TANNER v. STATE

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 35528.

Attorney(S)

S.C. Mims, of Grenada, for appellant. As the appellant had been acquitted of one of the essential and necessary elements required to be established before he could be convicted of robbery, the learned trial court erred in not permitting the proof of the former acquittal to be made. State v. Caston, 96 Miss. 183, 50 So. 569; Dixon v. State, 169 Miss. 876, 154 So. 290; Sauer v. State, 166 Miss. 507, 144 So. 225; Powell v. State, 89 Ala. 172, 8 So. 109; Moore v. State, 71 Ala. 307; State v. Mikesell, 70 Iowa 176; 12 R.C.L. 148; 12 Cyc. 285. The position of the state is that the appellant must be penalized for his failure to plead former acquittal notwithstanding the proof of former acquittal was material and pertinent to his defense. It is contended that such plea was required, but at the same time the state takes the position that only the pleadings and judgment of the court could be introduced in support of such plea. We call attention to the fact that such plea would have availed the appellant nothing for the reason that the pleadings in the former case would only have disclosed that he had been indicted on a charge of making an assault upon the prosecuting witness with intent, his plea of not guilty and the judgment of the court disclosing that on that charge he had been acquitted by a jury verdict. The general rule is that a defendant under a plea of not guilty can make any defense he has, excepting the proof of former acquittal. It is well recognized that in a plea of former jeopardy it is required that the party pleading the same must have been tried not only on the identical facts but for the identical crime. The appellant could not have plead that he had been formerly acquitted of a charge of robbery, for in fact he was not and the record would have so disclosed. As far as we have been able to ascertain, the precise question presented by this appeal has never been passed upon by our court. In some other jurisdictions it has been held that if the record itself discloses all the facts on which the claim of former jeopardy is based and the question is brought to the attention of the court, judicial notice of the facts contained in the record before the court will be taken, thus rendering a plea containing the same facts unnecessary and superfluous. 14 Am. Jur. 956. In conclusion, our position is that the appellant could not have filed a plea of former acquittal for the reason that he had not been tried on a charge of robbery, but he had been tried and acquitted of one of the essential elements of the crime of robbery and that justice required that under a plea of not guilty that he be permitted to establish such. Greek L. Rice, Attorney-General, by Geo. H. Ethridge and R.O. Arrington, Assistant Attorneys-General, and J.P. Coleman, of Ackerman, for appellee. It is contended by the appellant that he should have been permitted to prove the acquittal in the case of assault and battery with intent to kill and murder and that if he established that there was such acquittal that it would bar the present case because both cases grew out of the same transaction, between the same parties, at the same time, and that the defendant's charge of assault with intent to kill and murder involved an assault as essential part of it and, likewise, in the present case the same assault was an essential part of the charge. It is familiar learning that to get the benefit of a former conviction or acquittal, involving the same facts, there must be a plea of former acquittal or former conviction, as the case may be, showing the offenses to be identical and showing acquittal or conviction, as the case may be, in former trial. There was no such plea filed in this case. Not having offered at any stage to present the court with such a plea of former acquittal and not having proven what he would show, if allowed to show it, he is not in position now to insist that he was entitled to an acquittal because of the former acquittal alleged in the brief to be the same assault as that embraced in the charge of robbery in this case. Pope v. State, 63 Miss. 53; Rocco v. State, 37 Miss. 357; Bufkin v. State, 134 Miss. 116, 98 So. 455; Miazza v. State, 36 Miss. 613; Ball v. State, 67 Miss. 358, 7 So. 353; Logan v. State (Miss.), 40 So. 323; State v. Ireland, 89 Miss. 763, 42 So. 797.

Judges

Anderson, J., delivered the opinion of the court.

See more information ...

Smart Summary

Please sign up to generate summary.

TANNER v. STATE.

1. CRIMINAL LAW.

In prosecution for robbery, exclusion of evidence that defendant had been tried and acquitted of crime of assault and battery with intent to kill and murder, and that indictment in present case was based on the same evidence as was the indictment in prior case, was not error where defendant had not pleaded former acquittal.

2. CRIMINAL LAW.

Generally, a defendant under plea of not guilty can make any defense he has, but, where the defense is former acquittal or conviction, it must be pleaded by defendant before evidence thereof will be admitted.

Anderson, J., delivered the opinion of the court.

Appellant was indicted, tried and convicted in the circuit court of Grenada county of the crime of robbery, and sentenced to the state penitentiary for two years. From that conviction and judgment he prosecutes this appeal.

Appellant offered evidence to show that on a former day of the court he had been tried and acquitted of the crime of assault and battery with intent to kill and murder, and that the indictment in the present case was based on the same evidence as was the indictment in that case. In other words, that in all substantial respects the cases were the same except in name. The court did not permit the introduction of the evidence.

The Attorney General contends that the two cases were not the same on their facts. We pretermit the decision of that question and go to another one argued, and that is, the court committed no error in excluding the evidence because appellant had not plead former acquittal. The general rule is that a defendant under the plea of not guilty can make any defense he has. There is, however, at least one exception (and there may be others) and that is where the defense is former acquittal or conviction it must be pleaded by the defendant before evidence thereof will be admitted. State v. Ireland, 89 Miss. 763, 42 So. 797; Ball v. State, 67 Miss. 358, 7 So. 353; Bufkin v. State, 134 Miss. 116, 98 So. 455; Miazza v. State, 36 Miss. 613.

There is not sufficient merit in the other assignments of error to require a discussion.

Affirmed.

TANNER v. STATE.

Comments