d 1124, cert den  409 US 867,  34 L Ed 2d 116,  93 S Ct 164.

Annotation:  77 ALR3d 1143, § 3(a).

Footnote 43. State v Smith, 44 Kan 75, 24 P 84.

The trial judge in a federal prosecution for assisting in preparing fraudulent income tax returns abuses his discretion in discharging the jury and declaring a mistrial without the defendant's consent, therefore rendering any possible reprosecution of the defendant violative of the double jeopardy provision of the Fifth Amendment, where (1) the trial judge concluded that taxpayers who were to be called as witnesses by the government had not been properly advised of their constitutional rights against self-incrimination and thus should be allowed to consult with attorneys, even though one of the taxpayers and the prosecuting attorney had given assurance to the trial judge that the taxpayers had been warned of their constitutional rights, and (2) no consideration was given to the possibility of a trial continuance, the trial judge having acted so abruptly as to preclude opportunity for any suggestion of continuance by the prosecution or any objection to the discharge of the jury by the defendant.  United States v Jorn,  400 US 470,  27 L Ed 2d 543,  91 S Ct 547 (from separate opinion by Harlan, J., Burger, Ch. J., Douglas, and Marshall, JJ. Contra:  Stewart, White, and Blackmun, JJ.).

Where defense counsel surprised the court by offering to submit defendant for questioning by the jury, the trial court did not abuse its discretion in declaring a mistrial, and defendant's plea of former jeopardy was thus without foundation.  Strawn v State (Fla) 332 So 2d 601.

Footnote 44. Downum v United State,  372 US 734,  10 L Ed 2d 100,  83 S Ct 1033.

Footnote 45. Arizona v Washington,  434 US 497,  54 L Ed 2d 717,  98 S Ct 824; United States v Jorn,  400 US 470,  27 L Ed 2d 543,  91 S Ct 547.

Footnote 46. Arizona v Washington,  434 US 497,  54 L Ed 2d 717,  98 S Ct 824.

Footnote 47. Baker v Commonwealth, 280 Ky 165, 132 SW2d 766,  125 ALR 691.

Footnote 48. Dunkerley v Hogan (CA2 Vt) 579 F2d 141, cert den  439 US 1090,  59 L Ed 2d 56,  99 S Ct 872.

Footnote 49.  § 260, supra.

Footnote 50. Commonwealth v Fitzpatrick, 121 Pa 109, 15 A 466 (ovrld on other grounds Commonwealth v Simpson 310 Pa 380, 165 A 498 (not followed on another point Commonwealth v Boerner (Pa Super) 422 A2d 583)).

Footnote 51. Neal v State, 272 Md 323, 322 A2d 887.

Footnote 52. Arizona v Washington,  434 US 497,  54 L Ed 2d 717,  98 S Ct 824.

Footnote 53. United States v Davis (CA4 NC) 369 F2d 775, cert den  386 US 909,  17 L Ed 2d 783,  87 S Ct 858.

Footnote 54. People v Johnson, 396 Mich 424, 240 NW2d 729, cert den  429 US 951,  50 L Ed 2d 319,  97 S Ct 370 and (not followed on another point People v Riley 88 Mich App 727, 279 NW2d 303).

Under the jepardy provision of the state constitution, once the jury is charged with the defendant's deliverance, his jeopardy is real and he cannot be again subjected to jeopardy unless the jury is discharged without rendering a verdict, by his consent, or on some legal necessity resulting from physical causes beyond the court's control.  Cardenas v Superior Court of Los Angeles County, 56 Cal 2d 273, 14 Cal Rptr 657, 363 P2d 889,  100 ALR2d 371.

A defendant was subject to double jeopardy when he was retried after his first trial had been terminated when the court, sua sponte, declared a mistrial over his objection after the jury had been sworn and six prosecution witnesses had testified.  Cardin v Sedita (4th Dept)  53 App Div 2d 253, 385 NYS2d 667.

Footnote 55. Arizona v Washington,  434 US 497,  54 L Ed 2d 717,  98 S Ct 824; United States v Sanders (CA9 Mont) 591 F2d 1293.

Footnote 56. Arizona v Washington,  434 US 497,  54 L Ed 2d 717,  98 S Ct 824.

Footnote 57. Jones v State, 218 Tenn 378, 403 SW2d 750.

Footnote 58. Illinois v Somerville,  410 US 458,  35 L Ed 2d 425,  93 S Ct 1066; Wade v Hunter,  336 US 684,  93 L Ed 974,  69 S Ct 834, reh den  337 US 921,  93 L Ed 1730,  69 S Ct 1152; United States v Sanders (CA9 Mont) 591 F2d 1293.

Footnote 59. State v Nelson (Iowa) 234 NW2d 368.

There was no showing of manifest necessity for declaring a mistrial, and, therefore, retrial would have placed the defendant in double jeopardy where the trial court granted a new trial on its own motion after having been informed that the sister-in-law of a juror had received a phone call from an unidentified man that had placed her in a state of fear and where the record showed that the juror understood that the phone call was not to influence her deliberations.  State v De Baca (App) 88 NM 454, 541 P2d 634, cert den 89 NM 6, 546 P2d 71.

Footnote 60. Illinois v Somerville,  410 US 458,  35 L Ed 2d 425,  93 S Ct 1066.

Footnote 61. Gori v United States,  367 US 364  6 L Ed 2d 901,  81 S Ct 1523, reh den  368 US 870,  7 L Ed 2d 70,  82 S Ct 25.

Footnote 62. State ex rel. Williams v Grayson (Fla) 90 So 2d 710,  63 ALR2d 777.

As to illness of judge, defendant, or counsel as constituting manifest necessity for mistrial, see  § 296, infra.

As to inability of jury to agree on verdict after deliberation as constituting manifest necessity for mistrial, see  § 303, infra.

As to effect of defendant's consent, see  § 286, infra.

Footnote 63. Fong Foo v United States,  369 US 141,  7 L Ed 2d 629,  82 S Ct 671; Oliveros v State, 120 Ga 237, 47 SE 627.

Footnote 64. State ex rel. Williams v Grayson (Fla) 90 So 2d 710,  63 ALR2d 777.

Footnote 65. Bell v State, 48 Ala 684.

Footnote 66. Himmelfarb v United States (CA9 Cal) 175 F2d 924, cert den  338 US 860,  94 L Ed 527,  70 S Ct 103; Rentoul v State (Del Sup) 301 A2d 284.

Annotation:  77 ALR3d 1143, § 3(b).

Footnote 67. Arizona v Washington,  434 US 497,  54 L Ed 2d 717,  98 S Ct 824.

Footnote 68. See  § 290, infra.

Footnote 69. See  § 303, infra.

Footnote 70. Arizona v Washington,  434 US 497,  54 L Ed 2d 717,  98 S Ct 824.

Footnote 71. Allen v State, 52 Fla 1, 41 So 593; Armentrout v State, 214 Ind 273, 15 NE2d 363; State v Hagar, 61 Kan 504, 59 P 1080; Yarbrough v Commonwealth, 89 Ky 151, 12 SW 143; State v Slorah, 118 Me 203, 106 A 768; Salistean v State, 115 Neb 838, 215 NW 107; State v Locklear, 16 NJ 232, 108 A2d 436; Commonwealth v Fitzpatrick, 121 Pa 109, 15 A 466 (ovrld on other grounds Commonwealth v Simpson 310 Pa 380, 165 A 498 (not followed on another point Commonwealth v Boerner (Pa Super) 422 A2d 583)); State v Brunn, 22 Wash 2d 120, 154 P2d 826 (superseded by statute as stated in State v Jubie 15 Wash App 881, 552 P2d 196).

Footnote 72. Bell v State, 48 Ala 684; Commonwealth v Simpson, 310 Pa 380, 165 A 498 (not followed on another point Commonwealth v Boerner (Pa Super) 422 A2d 583).

Footnote 73. Green v United States,  355 US 184,  2 L Ed 2d 199,  78 S Ct 221, 77 Ohio L Abs 202,  61 ALR2d 1119; Selvester v United States,  170 US 262,  42 L Ed 1029,  18 S Ct 580.

Footnote 74. Hipple v State, 80 Tex Crim 531, 191 SW 1150.

Footnote 75. State ex rel. Fallis v Vestrem (Okla Crim) 527 P2d 195.


§ 286  Defendant's consent–effect of prosecutorial or judicial "overreaching" designed to provoke mistrial  [21 Am Jur 2d CRIMINAL LAW]

As a general rule, the guaranty against double jeopardy does not bar the retrial of the defendant whose prior trial was terminated on his own motion for a mistrial. 76   Thus, if a mistrial is declared at the behest of the defendant, the manifest necessity test does not apply. 77   A motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error. 78   The general rule is subject to exception, however, where the defendant's motion for mistrial results from prosecutorial or judicial impropriety or overreaching designed to avoid an acquittal.  Where such impropriety or overreaching is found, a second trial is barred by the double jeopardy clause even though the prior trial ended on the defendant's motion. 79  This narrow exception occurs when prosecutorial or judicial bad faith prejudicially provokes a defendant into requesting a mistrial. 80  In other words, in order to elevate an order granting a mistrial in a criminal case at the request of the defendant to one that can form the basis of a claim of double jeopardy, it must be shown not only that an error took place but that such error was committed by the prosecution or by the court for the purpose of forcing the defendant to move for a mistrial. 81    There is authority for the view that such "prosecutorial overreaching" may come about through gross negligence as well as intentional misconduct causing prejudice to the defendant. 82  Only if the underlying error was "motivated by bad faith or undertaken to harass or prejudice" the defendant is there any barrier to retrial. 83    Thus, for example, where a prosecutor asked an improper question of a witness but the record failed to show that the mistrial allowed the state an opportunity to strengthen its case, the error of the prosecutor was not manipulation or overreaching and there was no constitutional barrier to a retrial and conviction of the defendant. 84   And it has been held that a mistrial resulting from an improper question by a prosecuting attorney would not bar retrial on double jeopardy grounds where the question resulted from the prosecutor's overzealousness and inexperience in trial practice rather than any overreaching or bad faith attempt to prejudice the defendant. 85   It has been said that where a defendant contends that a prosecutor deliberately provoked a mistrial the district court in determining the issue on retrial should give full consideration to the defendant's claim, should not restrict its inquiry to the record made at the prior trial, and should inquire into all the circumstances surrounding the declaration of the mistrial and make findings of fact that might be reviewed on appeal. 86  

What prosecutorial or judicial misconduct constitutes overreaching so as to bar retrial of a defendant depends on the particular facts of each case. Absent "bad faith" or a deliberate attempt to provoke a mistrial, it has been held that a prosecutor's conduct did not bar the defendant's retrial where a mistrial was granted on the ground of the prosecutor's making improper remarks in an opening statement, 87    making improper remarks while questioning a witness, 88  offering inadmissible evidence, 89   eliciting improper remarks from a prosecution witness, 90  or making improper remarks during summation. 91   On the other hand, prosecutorial misconduct leading to the trial judge's granting of the defendant's motion for mistrial has been held to bar the defendant's trial where the prosecutor engaged in intentional misconduct by knowingly presenting false evidence so as to prejudice the defendant's right to a fair jury trial, 92  committed at a minimum gross negligence in reading to the jury various improper and prejudicial remarks made during a grand jury proceeding, thereby violating a pretrial ruling prohibiting the presentation of grand jury testimony, 93  deliberately elicited certain prejudicial hearsay testimony after the trial judge had ratified the prosecutor's agreement not to do so, 94  or made reference in his opening statement to an inadmissible confession for the specific purpose of causing a mistrial to obtain a state supreme court ruling on the correctness of the trial judge's suppression of the confession. 95         

A trial judge's conduct, even if improper or erroneous, has been held not to constitute judicial overreaching barring retrial where the defendant's motion for mistrial was granted after the judge had banished one of the defendant's attorneys from the proceedings for improper conduct, 96    had allegedly granted the defendant's motion for mistrial to reconsider his evidentiary rulings so as to permit the prosecution to introduce previously excluded evidence at a retrial, 97   had proceeded with the trial in the defendant's absence, 98    had perpetrated a "practical joke" on the defense attorney by giving him the impression that the prosecution was about to call rebuttal witnesses who in reality did not exist, 99  had expressed his skepticism of the defendant's case in the presence of a jury, 1  had allegedly committed error in receiving certain evidence, 2   had allegedly failed to order pretrial discovery on his own motion, 3   or had criticized the defendant's attorney both in and out of the presence of the jury. 4   

Although neither prosecutorial nor judicial misconduct was involved, a bailiff's misconduct in making remarks to the jury concerning the sentencing habits of the trial judge and a range of sentences available has been held to constitute misconduct so abhorrent to the sense of justice that the defendant's trial was therefore barred in the same manner as if a prosecutor or judge had intended to provoke a mistrial. 5 


§ 286  – Defendant's consent–effect of prosecutorial or judicial "over-reaching" designed to provoke mistrial [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Celebrezze, Prosecutorial Misconduct: Quelling the Tide of Improper Comment to the Jury. 35 Clev St LR 237, 1986-87.

Case authorities:

A criminal defendant who successfully moves for a mistrial because of prosecutorial or judicial misconduct may not invoke the bar of the double jeopardy clause of the Fifth and Fourteenth Amendments against a second trial except in those cases in which the prosecutorial or judicial conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. Oregon v Kennedy (1982, US)  72 L Ed 2d 416,  102 S Ct 2083.

When defendant pressed for mistrial in original action, double jeopardy clause bars new trial only if government's claimed error stemmed from bad faith, effort to harass or prejudice, or attempt to provoke mistrial. United States v Zozlio (1980, CA1 RI) 617 F2d 314.

Prosecutorial overreaching occurs when prosecutor intentially provokes mistrial in order to obtain second opportunity to convict or, even absent such provocation, if prosecutorial error was motivated by bad faith or undertaken to harass or prejudice defendant. Mitchell v Smith (1980, CA2 NY) 633 F2d 1009.

In absence of judicial overreaching or prosecutorial misconduct aimed at preventing acquittal, mistrial granted at defendant's request does not ordinarily bar later prosecution, and this is true even when defendant's request for mistrial is prompted by judicial or prosecutorial error. State v Soloman (1980, Ariz) 607 P2d 1.

Retrial of charges of stock price fixing after grant of defendant's motion for mistrial after government failed to advise defense of existence of expert's report concerning key documents, as required by rule of criminal procedure, was not violation of double jeopardy clause where there was no evidence that prosecutor intended to goad defendant into moving for mistrial, and where defense had option to move for exclusion of witness' testimony and report instead of mistrial. United States v GAF Corp. (1989, CA2 NY) 884 F2d 670.

Granting of defense motion for mistrial in narcotics prosecution, based on inappropriateness of single count charging violations of two statutory offenses, did not bar retrial on subsequent indictment designed to cure defects, and defense contention that mistrial was compelled by gross negligence or intentional misconduct of prosecutor, and that subsequent indictment was product of prosecutorial vindictiveness, was without merit where second indictment was designed to cure defects in earlier indictment, and court ruled prior to mistrial motion that prosecutor's actions were in good faith. Return of second proper indictment could not retroactively convert earlier actions by prosecutor into gross negligence or intentional misconduct. United States v Westoff (1981, CA5 La) 653 F2d 1047.

Double jeopardy clause did not bar narcotics defendants' retrial after mistrial was granted on defendants' motion when inexperienced prosecutor during opening statement disclosed to jury that some of original defendants had pled guilty since defendants had requested mistrial without prosecutor having intended to provoke defendants into moving for mistrial. United States v Jozwiak (1992, CA7 Ill) 954 F2d 458, cert den (US)  117 L Ed 2d 649,  112 S Ct 1512.

Double jeopardy bars retrial if bad faith conduct by prosecutor or judge induces defendant to request mistrial; where government misrepresents its grounds for seeking mistrial and fails to disclose meeting with judge which precipitated motion for mistrial, retrial is barred. United States v Martinez (1981, CA10 Colo) 667 F2d 886.

Double jeopardy clause did not bar defendant's second trial after first trial ended in mistrial, on consent of defendant, after prosecutor negligently failed to deliver to defense counsel copy of defendant's FBI "rap sheet" which contained information of prior arrest of defendant, since such negligent action does not rise to level of conduct necessary for finding of prosecutorial overreaching. United States v Gonzalez (1983, CA11 Fla) 719 F2d 1516.

Double jeopardy did not bar the retrial of defendant after defense counsel successfully moved for a mistrial due to the prosecutor's failure to disclose that a key prosecution witness had admitted to giving false testimony during his pretrial deposition where the prosecutor's non-disclosure was not willful, did not constitute prosecutorial misconduct and thus was not intended to provoke defendant's motion for mistrial. State ex rel. Gibson v Olliff (1984, Fla App DI) 452 So 2d 110.

Double jeopardy barred retrial of defendant after trial court granted defendant's motion for mistrial where, during trial, prosecutor intentionally engaged in conduct which he knew to be improper, and that he did so with indifference, if not specific intent, to prejudice defendant. Pool v Superior Court of County of Pima (1984) 139 Ariz 98, 677 P2d 261.

Where, after jury indicated that it was deadlocked, prosecution vigorously urged court to allow jury to continue deliberations, and defense counsel objected to prosecution's urging and indicated that court did not have any alternative due to hopeless deadlock, double jeopardy would not prevent retrial of case after court declared mistrial. State v Aillon (1980) 182 Conn 124, 438 A2d 30, cert den  449 US 1090,  66 LEd 2d 817,  101 S Ct 883.

When, as result of jury's inability to reach verdict, mistrial is declared at defendant's request or with his consent, any barrier to reprosecution is removed since defendant retains primary control over course of proceedings; reprosecution where defendant requests or consents to mistrial declaration is barred only when prosecutorial or judicial overreaching is designed to provoke defendant into asking for mistrial, thereby avoiding acquittal and affording state another, perhaps more favorable, opportunity to convict, or prosecutorial or judicial error was otherwise motivated by bad faith or attempted in order to harass or prejudice defendant. State v Aillon (1980, Conn) 438 A2d 30.

Where first prosecution for first-degree murder ended in mistrial requested by defendant, and trial counsel took position that prosecutor's question that resulted in mistrial was grossly negligent rather than deliberately asked for purpose of goading defendant into moving for mistrial, defendant's motion to dismiss second trial on double jeopardy grounds was properly denied since prosecutor's intent was never placed in issue and no finding of prosecutorial intent was made. Prosecutorial conduct that might be veiwed as harassment or overreaching sufficient to justify mistrial is insufficient to bar retrial absent intent to provoke defendant into moving for mistrial. Fuente v State (1989, Fla) 549 So 2d 652, 14 FLW 451.

Error, by failing to instruct regarding self-defense in prosecution based on attempt to kill undercover narcotics agent, did not coerce defense counsel into moving for mistrial so as to bar retrial on double jeopardy principle of judicial overreaching, where defendant could have allowed jury to deliberate to verdict and, if unfavorable, enter post-trial motion for new trial. People ex rel. Roberts v Orenic (1981) 88 Ill 2d 502, 59 Ill Dec 68, 431 NE2d 353.

In prosecution for murder, defendant's constitutional right not to be placed in jeopardy twice for the same offense was not violated, where defendant moved for mistrial in first trial when it was discovered that jury had not been sworn. Whitehead v State (1987, Ind) 511 NE2d 284.

Retrial of criminal trespass charges was not barred by double jeopardy principles after grant of defense motion for mistrial since misconduct by prosecutor, including the intentional presentation of inadmissible evidence and withholding evidentiary matters from defendant, were not calculated to avoid acquittal by forcing mistrial. State v Chase (1983, Iowa) 335 NW2d 630.

Trial court properly dismissed child-abuse prosecution on double jeopardy grounds, where prosecutor repeatedly attempted to elicit testimony tending to indicate that defendant fit theoretical abuser profile, defying in-limine order against use of such testimony. State v Rademacher (1988, Iowa) 433 NW2d 754.

In prosecution for manslaughter, double jeopardy clause was no bar to retrial, where prosecutorial conduct in eliciting inadmissible testimony did not amount to conduct intended to provoke defendant to move for mistrial. State v Chapman (1985, Me) 496 A2d 297.

Although prosecutor's failure to disclose entire plea bargain with key prosecution witness necessitated mistrial on defendant's motion for gross prosecutorial negligence, double jeopardy clause of the Fifth Amendment did not bar second murder and conspiracy trial where there was no sufficient indication that such prosecutorial error was committed with intention of forcing defendant to seek mistrial or to prevent acquittal at trial under way. Bell v State (1979, Md) 406 A2d 909.

In prosecution for murder, double jeopardy did not bar retrial of defendant where defendant was granted mistrial after prosecutor made reference in opening statement to incriminating statement defendant made at time of his arrest, in that prosecutor's conduct was not deliberate and was not in any way intended to harass or to cause mistrial. Commonwealth v Patten (1987) 401 Mass 20, 513 NE2d 689.

Double jeopardy did not bar retrial of narcotics charges after defendant's motion for mistrial was granted where defendant was responsible for eliciting statement from state's witness that resulted in mistrial. Mercedes v Commonwealth (1989) 405 Mass 693, 544 NE2d 590.

Double jeopardy did not bar retrial despite violation of pretrial ruling barring reference to confession by officer's testimony on direct examination that defendant had shown remorse at booking, where prosecutor had not deliberately tried to provoke mistrial but rather sought to show defendant's ability to change demeanor at will. People v Tyson (1985) 423 Mich 357, 377 NW2d 738.

In prosecution for assault with intent to commit sexual penetration, double jeopardy barred retrial of defendant where prosecutor intended to cause defendant to move for mistrial by asking rebuttal witness how many times defendant had offered him a "blow job" which he knew was improper. People v Dawson (1988) 431 Mich 234, 427 NW2d 886.

When defendant requests mistrial, double jeopardy does not preclude another trial unless underlying error which brought on defendant's motion was caused by governmental conduct deliberately intended to provoke or "goad" defendant into moving for mistrial. People v Gemmill (1989, 3d Dept)  146 App Div 2d 951, 537 NYS2d 80.

Manifest necessity for retrial existed at time court-requested defense motion for mistrial was granted where each of two alternate jurors had been previously rejected by one of the parties, and both were finally accepted at urging of judge; jury had, on two occasions sent notes that they were hopelessly deadlocked; at time that deliberating juror took ill, jury had already been deliberating for two days without verdict; and defense counsel's motion papers were devoid of any affidavit by defendant personally waiving in writing his rights to jury of twelve (as opposed to jury of thirteen occasioned by substitution of alternate for ill juror) as required by statute and state constitution. Thus retrial was not barred by double jeopardy, even assuming that trial court's dismissal of first alternate to attend religious services was illegal. People v Ford (1989)  145 Misc 2d 308, 546 NYS2d 313.

Double jeopardy clause did not bar retrial of arson defendant whose first trial had ended, upon defendant's motion, in mistrial due to prosecution's nondisclosure of test results indicating defendant's shoes were free of flammable substances, where trial judge's determination that prosecutor had not intended to provoke defendant into seeking mistrial was based on prosecutor's assertion of ignorance that shoes had been sent by police department to FBI for analysis and in view of fact letter from police department to FBI, although describing other pieces of evidence, failed to mention defendant's shoes. State v Gordon (1986, RI) 508 A2d 1339.

Erroneous sua sponte mistrial dismissing embezzlement indictment during trial, based on incorrect determination that venue belonged in another county, was consented to for purposes of double jeopardy principles authorizing retrial where defense had contemporaneously moved for dismissal on other grounds, i.e., variance between indictment and proof. State v Knight (1981, Tenn) 616 SW2d 593, cert den (US)  70 L Ed 2d 638,  102 S Ct 670.

In a prosecution for felony delivery of marijuana, the defendant's first trial did not constitute a jeopardy bar to a second trial where the jury was discharged in the first trial at the request of the defendant's counsel. Bowles v State (1980, Tex Crim) 606 SW2d 875.

To find prosecutorial overreaching so as to invoke protection of double jeopardy, government must have through gross negligence or intentional misconduct caused aggravated circumstances to develop which seriously prejudice defendant, causing him to reasonably conclude that continuation of tainted proceeding would result in conviction; mere negligence is not sufficient overreaching. State v Cannon (1980, La) 383 So 2d 389.

Misconduct by sheriff and deputies, including uttering racial slurs in presence of jury, taking several jury members on unauthorized view of crime scene, and conversing with sequestered jury members, was not attributable to prosecution for purpose of determining whether there had been prosecutorial or judicial overreaching. State v Clements (1985, W Va) 334 SE2d 600.

Prosecutor's error in alleging date of cocaine transaction, while warranting mistrial, did not preclude second trial, notwithstanding that defendant had set out alibi defense based on incorrect date, where no evidence suggested deliberate attempt to mislead defendant. State ex rel. Bass v Abbot (1988, W Va) 375 SE2d 590.

Persistent failure of prosecutor to give defense statements by prosecution witnesses before putting witnesses on without having sufficient excuse for failure did not fall within exception to rule that mistrial granted on defense motion or with consent of defense does not bar retrial where defendant did not suffer permanent prejudice and prosecutor's actions, although intentional, did not appear designed to create another chance to convict because the first trial was going badly or prejudice defendant's rights to successfully complete criminal confrontation at first trial. State v Copening (1981)  100 Wis 2d 700, 303 NW2d 821, on remand (App)  103 Wis 2d 564, 309 NW2d 850.

Where defendant moves for, or consents to, mistrial, future prosecution is barred only if prosecutorial and judicial actions provoke that mistrial by conduct that falls within definition of "overreaching," that is, culpable intent to deprive defendant of complete trial in first tribunal for purpose of avoiding acquittal and to gain opportunity to have second and better opportunity to convict or for malicious purpose of harassment in or by second trial. State v Copening (1981, Wis) 303 NW2d 821.

Footnotes

Footnote 76. United States v Scott,  437 US 82,  57 L Ed 2d 65,  98 S Ct 2187, on remand (CA6) 579 F2d 1013, cert den  440 US 929,  59 L Ed 2d 486,  99 S Ct 1266 and reh den  439 US 883,  58 L Ed 2d 197,  99 S Ct 226; Sanabria v United States,  437 US 54,  57 L Ed 2d 43,  98 S Ct 2170; Divans v California,  434 US 1303,  54 L Ed 2d 14,  98 S Ct 1; Lee v United States,  432 US 23,  53 L Ed 2d 80,  97 S Ct 2141; United States v Sanford,  429 US 14,  50 L Ed 2d 17,  97 S Ct 20, on remand (CA9 Mont) 547 F2d 1085; United States v Dinitz,  424 US 600,  47 L Ed 2d 267,  96 S Ct 1075, on remand (CA5 Fla) 538 F2d 1214, reh den (CA5 Fla) 542 F2d 1174 and cert den  429 US 1104,  51 L Ed 2d 556,  97 S Ct 1133; United States v Jorn,  400 US 470,  27 L Ed 2d 543,  91 S Ct 547 (plurality opinion); United States v Tateo,  377 US 463,  12 L Ed 2d 448,  84 S Ct 1587 (ovrld on other grounds Chapman v California  386 US 18,  17 L Ed 2d 705,  87 S Ct 824,  24 ALR3d 1065, reh den  386 US 987,  18 L Ed 2d 241,  87 S Ct 1283) as stated in Sumpter v De Groote (CA7 Ind) 552 F2d 1206; Orr v State, 236 Ala 462, 183 So 445; Piesik v State (Alaska) 572 P2d 94; MacPherson v State (Alaska) 533 P2d 1103, cert den  423 US 871,  46 L Ed 2d 101,  96 S Ct 137; State v Parker, 116 Ariz 3, 567 P2d 319; Walker v State, 262 Ark 331, 556 SW2d 655; People v Hathcock, 8 Cal 3d 599, 105 Cal Rptr 540, 504 P2d 476 (ovrld on other grounds People v Green 27 Cal 3d 1, 164 Cal Rptr 1, 609 P2d 468); People v Ortiz, 196 Colo 438, 586 P2d 227; Braxton v United States (Dist Col App) 395 A2d 759; McLendon v State (Fla) 74 So 2d 656; State v Kirk (Fla App D1) 362 So 2d 352; State v Pulawa, 58 Hawaii 377, 569 P2d 900, cert den  436 US 925,  56 L Ed 2d 758,  98 S Ct 2818; People ex rel. Mosley v Carey, 74 Ill 2d 527, 25 Ill Dec 669, 387 NE2d 325, cert den  444 US 940,  62 L Ed 2d 306,  100 S Ct 292; Cabell v State, 267 Ind 664, 372 NE2d 1176; State v Manning (Iowa) 224 NW2d 232; State v Calvert, 211 Kan 174, 505 P2d 1110; Mullins v Commonwealth, 258 Ky 529, 80 SW2d 606; State v Wesley (La) 347 So 2d 217; State v Small (Me) 381 A2d 1130; Cook v State, 281 Md 665, 381 A2d 671 cert den  439 US 839,  58 L Ed 2d 136,  99 S Ct 126; People v Benton, 402 Mich 47, 260 NW2d 77; State v Gwara, 311 Minn 106, 247 NW2d 417; Madison v State (Mo App) 533 SW2d 252; State v Lynch, 79 NJ 327, 399 A2d 629; State v Diaz, 36 NM 284, 13 P2d 883; State v Mazurek (App) 88 NM 56, 537 P2d 51; De Canzio v Kennedy (4th Dept)  67 App Div 2d 111, 415 NYS2d 513; State v Britt, 291 NC 528, 231 SE2d 644; Johnson v State (Okla Crim) 550 P2d 984; State v Rathbun, 37 Or App 259, 586 P2d 1136, revd on other grounds 287 Or 421, 600 P2d 392; Commonwealth v Potter, 478 Pa 251, 386 A2d 918; State v Coleman, 54 SC 282, 32 SE 406; DeYoung v State, 160 Tex Crim 628, 274 SW2d 406; State v Morlock, 87 Wash 2d 767, 557 P2d 1315; Day v State,  76 Wis 2d 588, 251 NW2d 811, cert den  434 US 848,  54 L Ed 2d 116,  98 S Ct 156; Peterson v State (Wyo) 586 P2d 144.

Where defendants asked for declaration of mistrial when juror became ill during course of deliberations, such consent removed any barrier to reprosecution, whether under original indictment or under new one, despite theory that jeopardy had attached in first indictment which had, in effect, been dismissed.  United States v Cerilli (CA3 Pa) 558 F2d 697, cert den  434 US 966,  54 L Ed 2d 452,  98 S Ct 507.

Defendant's subsequent retrial did not expose him to double jeopardy, where the trial court granted defendant's initial motion for mistrial on the ground that certain instructions given the jury were erroneous and prejudicial and defendant made no motion for discharge prior to commencement of the new trial, notwithstanding that defendant had attempted to withdraw the motion for mistrial after it had been granted.  Maples v State (Fla App D3) 334 So 2d 282.

An order of mistrial in a capital case will not support a plea of former jeopardy if the mistrial is entered upon defendant's motion; therefore, defendant was not subjected to double jeopardy where, in an earlier trial, the presiding judge declared a mistrial based upon two incidents affecting the jury and upon defendant's motion.  State v Britt, 291 NC 528, 231 SE2d 644.

Where defendant's counsel at first trial had requested to withdraw from case and defendant desired to employ another attorney and voluntarily consented to mistrial in order to employ other counsel, second trial did not place defendant in double jeopardy. State v Deas, 25 NC App 294, 212 SE2d 693, cert den 287 NC 467, 215 SE2d 626.

Annotation:  98 ALR3d 997, § 3.

 63 ALR2d 782, § 3[a].

Practice Aids: –Former jeopardy–Relief at defendant's instance. 1 Wharton's Criminal Law (14th ed) § 63.

Footnote 77. United States v Sanford,  429 US 14,  50 L Ed 2d 17,  97 S Ct 20, on remand (CA9 Mont) 547 F2d 1085; United States v Dinitz,  424 US 600,  47 L Ed 2d 267,  96 S Ct 1075, on remand (CA5 Fla) 538 F2d 1214, reh den (CA5 Fla) 542 F2d 1174 and cert den  429 US 1104,  51 L Ed 2d 556,  97 S Ct 1133.

Footnote 78. Lee v United States,  432 US 23,  53 L Ed 2d 80,  97 S Ct 2141; United States v Dinitz,  424 US 600,  47 L Ed 2d 267,  96 S Ct 1075, on remand (CA5 Fla) 538 F2d 1214, reh den (CA5 Fla) 542 F2d 1174 and cert den  429 US 1104,  51 L Ed 2d 556,  97 S Ct 1133.

Where a mistrial is declared after prosecutorial error, the double jeopardy clause is not a barrier to reprosecution, even if the error may justify disciplinary action, where the error was not intended to provoke a mistrial, motivated by bad faith, or undertaken to harass or prejudice defendant, mere negligence alone not being the type of conduct which would amount to prosecutorial overreaching.  United States v Klande (CA8 Minn) 602 F2d 180.

Footnote 79. Sanabria v United States,  437 US 54,  57 L Ed 2d 43,  98 S Ct 2170; Divins v California,  434 US 1303,  54 L Ed 2d 14,  98 S Ct 1; Lee v United States,  432 US 23,  53 L Ed 2d 80,  97 S Ct 2141; United States v Dinitz,  424 US 600,  47 L Ed 2d 267,  96 S Ct 1075, on remand (CA5 Fla) 538 F2d 1214, reh den (CA5 Fla) 542 F2d 1174 and cert den  429 US 1104,  51 L Ed 2d 556,  97 S Ct 1133; United States v Kessler, (CA5 La) 530 F2d 1246, reh den (CA5 La) 535 F2d 660; Piesik v State (Alaska) 572 P2d 94; State v Parker, 116 Ariz 3, 567 P2d 319; People v Baca, 193 Colo 9, 562 P2d 411; Braxton v United States (Dist Col App) 395 A2d 759; State v Kirk (Fla App D1) 362 So 2d 352; State v Pulawa, 58 Hawaii 377, 569 P2d 900, cert den  436 US 925,  56 L Ed 2d 768,  98 S Ct 2818; People v Handley, 51 Ill 2d 229, 282 NE2d 131, cert den  409 US 914,  34 L Ed 2d 175,  93 S Ct 247 and (ovrld on other grounds People v Rahn 59 Ill 2d 302, 319 NE2d 787) as stated in People v Pedrosa 36 Ill App 3d 207, 343 NE2d 649; Mooberry v State, 157 Ind App 354, 300 NE2d 125; State v Manning (Iowa) 224 NW2d 232; State v Baylor, 2 Kan App 2d 722, 587 P2d 343; State v Wesley (La) 347 So 2d 217; Whitfield v State, 42 Md App 107, 400 A2d 772, revd on other grounds 287 Md 124, 411 A2d 415, cert dismd  446 US 993,  64 L Ed 2d 850,  100 S Ct 2980; People v Benton, 402 Mich 47, 260 NW2d 77; State v Gwara, 311 Minn 106, 247 NW2d 417; State v Irving (Mo App) 559 SW2d 301; State v Lynch, 79 NJ 327, 399 A2d 629; State v Mazurek (App) 88 NM 56, 537 P2d 51; Commonwealth v Legree, 256 Pa Super 128, 389 A2d 634; State v Bennett, 157 W Va 702, 203 SE2d 699 (ovrld on other grounds State v Ellis (W Va) 239 SE2d 670) and (ovrld on other grounds State v Adkins (W Va) 253 SE2d 146); Day v State,  76 Wis 2d 588, 251 NW2d 811, cert den  434 US 848,  54 L Ed 2d 116,  98 S Ct 156; Peterson v State (Wyo) 586 P2d 144.

Annotation:  98 ALR3d 997, § 4(a).

Footnote 80. United States v Brooks (CA10 NM) 599 F2d 943.

Footnote 81. Divans v California,  434 US 1303,  54 L Ed 2d 14,  98 S Ct 1.

When mistrial is granted on motion by defendant, the double jeopardy clause ordinarily will not bar his reprosecution; however, if the error underlying the motion was motivated by bad faith or undertaken to harass or prejudice defendant, the government will not be permitted to subject defendant to retrial.  United States v Garza (CA5 Tex) 603 F2d 578.

Footnote 82. United States v Davis (CA5 Fla) 589 F2d 904, cert den  441 US 950,  60 L Ed 2d 1055,  99 S Ct 2178; United States v Clayborne (CA10 Colo) 584 F2d 346 (disagreed with on other grounds United States v Bruneau (CA8 Minn) 594 F2d 1190, cert den  444 US 847,  62 L Ed 2d 61,  100 S Ct 94); United States v Crouch (CA5 Tex) 566 F2d 1311, reh den (CA5 Tex) 570 F2d 949; United States v Weaver (CA8 Ark) 565 F2d 129, cert den  434 US 1074,  55 L Ed 2d 780,  98 S Ct 1263; United States v Martin (CA8 Ark) 561 F2d 135; United States v Kennedy (CA5 Ga) 548 F2d 608, reh den (CA5 Ga) 554 F2d 476 and cert den  434 US 865,  54 L Ed 2d 140,  98 S Ct 199; United States v Beasley (CA5 Fla) 479 F2d 1124, cert den  414 US 924,  38 L Ed 2d 158,  94 S Ct 252, reh den  414 US 1052,  38 L Ed 2d 340,  94 S Ct 557; United States v Venable (ED Pa) 453 F Supp 25, affd on other grounds (CA3 Pa) 585 F2d 71; United States v Broderick (SD Fla) 425 F Supp 93; State v Kirk (Fla App D1) 362 So 2d 352; People v Collins, 48 Ill App 3d 643, 6 Ill Dec 296, 362 NE2d 1118; Commonwealth v Bolden, 472 Pa 602, 373 A2d 90,  98 ALR3d 958 (not followed Commonwealth v Perry (Pa Super) 411 A2d 786 (ovrld on other grounds Commonwealth v Boerner (Pa Super) 422 A2d 583), holding that the proper standard is not one of gross negligence and because the prosecution did not intentionally commit error in the first trial with the goal of prompting a mistrial, a reprosecution of defendants does not violate their double jeopardy rights.))

Annotation:  98 ALR3d 997, § 4(b).

But see Commonwealth v Potter, 478 Pa 251, 386 A2d 918, holding that the public interest in convicting those guilty of crimes was too important to be subordinated to a concept of a prosecuting attorney's negligence, and that "overreaching" should include only deliberate prosecutorial misconduct, not "gross negligence."

Although the law is clear that reprosecution is barred by the double jeopardy clause if a mistrial is ordered on a defendant's motion on facts revealing overreaching by the judge or prosecutor, retrial of the defendant would not violate double jeopardy where the prosecutor's conduct in continually inquiring into collateral offenses and in inadvertantly using the word "damned" did not constitute misconduct or gross negligence.  State v Kirk (Fla App D1) 362 So 2d 352.

Footnote 83. Lee v United States,  432 US 23,  53 L Ed 2d 80,  97 S Ct 2141; United States v Dinitz,  424 US 600,  47 L Ed 2d 267,  96 S Ct 1075, on remand (CA5 Fla) 538 F2d 1214, reh den (CA5 Fla) 542 F2d 1174 and cert den  429 US 1104,  51 L Ed 2d 556,  97 S Ct 1133; United States v Jorn,  400 US 470,  27 L Ed 2d 543,  91 S Ct 547 (plurality opinion); Downum v United States,  372 US 734,  10 L Ed 2d 100,  83 S Ct 1033.

The prosecutor's failure to draft an information properly and the trial court's denial of a motion to dismiss the indictment prior to the attachment of jeopardy could not be characterized as overreaching.  The drafting error was at most an act of negligence. Lee v United States,  432 US 23,  53 L Ed 2d 80,  97 S Ct 2141.

Defendant who was tried for a third time after two mistrials, the first being caused by testimony of the arresting officer and the second resulting from the jury's failure to reach an agreement, was not subjected to double jeopardy where there was no indication that the prosecution had engaged in intentional misconduct or that defendant was subjected to harassment.  State v Wright, 112 Ariz 446, 543 P2d 434.

Retrial of the defendant after two mistrials, each based on a prejudicial remark by the prosecutor, was not barred by the Double Jeopardy clause where the two mistrials were not precipitated by bad-faith prosecutorial conduct intended to abort the trials in question, but rather resulted from inadvertence.  State v Wesley (La) 347 So 2d 217.

Footnote 84. United States v Beasley (CA5 Fla) 479 F2d 1124, cert den  414 US 924,  38 L Ed 2d 158,  94 S Ct 252, reh den  414 US 1052,  38 L Ed 2d 340,  94 S Ct 557.

Although a prosecutor exercised poor judgment in not advising the defendant prior to trial of state's evidence implicating the defense attorney in the crime charged and introduced a "surprise witness" during trial, the prosecutor's conduct was not so far below expected standards to warrant a prohibition against reprosecution after a mistrial.  Commonwealth v Bolden, 472 Pa 602, 373 A2d 90,  98 ALR3d 958 (not followed Commonwealth v Perry (Pa Super) 411 A2d 786 (ovrld on other grounds Commonwealth v Boerner (Pa Super) 422 A2d 583)).

Footnote 85. United States v Buzzard (CA10 NM) 540 F2d 1383, 1976-2 CCH Trade Cas ¶ 61034, cert den  429 US 1072,  50 L Ed 2d 790,  97 S Ct 809.

Footnote 86. United States v Wilson (CA6 Ky) 534 F2d 76.

Footnote 87. United States v Rumpf (CA10 NM) 576 F2d 818, cert den  439 US 893,  58 L Ed 2d 239,  99 S Ct 251; United States v Romano (CA5 Ga) 482 F2d 1183, cert den  414 US 1129,  38 L Ed 2d 753,  34 S Ct 866; Torres v State (Alaska) 519 P2d 788; Muller v State (Alaska) 478 P 2d 822; State v Manning (Iowa) 224 NW2d 232; State v Wesley (La) 347 So 2d 217; Thompson v State, 38 Md App 499, 381 A2d 704.

Annotation:  98 ALR3d 997, § 5(a).

Where the record showed only a misunderstanding between the defense counsel and the prosecutor in their conversation before trial concerning whether syringes would be commented on or testified to, the prosecutor's reference to the syringes in his opening statement did not constitute bad faith conduct relieving the defendant from the consequences of his waiver of any objection thereto.  United States v Rumpf (CA10 NM) 576 F2d 818, cert den  439 US 893,  58 L Ed 2d 239,  99 S Ct 251.

Footnote 88. United States v Buzzard (CA10 NM) 540 F2d 1383, 1976-2 CCH Trade Cas ¶ 61034, cert den  429 US 1072,  50 L Ed 2d 790,  97 S Ct 809; United States v Beasley (CA5 Fla) 479 F2d 1124, cert den  414 US 924,  38 L Ed 2d 158,  94 S Ct 52, reh den  414 US 1052,  38 L Ed 2d 340,  94 S Ct 557; United States v Goldman (SD NY) 439 F Supp 358, affd without op (CA2 NY) 573 F2d 1297; People v Hathcock, 8 Cal 3d 599, 105 Cal Rptr 540, 504 P2d 476 (ovrld on other grounds People v Green 27 Cal 3d 1, 164 Cal Rptr 1, 609 P2d 468); State v Kirk (Fla App D1) 362 So 2d 352; People v Conlon (2d Dept)  66 App Div 2d 823, 411 NYS2d 345, app dismd  46 NY2d 1059, 416 NYS2d 590, 389 NE2d 1110; People v Counts (2d Dept)  44 App Div 2d 841, 355 NYS2d 644; Commonwealth v Rios, 246 Pa Super 479, 371 A2d 937.

Annotation:  98 ALR3d 997, § 5(b).

Footnote 89. State v Mazurek (App) 88 NM 56, 537 P2d 51; Commonwealth v Wright, 439 Pa 198, 266 A2d 651.

Annotation:  98 ALR3d 997, § 5(c).

Footnote 90. United States v Nelson (CA10 Colo) 582 F2d 1246, cert den  439 US 1079,  59 L Ed 2d 49,  99 S Ct 860; Moroyoqui v United States (CA9 Ariz) 570 F2d 862, cert den  435 US 997,  56 L Ed 2d 86,  98 S Ct 1651; United States v Crouch (CA5 Tex) 566 F2d 1311, reh den (CA5 Tex) 570 F2d 949; White v State (Alaska) 523 P2d 428; State v Wright, 112 Ariz 446, 543 P2d 434; Tucson v Valencia, 21 Ariz App 148, 517 P2d 106; State v Kirk (Fla App D1) 362 So 2d 352; State v Jackson, 33 Or App 139, 575 P2d 1001, cert den  440 US 971,  59 L Ed 2d 787,  99 S Ct 1533; Commonwealth v Wiggins, 472 Pa 95, 371 A2d 207.

Annotation:  98 ALR3d 997, § 5(d).

Footnote 91. United States v Estremera (CA2 NY) 531 F2d 1103, cert den  425 US 929,  48 L Ed 2d 804,  96 S Ct 2184; United States v Venable (ED Pa) 453 F Supp 25, affd (CA3 Pa) 585 F2d 71; Piesik v State (Alaska) 572 P2d 94; State v Baylor, 2 Kan App 2d 722, 587 P2d 343; State v Wesley (La) 347 So 2d 217; Commonwealth ex rel. Montgomery v Myers, 422 Pa 180, 220 A2d 859, cert den  385 US 963,  17 L Ed 2d 308,  87 S Ct 405, adhered to United States ex rel. Montgomery v Brierley (CA3 Pa) 414 F2d 552, cert den  399 US 912,  26 L Ed 2d 566,  90 S Ct 2206.

Annotation:  98 ALR3d 997, § 5(e).

Where a prosecuting attorney during his jury summation referred to the accused as a "pro" and an "old pro" and the accused moved for and obtained a mistrial, the double jeopardy clause did not bar his retrial.  United States ex rel. Montgomery v Brierley (CA3 Pa) 414 F2d 552, cert den  399 US 912,  26 L Ed 2d 566,  90 S Ct 2206.

Footnote 92. United States v Kessler (CA5 La) 530 F2d 1246, reh den (CA5 La) 535 F2d 660.

Footnote 93. United States v Martin (CA8 Ark) 561 F2d 135.

Footnote 94. United States Broderick (SD Fla) 425 F Supp 93.

Footnote 95. Commonwealth v Warfield, 424 Pa 555, 227 A2d 177 (ovrld on other grounds Commonwealth v Potter 478 Pa 251, 386 A2d 918).

Annotation:  98 ALR3d 997, § 5(g).

 98 ALR3d 997, § 7.

The United States Supreme Court, however, has stated that traditional waiver concepts have little relevance in determining whether the double jeopardy clause bars the retrial of a defendant after his original trial ends in a mistrial granted at his request. Although acknowledging that in such circumstances, the defendant generally does face a "Hobson's Choice" between giving up his first jury and continuing in a trial tainted by a prejudicial judicial or prosecutorial error, the supreme court emphasized that the situation is not governed by the principles that the defendant's mistrial motion is a waiver of his right not to be placed twice in jeopardy and that the waiver must meet the "knowing, intelligent, and voluntary" standard applied in cases involving a waiver of the right to counsel.  The important consideration for purposes of the double jeopardy clause, the Supreme Court noted, was that the defendant retain primary control over the course to be followed in the event of such prosecutorial or judicial error and that, in such circumstances, the defendant's mistrial request serves the objective similar to that protected by the double jeopardy clause: the avoidance of anxiety, expense, and delay occasioned by multiple prosecutions.  A defendant's double jeopardy interests do not go so far as to assure a defendant a single proceeding free from harmful governmental or judicial error.  United States v Dinitz,  424 US 600,  47 L Ed 2d 267,  96 S Ct 1075, on remand (CA5 Fla) 538 F2d 1214, reh den (CA5 Fla) 542 F2d 1174 and cert den  429 US 1104,  51 L Ed 2d 556,  97 S Ct 1133; United States v Jamison, 164 App DC 300, 505 F2d 407 (disagreed with on other grounds United States v Andrews (CA6 Mich) 612 F2d 235, on reh, en banc (CA6 Mich) 633 F2d 449).

Footnote 96. United States v Dinitz,  424 US 600,  47 L Ed 2d 267,  96 S Ct 1075, on remand (CA5 Fla) 538 F2d 1214, reh den (CA5 Fla) 542 F2d 1174 and cert den  429 US 1104,  51 L Ed 2d 556,  97 S Ct 1133 (banishment not done in bad faith to goad defendant into requesting mistrial or to prejudice his prospects for acquittal).

Footnote 97. United States Weaver (CA8 Ark) 565 F2d 129, cert den  434 US 1074,  55 L Ed 2d 780,  98 S Ct 1263.

Footnote 98. United States v Clayborne (CA10 Colo) 584 F2d 346 (disagreed with on other grounds United States v Bruneau (CA8 Minn) 594 F2d 1190, cert den  444 US 847,  62 L Ed 2d 61,  100 S Ct 94).

Footnote 99. Drayton v Hayes (CA2 NY) 589 F2d 117.

Footnote 1. United States Ajimura (DC Hawaii) 446 F Supp 1120.

Footnote 2. State v Pulawa, 58 Hawaii 377, 569 P2d 900, cert den  436 US 925,  56 L Ed 2d 768,  98 S Ct 2818.

Footnote 3. Commonwealth v Bolden, 472 Pa 602, 373 A2d 90,  98 ALR3d 958 (not followed Commonwealth v Perry (Pa Super) 411 A2d 786 (ovrld on other grounds Commonwealth v Boerner (Pa Super) 422 A2d 583)).

Footnote 4. State v Harrell (App)  85 Wis 2d 331, 270 NW2d 428.

Annotation:  98 ALR3d 997, § 6.

No violation of defendants' rights under the double jeopardy clause existed where they were convicted at a second trial after a mistrial had been declared in a previous proceeding upon a defense motion, based upon the comments of the court that might have been critical of the trial tactics of one defense attorney. Roberts v United States (CA8 Mo) 477 F2d 544.

Footnote 5. State v Rathbun, 287 Or 421, 600 P2d 392.

Annotation:  98 ALR3d 997, § 4(c).


§ 287  --What constitutes defendant's consent; effect of delay or prior denial before granting defendant's motion for mistrial  [21 Am Jur 2d CRIMINAL LAW]

There has been authority for the view that a defendant's motion for a mistrial, where granted by the court, operates as a waiver of the claim of double jeopardy. 6   Under this approach, the right of a defendant to have a trial proceed to a verdict is a personal one that may be waived; 7  if the jury is discharged at the instance and request of the defendant, he cannot, when afterward arraigned before another jury, insist that his constitutional right has been invaded. 8   The United States Supreme Court has held, however, that a defendant's motion for mistrial resulting from judicial or prosecutorial error does not constitute a waiver of his right not to be placed twice in jeopardy and that the standard applicable to cases involving the waiver of the right to counsel–the requirement that the waiver be "knowing, intelligent, and voluntary"–does not apply.  In so holding, the Supreme Court has said that a defendant's interest in going forward before the first jury is not a constitutional right comparable to the right to counsel and that a proper declaration of a mistrial serves the constitutional prohibition against double jeopardy.  Since traditional waiver concepts have little relevance where the defendant must determine whether or not to request or consent to a mistrial in response to judicial or prosecutorial error, the important consideration, for purposes of the double jeopardy clause, is that the defendant retain primary control over the course to be followed in the event of such error. 9    Thus, courts have rejected a defense argument that improper conduct of the prosecutor effectively "compelled" the defendant to move for a mistrial, thereby making his motion involuntary. 10  

There are holdings to the effect that the consent of the accused to the discharge of the jury or to the grant of the state's motion for a mistrial may be either express 11   or implied. 12   In other words, consent to a mistrial may appear by implication from the circumstances as well as by express words. 13  Thus, where counsel for a codefendant first raised the question as to whether a departing juror had heard a motion for acquittal and argument on that motion, and then specifically objected to the court's ascertaining from the juror what had been heard, the trial court had no reasonable alternative than to declare a mistrial, since it was evident that the defendant desired one. 14    On the other hand, where a defendant moved for a mistrial and was joined in a motion by the prosecutor, it has been held that the defendant's subsequent withdrawal of the motion before the court acts upon it is effective and the subsequent grant of the motion for mistrial must be treated as one on the prosecutor's motion over the defendant's objection. 15   

It is said that the defendant's failure to object or protest to the action of the court in discharging the jury or withdrawing the case from the jury constitutes a waiver of a former jeopardy plea, 16   but holdings to the contrary are also found. 17    Even where the error causing the mistrial was invited by the defendant's counsel, it has been held that an accused has no duty to object to the court's declaration of a mistrial and that his own failure or that of his counsel to so object cannot result in a waiver of the defense of double jeopardy. 18

Findings of consent to a mistrial and discharge of the jury have been upheld where the trial judge sustained the accused's objection to continuing the trial or to the introduction of evidence, 19    where the accused requested a continuance or adjournment, 20      and where the accused moved to quash the venire. 21  

Although there is a decision to the contrary, 22  it seems that counsel for the accused may consent to a jury discharge, at least where the consent is given in the presence, or with the knowledge, of the accused. 23  On the other hand, it has been held that jeopardy attached where a mistrial was declared due to the personal commitments of the judge, even with the apparent consent of defense counsel, where the counsel's consent was not true consent or the type contemplated to prevent the attachment of double jeopardy. 24  Where a jury found a defendant guilty of murder without malice but was unable to agree on punishment, the written consent of the defendant's attorney to a mistrial has been held not to constitute a waiver of the defendant's double jeopardy plea to a subsequent retrial under the original indictment and a conviction on a higher offense, since waiver of a constitutional right is ineffective unless made knowingly. 25    

Where a delay takes place between the time a defendant initially moves for mistrial and the time the judge grants the motion or where the trial court after denying the motion reverses itself and grants a mistrial, it has been contended that the mistrial should be considered as occurring on the court's own motion rather than the defendant's.  Although an acceptance of such an argument would remove a defendant from the general rule that double jeopardy does not bar his retrial after the court grants his own motion for mistrial, the courts have rejected this approach and, instead, regard the mistrial as having been granted in response to the defendant's own motion, notwithstanding the lapse of time or the trial court's initial denial. 26  Nevertheless, it has been held that there was no consent to a mistrial by the defendant's counsel, although he had earlier moved for a mistrial, where the initial motion had been denied and the record was replete with urgings by him to proceed with trial after the district attorney subsequently stated he would consent to a mistrial. 27   

§ 287  – What constitutes defendant's consent; effect of delay or prior denial before granting defendant's motion for mistrial [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Once defendants have made motions for mistrial, it is their responsibility to make known to trial judge any change in their position regarding mistrial motions, and where defendants have ample opportunity to withdraw their motions for mistrial, but fail to do so, mistrial is regarded as having been granted in response to defendants' motions rather than on court's own motion. United States v Crouch (1978, CA5 Tex) 566 F2d 1311, reh den (CA5 Tex) 570 F2d 949.

In the case of a defendant whose counsel was relieved for a conflict of interest by direction of the Supreme Court, 18 months after the trial court had denied the motion and stayed the trial pending appellate relief, after which defendant opted to resume the trial with a new attorney, declining the trial court's invitation to move for a mistrial, the trial court committed reversible error in denying, on the grounds of waiver and untimeliness, defendant's later motion for a mistrial, made on the eve of resuming the trial. Defendant's initial refusal to move for a mistrial was, correctly viewed, a refusal to waive double jeopardy protection; he did not need to show good cause to change his mind. Thus, where no prejudice was caused by defendant's change of heart, where denial of the mistrial denied defendant a "continuity of representation," with new counsel forced to argue a case he had not heard before a jury he had not selected, the motion should have been granted. People v Gibbs (1986, 4th Dist) 177 Cal App 3d 763, 223 Cal Rptr 194.

Defendant did not consent to dismissal of prior embezzlement prosecution by first objecting to state's motion to dismiss and then later withdrawing objection and thus did not waive right to claim double jeopardy at subsequent trial. State v Werneth (1980) 101 Idaho 241, 411 P2d 1026.

Double jeopardy clause barred retrial of defendant where, in opening statement, defense counsel stated to jury that certain witness would admit responsibility for crime, where prosecutor had witness arrested and witness decided not to testify, and where, after defense counsel moved to dismiss with prejudice case against defendant, trial court granted mistrial. Defendant did not, by bringing motion for "dismissal with prejudice," consent to mistrial; furthermore, defendant was not entitled to either "dismissal with prejudice" or mistrial under circumstances. People v Squires (1980) 100 Mich App 672, 300 NW2d 366.

Double jeopardy did not bar second trial of defendant where, after state rested its case in first trial, defendant made motion for directed verdict of acquittal grounded on insufficiency of indictment to charge offense, and court granted motion and entered order quashing indictment, and denied defendant's motion to alter or amend judgment to reflect that it was directed verdict of acquittal and not dismissal of indictment. Estes v State (1987, Miss) 502 So 2d 1184.

In prosecution for second-degree assault and armed criminal action, in which trial court ordered mistrial after prosecution witness violated court's instructions not to mention his assignment with "sex crimes unit," double jeopardy did not bar retrial of defendant where defendant had opportunity to object to declaration of mistrial, but did not do so. Consent to mistrial may be inferred from silence where there was opportunity to object but defendant fails to do so. State v Tolliver (1992, Mo) 839 SW2d 296.

Where prosecutor inadvertently elicited testimony that defendant had exercised fight to remain silent, retrial was not barred by double jeopardy. State v Brown (1989, Mo App) 768 SW2d 215.

Second prosecution of defendant for breaking, entering and aggravated robbery would be barred by double jeopardy, since trial court could not avoid effect of double jeopardy clause by reconsidering and granting on its own motion previously denied request for mistrial made by defendant, rather than granting state's pending mistrial request. State v Aldridge (1981) 3 Ohio App 3d 74, 3 Ohio BR 86, 443 NE2d 1026, motion overr.

Erroneous sua sponte mistrial dismissing embezzlement indictment during trial, based on incorrect determination that venue belonged in another county, was consented to for purposes of double jeopardy principles authorizing retial where defense had contemporaneously moved for dismissal on other grounds, i.e., variance between indictment and proof. State v Knight (1981, Tenn) 616 SW2d 593, cert den (US)  70 L Ed 2d 638,  102 S Ct 670.

Double jeopardy clause was no bar to retrial where mistrial was declared on ground of "manifest necessity" based on reports of jury tampering, and was agreed to by counsel for all parties, and there was no evidence of any conduct on part of prosecution or trial judge which was intended to provoke defense into consenting to mistrial. State v Nixon (1983, Term Crim) 669 SW2d 679.

Defendant's failure to object did not constitute implied consent to mistrial where trial judge declared mistrial almost immediately after announcing his intention to do so, did not question defendant or his attorney to determine whether defendant consented to mistrial, and did not solicit any comments from either party concerning his intention to declare mistrial. Harrison v State (1989, Tex App Dallas) 772 SW2d 556.

Defendant impliedly consented to discharge of jury, and thus could not object on double jeopardy grounds to retrial, where he requested, and was granted, several continuances of trial, apparently believing that delay was beneficial. Adkins v Leverette (1980, W Va) 264 SE2d 154.

Footnotes

Footnote 6. Cardenas v Superior Court of Los Angeles County, 56 Cal 2d 273, 14 Cal Rptr 657, 363 P2d 889,  100 ALR2d 371.

Footnote 7. Ballensky v People, 116 Colo 34, 178 P2d 433.

Footnote 8. Stone v State, 160 Ala 94, 49 So 823; Burnett v State, 76 Ark 295, 88 SW 956; Welsh v State, 126 Ind 71, 25 NE 883; Kamen v Gray, 169 Kan 664, 220 P2d 160, cert den  340 US 890,  95 L Ed 645,  71 S Ct 206; State v Slorah, 118 Me 203, 106 A 768; Re Ascher, 130 Mich 540, 90 NW 418; Hanley v State, 83 Nev 461, 434 P2d 440; State v Thompson, 58 Utah 291, 199 P 161.

A defendant did not waive his plea of former jeopardy where the court had denied his motion for a mistrial and had given curative instructions following improper remarks by the prosecutor, but then had granted a mistrial, upon the erroneous assumption that the defendant's motion was still viable, after the prosecutor himself had moved for a mistrial.  Fugett v State (Fla App D2) 271 So 2d 28.

Footnote 9. United States v Dinitz,  424 US 600,  47 L Ed 2d 267,  96 S Ct 1075, on remand (CA5 Fla) 538 F2d 1214, reh den (CA5 Fla) 542 F2d 1174 and cert den  429 US 1104,  51 L Ed 2d 556,  97 S Ct 1133.

Annotation:  98 ALR3d 997, § 7.

Footnote 10. People v Hathcock, 8 Cal 3d 599, 105 Cal Rptr 540, 504 P2d 476 (ovrld on other grounds People v Green 27 Cal 3d 1, 164 Cal Rptr 1, 609 P2d 468).

Annotation:  98 ALR3d 997, § 7.

Footnote 11. Westover v State, 66 Ariz 145, 185 P2d 315; People v Baillie, 133 Cal App 508, 24 P2d 528.

Annotation:  63 ALR2d 782, § 3[a].

Footnote 12. Franklin v State, 149 Ark 546, 233 SW 688; People v Kelly, 132 Cal App 118, 22 P2d 526.

Annotation:  63 ALR2d 782, § 3[b].

Defendant did not consent to a court's declaration of a mistrial and did not waive his plea of former jeopardy where the mistrial was declared on the court's own motion and where defense counsel stated that the defendant was not in agreement with the court's decision to declare a mistrial and renewed his request for a judgment of acquittal.  United States v Grasso (CA2 Conn) 552 F2d 46, reh den, en banc (CA2) 568 F2d 899 and vacated on other grounds  438 US 901,  57 L Ed 2d 1144,  98 S Ct 3117, on remand (CA2 Conn) 600 F2d 342, later app (CA2 Conn) 629 F2d 805.

A defendant did not consent to a mistrial in a child molestation case merely by the defense counsel's calling the matter of possible juror misconduct to the trial court's attention.  Where no legal necessity existed for a mistrial, the defense counsel's failure to object to the mistrial was not an implied consent to it.  People v Compton, 6 Cal 3d 55, 98 Cal Rptr 217, 490 P2d 537.

A defendant impliedly consented to the discharge of the jury where his counsel, following amendment of the information by a prosecutor, refused a one day continuance, requested a two to three week continuance, and asked that the case be transferred to the criminal department for resetting. People v Ramirez (5th Dist) 27 Cal App 3d 660, 104 Cal Rptr 102.

There was no implied consent by an accused and informal remarks by his counsel could not be construed as a consent to a mistrial where an accused had made no formal motion for a mistrial, had not been personally asked whether he would consent to it, had given his counsel a message that he would not waive his rights, and was not present during proceedings in chambers when the judge declared on his own initiative that a mistrial would be ordered. Hutson v Superior Court of Stanislaus County (5th Dist) 203 Cal App 2d 687, 21 Cal Rptr 753.

Although the defendant's counsel had informed the trial judge of possible prejudice resulting from an arrest of one of the witnesses outside the courtroom at a time when the jury was leaving on a noon recess, the refusal of the defendant and his counsel to move a mistrial or to consent thereto, negated any possible inference of consent.  People v Boyd (1st Dist) 22 Cal App 3d 714, 99 Cal Rptr 553.

Where a trial judge became ill and defendant's counsel orally moved for a mistrial to avoid the danger of prejudicing the jury but subsequently moved to withdraw the motion, it could not be said that the subsequent granting of the mistrial was at the request of the defendant.  Commonwealth v Robson, 461 Pa 615, 337 A2d 573, cert den  423 US 934,  46 L Ed 2d 265,  96 S Ct 290.

Practice Aids: –Former jeopardy–Consent of defendant to termination of trial. 1 Wharton's Criminal Law (14th ed) § 62.

Footnote 13. United States v Goldman (SD NY) 439 F Supp 358, affd without op (CA2 NY) 573 F2d 1297.

Consent removing a bar of double jeopardy was shown where the defense attorney actively participated in interrogating the juror after mistrial was declared due to inability of the jurors to reach a verdict and where defendant proceeded through the entire new trial without raising the issue of the former jeopardy.  State v Henderson (App) 116 Ariz 310, 569 P2d 252.

Footnote 14. Baker v State, 15 Md App 73, 289 A2d 348, cert den  410 US 969,  35 L Ed 2d 705,  93 S Ct 1449.

Footnote 15. Cardenas v Superior Court of Los Angeles County, 56 Cal 2d 273, 14 Cal Rptr 657, 363 P2d 889,  100 ALR2d 371.

Annotation:  63 ALR2d 782, § 16[a].

Footnote 16. State v Woo Dak San, 35 NM 105, 290 P 322; People v Epstein,  8 Misc 2d 364, 170 NYS2d 577.

Annotation:  63 ALR2d 782, § 5[b].

Defense counsel's failure to object to the court's proposal to discharge a jury because it could not agree precluded the defendant's subsequent motion to dismiss the indictment on double jeopardy grounds.  United States v Phillips (CA3 Pa) 431 F2d 949.

A second trial of defendant after mistrial did not place him in double jeopardy, though there had not been a manifest necessity for the mistrial and, in fact, its declaration by the trial judge had been an error, where the trial court's decision was not calculated to help the prosecution in any respect but rather to provide the defendant with information it erroneously believed the prosecution should have disclosed to defendant before trial, and where, though the defendant did not explicitly consent to a mistrial, neither did he contend for his right to completion of trial by the first jury. United States v Sedgwick (Dist Col App) 345 A2d 465, application den  423 US 1028,  46 L Ed 2d 402,  96 S Ct 558 and cert den  425 US 966,  48 L Ed 2d 210,  96 S Ct 1751.

Retrial did not constitute double jeopardy where defense counsel expressed the willingness to have a mistrial granted, the record did not disclose that the defendant had been forced to consent to a mistrial, and no record was made objecting to the granting of a mistrial.  State v Shaw, 6 Ariz App 33, 429 P2d 667.

Consent removing the bar of double jeopardy was shown where the defense attorney actively participated in interrogating a juror after a mistrial had been declared due to the jurors' inability to reach a verdict and where the defendant had proceeded through the entire new trial without raising the issue of former jeopardy. State v Henderson (App) 116 Ariz 310, 569 P2d 252.

Where a jury was able to reach only a partial verdict, the conduct of defense counsel in entering into a stipulation and failing to object to the trial court's dismissal of the jury and remaining silent under all the circumstances amounted to a consent to the procedure followed and a waiver of any requirement that the partial verdict be received.  People v Bean, 26 Ill App 3d 1090, 325 NE2d 679, affd 64 Ill 2d 123, 355 NE2d 17.

The defendant in a homicide prosecution was not placed in double jeopardy by a retrial after a court declared mistrial even though the court was without authority, within the meaning of an appropriate statute, to declare a mistrial without the consent of the defendant where the defendant acquiesced in the mistrial ruling by failing to object at the time.  State v Lawson (La) 338 So 2d 627.

Footnote 17. State v Fenton, 19 Ariz App 274, 506 P2d 665; People v Compton, 6 Cal 3d 55, 98 Cal Rptr 217, 490 P2d 537; Curry v Superior Court of San Francisco, 2 Cal 3d 707, 87 Cal Rptr 361, 470 P2d 345; Mitchell v Superior Court of Los Angeles County (2d Dist) 207 Cal App 2d 643, 24 Cal Rptr 671; State v Stankevicius, 3 Conn Cir 580, 222 A2d 356; Allen v State, 52 Fla 1, 41 So 593; Adkins v Smith (Fla App D4) 197 So 2d 865, cert dismd (Fla) 205 So 2d 530; People v Benton, 402 Mich 47, 260 NW2d 77; People v Johnson, 396 Mich 424, 240 NW2d 729, cert den  429 US 951,  50 L Ed 2d 319,  97 S Ct 370 and (not followed on other grounds People v Riley 88 Mich App 727, 279 NW2d 303); People v Gardner, 37 Mich App 520, 195 NW2d 62; People v Brown, 23 Mich App 528, 179 NW2d 58; State v Sedillo (App) 88 NM 240, 539 P2d 630; Commonwealth v Bartolomucci, 468 Pa 338, 362 A2d 234; Commonwealth v Baker, 413 Pa 105, 196 A2d 382 (ovrld on other grounds Commonwealth v Potter 478 Pa 251, 386 A2d 918) and (not followed on other grounds Commonwealth v Boerner (Pa Super) 422 A2d 583); State v Richardson, 47 SC 166, 25 SE 220; Hipple v State, 80 Tex Crim 531, 191 SW 1150.

Annotation:  63 ALR2d 782, § 5[a].

A defendant's motion for dismissal on the ground of former jeopardy should have been granted where the record revealed only that counsel for the defendant had not joined in a motion for mistrial made by his codefendants in the first trial.  People v Davis, 29 Mich App 443, 185 NW2d 609, affd 387 Mich 431, 196 NW2d 767.

The declaration of a mistrial barred further prosecution of the defendant for the crime charged where he neither moved for a mistrial nor consented to one, but rather remained silent in the face of statements of the state and those of the trial judge in granting the mistrial and where there was no manifest necessity for the trial judge's order.  State v McNeil (Fla App D1) 362 So 2d 93.

Defendant's failure to object to the court's discharge of a jury which could not agree on a verdict did not constitute implied consent to a mistrial or waiver of the protection of the double jeopardy clause.  State v Ambrose (Utah) 598 P2d 354.

Defense counsel's statement that the defendant would enter a plea of former jeopardy if the state elected to try him again was an implied objection to a declaration of mistrial by the court. State ex rel. Brooks v Worrell, 156 W Va 8, 190 SE2d 474.

Footnote 18. People v Upshaw, 13 Cal 3d 29, 117 Cal R 668, 528 P2d 756.

Footnote 19. State v McKinney, 76 Kan 419, 91 P 1068.

Annotation:  63 ALR2d 782, § 10.

A defendant during a second trial of a robbery prosecution effectively consented to a mistrial where relations between the defendant and his court-appointed public defender had completely broken down and the declaration of the mistrial was the court's response to the defendant's expressed wish to have his former attorney represent him.  People v Smith (3d Dist) 13 Cal App 3d 897, 91 Cal Rptr 786,  52 ALR3d 875.

The trial court's declaration of a mistrial, sua sponte, did not bar the defendant's subsequent retrial where the defendant had been without counsel and had repeatedly insisted that he be given adequate time to consult counsel to prepare a defense.  People v Henley, 26 Mich App 15, 182 NW2d 19.

Footnote 20. State v Reynolds, 345 Mo 79, 131 SW2d 552; People v Caballero, 194 Misc 145, 84 NYS2d 762; State ex rel. Lukich v Superior Court for King County, 145 Wash 450, 260 P 671, cert den  276 US 630,  72 L Ed 740,  48 S Ct 324 and (ovrld on other grounds State v Brunn 22 Wash 2d 120, 154 P2d 826 (superseded by statute as stated in State v Jubie 15 Wash App 881, 552 P2d 196)).

Annotation:  63 ALR2d 782, § 13.

The very word "continuance" implied a resumption of the proceedings at a later date, not an abandonment of them, and defendant, by making application therefor, waived a former jeopardy plea.  State v Reynolds, 345 Mo 79, 131 SW2d 552.

Footnote 21. Stone v State, 160 Ala 94, 49 So 823.

Annotation:  63 ALR2d 782, § 14.

Footnote 22. Hipple v State, 80 Tex Crim 531, 191 SW 1150.

Footnote 23. State v Thienes, 77 Mont 54, 249 P 1114.

Annotation:  63 ALR2d 782, § 4.

In a prosecution for kidnapping, conspiracy, and murder against five defendants, all defendants consented to a declaration of a mistrial and discharge of the jury where an attorney for two of the defendants joined with other attorneys in filing a written motion for mistrial and that attorney argued the motion individually. State v Pulawa, 58 Hawaii 377, 569 P2d 900, cert den  436 US 925,  56 L Ed 2d 768,  98 S Ct 2818.

The declaration of a mistrial was made sua sponte by the court and was not consented to by the defendant, even assuming arguendo that the defendant's attorney had consented to the mistrial, where the evidence clearly showed that the defendant himself did not consent and, in fact, opposed the mistrial, had sought a speedy trial, had opposed continuances sought by the state, and wanted a final resolution of the charges against him as quickly as possible. Any indication at a bench conference concerning the mistrial that the attorney was consenting to it was made out of the defendant's hearing and the state's attempt to determine whether the defendant consented to a mistrial was frustrated by the trial judge who indicated that the defendant's consent was not needed since the court itself had disposed of it as a mistrial.  Jourdan v State, 275 Md 495, 341 A2d 388.

A defendant who was present in court and did not demur to his counsel's statement consenting to a mistrial could not claim that he did not consent. Under an applicable provision of the criminal procedure code, his personal consent was not required and the consent of his counsel was sufficient. People v Smalls,  42 Misc 2d 837, 248 NYS2d 949.

A double jeopardy claim was without merit where the defendant's counsel, in his presence, had consented to a mistrial and to a new trial, and the defendant had knowingly participated and agreed to each step in the prosecution of the offense for which he was tried. People v Strauss,  48 Misc 2d 1006, 266 NYS2d 431.

Footnote 24. Commonwealth v Wideman, 453 Pa 119, 306 A2d 894.

Footnote 25. Galloway v Beto (CA5 Tex) 421 F2d 284, cert den  400 US 912,  27 L Ed 2d 151,  91 S Ct 137.

Footnote 26. United States v Romano (CA5 Ga) 482 F2d 1183, cert den  414 US 1129,  38 L Ed 2d 753,  94 S Ct 866 (following initial denial, motion granted after six witnesses had testified on the first day of trial); United States v Goldstein (CA2 NY) 479 F2d 1061, cert den  414 US 873,  38 L Ed 2d 113,  94 S Ct 151 (motion granted two hours later); United States v Pappas (CA3 NJ) 445 F2d 1194, cert den  404 US 984,  30 L Ed 2d 368,  92 S Ct 449 (following initial denial, motion granted on the next day); Kamen v Gray, 169 Kan 664, 220 P2d 160, cert den  340 US 890,  95 L Ed 645,  71 S Ct 206; People v Bowman, 36 Mich App 502, 194 NW2d 36 (motion granted "a few minutes later" following initial denial); State v Wolak, 33 NJ 399, 165 A2d 174, cert den  365 US 822,  5 L Ed 2d 701,  81 S Ct 710 (motion granted after three days).

Footnote 27. Gershon v Sardonia,  50 Misc 2d 423, 270 NYS2d 729.

Annotation:  98 ALR3d 997, § 8.


§ 288  Defective indictment; withdrawal of indictment  [21 Am Jur 2d CRIMINAL LAW]

Where a trial judge terminates a criminal proceeding after the jury has been impaneled and sworn and declares a mistrial, over the defendant's objection, because of a defect in the indictment that is not curable by amendment, manifest necessity exists for his ruling and the defendant may be subject to another trial under a valid indictment without violating the prohibition against double jeopardy.  Thus, in a prosecution for the crime of theft, a defendant could be retried where his prior trial was terminated after the jury had been impaneled and sworn but before any evidence had been presented when the prosecuting attorney realized that the indictment was fatally deficient under state law by failing to allege that the defendant had intended to deprive the owner of his property permanently. 28  Since a defendant need not be set free on double jeopardy grounds where negligence on the part of the government requires a court to grant the defendant's motion for mistrial, 29   a second trial of a defendant is not barred where a mistrial results from a faulty indictment. 30   The same rule applies where a midtrial dismissal of an information for failure to provide adequate notice of the crime charged is the functional equivalent of a declaration of a mistrial. 31   Thus, when a judge presiding in a federal criminal prosecution is first apprised during the trial that the indictment is defective and he thereupon discharges the jury, a subsequent prosecution of the accused under a corrected indictment is not barred. 32   On the other hand, the double jeopardy clause of the Fifth Amendment will bar retrial after declaration of a mistrial prompted by the prosecution's withdrawal of a defective indictment where a state rule of procedure permits amendment to the indictment to keep the case before the same jury instead of a mistrial. 33    

Where a defendant's motion for mistrial is granted upon the quashing of a two-count indictment improperly charging two separate and distinct offenses, the double jeopardy clause does not bar retrial of the defendant on a proper four-count indictment charging the same offenses, even though the granting of the mistrial in the first case afforded the government an opportunity to "clean up" a bad indictment. 34   On the other hand, it has been recognized that the declaration of a mistrial on both counts of a two-count indictment that was defective only as to one count denies a defendant a chance to take the other count to the first jury. Thus, a subsequent retrial on the valid count is prohibited by the double jeopardy clause where the only reason for declaring a mistrial on that count was the state's convenience in litigating the case as a unit. 35     Furthermore, where the offenses charged in two counts of an indictment constitute the same offense 36   or where the "same transaction" rule requiring mandatory joinder of offenses arising out of the same criminal incident applies, 37   the court cannot grant a partial mistrial on less than all the counts of the indictment, but must declare a total mistrial, if warranted at all.  It is said that to hold otherwise would subject a defendant to a second trial for the same offense or frustrate the statutory policy that inexplicably interwined offenses must be joined in one proceeding. 38   However, in a prosecution in which 14 indictments of the defendant had been consolidated at his instance, but the trial judge, on his own motion, in order to shorten the trial rescinded the order of consolidation and discharged the jury after the prosecution had made its opening statement, it has been held that the defendant was not put twice in jeopardy for the same offense when the jury was resworn and the trial proceeded on one of the indictments selected by the government. 39  

Where two defendants were charged together, but only one was served with the wrong indictment and this fact was not discovered until after trial had commenced, it has been held that, although there was manifest necessity for declaring a mistrial as to the defendant who had received the wrong indictment, there was none as to the other defendant who had received the correct one.  Thus, the mere "judicial convenience" in handling the defendants in the same trial does not constitute an interest of sufficient magnitude to declare a mistrial as to both of them. 40
 

§ 288  – Defective indictment; withdrawal of indictment [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

There was no constructive amendment of indictment, even though it charged each defendant with single continuing multi-crime conspiracy and resulted in variance between facts charged and facts proved, since it gave ample notice of events charged; variance was not prejudicial error, even though some of hearsay evidence was wrongly admitted under coconspirator exception, where there was no evidence that coconspirators were members of same conspiracy and knew of its multiple-crimes objective. United States v Morrow (1994, CA1 RI) 39 F3d 1228, cert den (1995, US)  131 L Ed 2d 208 and cert den (1995, US) 63 USLW 3706.

Guilty-plea convictions and sentences for 2 counts of interstate transportation of forged securities in violation of 18 USCS §  2314 are vacated pursuant to 28 USCS §  2255 petition, where First Circuit recently reversed petitioner's codefendant's convictions for same counts based on ruling that UCC-3 releases of security interests are not "securities" within meaning of § 2314, because government forthrightly concedes that challenged counts of indictment are no longer susceptible to reasonable construction that would save them as charging valid criminal offense. United States v Welch (1994, DC Me) 849 F Supp 5.

Where defendant refuses to consent to amendment of indictment after jury has been impaneled and indictment has been read to them, indictment is dismissed and prosecutor obtains second indictment, dismissal of indictment must be due to some manifest necessity before defendant is constitutionally subject to retrial; therefore, double jeopardy clause of Fifth Amendment prohibits defendant's retrial where there was no manifest necessity for dismissing original proceedings since there was no material variance between indictment and proof in case. Ex parte Collins (1980, Ala) 385 So 2d 1005, on remand (Ala App) 385 So 2d 1010.

Where defendant's first narcotics prosecution ended in an aquittal on the basis of a material variance between the indictment, which charged delivery of the narcotic to one undercover agent, and the evidence adduced at trial, which established that the narcotic had actually been delivered to another agent, double jeopardy did not bar a subsequent prosecution on the basis of a second information which correctly charged the delivery of the narcotic to the appropriate agent, in that the facts alleged in the second information quite clearly would not have supported a conviction of the offense charged in the first information. State v Shaw (1982, Fla App D4) 415 So 2d 93.

Footnotes

Footnote 28. Illinois v Somerville,  410 US 458,  35 L Ed 2d 425,  93 S Ct 1066.

The double jeopardy clause does not bar a retrial of an accused after he consents to a mistrial based on an insufficiency of evidence to support the indictment.  United States ex rel. Eastman v Fay (SD NY) 225 F Supp 677, revd on other grounds (CA2 NY) 333 F2d 28, cert den  375 US 954,  14 L Ed 2d 727,  85 S Ct 1807.

Footnote 29.  § 286, supra.

Footnote 30. United States v Di Silvio (CA3 Pa) 520 F2d 247, cert den  423 US 1015,  46 L Ed 2d 386,  96 S Ct 447 and (disagreed with on other grounds United States v Young (CA9 Cal) 544 F2d 415, cert den  429 US 1024,  50 L Ed 2d 626,  97 S Ct 643).

Footnote 31. Lee v United States,  432 US 23,  53 L Ed 2d 80,  97 S Ct 2141.

The court's granting of accused's motion for dismissal of a charge that accused escaped from a penitentiary, the court noting that the cause was filed under the wrong penal code section, did not bar, on the ground of double jeopardy, a subsequent trial of accused for wilfully failing to return to a half-way house in violation of another statute, inasmuch as the order of dismissal was in effect a mistrial and the court's action was proper as a manifest necessity and warranted by the ends of justice.  State v Gowins (Iowa) 211 NW2d 302.

Footnote 32. Simpson v United States (CA9 Idaho) 229 F 940, cert den  241 US 668,  60 L Ed 1229,  36 S Ct 552.

Annotation:  6 L Ed 2d 1510, § 4[a].

Footnote 33. Bretz v Crist (CA9 Mont) 546 F2d 1336, affd  437 US 28,  57 L Ed 2d 24,  98 S Ct 2156, 10 Ohio Ops 3d 466.

Footnote 34. Vaccaro v United States (CA5 Tex) 360 F2d 606.

Footnote 35. Bretz v Crist (CA9 Mont) 546 F2d 1336, affd  437 US 28,  57 L Ed 2d 24,  98 S Ct 2156, 10 Ohio Ops 3d 466.

Footnote 36. See  §§ 266 et seq., supra.

Footnote 37. See  § 278, supra.

Footnote 38. State v Rechtshaffer, 70 NJ 395, 360 A2d 362.

Footnote 39. United States v Bigelow (Dist Col) 3 Mackey 393.

Annotation:  6 L Ed 2d 1510, § 4[b].

Footnote 40. United States v Alford (CA5 Ala) 516 F2d 941.


§ 289  Defective pleading to indictment  [21 Am Jur 2d CRIMINAL LAW]

A jury that is impaneled before an accused has pleaded or repleaded to an indictment may be discharged so that the accused may plead or replead; the subsequent reconvening of the jury and continuance of the prosecution does not put him twice in jeopardy. Thus, where an accused pleaded not guilty and demurred to the indictment, and the jury was impaneled and sworn after the demurrer had been overruled, the jury could be discharged on motion of the district attorney, who realized that the defendant had not pleaded to the indictment after the overruling of the demurrer.  Under the circumstances, there was a mere irregularity of procedure and the double jeopardy clause did not bar reprosecution of the defendant after his subsequent plea of not guilty and the impaneling of the same jury. 41    

Footnotes

Footnote 41. Lovato v New Mexico,  242 US 199,  61 L Ed 244,  37 S Ct 107.

Annotation:  6 L Ed 2d 1510, § 5.

Where a jury was inadvertently impaneled and sworn before the prisoner had been arraigned or pleaded to the indictment, the trial court correctly dismissed the jury and directed the impaneling of another jury after the defendant had been arraigned, and the defendant was not thereby twice put in jeopardy.  United States v Riley (CC NY) F Cas No 16164.


§ 290  Unpreparedness of prosecution  [21 Am Jur 2d CRIMINAL LAW]

The United States Supreme Court has noted that the strictest scrutiny is appropriate when reviewing an order for a mistrial on the basis of the unavailability of prosecution evidence or when there is reason to believe that the prosecutor is using the superior resources of the state to harass the accused or to achieve a tactical advantage over him.  A prosecutor may not request a mistrial in order to buttress weaknesses in his evidence; the prohibition against double jeopardy is plainly intended to condemn this "abhorrent" practice. 42   Thus, although there is some authority to the contrary, 43   generally the discharge of the jury on account of the inability of the prosecution to proceed with the trial operates as an acquittal, and the accused cannot be prosecuted again for the same offense. 44   The prosecutor's desire to present the case to a new grand jury, 45  or the unpreparedness of the prosecution to proceed with the case, does not constitute any necessity that justifies discharge of an impaneled jury. 46    Similarly, the double jeopardy clause has been held to bar retrial of an accused after a mistrial was declared as a result of the prosecutor's unnecessary delay. 47

A plea of former jeopardy will be sustained where it appears that the jury was discharged without the defendant's consent on a claim of surprise by the state because of the incompetency 48  or absence 49    of a witness.  Thus, recognizing that each case must turn on its own facts and refusing to say that the absence of witnesses can never justify discontinuance of a trial, the United States Supreme Court has held that an accused was subjected to double jeopardy when tried for a second time after the sworn jury in his prior trial had been discharged by the court on the basis that the prosecution's key witness had not been found. 50    However, in one case the sickness of a prosecution witness whose testimony was essential to rebut the defendant's testimony was regarded as sufficient to warrant a discharge of the jury. 51  Similarly, retrial has been permitted following a declared mistrial, after the jury had been sworn but before the indictment was read to the jury or any plea entered, on the ground that a material state's witness was unable to appear because of a heart attack. 52   And, a federal court has denied a writ of habeas corpus based on a claim of double jeopardy where the petitioner's prior trial on the same charges had been declared a mistrial, after the jury was impaneled but before the introduction of any evidence, on the ground that the state's witnesses were unavailable after a four day continuance. 53


§ 290  – Unpreparedness of prosecution [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Manifest necessity exists and retrial is not prohibited on double jeopardy grounds where trial judge reasonably concludes that there is distinct possibility that defendant participated in murder of witness, that government is totally without fault in fact that case cannot proceed to serve ends of justice by use of evidence already introduced or otherwise available to government; judge need not find that defendant was in fact involved with witness' death nor that preponderance of evidence indicates that defendant participated in death to declare mistrial. United States v Mastrangelo (1981, CA2 NY) 662 F2d 946.

Footnotes

Footnote 42. Arizona v Washington,  434 US 497,  54 L Ed 2d 717,  98 S Ct 824.

Footnote 43. State v Parker, 66 Iowa 586, 24 NW 225.

Trial had not commenced and jeopardy had not attached where the judge erroneously dismissed the case, apparently believing that the prosecution was callously prosecuting the case and knowing that the prosecution was neither ready nor willing to proceed, before he had the complaining witness placed under oath.  People v Shields, 76 Ill 2d 543, 31 Ill Dec 784, 394 NE2d 1161, cert den  445 US 917,  63 L Ed 2d 602,  100 S Ct 1279.

Footnote 44. Cornero v United States (CA9 Cal) 48 F2d 69 (ovrld on other grounds Wade v Hunter  336 US 684,  93 L Ed 974,  69 S Ct 834, reh den  337 US 921,  93 L Ed 1730,  69 S Ct 1152); Allen v State, 52 Fla 1, 41 So 593; State v Richardson, 47 SC 166, 25 SE 220; Hipple v State, 80 Tex Crim 531, 191 SW 1150.

A subsequent prosecution of defendant for murder without malice was barred by the constitutional guaranty against double jeopardy where a prior prosecution for the same offense was dismissed upon a motion by the state when it discovered, after the jury was selected, defendant pleaded to the indictment, and the state began presenting evidence from its witnesses, that it did not have any witness present who could testify that the deceased, who was known by more than one name, was known by the name alleged in the indictment.  McClendon v State (Tex Crim) 583 SW2d 777.

Footnote 45. State v Locklear, 16 NJ 232, 108 A2d 436.

Footnote 46. Allen v State, 52 Fla 1, 41 So 593; Mount v State, 14 Ohio 295; Pizano v State, 20 Tex App 139.

Annotation:  6 L Ed 2d 1510, § 9.

Footnote 47. United States v Amrco Steel Corp. (SD Cal) 252 F Supp 364.

Footnote 48. Hipple v State, 80 Tex Crim 531, 191 SW 1150.

Footnote 49. Downum v United States,  372 US 734,  10 L Ed 2d 100,  83 S Ct 1033; Hunter v Wade (CA10 Kan) 169 F2d 973,  8 ALR2d 277, affd  336 US 684,  93 L Ed 974,  69 S Ct 834, reh den  337 US 921,  93 L Ed 1730,  69 S Ct 1152; Cornero v United States (CA9 Cal) 48 F2d 69,  74 ALR 797 (ovrld on other grounds Wade v Hunter  336 US 684,  93 L Ed 974,  69 S Ct 834, reh den  337 US 921,  93 L Ed 1730,  69 S Ct 1152); Pickens v State (Okla Crim) 393 P2d 889; State v Little, 120 W Va 213, 197 SE 626.

Annotation:  6 L Ed 2d 1510, § 9.

Further prosecution was barred by the double jeopardy provision of the Fifth Amendment where the trial judge, instead of granting a continuance, discharged the jury since two "absolutely indispensable" witnesses were absent and apparently had fled. Cornero v United States (CA9 Cal) 48 F2d 69.

But see Wade v Hunter,  336 US 684,  93 L Ed 974,  69 S Ct 834, reh den  337 US 921,  93 L Ed 1730,  69 S Ct 1152, where the double jeopardy provision was held not violated by a second court-martial of a soldier where the first court-martial, convened by a division commander, had been continued to hear other witnesses not then available, and later discontinued so that the soldier could be tried before a court-martial convened by the army commander under a military policy that the proceeding be conducted in the vicinity of the alleged offense.

Footnote 50. Downum v United States,  372 US 734,  10 L Ed 2d 100,  83 S Ct 1033.

Footnote 51. State v Malouf, 199 Tenn 496, 287 SW2d 79.

Footnote 52. Morris v State, 47 Ala App 132, 251 So 2d 629.

Footnote 53. United States ex rel. Bland v Nenna (CA2 NY) 393 F2d 416.


§ 291  Prejudicial remarks, disclosures, or misconduct by prosecutor  [21 Am Jur 2d CRIMINAL LAW]

The standard of "manifest necessity" applies in cases where a mistrial is declared without the accused's consent as a result of prejudicial remarks, disclosures, or misconduct by a prosecutor. The trial judge should not order a mistrial under such circumstances unless there are compelling reasons for doing so. 54    The applicable standard of review of the trial judge's action in declaring a mistrial is whether or not the accused has shown an abuse of discretion by the judge. 55       

In upholding claims of former jeopardy in cases involving prosecutorial remarks or disclosures, courts have taken into consideration the status of the trial at the time of the misconduct precipitating the mistrial.  Thus, where a trial had been going fairly well for the accused, he may have been satisfied with the composition of the particular jury, and his witnesses may not have been available at a later trial, it has been held that there was no manifest necessity for declaring a mistrial over his objection after the trial court had ruled some suggestive prosecution evidence inadmissible. 56  Similarly, a trial judge abused his discretion in ordering a mistrial over the accused's objection where the prosecutor's improper remark forming the basis of the mistrial order was made when the trial was almost completed and the defendant desired to proceed. 57   And, a trial court's sua sponte order of a mistrial without the consent of the defendant has been held to bar his retrial where the basis of the mistrial was an impropriety of the prosecutor and the record showed that the court could have protected the defendant's rights by giving curative instructions to the jury rather than declaring a mistrial. 58

Whether the declaration of a mistrial without an accused's consent after a remark or conduct by a prosecuting attorney will support a claim of jeopardy depends upon the circumstances of the case.  Thus, it has been held that double jeopardy did not preclude retrial of the accused after a mistrial was declared, without the accused's consent, after a prosecuting attorney made remarks or asked questions that tended to inform the jury of other criminal proceedings against the accused. 59   On the other hand, a claim of former jeopardy has been upheld where no manifest necessity existed for declaring a mistrial during the tenth day of a trial when a prosecutor in a murder case elicited testimony from one of his witnesses to the effect that the accused had surrendered to police in the company of a parole officer.  The defendant, in a previous trial that had ended in a hung jury, had informed that jury that he had been on parole when the killing occurred and, in the second trial, his failure object to the prosecutor's questioning would not have resulted in reversible prosecutorial error. 60    It has been said that where the prosecution's improper disclosures or remarks lead to a state of confusion both for the court and the jury, the prosecution cannot sabotage its case, even unintentionally, and be allowed to make repeated attempts to convict the defendant. 61  


§ 291  – Prejudicial remarks, disclosures, or misconduct by prosecutor [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: DeFoor & Kalback, Jr., Prosecutorial Misconduct in Closing Argument: Remedial Measures. 8 AmJ Trial Ad 397, Spring, 1985.

Celebrezze, Prosecutorial Misconduct: Quelling the Tide of Improper Comment to the Jury. 35 Clev St LR 237, 1986-87.

Former jeopardy as bar to retrial of criminal defendant after original trial court's sua sponte declaration of a mistrial-state cases.  40 ALR4th 741.

Case authorities:

Prosecutorial misconduct may so infect a state criminal trial with unfairness as to make the resulting conviction a denial of due process under the Fourteenth Amendment of the United States Constitution; the prosecutorial misconduct, in order to constitute a due process violation, must be of sufficient significance to result in the denial of the defendant's right to a fair trial; when a defen dant contends that a prosecutor's question rendered his or her trial fundamentally unfair, it is important as an initial matter to place the remark in context. Greer v Miller (1987)  483 US 756,  97 LEd 2d 618,  107 S Ct 3102.

In a prosecution for attempted robbery, the trial court erred in denying defendant's motion for mistrial based on the prosecutor's impermissible comments on defendant's right to remain silent where the prosecutor asked the arresting officer a question regarding whether defendant had made any statements at the police station, despite the fact that the trial court had previously ruled that defendant's statement was inadmissible, and it Was clear that the only purpose to be served by the prosecutor's question was to prejudice defendant. Sosa v State (1983, Fla App D3) 435 So 2d 968.

Remarks of prosecutor referring to defendants as "merchants of Franklin Square," and "merchants of greed, deceit and correction," alluding to Shakespeare's "The Merchant of Venice" were within bounds of proper argument, since they did not result in "probability of prejudice." United States v Weiss (1991, CA2 NY) 930 F2d 185, 32 Fed Rules Evid Serv 877, cert den (US)  116 LEd 2d 100,  112 S Ct 133.

New trial motion on grounds of prosecution's knowing use of false testimony was properly denied; all evidence on which inferences of government's knowledge were based was known to defendant before trial, there was no reason for defendant not to have asserted falsity at trial and in fact it appeared that choice not to do so may have been deliberate, and there was no claim that prosecutor had personal involvement in alleged falsity. United States v Helmsley (1993, CA2 NY) 985 F2d 1202, 71 AFTR 2d 93-1010.

Prosecutor's reference to codefendant's guilty plea during opening argument and direct examination, without curative instruction, was not plain error since there was no evidence of prosecutorial misconduct and admissible evidence against defendant was strong. Virgin Islands v Mujahid (1993, CA3 VI) 990 F2d 111.

Defendant's Sixth Amendment right to present witnesses in his behalf was violated by prosecutor's improper threats to defendant's father that he would be indicted if he took stand, combined with improper references of prosecutor in closing argument to failure of threatened witness to testify, which comments were aggravated by lack of curative instruction by court. United States v Viera (1987, CA5 Tex) 819 F2d 498.

Prosecutor's closing statement during sentencing phase of capital murder trial, involving subsequent availability of appellate review, did not violate due process where such remark would be unconstitutional only if it diminished jury's sense of responsibility for sentence, remark was brief and almost passing, no objection was made to reference to appellate review, and trial court, having no occasion to comment on its propriety, did not magnify potentially prejudicial effect of remark. Berry v Phelps (1987, CA5 La) 819 F2d 511.

Prosecutor's reference to fact that judge had decided there was enough evidence against defendant for jury "to vote on," along with reference to defendant's wife's exercise of privilege not to testify against defendant, constituted reversible error despite failure to object. Ex parte Tomlin (1988, Ala) 540 So 2d 668, on remand (Ala App) 540 So 2d 674, appeal after remand (Ala App) 591 So 2d 550.

Prosecutor's reference to possibility of probation during voir dire in statutory rape case, while improper, was not ground for reversal of defendant's conviction where trial lasted four days and trial court took some curative action, and in view of particular objections made and curative actions that defense counsel did and did not request. Prince v State (1992, Ala App) 623 So 2d 355, reh den, without op (Ala App) 1992 Ala Crim App LEXIS 1741 and cert den, without op (Ala) 1993 Ala LEXIS 1001.

Penalty phase reference to impact of crime on murder victim's family was not improper. People v Howard (1992) 1 Cal 4th 1132, 5 Cal Rptr 2d 268, 824 P2d 1315, 92 Daily Journal DAR 3405, reh den (Cal) 1992 Cal LEXIS 2131 and petition for certiorari filed (Aug 26, 1992).

The prosecutor's reference to the killing of a police officer in the line of duty during voir dire and trial was allowable and did not deny accused's fight to due process or a fair trial, where a jury sentenced accused to death for the shooting death of a police officer, because the fact that the victim was a law enforcement officer attempting to enforce the laws during the incident was not only a necessary aspect of the factual situation but also critical for establishing the existing aggravating circumstance of "hindering the enforcement of laws," pursuant to FS § 921.141(5)(g). Patten v State (1992, Fla) 598 So 2d 60, 17 FLW S 172, petition for certiorari filed (Oct 21, 1992).

Reprosecution of defendant charged with shooting his wife was not barred on double jeopardy grounds where mistrial had been granted for prosecutor's inadvertent eliciting of unresponsive answer from detective in contravention of suppression order relating to oral statements defendant made to police in absence of CLS CPL §  710.30 notice, since prosecutor's conduct was not intended to provoke defendant into moving for mistrial and, absent such badfaith intent, misconduct did not constitute type of prosecutorial overreaching required to invoke double jeopardy protection. Schoendorf v Mullen (1989, 2d Dept)  152 AD2d 715, 544 NYS2d 170.

Prosecutor's remarks during summation concerning police witnesses' membership in "elite" unit, and specific officer's commendation and 5 awards, were irrelevant and improper, but did not require reversal where evidence of guilt was overwhelming. People v Ali (1990, 2d Dept)  158 AD2d 460, 551 NYS2d 54, app den  76 NY2d 784, 559 NYS2d 989, 559 NE2d 683.

Prosecutor's statements on summation at murder trial of "no testimony presented" were properly made in response to defendant's summation comment and, in any event, were harmless in view of overwhelming evidence against defendant; moreover, prosecutor's labeling of defense argument as "smokescreen" did not exceed broad bounds of rhetorical comment permissible in closing argument. People v Rivera (1990, 1st Dept)  159 AD2d 255, 552 NYS2d 249, app den  76 NY2d 795, 559 NYS2d 1000, 559 NE2d 694.

In assault trial wherein evidence of guilt was not overwhelming and defendant's justification defense depended on favorable assessment of her credibility, defendant was entitled to new trial due to prosecutorial misconduct where prosecutor, having elicited from defendant on cross-examination that she had been hospitalized for some undescribed psychiatric problem at age 14 (25 years before alleged crime), during summation expressly linked instant assault to defendant's "psychological disturbance" and impugned her credibility by accusing her of being "manipulator" who had cried during examination by defense counsel in order to gain jury's sympathy. People v Nieves (1992, 2d Dept)  186 AD2d 276, 588 NYS2d 305.

Defendant was not entitled to reversal of conviction for first-degree drug possession on his contention that prosecutor had attempted to appeal to possible racial bias of jurors, since comments were isolated and did not amount to persistent pattern of racial references, where (1) prosecutor remarked in opening that defense counsel's comment about defendant being black was smoke screen because arresting officer was also black, and (2) on cross examination prosecutor asked question that was designed to imply that it was unlikely that black men would walk in unknown white area of city. People v Glenn (1992, 4th Dept)  185 AD2d 84, 592 NYS2d 175.

There was no double jeopardy violation in the second trial of a murder defendant following a mistrial for the State's failure to comply with discovery where the first trial court found that there had been a breakdown in communication but no prosecutorial misconduct and the defense attorneys did not object after being invited to do so. Given that finding, and an absence of anything in the record to imply that it was erroneous, there is no basis for the assertion that the mistrial was the result of prosecutorial misconduct, and thus the secondary question of whether the misconduct was intended to provoke a mistrial does not arise. State v Walker (1992) 332 NC 520, 422 SE2d 716.

A defendant was entitled to a new trial for assault to commit criminal sexual conduct where he was advised of his Miranda rights at the jail after his arrest and did not make a statement to the police at that time, then in an attempt to impeach his testimony on cross-examination at trial the solicitor for the state first asked if he had told his story to the police, and when he responded that he had not, he was asked "you want these ladies and gentlemen of the jury to believe you are telling the truth?"; although defense counsel objected only the first time this question was asked, he did not thereby waive this error. State v Gray (1991) 304 SC 482,405 SE2d 420.

Prosecutor's reference to defendant's early release from prison while serving sentence for prior rapes, in capital prosecution for rape and murder, was not improper comment on possibility of parole and did not perjudice jury's imposition of death penalty, where reference was at most directed to failure of past incarceration to change defendant (and therefore likely to fail again), and was made in response to defense argument that defendant would be rendered harmless to society by life sentence instead of death. State v Nichols (1994, Tenn) 877 SW2d 722, reh den (Tenn) 1994 Tenn LEXIS 202.

In prosecution for sexual assault of child, prosecutor did not impermissibly ask jury to consider parole law during closing arguments of punishment phase, where prosecutor provided detailed analysis of defendant's parole history and violations and did not specifically ask jury to consider parole law. Damian v State (1994, Tex App Houston (1st Dist)) 881 SW2d 102, petition for discretionary review ref (Dec 14, 1994).

In murder prosecution, prosecutor's reference to parole board was not prejudicial, where trial judge gave jury cautionary instruction, and remarks did not urge jury to consider effect of parole in deciding defendant's punishment. Smith v State (1994, Tex App Houston (1st Dist)) 881 SW2d 727.

Retrial of defendant charged with aggravated menacing was not barred by the double jeopardy clause to the Fifth Amendment where, after the jury had been sworn and impaneled, the court and defense counsel were informed that the state had the wrong date of the alleged offense, defendant had filed a notice of alibi that applied to the original date but not the new correct date, and the trial court accordingly declared a mistrial, because, even though the state may have been negligent in ascertaining the correct date of the offense prior to trial, its failure to do so was not prosecutorial misconduct designed to provoke a mistrial and, thus, the mistrial declared by the trial court was not an abuse of its discretion. State v Reed (1992) 62 Ohio Misc 216, 594 NE2d 207.

Footnotes

Footnote 54. Curry v Superior Court of San Francisco, 2 Cal 3d 707, 87 Cal Rptr 361, 470 P2d 345; People v Gardner, 37 Mich App 520, 195 NW2d 62; State v White, 295 Minn 217, 203 NW2d 852; Commonwealth v Shaffer, 447 Pa 91, 288 A2d 727,  77 ALR3d 1124, cert den  409 US 867,  34 L Ed 2d 116,  93 S Ct 164.

Annotation:  77 ALR3d 1143, § 3[a].

Footnote 55. Himmelfarb v United States (CA9 Cal) 175 F2d 924, cert den  338 US 860,  94 L Ed 527,  70 S Ct 103; Neal v State, 272 Md 323, 322 A2d 887.

Annotation:  77 ALR3d 1143, § 3[b].

6 L Ed 2d 1510, § 6.

Declaration of mistrial was in accused's interest and did not constitute an abuse of the trial judge's discretion where defendant could have been prejudiced by reference of prosecuting attorney to alcohol blood level test as defective where, in reality, the sample had been insufficient to yield a qualititative result in a prosecution against the accused for driving while under the influence of alcohol.  Rentoul v State (Del Sup) 301 A2d 284.

A conviction at a second trial on a shoplifting charge would be upheld where the judge at the first trial had not abused his discretion in declaring a mistrial sua sponte where certain inadmissible evidence had been "introduced for identification" by the prosecution, had been placed within sight of the jury, and had been referred to in testimony during the entire trial.  Neal v State, 272 Md 323, 322 A2d 887.

Footnote 56. State v Sanborn, 157 Me 424, 173 A2d 854.

Footnote 57. Commonwealth v Shaffer, 447 Pa 91, 288 A2d 727,  77 ALR3d 1124, cert den  409 US 867,  34 L Ed 2d 116,  93 S Ct 164.

Annotation:  77 ALR3d 1143, § 4[c].

A plea of former jeopardy would be upheld where the prosecution's motion for a mistrial without the consent of the accused where a prosecutor's remark on the failure of the mother of one of the defendants to testify in his behalf was made during closing argument.  Fugett v State (Fla App D2) 271 So 2d 28.

Footnote 58. State v Sanborn, 157 Me 424, 173 A2d 854; People v Benton, 402 Mich 47, 260 NW2d 77.

Although a prosecutor's questioning of a state's witness exceeded the scope of permissible rehabilitation of an impeached witness, the declaration of a mistrial for that reason invoked the prohibition against double jeopardy where defense counsel chose not to object to the admission of the testimony but requested only a cautionary instruction and where the court could have completed the trial and, in the event of a conviction, could have granted a motion for a new trial.  Curry v Superior Court of San Francisco, 2 Cal 3d 707, 87 Cal Rptr 361, 470 P2d 345.

Footnote 59. Gori v United States,  367 US 364,  6 L Ed 2d 901,  81 S Ct 1523, reh den  368 US 870,  7 L Ed 2d 70,  82 S Ct 25; Himmelfarb v United States (CA9 Cal) 175 F2d 924, cert den  338 US 860,  94 L Ed 527,  70 S Ct 103 (reference to another criminal case pending against the defendants).

Annotation:  77 ALR3d 1143, § 5[a].

Where the court discharged the jury when a United States attorney offered a record of a previous conviction of the accused, a second trial of the accused did not put him twice in jeopardy. Blair v White (CA8 Kan) 24 F2d 323.

Footnote 60. People v Gardner, 37 Mich App 520, 195 NW2d 62.

Annotation:  77 ALR3d 1143, § 5[b].

Footnote 61. Gershon v Sardonia,  50 Misc 2d 423, 270 NYS2d 729.

Annotation:  6 L Ed 2d 1510, § 6.


§ 292  Misconduct of defense attorney; defective representation  [21 Am Jur 2d CRIMINAL LAW]

The United States Supreme Court has recognized that an improper opening statement of counsel in a criminal trial creates a risk, often not present in the individual juror bias situation, 62   that the entire panel may be tainted.  Accordingly, to avoid unfair advantage to unscrupulous defense counsel, the trial judge must have the power to declare a mistrial in appropriate cases and, since he is most familiar with the case at hand, his evaluation of the significance of possible juror bias is entitled to great deference on appeal, subject to the exercise of "sound discretion" in declaring a mistrial. 63    

Where a trial judge exercises sound discretion in declaring a mistrial because of possible juror bias created by the improper comment of defense counsel, manifest necessity exists; the defendant's right to have his trial concluded before the first jury impaneled becomes subordinate to the public's interest in a fair trial and a just judgment.  Thus, it has been held that a trial judge exercised sound discretion in declaring a mistrial where defense counsel, during his opening statement to the jury, made improper and prejudicial remarks by referring to certain prosecutorial misconduct that had occurred in a previous trial against the defendant. 64    Similarly, manifest necessity for a mistrail has been held to exist where defense counsel, in his opening statement, made reference to a plea bargain and sentence that had been recommended by the prosecuting attorney, 65  or where defense counsel, without previous notice to the state, first revealed the names of three alibi witnesses after the jury had been impaneled. 66  Furthermore, retrial of a defendant has not been barred where a mistrial was declared because of defense counsel's repeatedly instructing the jury on law during his opening statement and because of the court's assessment of him as inept and unable to represent his client competently. 67   On the other hand, it has been held that the double jeopardy clause barred a second trial where the court had ordered a mistrial on the basis of minor misconduct of defense counsel in overstepping the limits set by the court for the examination of a witness. 68    
 

§ 292  – Misconduct of defense attorney; defective representation [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

In prosecution for capital murder, rape, and other offenses, defense counsel's remark during trial indicating hopelessness of case and disgust with defendant were consistent with and enhanced counsel's trial strategy of maintaining his credibility with jury and hence did not constitute ineffective assistance; only available defenses were diminished capacity as result of intoxication and insufficient evidence of rape, and defendant had confessed to rape. Clozza v Murray (1990, CA4 Va) 913 F2d 1092.

Double jeopardy barred a second prosecution on charges of car theft where the trial court had improperly terminated the first prosecution with a mistrial on the basis of the fact that defendant presented no evidence after having informed the jury in opening argument that he had borrowed the car in question from an acquaintance, in that this circumstance did not render continuation of the trial unreasonably prejudicial to the prosecution, which, although precluded from cross-examination, could have protected its interests by reminding the jury that representations in defendant's opening statement were not to be considered as evidence. Spaziano v State (1983, Fla App D2) 429 So 2d 1344.

Double jeopardy clause will not bar retrial of defendant after declaration of mistrial was required because prejudicial and inadmissible matter injected by defense made it impossible for impartial verdict to be reached. Abdi v State (1982, Ga) 294 SE2d 506.

See Harrison v State (1990, Tex Crim) 788 SW2d 18, § 285.

Footnotes

Footnote 62. As to manifest necessity for mistrial on ground of individual juror bias, see  § 298, infra.

Footnote 63. Arizona v Washington,  434 US 497,  54 L Ed 2d 717,  98 S Ct 824.

Footnote 64. Arizona v Washington,  434 US 497,  54 L Ed 2d 717,  98 S Ct 824.

Footnote 65. Haight v State, 259 Ark 478, 533 SW2d 510 (mistrial declared upon state's motion).

Footnote 66. Edwards v State (Fla App D3) 336 So 2d 447 (mistrial declared on court's own motion).

Footnote 67. United States v Williams (SD NY) 411 F Supp 854.

Retrial of the defendant did not violate the double jeopardy provision of the Fifth Amendment where the trial court declared a mistrial on the basis that it had erred in permitting an associate to assist a defense attorney representing three codefendants. Scott v United States, 91 App DC 232, 202 F2d 354, cert den  344 US 879,  97 L Ed 681,  73 S Ct 176.

Footnote 68. United States v Whitlow (DC Dist Col) 110 F Supp 871.

Annotation:  6 L Ed 2d 1510, § 7.

Where defense counsel legitimately acted in contacting an important witness, a coindictee, and his counsel to discuss a matter of mutual importance to them, the double jeopardy clause of the federal constitution barred retrial of the defendant on the same charge where the prior trial had been terminated by the granting of a prosecutor's request for a nolle prosequi that was not required by manifest necessity or the ends of public justice. McNeal v Hollowell (CA5 Miss) 481 F2d 1145, cert den  415 US 951,  39 L Ed 567,  94 S Ct 1476.

Neither the interests of public justice nor manifest necessity justified a declaration of mistrial where counsel for the accused was absent from the afternoon call attending matters in an adjacent courtroom, where there was not a thorough inquiry by the trial court into the reasons for and possible length of his absence, and where both the assistant district attorney and the accused expressed a desire to wait until defense counsel returned, and retrial was therefore barred.  Commonwealth v Stroup, 244 Pa Super 173, 366 A2d 1248.

Where defendant's counsel withdrew from the case upon being informed that a codefendant whom counsel also represented would testify against defendant, the court properly declared a mistrial on its own motion and without objection by defendant, and the retrying of defendant did not amount to double jeopardy.  State v Davis, 44 Ohio App 2d 335, 73 Ohio Ops 2d 395, 338 NE2d 793 motion over.


§ 293  Misconduct of defendant  [21 Am Jur 2d CRIMINAL LAW]

Where an accused cooperates in bringing about a mistrial declared over his objection, he is not placed in double jeopardy by a second trial under a valid indictment. 69  Thus, the double jeopardy clause does not bar retrial of an accused after a mistrial resulting from his perjury. 70   On the other hand, a second prosecution has been barred where the trial judge, sua sponte, without the defendant's consent, improperly withdrew the case from the jury and declared a mistrial on the basis that defendant had been late in appearing in court, for reasons shown to be beyond his control. 71     

§ 293  – Misconduct of defendant [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Retrial of defendant for aggravated assault, trespass with a firearm, and first-degree murder was not double jeopardy where there was sufficient manifest necessity to grant the prior mistrial on the grounds that, although the trial court had previously ruled certain polygraph test results inadmissible, the defendant commented on the witness stand that he passed a lie detector test. Walsh v State (1982, Fla) 418 So 2d 1000.

In a criminal prosecution the trial court erred in declaring a mistrial, there being no "manifest necessity" to do so in the case of a defendant whose misconduct caused him not to be present at trial. The court should have granted a brief adjournment in order to give the defendant an opportunity to be present at trial; the defendant's constitutional right not to be placed in double jeopardy barred reprosecution. Torres v Justices of Supreme Court (1981, 2d Dept)  82 App Div 2d 892, 440 NYS2d 294.

Footnotes

Footnote 69. People v Merrill, 18 Ill App 3d 506, 310 NE2d 27.

Footnote 70. McKissick v United States (CA5 Ala) 379 F2d 754, later app (CA5 Ala) 398 F2d 342.

Footnote 71. United States v Tinney (CA3 Pa) 473 F2d 1085, cert den  412 US 928,  37 L Ed 2d 156,  93 S Ct 2752.

Annotation:  6 L Ed 2d 1510, § 18 [New].


§ 294  Misconduct of witness; change of testimony  [21 Am Jur 2d CRIMINAL LAW]

The double jeopardy clause does not bar retrial of an accused whose counsel moves for mistrial because of improper unsolicited testimony by a government witness. 72    Moreover, retrial may be allowed even where a defendant does not consent to a mistrial resulting from a prosecution witness' mistake.  Thus, in a prosecution against two defendants, a mistrial declared on the motion of only one defendant was based on manifest necessity where a government witness in testifying concerning an incriminating admission of one defendant slipped and revealed the name of the second defendant.  Although this second defendant objected to the mistrial, reprosecution was permitted where the mistrial was for his benefit and the court had scrupulously sought his views regarding the procedure to be followed. 73    Furthermore, a mistrial was held not attributable to the government and retrial did not violate the double jeopardy clause where codefendants moved for severances, mistrials, or both, on the basis of a relationship between a witness and counsel for one defendant. 74      

A defendant may be retried after a mistrial based on a violation of a court order separating witnesses. 75    

A defendant has been held not to have been deprived of his Fifth Amendment right against double jeopardy by retrial after a mistrial was declared when a prosecution witness recanted his testimony after more than a week of the trial had elapsed and a substantial amount of evidence had been introduced, where the trial judge declared the mistrial because he believed that allowing the veracity of such witness' testimony to become the focal point of the trial would be unfair to the defendant. 76


§ 294  – Misconduct of witness; change of testimony [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Case authorities:

Double jeopardy clause did not bar second prosecution of defendant for drug-related offenses, upon mistrial owing to informant's statement that his cooperation was intended to prevent murder, in light of defense counsel's contemporaneous agreement with trial judge's assessment that Assistant United States Attorney did not deliberately provoke mistrial. United States v McMurry (1987, CA10 Okla) 818 F2d 24.

Footnotes

Footnote 72. Gregory v United States, 133 App DC 317, 410 F2d 1016, cert den  396 US 865,  24 L Ed 2d 119,  90 S Ct 143.

Footnote 73. United States v Cyphers (CA7 Ill) 553 F2d 1064, cert den  434 US 843,  54 L Ed 2d 107,  98 S Ct 142.

Footnote 74. United States v Iacovetti (CA5 Fla) 466 F2d 1147, cert den  410 US 908,  35 L Ed 2d 270,  93 S Ct 963,  93 S Ct 973.

Annotation:  6 L Ed 2d 1510, § 16 [New].

Footnote 75. United States v Burrell (CA7 Ind) 324 F2d 115, cert den  376 US 937,  11 L Ed 2d 657,  84 S Ct 791.

Footnote 76. United States v Grasso (CA2 Conn) 600 F2d 342, later app (CA2 Conn) 629 F2d 805.


§ 295  Prejudicial remarks or conduct of trial judge; self-disqualification because of possible bias  [21 Am Jur 2d CRIMINAL LAW]

Where a trial judge makes prejudicial remarks within the hearing of the jury, he may order a mistrial; under such circumstances, a subsequent prosecution of the defendant for the same offense will not violate the prohibition against double jeopardy.  Thus, in a prosecution for conspiracy to defraud the federal government, the same defendants could be prosecuted for the same offense where a mistrial was declared over their objections after the trial judge, during the presentation of their case, had made statements about the alleged extravagance and waste of federal relief funds and called attention to other alleged similar transactions by other persons whom the government had not seen fit to prosecute. 77  

Where a trial judge concludes that events have occurred that prevent him from acting in an unbiased and unprejudiced manner during the balance of a trial, it has been held appropriate to declare a mistrial, since it is imperative to have another judge conduct the trial. 78  Thus, legal necessity warranted the declaration of a mistrial during the voir dire of a witness where the trial judge disqualified himself on the ground that he could not fairly and impartially consider the evidence. 79   On the other hand, where a judge at a bench trial declared a mistrial merely because he thought it would be improper for him to adjudicate the matter because of an incident involving him and the defendant's father that could in some conceivable manner affect the court's judgment, a second prosecution of the defendant for the same offense has been barred. 80   Furthermore, after hearing three witnesses at a bench trial, a judge cannot properly declare a mistrial on the ground that he does not want to decide credibility issues he believes would best be resolved by a jury. 81


§ 295  – Prejudicial remarks or conduct of trial judge; self-disqualification because of possible bias [SUPPLEMENT]  [21 Am Jur 2d CRIMINAL LAW]

Practice Aids: Former jeopardy as bar to retrial of criminal defendant after original trial court's sua sponte declaration of a mistrial–state cases.  40 ALR4th 741.

Case authorities:

Double jeopardy precludes retrial of defendant on mail fraud charges in connection with alleged cancer cure where judge, after informing parties of his involvement with American Cancer Society, neither of whom requested recusal, impropriety jury and taking testimony from 4 witnesses, declared mistrial based on his continued presence as raising the shadow impropriety. United States v Sartori (1984, CA4 Md) 730 F2d 973.

Double jeopardy clause was not implicated, and retrial was not barred, by demonstrated improprieties of trial judge in ex parte meeting with prosecutor, in which judge expressed concern over adequacy of trial record following defendant's conviction, in judge's statements to press after reversal of conviction, and in his letter to judge participating in retrial, criticizing defense attorney and offering to testify, since such misconduct did not evince bad faith or design of judge to prejudice defendant's prospects for acquittal. United States v Singer (1986, CA8 Minn) 785 F2d 228.

In trial for attempted murder, assault and related offenses, court erred in remarking in presence of jury that People's witness was "apparently frightened" to testify. Re Tracy C. (1992, 2d Dept)  186 AD2d 250, 588 NYS2d 335.

Footnotes

Footnote 77. United States v Giles (DC Okla) 19 F Supp 1009.

Annotation:  6 L Ed 2d 1510, § 8.

Footnote 78. State v Workman, 60 Ohio App 2d 204, 14 Ohio Ops 3d 181, 396 NE2d 777, motion overr.

Footnote 79. B. v Superior Court of Alameda County (1st Dist) 66 Cal App 3d 881, 136 Cal Rptr 311.

Footnote 80. Ferlito v Judges of County Court,  31 NY2d 416, 340 NYS2d 635, 292 NE2d 779.

Footnote 81. Commonwealth v Culpepper, 221 Pa Super 472, 293 A2d 122.