Berness v. State, 8 Div. 901

• Decision Date: 28 January 1958
• Docket Number: 8 Div. 901
• Citation: 40 Ala.App. 198,113 So.2d 178
• Parties: Francis Louis BERNESS v. STATE.
• Court: Alabama Court of Appeals

Page 178

113 So.2d 178

40 Ala.App. 198

Francis Louis BERNESS v. STATE.

8 Div. 901.

Court of Appeals of Alabama.

Jan. 28, 1958.

Rehearing Denied March 18, 1958.

Baker & Burts, T. Eugene Burts (Jr.,) Florence, for appellant.

John Patterson, Atty. Gen., Edmon L. Rinehart and Geo. Young, Asst. Attys. Gen., for the State.

PRICE, Judge.

Appellant was indicted jointly with one Wright for the offense of murder in the second degree. On motion of defendant a severance was granted and defendant was tried first. The trial resulted in a conviction for the offense charged and a sentence to the penitentiary for a term of fifteen years. The case was appealed to this court where it was reversed and remanded. Berness v. State, 38 Ala.App. 1, 83 So.2d 607. Judgment was affirmed by the Supreme Court. Berness v. State, 263 Ala. 641, 83 So.2d 613.

When the case came up for trial the second time on April 2, 1956, appellant filed a motion for permission to withdraw his plea of not guilty, for the purpose of filing a motion to quash the indictment and a plea in abatement.

The motion to quash the indictment and the plea in abatement, offered in support of the motion to withdraw the plea of not guilty, question the validity of the indictment on the grounds that on July 21, 1952 a nolle prosequi was entered as to defendant Wright under the provisions of Title 15, Section 254, Code 1940, without the consent of either defendant or Wright, that the indictment contained only one count and that the effect of dismissal of the charge against Wright was to dismiss the charge against this defendant, hence there is no indictment pending against him at this time. Further that subsequent to the defendant's first trial his co-indictee, Wright, has been tried on the theory of a conspiracy, and found guilty of a lesser offense, and that defendant cannot be found guilty of a greater offense that his coconspirator.

In support of the motion to quash and the plea in abatement defendant offered exhibits A and B. Exhibit B is a certified copy of the trial court's order entered in Wright's case on July 21, 1952. The order reads as follows:

'Comes now the State of Alabama by its Solicitor, W. L. Almon, and comes also the defendant in his own proper person and by attorneys, Bradshaw and Barnett, and in this case it appearing from the evidence that there was a variance between the allegations of the indictment and the proof, in this, that the name William C. Wright was known to the Grand Jury and was not listed in the indictment, and that the indictment stated that the defendant's name was not otherwise known to the Grand Jury, and the defendant not consenting to allow the indictment to be amended, on Motion of the State's Solicitor, the prosecution is dismissed as to defendant Wright before the defendant was arraigned and before the jury retired and another indictment to be preferred by the next Grand Jury. The defendant is ordered held under the same bond subject to the action of the next Grand Jury of this County.'

Exhibit A, is a certified copy of a judgment entry reciting that at the November 1955 term of court Wright was tried on his separate indictment and was adjudged guilty of manslaughter in the first degree and sentenced to six years imprisonment in the State penitentiary.

The court denied the motion to be allowed to withdraw the plea of not guilty, and granted the State's motions to strike both the plea in abatement and the motion to quash the indictment.

The case went to trial and the jury returned a verdict of guilty of manslaughter in the first degree and fixed the punishment at six years' imprisonment in the penitentiary. Defendant's motion for a new trial was overruled. The court adjudged defendant guilty and sentenced him in accordance with the verdict. Defendant appeals.

Appellant insists that Wright and Berness were indicted on the theory of a conspiracy, and, the indictment being joint and containing but one count, the effect of the nol. pros. as to Wright operated as an acquittal of the charge as to Berness, therefore, the court erred in its rulings as above set out. There is no merit in this argument.

The majority rule is that if a nolle prosequi is entered as to one of two persons accused of conspiracy the other must be discharged, since it requires more than one person to commit the crime of conspiracy. 14 Am.Jur. Crim.Law, Sec. 303, p. 970, and cases cited. See also Jones v. State, 16 Ala.App. 477, 79 So. 151.

But where the offense charged, though perpetrated by one act, is several as well as joint, a nol. pros. may be allowed as to one or more persons indicted jointly and a trial had on the merits as to the others. Jones v. State, supra.

The indictment here does not charge conspiracy. It charges murder in the second degree. 'Offenses of this character are several as well as joint; and one defendant may be acquitted and another convicted, or one may be found guilty, and subjected to severer punishment than may be visited on another, who is also found guilty.' Crawford v. State, 112 Ala. 1, 21 So. 214, 221.

But even where the offense charged is conspiracy, the general rule seems to be that so long as the disposition of the case against a co-conspirator does not remove the basis for a charge of conspiracy, a single defendant may be prosecuted and convicted of the offense. See citations of authority, in the Annotation 'Disposition of Case against Co-conspirator' 97 A.L.R. 1312.

The effect of the court's order here, based on the provisions of Code 1940, Title 15, Sections 253, 254, was not to free Wright from further prosecution for the same offense. Reeves v. State, 31 Ala.App. 226, 16 So.2d 697, certiorari denied 245 Ala. 237, 16 So.2d 699; Oliver v. State, 234 Ala. 460, 175 So. 305. 'Its only effect is, to put an end to the then prosecution, before the prisoner had been jeoparded thereunder.' Walker v. State, 61 Ala. 30.

Too, as was said in Aaron v. State, 39 Ala. 75, the dismissal of the prosecution as to Wright, because of a variance, and another indictment ordered, could neither benefit nor prejudice Berness' rights.

In the Aaron case, Aaron and Ranty were jointly indicted for murder. The indictment contained two counts. A severance was granted and the defendants were tried separately. On his first trial Aaron was convicted under the first count of the indictment. The conviction was reversed. On his second trial a nol. pros. was entered on the second count. Defendant was again convicted. After the verdict was rendered but before sentence was pronounced, Ranty's demurrer to the first count was sustained; and he was tried and acquitted on the second count. Aaron moved in arrest of judgment.

The Supreme Court said:

'It is contended that the judgment should have been arrested, because there was, in fact, no indictment pending against Aaron; the first count having been pronounced defective, under Ranty's demurrer, and the second count having been nolle-prossed in Aaron's case. There is nothing in this argument. * * * The judgment was res inter alios acta, and could not, in any way, affect the sufficiency of the indictment as against Aaron.'

We are of opinion the court's rulings were proper.

What we have said hereinabove disposes of the appellant's insistence that the court erred in overruling the motion to exclude the evidence on the ground that the original joint indictment had been dismissed as to Wright, the effect of which was also dismissal as to Berness.

Appellant insists that the court erred in admitting evidence on the theory of a conspiracy, over defendant's objection, and in charging the jury as to conspiracy, a conspiracy not being charged in the indictment.

In Cooper v. Commonwealth, 300 Ky. 770, 189 S.W.2d 949, 954, where the indictment charged forgery, the court said:

'It is the rule that the court should give instructions on every phase of the case deducible from the evidence, and we have held the acts showing or tending to show conspiracy to do a felonious act may be proven, even though the indictment failed to expressly charge a conspiracy, and if the proof warrants it, an instruction on conspiracy and aiding and abetting. Ray v. Commonwealth, 230 Ky. 656, 20 S.W.2d 484, 66 A.L.R. 1297.' See also Underhill's Crim.Evidence, 4th Ed. p. 1408.

'Conspiracy, or a common purpose to do an unlawful act, need not be shown by positive testimony. Nor need it be shown that there was pre-arrangement to do the specific wrong complained of. When two or more persons enter upon an unlawful enterprise with a common purpose to aid, assist, advise, or encourage each other in whatever may grow out of the enterprise upon which they enter, each is responsible civilly and criminally for everything which may consequently and proximately result from such unlawful purpose, whether specifically contemplated or not, and whether actually perpetrated by all or less than all of the conspirators.' Martin v. State, 89 Ala. 115, 8 So. 23, 24. See also Jones v. State, 174 Ala. 53, 57 So. 31.

In State v. Sarver, 134 Kan. 98, 4 P.2d 440, defendants were convicted for driving while intoxicated. There was no direct evidence as to which of the two was driving the automobile. The court said: 'They acted jointly in the travel adventure, and in the unlawful possession and use of intoxicating liquor on the trip. They were acting with a common purpose in the violation of law.'

Under the evidence there was no error in the court's action in the admission of evidence nor in instructing on the question of conspiracy and aiding and abetting.

The facts and circumstances are fully set out in the opinion of the court in the first appeal, Berness v. State, supra, and are adopted as the facts of this case. The only...