The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-02-05

TALLY the same as that which was
produced in the first.
1t is true that where an oftense is
charged comprising two or more de-
grees, the conviction OF the prisoner
of one degree is a bar to a subse-
quent prosecution for another degree
on the same facts. Thus where,
under an indictment for murder, the
defendant could have been convicted
of murder or Of manslaugbter, then
his conviction Of manslaughter bars
subsequent prosecution for the
MURDER" and vice versa. (Whar
toms Grim. Pl. & Pr, 465). But it
cannot be argued that arson IN the
first degree is degree of murder.
The following authorities clearly
state what appears to me to be the
rule which is decisive of this case:
IF the former charge was such an
one that the defendant could not
have been convicted of the latter
charge upon it, the former acquittal
or conviction cannot be plead in bar
of the latter" Il Chitty's Grim.
Law, 1860.
"The acquittal in one Indictment,
in order to be a good defense to
subsequent Indictment, must be an
acquittal of the same identical
offense charged in the latter indict
ment." Il Russell on Or, 9Th ed,
836).
"rhe authorities cited and the H.
Illustrations given in support of the
rule as stated all show that to make
the plea bar, proof of the facts al
legged in the second Indictment must
be sufficient in law to have warranted
conviction upon the first indict-
ment Of the same oBense charged in
the second, and not of a different
cBense. Archbold's Grim. Pl, 50, and
cases there cited. Or, in other
words, the party must have
been in peril of being con
victed upon the first prosecution of
the same o6en8e described in the last.
Greenleaf states the rule to be, that
if the defendant upon the first in
dictment could not have been con
victed OF the GBease described in the
second, then an acquittal or convic-
ton upon the former is no bar to the
latter. B Greenleaf Ev., Sec. &c.
And this we hold to be the true rule.
If the defendant could not, by any
legal possibility have been convicted,
upon the former prosecution, Of the
QBenSe charged in the second, he can
in no just sense be said to be in peril
of a second conviction of the same
0tense. To be a bar, the offense
charged IN the present prosecution
must agree IN lao and in fact with
some offense Of which the defendant
might have been convicted upon the
former prosecution, and in such
former prosecution there must have
been an acquittal or conviction.
Com. V. Roby, II Pick, 1876. 1t is
not enough that the act is the same,
for by the same act the party may
commit several offenses in law"
(Freeland V. People, 16 Ill, 1927
AS it cannot be said that arson in
the first degree and murder are the
same legal otfense, by the foregoing
authorities the acquittal of one can
not be bar to a prosecution of the
other.
This position is emphatically re-
inforced by the third section of the
10th Chapter of the Penal Code, as
follows: "Where the same act con
stitutes two or more diverse and dis
tinct offenses, different in their ma
ture and character, one not being
merged in tire other, the offender
may be proceeded against for each,
and cannot plead a conviction or
acquittal for one, in bar of proceed
ings against him for the other"
This has been the law in this coun-
try for the last forty years, and in
the year 1876 the rule received the
following additional Legislative sane
ton: I'm any plea Of autre tfojs cOn0jct
or autre fois acquit, it shall be suffi.
cient for the defendant to state that
he has been lawfully convicted or &C
quilted Gas the case may beg of the
said offense charged in the indict-
ment" claws of 1876, Chapter 40,
Section 4O)
Upon these grounds and authori-
ties, I am compelled to dissent from
the opinion of the Court.