Berkowitz v. United States

Citations

• 93 F. 452
• 35 C.C.A. 379
• 1899 U.S. App. LEXIS 2016

Syllabus

<p>1. Criminal Pleading — Autrefois Acquit.</p> <p>A sworn statement by a defendant that he was on a certain date arraigned and acquitted on an indictment specified in the statement, in the same court in which the second trial occurs, and that the “offence to which he is now called upon to defend the facts and circumstances is * * * the same offence of which he was heretofore acquitted” is properly to be treated as a plea of former acquittal.</p> <p>2. Same — Former .Jeopardy — Misdemeanors.</p> <p>The fifth amendment of the Constitution of the United States providing that no person shall be subject for the same offence to be twice put in jeopardy of life or limb applies to misdemeanors as well as treason and felony.</p> <p>3. Conspiracy against the United States — Misdemeanor.</p> <p>As at common law a conspiracy to commit a misdemeanor or felony was only a misdemeanor, so conspiracy under Bev. St. § 5440, not being declared a felony, is also merely a misdemeanor.</p> <p>4. Criminal Law — Merger of Offences.</p> <p>The doctrine of merger of offences does not apply as between misdemeanors, and hence a misdemeanor which is the object of a conspiracy is not merged in the latter offence, nor is the offence of conspiracy merged in such consummated misdemeanor.</p> <p>5. False Naturalization Certificates — Uttering—Misdemeanor.</p> <p>Bev. St. § 5424, providing that any person who utters, sells, etc., any false naturalization certificate shall he punished, etc., not having declared such offence a felony, and having repealed the former acts making it such, the offence was reduced to a misdemeanor.</p> <p>6. Same — Former Acquittal.</p> <p>An indictment under Bev. St. § 5440, charging a defendant with conspiring to utter as true false naturalization certificates in violation of Id. § 5424, charges an offence different from that under the latter section, and hence an acquittal on the indictment for such conspiracy is not a bar to a subsequent prosecution for the offence of