
    No. 80.
    The State of Louisiana vs. Lee Vines et al.
    AVhat identity of the offenses charged is necessary to support the pleas of autrefois convict and of autrefois acquit.
    
    Proof of a different crime from the ^ono charged, though generally objectionable, is admissible when both offenses are closely linked or connected, especially in the res qestce, and also when such proof is pertinent and necessary to show intent.
    When parties are engaged in the commission of a crime with malicious intent, and in the execution thereof perpetrate another criminal act not originally intended, the unintended act derives its character from the intended crime, and the original malicious intent affects both acts.
    APPEAL from the Eleventh District Court, Parish of Sabine. Pier-son, J.
    D. G. Scarborough, District Attorney, for the State, Appellee:
    Where a person, or two persons, acting in concert, kill two persons at the same time, whether by one and the same, or two distinct acts, the two killings constitute two
    . different crimes, for which they must he prosecuted in two different indictments. W. P. P., Sec. 468.
    The test in a plea of autrefois acquit and convict is, whether proof of the facts, in the second bill, would have sustained a conviction on the trial of tire first; if it would, the plea is good; if it would not, the plea is bad. B. ~V ol. 1, Secs. 831, 832; W. C. P. P. Sec. 471; W. O. 25. Sec. 579; W. C. P. P. Sec. 456; B. Vol. 1, Sec. 836; 23 P.25, and P. Sec. 816; Arch-bold, Vol. 1, Sec. 112.
    In the imüciment in Bo. 188, four prisoners were jointly indicted for the murder of John Pye.
    In the indictment in Bo. 187, the same prisoners were indicted for the murder of W. T. Smith, a person killed at the same time. Bow, under the legal test, a plea in bar is not good, for the reason that on trial of the prisoners, in Mo 188, proof of the killing of W. T. Smith would not have supported a conviction, for the reason the indictment did not charge th í
    , killing of Smith, hut of Pye, a different person ; hence the proof of the facts alleged in 187 would not have supported a couviction on the trial of Bo. 188, and hence, the plea is not
    • good. B. Vol. 1, Secs. 831, 832; W. C. P. P. Sec. 471; W. C. 25. Sec. 579; W. 0. P. P. Seq. 456 ; B. Vol. 1, Secs. 112, 113.
    AH that occurs at the time of the killing, in homicide cases, is admissible as a part of the res gestee- W. O. Evidence, Secs 262, 263,263, 364, 265, 266.
    When tlio'commission of both offenses are closely linked or connected, evidence of the whole transaction is legal, although two distinct felonies have been committed. 16 An. 379 ; B. C. E. p. 82.
    Proof may be administered of a different crime than the one for which the parties are being tried, when such proof becomes necessary to shosv intent. 16 An. 377; 3 An, 512 ; 12 An. 382.
    Under the state of facts disclosed by the T , pp, 55, 56. as given hv the Judge, in his reasons for overruling’ the objections to evidence, it was competent to show malice against Pye. 10 A n. 377 3 An. 512; 12 An. 382.
    When an intent exists to commit a crime, and an unintended priminal act flows from it, the unintended criminal act derives its character from tho intended criminal act; on this principle, therefore, it was competent to prove malice against Pye, and that the prisoners laid in wait to murder him, and that in order to do so, they found it necessary to murder Smith, his son-in-law. W. C. 23. Vol. 1, Sec. 120.
    The proof admitted of the time at which the ease was fixed for trial, was admissible, for the reasons assigned by the Judge, T. p. 28, the proof previously introduced showing a consi>iracy between Lee and Geo. L. Vines.
    
      When two persons are jointly indicted for a crime, both being present, aiding and abetting at the time, it is competent, on trial, to prove any fact going to show malice on the part of one, as it was in this case, competent to show that Lee Vines had, on the day previous, made an affidavit against Pye, and it was also competent to show that at the hour fixed for the trial, that Lee Vines, instead of. going to the office of the Justice, had gone several miles in an opposite direction, and at the hour set for the trial, he and liis son, Geo. L. Vines, were laying in wait on the side of the road along which the prisoner would have to pass, in going from his home to the office of the Justice, and that while so laying in wait, they both acting in concert and in furtherance of a common criminal design, murdered the deceased. Geo. L. Vines was not convicted, because of bis having been one of the conspirators, hut for the fact that he was present at the time of the killing, and was one of the principal actors; he was convicted on what he did himself, and not on what others did, by reason of his being bound by their acts as a conspirator. 12 An. 390 ; 7 An. 531; 10 An. 743. ' '
    
      Win. JI. Jack and J. F. Smith, for Defendants and Appellants :
    It is a principle of the common law that no person is to he brought in jeopardy more than once for the same offense, and this principle is expressly embodied as a provision in the Federal Constitution and in the Constitution of our own State. (Con. TJ. S., Amendment to Art. 5; Con. of La., Art. 5 )
    “One trial and verdict must protect the accused against a subsequent accusation for the same offense, whether the verdict be for oragainst him, and whether the courts are satisfied with the verdict or not. When the legal bar has once attached, the Government cannot avoid it by varying the form of the charge in a new accusation: — if the first indictment or information were such that the accused might have been convicted under it, on proof of the facts by -which the second is sought to he sustained, then the jeopardy which attached on the first must constitute a protection against a trial on the second." (Cooley Con. Limitation, Sec. 325.)
    Under our jurisprudence the plea of a/utrefois acquit and autrefois convict presents a mixed aspect — it blends with an imperative and inhibitory Constitutional provision, declaring that no person shall he twice put in jeopardy of life or liberty for the same offense; and consequently, should a case arise where the plea should prove unavailing for purely technical reasons, a court should not hesitate to oppose its authority to such a violation and grant the relief intended by the Constitution.
    An acquittal or a conviction for an offense, which, in its nature and effect, involves every element and part of one continuous and entire transaction, is an effectual bar to another and subsequent prosecution for any of its constituent parts or cognate incidents. WhartonTs Cr. 3?. <fc P., Secs. 472 and 474.
    Conspiracy, whether it he the whole offense or only an element of the crime, has the legal effect of making all the individuals one person and all acts common to each, as regards the objects of the common design. Greenjeaf, Vol. 3, Sec. 91; Ibid. 94, 95 and 97. "Wharton’s Or. P. & P. Secs. 301 and 312; Wharton’s Cr. Ev. 8bh Ed. Secs. 700-1.
    In. a case involving the principal and culminating act of a conspiracy on the part of two persons should the verdict be several and of a nature to repel malice, it would stand as full proof as against conspiracy in tbe prosecution of an ancillary or incidental act growing out of that transaction. Greenleaf, Vol. 3, Sec. 97.
    In a conspiracy, where malice is conceived and directed against one alone, whose death thus compassed creates and consummates a transaction in which another is incidentally and simultaneously killed, there is quoad the conspiracy, hut one offense in law, although compounded in fact with another that would otherwise he separately actionable, and consequently a verdict in the case involving the conspiracy and particular malice concludes the State on the whole transaction. Wharton’s P. & P. Secs. 472-4, and other authorities.
    In every aucli case, it would be perfectly competent to cumulate both acts in the same hill, and even better, to charge them in the same count: they are equally unified in law and in fact. Archbold, 6th Ed. Vol. 1, Secs. 95 and 96; Poscoe, 214j Bishop, P. F. & P. Vol, 1, p. 264, Sec. 437; State vs. Mally, 30 An. 61; State vs. Depass et al., 31 An. 487; State vs. Cazeau et al., 8 An. 109.
    “Whenever an unlawful act has two aspects, under either of which it is indictable, and the evidence of either of which would sustain an indictment for the other, then an indictment for one aspect absorbs the case and there can be no further prosecution for the act. In other words, where the evidence necessary to support the second indictment would have supported the first, the second is^barred by a conviction or acquittal on the first.” Wharton’s Or. Ev., 8th Ed. Sec. 580.
    “ If a transaction is set on foot 'by a single impulse and operated by an unintermittent force, it forms a continuous act, no matter how long a time it may occupy. And when inculpatory facts rapidly succeeding each other are put in evidence in one case by the prosecution, it cannot bring a second indictment for a part of these facts, relying on evidence which was introduced on the first trial.” Wharton’s Cr. P. & P. Secs. 472 and 474.
    Whilst the onus is on the defendant to show the identity of the offense tried with that charged in the second prosecution, the similiter will be assumed where there is no replication or countervailing proof. Wharton’s Cr. P. & P. Sec. 483.
    The identity of the offense means simply and purely the identity of the matter charged"in the two several bills, and it suffices in all cases that the two acts be substantially the same and that the defendants be the same parties in each case. Bishop P. E. & P. Vol. 1, par. 323. Archbold, vol. 1, Sec. 114; American Notes, State vs. Cheevers, 7 An. 40; State vs, Honsby, 8 It. 584; State vs. Shaw, 5 An. 342; State vs. James Augustine etal., 20 An. 119,
   The opinion of the Court was delivered by

Fenner, J.

Briefly stated, the facts essential to an understanding of the points of law raised, are the following :

The defendants, Lee Vines and George L. Vines, in execution of a conspiracy to kill one John Pye, lay in wait upon a road along which Pye, who had been arrested upon the affidavit of one of them, was conducted, in official custody, to the office of the magistrate. Pye was accompanied by his son-in-law, W. T. Smith.

On the approach of the party, Lee Vines shot and killed John Pye, and, in the course of the affair, George L. Vines, it is charged, shot and killed W. T. Smith.

Separate indictments were filed against both: one charging them with the murder of Pye; the other, with the murder of Smith.

The case for the murder of Pye was first tried, and resulted in a verdict convicting Lee Vines of manslaughter, and acquitting George L. Vines.

The case now before us is for the murder of Smith.

In bar of the prosecution, the defense interposes the plea of autrefois convict in behalf of Lee Vines, and autrefois acquit in behalf of George Vines.

Error is assigned in the ruling of the court setting aside these pleas.

The principle of the law underlying such pleas is, that the law will not suffer a man to he twice put in jeopardy for the same offense. 1 Archhold’s Cr. Pr. and PI. 111.

The principle is .embodied in our Constitution, in the following language: “nor shall any persoh be twice put in jeopardy for the same offense.”

Identity of the offense charged is an essential element in support of the plea.

By this is not' meant, formal, technical, absolute identity, but only such substantial identity that the evidence necessary to support the second indictment would have been sufficient to procure a'legal conviction upon the first. People vs. Barret, 1 Johns, 66; Com. vs. Cunningham, 13 Mass. 245 ; Hite vs. State, 9 Yerger, 357; Wharton’s Cr. Pr. and Pl., §471 ; 1 Archbold’s Cr. Pr. and Pl., p. 112.

In the instant case, it is clear that the indictment for the murder of Smith might have been supported by evidence not including proof, even of the killing of Pye, and, therefore, utterly insufficient to sustain an iudictment for the murder of the latter.

. The conspiracy and the malicious intent may have been common elements of both crimes, but this is not sufficient to constitute identity of the crimes themselves, which comprise not only those elements, but also objective acts.

The killing of: Smith by George Vinos is a totally distinct and different offense from the killing of Pye by Lee Vines, although both acts were done in execution of the same conspiracy. They are not different grades of the same crime. They are not two felonies resulting from the same identical act. They are not different aspects of the same unlawful act. They bear no relation to each other, in which one of them can be said to be merged in the other. They are included in none of the hair-splitting distinctions which have involved this subject: in the language of Mr. Wharton, in a labyrinth of subtleties.”

Tiie corpus delicti in each is, in every respect, distinct and independent.

We are not concerned, and it is not necessary to reconcile the con-> elusions of the juries in the two cases on the fact of the conspiracy. The verdict against George Vines, at least, might rest without any proof whatever of conspiracy, if Smith was killed by his hand; which is alone sufficient to show the unsoundness of the plea, so'far as based upon the element of conspiracy. But holding that the pleas of twice in jeopardy were properly overruled, the jury -was vested with the power of deciding all questions involved.

, Three bills of exception are found to rulings of the court upon reception of evidence:

1. Tiie first exception was to permitting the State’s witness to narrate the whole occurrence, as it took place at the time of the killing of Smith,” the objections being that this included the killing of Pye, which, being a distinct felony, was not admissible; and because conspiracy was not expressly charged.

The court overruled the objections, because the evidence was admissible as part of the res gestee, and because the accused were all charged as principals.

The ruling is fully sustained by authority. As a general rule, all that occurs at the time and place of the killing, in homicide cases, is' admitted as res gestee. Wharton’s Cr. Ev., Sec. 262 et seq.

Proof of á different crime from the one charged, though generally objectionable, is admissible when both offenses are closely linked or connected, especially in the res gestee, and also when such proof is pertinent and necessary to show intent. State vs. Mulholland, 16 An. 377; State vs. Patza, 3 An. 512; State vs. Rohfrischt, 12 An. 382; Wharton’s Cr. Ev., Sec. 262 et seq.

2. Exception was taken to a question propounded by the State tea witness, asking if he knew of any ill-feeling existing between Tines and Pye, which was objected to, on the grounds that it was res inter alios, and not admissible to discover malice as to deceased, Smith.

The Judge, in overruling the objection, recites that the evidence had established the facts, already substantially stated by us in the beginning of this opinion, and admitted the evidence as tending to show upon what malice the accused lay in wait and acted, holding that whether the malice was against Pye or Smith, was immaterial, if the killing of Smith was the result of such malice.

This is sound law; the principle being, that when parties are en- ■ gaged in the commission of a crime with malicious intent, and in the execution thereof, perpetrate another criminal act not originally intended, the unintended act derives its character from the intended crime, and the original malicious intent affects both acts. 1 Wharton’s Cr. L., Sec. 128.

3. The last bill of exceptions as to the admissibility of evidence showing when the trial of Pye, upon the charge on which he was under arrest at the time of the killing, was fixed, seems to us immaterial and frivolous.

Judgment affirmed.  