State v. Jellison

Emery, C. J. The defendant was indicted for the offense of unlawful assembly and riot under R. S., ch. 124, sec. 2, viz.— for being one of three or more persons who unlawfully assembled in [283] a violent and tumultuous manner to commit an assault upon Henry N. Pringle; and who being so assembled did in the same manner commit the assault. He pleaded in bar an acquittal by the Bar Harbor Municipal Court upon a complaint against him for the offense of assault and battery upon the said Pringle, averring in his plea that the offense of which he was thus acquitted and that for which he is now indicted are one and the same offense. To this plea the County Attorney demurred, the court sustained the demurrer and the defendant excepted. The demurrer, of course, did not admit the correctness of any statements or conclusions of law made in the plea; hence, though it admits that the acts of the defendant were the same in both cases, it does not admit that the offenses charged are one and the same. Whether they are the same or different offenses is a question of law now to be determined by the court. It was said by the Connecticut Court in Hurd v. State, 2 Root, 186. "If a prosecution and conviction before a justice for a simple breach of the peace be a good plea in abatement or bar of information for riot, it would be attended with the most pernicious consequences, and the most atrocious offenders would be exculpated by punishments totally inadequate to their crimes.” As to that, an acquittal would be attended with as pernicious consequences, but, passing that consideration, we proceed to consider whether the offense of unlawful assembly and riot charged in the indictment is the same offense as that of assault and battery charged in the complaint which the defendant was acquitted. It is to be noted that the constitution does not prohibit a second jeopardy for the same act or group of acts, but only "for the same offense,” Dec. of Rights, sec. 8. The acts and the offense they constitute are different matters. The same acts may constitute more than one offense and also different offenses, subjecting the actor to as many punishments as the offenses his acts constitute. Thus a person by the same acts or group of acts may violate the statute against selling liquors; also the statute against being a common seller of intoxicating liquors; also that against keeping a drinking house and tippling shop ; and also that against maintain [284] ing a common nuisance. If he be charged and convicted, or acquitted, of the violation of one of these statutes he has been put in jeopardy only for that one offense, and not for the offense of violating any of the other statutes. State v. Coombs, 32 Maine, 529; State v. Maher, 35 Maine, 225; State v. Inness, 53 Maine, 536. In the opinion of the court in this last case are cited many instances where it was held that a person may be punished more than once for the same act where the act constitutes more than one offense. We refer the reader to that opinion for the cases. The offense of assault and battery and the offense of unlawful assembly or riot are different offenses. Neither includes the other. A person may commit either without committing the other. Nevertheless the same acts may sometimes constitute both offenses, but when they do, the offenses are still different though the acts are the same, and the perpetrator of the acts may be punished twice, once for each offense. State v. Inness, 53 Maine, 536, at page 537; Hurd v. State, 2 Root, 186; U S. v. Peaco, Fed. Cas. No. 16,018; Freeland v. People, 16 Ill. 380. We are aware that in some States the courts hold otherwise but we think the above is the law of this State. It follows that the exceptions must be overruled. In the case State v. Inness, 53 Maine, 536, where the court overruled the exceptions to sustaining a demurrer to a plea of former jeopardy, final judgment was ordered for the State after full consideration of the question whether the judgment should be final or only respondeas ouster. The decision was based on R. S. of 1857, ch. 77, sec. 28, now R. S., ch. 79, sec. 56. "When a dilatory plea is overruled and exceptions taken, the court shall proceed and close the trial, and the action shall then be continued and marked : law, ’ ” etc. The defendant’s plea of former jeopardy was a dilatory plea, since, if overruled, the judgment, but for the statute cited, would be simply respondeas ouster. He pleaded his dilatory plea alone, without obtaining leave to plead double, and his plea having been judged insufficient, he excepted, and, without obtaining leave to plead over if his exceptions should be overruled, he brought them directly to the Law Court before the trial was closed. Under the statute it must be held that by taking the course [285] he did, he waived whatever right he may have had to plead over, when his dilatory plea was overruled; and that having thus elected to abide by that plea he must fall with it. State v. Inness, 53 Maine, 536; Furbush v. Robertson, 67 Maine, 35, page 38; Smith v. Hunt, 91 Maine, 572. Exceptions overruled. Judgment for the State.