262 La. 364

#### STATE of Louisiana v. F. O. DIDIER, Jr.

No. 52009.

Supreme Court of Louisiana.

June 5, 1972.

Rehearing Denied June 29, 1972.

*323Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Charles A. Riddle, Jr., Dist. Atty., John A. Boatner, Jr., Asst. Dist. Atty., for plaintiff-appellant.

Jeannette Theriot Knoll, Edwin L. La-Fargue, Marksville, Joe J. Tritico, Lake Charles, for defendant-appellee.

TATE, Justice.

The defendant sheriff was previously convicted of malfeasance in office, La.R.S. 14:134. We affirmed his conviction and his sentence, three months in the parish jail and a fine of $500. State v. Didier, 259 La. 967, 254 So.2d 262 (1971). The present is a subsequent prosecution for simple robbery, La.R.S.14:65, and theft, La.R.S.14:67. The trial judge sustained the motions to quash the present charges, and the state appeals.

The trial judge held the present prosecutions are for conduct forming a part of the basis of the previous conviction and that the latter therefore constitutes a former jeopardy as to the present prosecutions. La.C.Cr.P. Arts. 591, 596. These subsequent prosecutions were therefore held barred by the state and federal constitutions. The State argues that the “offense” for which previously convicted is different from the offenses with which the defendant is presently charged. Therefore, the State contends that double jeopardy does not apply.

Pertinently, the (bill of) information for the prior malfeasance conviction charged the defendant sheriff with knowledge of the robbery and theft by four named persons of Louis Golden of $19,800 on May 9, 1970, and with failing to attempt to halt the commission of the crime or to apprehend the persons involved or to report the crimes to the district attorney.1 By the *324present robbery and theft informations, the defendant sheriff is himself charged with that robbery and theft of Golden’s $19,800.

Under the State’s evidence, Sheriff Didier participated in a scheme by which large sums of money were to be stolen or robbed from metal dealers. Metal dealers were to be persuaded to be interested in the illegal purchase of copper, which allegedly had been confiscated and was to be sold by the sheriff for his personal gain. The copper was fictitious. Confidence men (the sheriff’s alleged confederates) were to interest the dealer in the transaction, to bring him to the deserted courthouse on a Saturday afternoon, and to take from the dealer the cash brought by him to pay for the copper.

The participation of the local sheriff in the game was essential to its success. He helped the confidence men by assuring their access to the courthouse; he supplied them with a letterhead (upon which had been typed a “confiscation list” of the fictitious copper) and a badge (for one of them to pretend to be his chief deputy). Most important, the purpose of the sheriff in serving as local “fix” was to insure protection to the confidence men against being discovered or prosecuted for the crime.2 For his participation, the sheriff was to receive ten percent of the take.

In the present instance, Golden, a metal dealer, was persuaded to buy some 26 tons of (fictitious) copper for $20,000, about half-price. Golden was informed the sheriff wanted to sell some stolen copper and pocket the money himself, and he was shown a “confiscation list” of this copper on the present sheriff’s letterhead. A bogus chief deputy (one of the confidence men), who had been familiarized with the courthouse by the actual sheriff, met Golden at the courthouse with his large sum of cash, supposedly $20,000 (actually $19,800), took him upstairs to-the third floor of the deserted courthouse, and then robbed him of the money he had.

Under the malfeasance bill of information, the sheriff’s illegal conduct was his knowing concealment of the crime, known to him in advance of its commission, and his failure to prevent it or to apprehend those who committed it or to report the commission of the crime to the district attorney. (Under the evidence, this same misconduct by the sheriff forms the essential basis for the charge against him of *325participating as a principal in the Golden robbery or theft.)

The guarantee against double jeopardy provided by the United States Constitution3 is applicable to state prosecutions. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). “That guarantee has been said to consist of three 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.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

Recent further elaborations of double jeopardy, likewise binding upon the states, must also be noted. As a part of the constitutional guarantee, retrial is barred of those issues determined in the defendant’s favor at the first trial, under a theory of collateral estoppel.4 Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). See also Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971); Simpson v. Florida, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549 (1971). The same alleged crime cannot be twice punished by the same State by making identical conduct a criminal violation of the law of both the State and one of its subdivisions. Waller v. Florida, *397*U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). Not directly applicable here, although of peripheral interest, Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), held that a defendant who is convicted of a lesser offense included in the original charge, and who thereafter secures reversal, may be retried only for the lesser included offense, since he was acquitted of the greater.

We should here note that in its recent collateral estoppel decisions (Ashe v. Swenson, Harris v. Washington, and Simpson v. Florida, cited above) a majority of the United States Supreme Court did not accept the view of the minority of the justices that the “same transaction” concept should govern double jeopardy determinations. Under this concept, multiple prosecutions are barred if based on one criminal episode — conduct of a continuing nature violating several statutes in the course of conduct with a common motivating intent aimed at a single goal. Comment, 65 Yale L.J. 339, 348 (1956). Louisiana law and jurisprudence has also repeatedly refused to apply this test of double jeopardy.5

Although the issue is not free from doubt, we conclude that the recent federal interpretations applying collateral estoppel do not, by themselves, require us to hold that the *conviction*of malfeasance, La.R.S. 14:134, (knowing of but not reporting the crimes) bars prosecution of the defendant on the further charges of theft, La.R.S. 14:67 (the taking of anything of value without the consent of the other or by fraudulent conduct) or robbery, La.R.S. 14:65 (theft “by use of force or intimidation”).

The matter concluded unfavorably to the defendant by the first verdict is only that he knew of the theft, but did not report it or take any further action. On the face of the respective (bills of) information(s), the first prosecution does not necessarily *326include the further element of the accused’s aiding and abetting, as a principal, the robbery or theft thus concealed.6

Louisiana has no requirement that all related offenses growing out of the same incident be tried at the same time. Absent such, therefore, the principle of collateral estoppel does not apply by reason of the first verdict and thus prevent the state from further proving at the second trial that the defnedant sheriff not only knew of, but also participated as a principal in, the robbery and theft for which being subsequently tried. (If the accused had been acquitted at the first trial, Ashe v. Swen-son might apply to bar further prosecution on the other offenses, since he could hardly be a principal in them if he did not know of them before they were committed.)

Nevertheless, although the collateral es-toppel theory does not here apply to prevent the subsequent prosecution, we, like the trial judge, find that in the present instance the identical act or conduct cannot be twice prosecuted or punished through denominating it differently as separate crimes.

Under the present evidence, conceded to be the same for the malfeasance and for the felony (robbery-theft) prosecutions, the identical conduct of the sheriff — withholding information of the Golden crime, failing to prevent it, failing to arrest those who committed it or to report the crime to the district attorney — is essentially the basis for charging him as a principal in the Golden theft or robbery. His malfeasant acts were the principal method by which he committed as a principal the theft or robbery with which now charged.

The Louisiana Constitution, like the federal, contains a prohibition against double jeopardy. Article I, Section 9 provides: “ * * * No person shall be twice put in jeopardy of life or liberty for the same *offense** * (Italics ours.)

In determining for double jeopardy purposes whether the subject matter of the first prosecution was the “same offense” as that for which the accused is subsequently prosecuted, our early decisions held that one could not be “punished twice for the same criminal *act.”*State v. Cheevers, 7 La.Ann. 40, 41 (1852). There, a subsequent prosecution for maiming was held to be barred as to an accused earlier convicted of an assault and battery for the same act. See also State v. Augustine, 29 La. Ann. 119 (1877) (one convicted of stealing a wagon could not be subsequently prosecuted for stealing a horse harnessed to it); Marr’s Criminal Jurisprudence of Louisiana, Section 488 at p. 745 (1923); Comment, 21 La.L.Rev. 615, 619 (1961).

Later elaborations, however, were to the effect that, in the absence of an “analogy or affinity of ingredients and essentials in the offenses”, “two or more crimes may be committed at the same time or result from the same act or unlawful transaction and may be separately indicted and separately tried.” State v. Calvo, 240 La. 75, 121 So. 2d 244, 250 (1960). This later jurisprudence applied the “same evidence” test to determine whether there was double jeopardy, which we will discuss below. See Comment, 32 La.L.Rev. 87 (1971) and Comment, 21 La.L.Rev. 615 (1961).

The 1928 Code of Criminal Procedure for the first time codified legislatively the test of double jeopardy. See La.R.S. *32715:279. The 1966 Code of Criminal Procedure intended to broaden this test to some extent. See Official Revision Comment, Article 596. This code article now provides:

> “Double jeopardy exists in a second trial only when the charge in that trial is:

> “(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or

> “(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.”

However, in determining whether the present is the “same offense” or a different grade of it, Louisiana has in recent decades applied the “same evidence” test. Official Revision Comment, Article 596; Comment, 32 La.L.Rev. 87 (1972) and Comment, 21 La.L.Rev. 615 (1971). As quoted with approval in the Official Revision Comment to Article 596, Louisiana has followed a form of the “same evidence” rule, which is stated in state v. Roberts, 152 La. 283, 93 So. 95, 96 (1922), as follows:

> “(I)dentity of the offense is an essential element in support of a plea of autre fois. By this is not meant formal, technical, absolute identity; the rule is that-there must be only substantial identity, that the evidence necessary to support the second indictment would have been sufficient for the first.”

Under this test, it seems to us, the present prosecution for robbery-theft is barred by the earlier malfeasance prosecution and conviction. The defendant sheriff is charged with participating as a principal in the robbery-theft, and by the evidence (stipulated to be the same for both trials) his participation was the misuse of his office by cooperating in the robbery-theft, i. e., by concealing its preparation and commission and by failing to report it to prosecuting authorities. This was the identical conduct forming the basis for his malfeasance prosecution and conviction.

Had the defendant been acquitted in the malfeasance prosecution, he was necessarily innocent of the robbery-theft participation. And, as we stated in State v. Calvo, 240 La. 75, 121 So.2d 244, 249: “Whether the facts are the same in both trials is not a true test: the test is rather whether the acquittal on the first charge necessarily involves an acquittal on the second charge.” This is at least illustrative that an integral part and necessary element of the robbery and theft charges for which the defendant is now prosecuted is the identical conduct which constituted the malfeasance for which he was previously prosecuted and convicted.

In State v. Calvo, 240 La. 75, 121 So.2d 244, 250 (1960), rejecting double jeopardy (where the defendants were subsequently charged ""with simple robbery after being acquitted of a felony murder), the court stated: “The question to be resolved is whether the offenses are the same, or whether one is necessarily included in the other so as to make the plea of [double] jeopardy amenable to a defendant.”

In that case, assuming it was correctly decided under the present law, the elements of the offense for which first acquitted were held to be different. Here, however, the defendant’s malfeasance consisted of his aiding and abetting the robbery-theft by failing to prevent it, to apprehend the participants, or to report the crime. This is the identical conduct which forms the evidence of the essential element to convict the defendant of the present robbery-theft through his so aiding and abetting it. Where the gravamen of the second offense is essentially included within the offense for which first tried, the second prosecution is barred because of the former jeopardy. State v. Bonfanti, 262 La. 153, 262 So.2d 504 (decided May 18, 1972); State *328v. Schneller, 199 La. 811, 7 So.2d 66 (1942); State v. Roberts, 152 La. 283, 93 So. 95 (1922).

In State v. Calvo we also noted that, “To justify a plea of [double] jeopardy the two offenses must be the same in both law ánd fact.” 121 So.2d 250. A similar test is set forth by us in State v. Comeaux, 249 La. 914, 192 So.2d 122, wherein we likewise rejected a plea of double jeopardy as to a subsequent prosecution arising out of the same factual incident. In these decisions, we were likewise concerned with whether one offense was necessarily included within the other and whether, as a matter of law, the elements of both crimes were the same.

In both of these decisions, however, the issue of double jeopardy was raised to the second prosecution before trial based solely on the face of the information upon which the second prosecution was based. Since there had been no trial and the evidence for the second trial was not before the court, we could not then apply our traditional “same evidence” test, see above, namely whether the evidence necessary to support the second indictment would have been sufficient for the first.

The Louisiana “same evidence” test, in the form adopted by several other jurisdictions also, is based upon whether the actual evidence introduced at the second trial would have supported conviction on the first. See Comment, 32 La.L.Rev. 87, 89-90. In the present case, unlike *Calvo*and *Comeaux,*we have before us the entire evidence for both trials, stipulated to be the same.

Under the present record and circumstances, the evidence sufficient to convict on the first charge is sufficient to convict on the second charges. In fact, it is conceded the same evidence will be introduced on the second trial as was introduced on the first trial. The identical conduct is charged as criminal in both the first and second prosecutions; Under all of the circumstances, the trial court correctly held that former jeopardy bars the present prosecutions.

Affirmed.

McCALEB, C. J., dissents with written reasons.

SANDERS and BARHAM, JJ., dissent.

1

. The malfeasance information also charged the defendant sheriff with participating in attempted thefts of $20,000 on June 19, June 26, and July 3, 1970, as well as with knowing of but failing to stop them or apprehending the two persons involved or reporting these latter crimes to the district attorney. (The information is set in full in our earlier opinion affirming the malfeasance conviction. 254 So.2d 264-265.) Arguably, this might be pertinent if the “same transaction” test gov*324erned double jeopardy determinations. However, this test does not apply in Louisiana, for the reasons set forth in the body of the opinion.

2

. In the words of one of the confidence men, Tr. 1261-62: “ * * * not only does he have to supply the certain paraphernalia that is used, such as the letterhead and the badge, but he must be on hand to .... so that his deputies won’t interfere at this time, if they see the man walking around on the courthouse lawn and if they happened to see the badge or his get up, they don’t ask him any questions, especially in front of the subject. And the time schedule, each time that a meeting takes place, the sheriff must be in his office to handle any problems that may arise and also, of course, he has to know the exact time that one of these meetings takes place so that he will be on hand ; that’s the first man that the sucker complains to. You don’t want the sucker running into the sheriff’s office complaining to some deputy that doesn’t know what to do about it, and they’ll call the State Police, the F.B.I. and ‘King Kong.’ ”

In the words of another confidence man, Tr. 100-101: “A fix is the Sheriff in a parish or in a county, whichever one it may be, that gives you the protection and gives you the use of his courthouse or his office or whatever the type of con-game you’re trying to pull .... it gives you mostly just the protection ; in case you get caught, the fix is suppose to take care of coming to get you and turn you loose and generally, just seeing that you don’t spend any time in jail . [Y]ou can’t get by without the fix, and I wouldn’t operate unless I know it’s under a fix. You have to have a fix to take off these big cons .... to work . . . . they won’t work otherwise; the chances of getting caught are too great. But, under the fix, if the fix lives up to his end of the deal, the chances are minimal of ever getting caught.”

3

. “ * * * [N]or shall any person he subject for the same offence to be twice put in jeopardy of life or limb. * * * ”

4

. See: Lugar, Criminal Law, Double Jeopardy and Res Judicata, 39 Iowa L. Rev. 317 (1954); Kirchheimer, The Act, The Offense and Double Jeopardy, 58 Yale L.J. 512 (1949); Comment, 75 Yale L.J. 262 (1965); Comment, 65 Yale L.J. 340 (1956). Even prior to Ashe v. Swenson, Louisiana had adopted a theory of res judicata preventing criminal re-prosecution similar in effect to the *Ashe*holding. State v. Latil, 231 La. 551, 92 So.2d 63 (1956), noted 18 La.L.Rev. 137-38 (1957).

5

.See Official Revision Comment (a), Article 596, La.C.Cr.P. Art. 596. See also Comment, 32 La.L.Rev. 87 (1971) and Comment, 21 La.L.Rev. 615 (1961).

6

. The evidence introduced at the malfeasance trial does show, additionally, that the local sheriff was a principal in the Golden robbery or theft. This evidence was introduced to show method or modus operandi (knowledge, intent, and system, La.R.S. 15:445, 446), in connection with the *additional*charges of malfeasance involved in participating in unsuccessful attempts on three later occasions to bilk other metal dealers. See Footnote 1. Insofar as evidence of a crime at one prosecution is introduced for this limited purpose (to prove guilt of *other*offenses), our jurisprudence holds that double jeopardy does not attach when the accused is subsequently prosecuted for such crime. State v. Boudoin, 257 La. 583, 243 So.2d 265 (1971).

McCALEB, Chief Justice

(dissenting).

The decision herein is in direct conflict with our holding in State v. Calvo, 240 La. 75, 121 So.2d 244 (1960); and State v. Comeaux, 249 La. 914, 192 So.2d 122 (1966). These cases specifically rejected the “same evidence” rule as the guideline for determining whether an accused was placed in former jeopardy for the offense named in the second charge. In Calvo we quoted approvingly from Archbold, Pleading Evidence and Practice in Criminal Cases, 145-46 (29 Ed. 1934) as follows:

> *“Whether the facts are the same in both trials is not a true test:*the test is rather whether the acquittal on the first charge necessarily involves an acquittal on the second charge.” (Emphasis added)

Further, we reaffirmed in Calvo the holding of this Court in State v. Montcrieffe, 165 La. 296, 115 So. 493 (1928), and said that:

> “We again recognized the true test to be *whether on the former trial the accused could have been convicted of the crime charged against him on the second trial,*reaffirming the pronouncements in State v. Terry [128 La. 680, 55 So. 15] supra; State v. Yokum [155 La. 846, 99 So. 621], supra; State v. Foster [156 La. 891, 101 So. 255], supra. We further statedT ‘The fact that a person commits several separate and distinct crimes at the same time, or in immediate consecutive order, is no reason why he should not be indicted and tried for each of said crimes. This rule is so univer*329sally recognized and applied that any citation of authority would be superfluous.’ See State v. Roberts [152 La. 283, 93 So. 95], supra; State v. Fradella, 164 La. 752, 114 So. 641; State v. O’Banion, 171 La. 323, 131 So. 34.

> 

> “It *is not the act*in the commission of two crimes which controls. The question to be resolved is whether the *offenses*are the same, or *whether one is necessarily included in the other*so as to make the plea of former jeopardy amenable to a defendant.” (Emphasis added)

The conclusion in Calvo was based on the provisions of the pertinent part of Section 9, Article I of our Constitution quoted in the opinion which points out that the then existing legislative recognition of the doctrine of former jeopardy (R.S. 15:274) was a verbatim statement of the constitutional provisions. Although not a verbatim statement of the constitutional article, the present provision quoted in the majority opinion, C.Cr.P. Art. 596, is entirely in keeping with its pronouncements and with the holdings of Calvo and Comeaux. See also State v. Poland, 255 La. 746, 232 So.2d 499 (1970); and State v. Boudoin, 257 La. 583, 243 So.2d 265 (1971).

In State v. Comeaux, supra, we said, “We find the Calvo test applicable herein; we must, therefore, determine whether the offense of simple battery and the crime of attempted murder are the same in law. (It is admitted that both charges grew out of the same set of facts.)” 1

In the instant case it is manifest that the charges of robbery (proscribed in Chapter 2 of Title III of our Criminal Code dealing with the misappropriation of property with violence to the person) and the crime of theft (Article 67 in Chapter 3 of Title III, which deals with misappropriation without violence), are completely dissimilar to the offense of malfeasance in office (which is contained in Chapter 5 of Title VII of the Criminal Code under the heading of Official Misconduct and Corrupt Practices). The former are classified as offenses against property and persons, whereas the latter crime (malfeasance in office) is placed in Title VII of the Code as one of the offenses affecting organized government; the elements of this crime are wholly different and a conviction of the latter offense should not bar a prosecution of the former. To simplify this case (the principle of which has been unduly involved in its treatment by the majority), the charge here would have been no different if the sheriff had robbed someone on the public street and also intentionally refused or failed to report the incident to the district attorney. In such an instance, it is difficult to perceive how a conviction for malfeasance in office would bar the prosecution of the offense of robbery merely because the offender happened to be a law enforcement officer and had been convicted of malfeasance.

I respectfully dissent.

1

. Likewise, in Calvo the prosecutions were based on the same facts: In the first case, which resulted in an acquittal, the accused was charged with murder under the “murder-felony” doctrine, the killing having arisen in the commission of a robbery perpetrated by several accuseds. The second charges were robbery and conspiracy to commit robbery based on the same alleged acts of the robbery which were the basis of the murder-felony charge.