State v. Cooper

13 N.J.L. 361

• Court: Supreme Court of New Jersey
• Decided: February 15, 1833
• Status: Published

Opinion

Drake, J.

Ata Court of General Quarter Sessions of the peace, holden at Morristown, in and for the county of Morris, in the term of July, 1830, the grand jury presented an indictment against Samuel Cooper as principal, and two other persons, as accessaries, for the wilfully and maliciously burning of the dwelling-house of one Ralph Smith situate in the township of Hanover in the said county; and at the same term, presented another bill of indictment against the said Samuel Cooper, charging the crime of arson in burning the same dwelling-house of said Smith, “ and that one Joseph Hopper, in the said dwelling-house then and there being, before, at, and during the said burning, was then and there, by reason and means of the said burning, so committed and done by the said Samuel Cooper in manner aforesaid, mortally burned and killed, and so the jurors aforesaid, upon their oaths aforesaid, do say that the said Sam uel Cooper, the said Joseph Hopper, in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder, against the form of the statute,” &c.

At the Court of Oyer and Terminer held in September, 1830, the indictment for arson was called on and tried, and the defendant, Samuel Cooper, Avas convicted thereof. The indictment for murder Avas then moved, whereupon the defendant pleaded in bar the conviction of the arson as a former conviction of the same offence. To which the public prosecutor demurred. The Court of Ctyer and Terminer overruled the plea. But from some peculiar circumstances it Avas thought advisable by the court to suspend further proceedings until the opinion of this court could be obtained, as to the validity of the plea.

It is a Avell established principle of the common law, that if a person, whilst doing or attempting to do another act, undesignedly kill a man, if the act done or attempted, were a felony, the killing is murder; especially if death were a probable consequence of the act. With"respect to some of the higher grade of felonies, as arson, burglary, &c., the Legislature of New Jersey have, in Rev. Latos, p. 262, see. 66, enacted, that if “ the death of any one shall ensue from the committing, or attempting to commit any such crime or act as aforesaid,” “ such person, or persons so killing as aforesaid, shall be adjudged to be guilty of murder and shall suffer death.”

It is also a maxim of the common laAv, that “ no man is to be brought into jeopardy of his life more than once for the same offence.” The constitution of NeAV Jersey adopts and declares this important principle in this form. “Nor shall any person be subject for the same offence to be tAvice put in jeopardy of life or limb.” Our courts of justice would have recognized it, and acted upon it, as one of the most valuable principles of the common law, without any constitutional provision. But the framers of our constitution have thought it worthy of especial notice. And all Avho are conversant with courts of justice, and the proceeding's in them, must be satisfied that this great principle forms one of the strong bulwarks of liberty ; and that if it be prostrated, every citizen would become liable, if guilty of an offence, to the unnecessary costs and vexations of repeated prosecutions, and if innocent, not only to those, but to the danger of an erroneous conviction from repeated trials.

Upon this principle, are founded the plea of autrefois acquit, and autrefois convict. The writers on the subject concur in stating that these pleas “ must be upon a prosecution for the same identical act and crime,” 3 Bl. Com. 336, Ch. C. Law, 1st vol. p. 452, 462. But, says Chitty, p. 455, “ It is not in all cases necessary that the two charges should be precisely the same in point of degree, for it is sufficient, if an acquittal of the one would show that the defendant could not have been guilty of the other. Thus a general acquittal of murder is a discharge upon an indictment for manslaughter upon the same person, because the latter charge was included in the former, and if it liad so appeared 011 the trial the defendant might have been convicted of the inferior offence; and on the other hand, an acquittal of manslaughter will preclude a future prosecution for murder, for if he were innocent of the modified crime, he could not be guilty of the same fact, with the addition of malice and design.

A first enquiry then in this case will be, whether there is such identity in these offences, that according to the rule laid down, and the spirit which pervades the administration of criminal justice, they shall be considered the same for the purposes of this plea. At first view, it appears as if there were two crimes distinctly, indictable and punishable. But our sense of justice is shocked by the idea, that a man shall be convicted and punished for the arson, with that measure of punishment which the laws mete out to those guilty of that crime ; and that after-wards for perfectly accidental and involuntary killing, he shall be liable to the same punishment of death which is inflicted on the wilful and malicious murderer. In the case before us, the killing was a simple consequence of the burning, and there is no pretence that it was, in point of fact, intentional. The law makes a man answerable for even the unexpected consequences of his crimes, and for this purpose, imputes the intention to produce the consequence, as well as the original act. But to constitute a crime there must be an act of the will, and imputed intent must have real intent as its basis: not to accomplish the precise result, but to do something. Some act of commission or omission lies at the foundation of every crime. And that a simple consequence of an act should be severed from the act itself, and possess independently all the necessary ingredients of crime, is a violation of sound philosophy, and, as I think, of law. In this case the killing disconnected with the arson, is but involuntary, homicide. Connected with the arson, the law awards to it the name and penalties of murder. Had the law called it by some other name, as for instance an aggravated arson, the propriety of prosecuting but one crime would have been more striking. Yet names cannot alter the substance of things. If the whole offence in the eye of reason and philosophy is one, (and it requires the whole of it to constitute murder) we ought not to presume that the legislature meant to punish it as two. And indeed the power of the Legislature to subdivide offences must be restrained by the constitutional provision which I have noticed; otherwise that provision may be evaded at pleasure. In this, case, the arson is a necessary constituent of the murder ; and if it do not, to all purposes, lose its 'separate existence, yet it appears to me that it does so far, that it ought not to be tried and punished as a distinct offence. The indictment charges the arson, and necessarily must do so, and yet it is not on that account objectionable on the score of duplicity. ■ This indicates the proper practice in such cases, which, as I conceive, is to, indict and try for the higher crime, and if the part of the offence Avhich is peculiar to that, is not proved, and all that is necessary to constitute the inferior one is, that the verdict should convict of the inferior felony, and acquit as to the residue of the charge.

If the defendant could be tried and punished for both felonies, the record of conviction of the inferior offence would be good evidence to support that part of the second indictment, and yet we search in vain for any such principle in treatises upon the law of evidence. A strong proof that when one felony becomes an ingredient of a superior one the defendant cannot be tried and convicted of both offences.

In the foregoing remarks quoted from Ghittjs Grim, law, with reference to a former acquittal, the- author treats the facts which constitute the crime of manslaughter as component parts of the crime of murder, and says that if innocent of those, “ he could not be guilty of the same, with the addition of malice and design.” The same reasoning would lead us to the conclusion,. that had the prisoner at the bar been acquitted on the indictment for arson, it would have been conclusive of his innocence of that component part of the crime laid in this indictment, and would have, necessarily barred a conviction under it.

It is no answer to this, that “ an acquittal upon an indictment for felony is no bar to an indictment for a misdemeanor, and e converso.” Arch. 52; 2 Hawk. b. 2, c. 85, s. 5; Chitty 456. The latter writer gives one reason, why an acquittal of the felony should not bar the prosecution for a misdemeanor, because “ a felony, or larceny, cannot be modified on the trial into a trespass, or misdemeanor.” And an acquittal upon an indictment for a misdemeanor grounded upon facts constituting component parts of a felony, does not operate as a finding upon those facts, for the acquittal was necessary in point of law, the misdemeanor being merged in the felony. And therefore the defendant, in either of the above cases, could not be considered as legally in jeopardy on the first trial.

If in committing a misdemeanor, a man involuntarily commit a felony, the misdemeanor is merged in the felony. By an English statute, it is a misdemeanor for a man to burn his own dwelling-house, wilfully. The burning of that of another person is a felony. John Isaac was indicted for a misdemeanor in having set fire to and burned a house in his own occupation. On the trial before Justice Buller, the counsel for the prosecution opened, that the charge to be proved against the defendant was, “ that he wilfully set on fire his own house in order to defraud the Phoenix Fire Insurance office ; and that in fact his own and several other persons' houses adjoining were burnt down. Upon which Buller Justice, said, that if other persons’ houses were in fact burnt, although the defendant might only have set fire to his own, yet under these circumstances, the prisoner was guilty if at all, of felony ; the misdemeanor being merged; and he could not be convicted on this indictment; and therefore directed an acquittal.” Hast. Or. Law, 1081.

“ It is indeed,” says Ohitty, “ generally laid, down that an acquittal of burglary will not prejudice an indictment for larceny, or vice versa.” The writer qualifies the first part of this proposition by adding, that “ this must be understood of those cases in which the former charge did not necessarily include the latter. But he leaves the case of an acquittal of larceny, not affecting an indictment or burglary, without further notice. He refers to 2 Hale, 245, 6, and Hawk. b. 2, c. 35, s. 5.

Hawkins says, “ it is clear that an acquittal of one felony is no manner of bar to a prosecution for another, in substance different, whether committed before or at the same time with that of which he is acquitted; and therefore if a man commit a burglary and steal the .goods of A and B and be indicted for the burglary and stealing the goods of A and acquitted, it hath been adjudged that he cannot plead such acquittal to an indictment for stealing the goods of B. But it seems agreed, that he may plead it to the second indictment for the burglary,” This was ruled in Turner’s case, Kelsyng 30. But the latter principle has since been denied to be law by Justice Buller in the case of Vandercon and Abbot, 2 E. Cr. Law, 519; and upon the ground that if there had been an indictment for burglary and stealing the goods of B, it would be a mistake to suppose any part of the of-fence to have been passed upon, (sec. 521) and that therefore the acquittal would be no bar. None of the cases that I have consulted authorize the principle of the text in its full extent. If a man break the house of A in the night time, and steal his goods, and upon an indictment for burglary and stealing those goods he be acquitted, it would be a bar to a subsequent prosecution for the larceny. So, I consider, that if he be indicted for the simple larceny and acquitted, he cannot afterwards be convicted upon an indictment for the burglary and larceny, of either of-fence. According to the reasoning adopted in the case of Vandercon and Abbott, he may be convicted of the burglary, if the indictment lay it with intent to steal, for then there is nothing inconsistent with the former acquittal.

In the case of a robbery committed in one county and the goods carried into another, if an indictment be found in the latter county, and an acquittal, it is said that it will not prejudice-an indictment for robbery in the first. If this be law it is placed upon reasons w;hich shew it not to have any operation on the-point now under discussion, 1 Ohit. 456. But it is denied to be law, and I think upon conclusive reasons, in Hawkins’ Plea of the Brown, b. 2, c. 35, s. 4.

I have so far considered the case of a plea oí former acquittal; because it depends upon the same principle of that of autrefois convict, and the writers are more full in their notice of it, than of the latter ; and it is a geueral rule that in cases where an acquittal upon the first indictment would bar a second, a conviction on the first would have the same effect.

The defendant has been convicted of the crime of arson. He has plead that conviction in bar of the indictment for murder. What effect shall that plea have upon this prosecution ? If I am right in supposing that the defendant cannot be convicted and punished for two distinct felonies, growing out of the same identical act, and where one is a necessary ingredient in the other, and the state has selected and prosecuted one to conviction, it appeal's to present a proper ease to interpose the benign principle, that a man shall not be twice put in jeopardy for the same cause, in favor of the life of the defendant.

Judge Blaokstone, in his commentaries, says that “ a conviction of manslaughter, or an appeal or an indictment is a bar, even in another appeal, and much more, in an indictment of murder ; for the fact prosecuted is the same in both, though the of-fences differ in coloring and degree.” This is well established, 4 Coke 45, 46; 2 Hale, 246; Arch. 52; Fost. Cr. Law, 329; Hawk. b. 2, c. 36, s. 10. And in the case of Robert M. Goodwin, who was indicted for manslaughter, and subsequently for murder, Colden (Mayor) fully recognizes the same principle, where he says “ 11 wé were to try the prisoner on the indictment for manslaughter, unquestionably we should put an end to the prosecution for murder.”

If in civil cases, the law abhors a multiplicity of suits, it is yet more watchful in criminal cases, that the crown shall not oppress the subject, or the government the citizen, by unnecessary prosecutions. Under the numerous British statutes, imposing severe penalties, and even taking away the benefit of clergy from larcenies perpetrated under certain specified circumstances, it is the practice to indict the crime, with all its aggravations under the statute, and if the aggravating circumstances are not proved, to convict of the simple larceny only. I have met with no instance of an attempt on the part of the crown, after indicting for a simple larceny, and establishing that, to proceed, by another indictment, to establish the higher offence. The case of Rex v. Smith, 3 Carrington & Payne 412, cited in 14 En. C. Law Rep. 374, and the Commonwealth v. Cunningham, 13 Mass. 245, are authorities against such a practice. And I am satisfied that a conviction of larceny would be a good bar to a prosecution for burglary and stealing the same goods, whatever might be its effect upon an indictment for burglary with intent to steal. As to which see 7 Sergt. and Rawl, 491.

I consider the present case as not affected by those where the first indictment was insufficient, and where a train of decisions has established, that the criminal was. never legally in jeopardy from the first prosecution. 4 Coke, 44, 45; Hawk. b. 2, c. 36, s. 15; 1 John. rep. 77. Here is no defect in the first indictment. It is a case where the state has thought proper to prosecute the offence in its mildest form, and it is better that the residue of the offence go unpunished, than by sustaining a second indictment to sanction a practice which might be rendered an instrument of oppression to the citizen.

Cited in Johnson v. State, 2 Dutch. 324; State v. Wyck, 2 Vroom, 66.