Davis v. State
| Decision Date | 02 August 1955 |
| Parties | , 199 Tenn. 51 Thurman DAVIS v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
Reagan, Neal & Craven, Jamestown, for plaintiff in error.
Knox Bigham, Asst. Atty. Gen., for the State.
This appeal comes from the conviction of possessing more than three gallons of unstamped liquor. The punishment was fixed at a penitentiary sentence of two years.
Officers of Fentress County raided the premises of the plaintiff in error and found a quantity of moonshine liquor concealed under the hoods of two automobiles which were nearby. These officers had a search warrant for this place before they made the raid, no question is made about the warrant. Seven and one-half gallons of the whisky were found under the hood of a 1940 Chevrolet, and two and one-half gallons were found under the hood of an old 1937 Chevrolet. One of the officers had previously seen the plaintiff in error driving the 1940 Chevrolet. When the plaintiff in error was arrested he asked these officers how much liquor they found and when they said 10 gallons he disputed this and said that he did not have that much liquor. The hood of the 1940 Chevrolet was warm and the plaintiff in error told one of the officers that he had just driven it. There is no proof offered on behalf of the defense.
The principal insistence on this appeal, which is made in a very able and vigorous oral argument to this Court, is that the trial court committed error in overruling a plea of former jeopardy. In support of this plea the following facts appear: Davis had previously been indicted for the identical offense for which he is here convicted, except that in the former indictment the charge was the possession of untaxed whisky, while in the present indictment it was averred that the whisky was unstamped. He was put on trial under this first indictment, found guilty, and sentenced by a jury to a term of two years in the penitentiary. Seasonably to this conviction he filed a motion for new trial on the grounds that the evidence did not support the verdict, that the preponderance of the evidence was in favor of his innocence, and that he was convicted of a felony although the indictment only charged a misdemeanor. The trial court sustained this motion for new trial without definitely stating why it was sustained. Subsequently the plaintiff in error was again indicted for the possession of this same whisky and before the trial came on on this subsequent indictment, that is, the one that we now have before us, a nolle prosequi was entered by the District Attorney in the first case, that is, the case that he had been convicted in and the new trial granted in.
It is very vigorously contended under this state of facts that Davis had been put in double jeopardy. He relies primarily upon our case of State v. Norvell, decided at Rogersville in May, 1820, 10 Tenn. 24, 24 Am.Dec. 458, wherein this Court at that time held that a defendant could not be prosecuted again after he had once been convicted and the judgment arrested. It seems to us that this case is not in point. In the Norvell case, the indictment was for murder and the conviction was of manslaughter. The Court held there that the manslaughter verdict was an acquittal of the charge of murder, which could be pleaded in bar to a subsequent indictment for murder. This Norvell case also plainly is not controlling because it appears in this case that the State, though it might have, failed to appeal from an order of the trial court in sustaining a motion in arrest. The court seems to have completely ignored the point or it was not mentioned in the opinion that a defendant, who, upon his own motion, extricates himself from jeopardy will not be permitted to take advantage in a subsequent trial of the court's action in the removal of the jeopardy from him.
'It is an established principle of law that an accused in a criminal case who procures a verdict and judgment against him to be set aside or arrested by the court may be tried anew upon the same or another indictment for the same offense of which he was convicted, even after he has served a part of the sentence imposed on him in the first conviction. * * *
'Where a new trial was granted on motion of accused, and the verdict and conviction are set aside, he thereby waived his right and is estopped to plead the former conviction as a bar to another trial on the same or a new indictment'. 22 C.J.S., Criminal Law, §§ 271 and 272.
To the same effect see 15 Am.Jur., Sec. 427, page 89, where cases from practically every State in the Union will be found. Our case of Slaughter v. State, 25 Tenn. 410 is in accord with this general rule.
See also an opinion of this Court on the subject in Etter v. State, 185 Tenn. 218, 205 S.W.2d 1, 4, where this Court made a statement which is here applicable to wit:
In the instant case counsel for the plaintiff in error argue that the plea of former jeopardy would not have been good under the decisions of this Court if the accused had been proceeded against under the old indictment but they say that when the prosecution took a nolle prosequi in that indictment and commenced a new proceeding that then this plea of former jeopardy is good.
We cannot agree with this argument. This Court in Holder v. State, 143 Tenn. 229, 227 S.W. 441, 442, held that an indictment may not be recommitted to a grand jury for amendment at a subsequent term but that at this the subsequent term when it was found that the indictment issued at a former term was defective a new indictment might be procured from the grand jury and that before the trial on it a nolle prosequi could be entered on the first indictment. This Court in the Holder case used this very apt language:
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...See also 22 C.J.S., "Criminal Law" §§ 271 and 272. This general rule is reflected in our Tennessee cases, e. g., Davis v. State, 199 Tenn. 51, 282 S.W.2d 357 (1955) and State ex rel Austin v. Johnson, 218 Tenn. 433, 404 S.W.2d 244 "The crux of this case is that the granting of a trial de no......
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...then he cannot by his own act avoid the jeopardy in which he stands and then assert it as a bar to a subsequent jeopardy. Davis v. State, 199 Tenn. 51, 282 S.W.2d 357, and cases there cited. In the Davis case we said '* * * a defendant, who, upon his own motion, extricates himself from jeop......
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...then he cannot by his own act avoid the jeopardy in which he stands and then assert it as a bar to a subsequent jeopardy. Davis v. State, 199 Tenn. 51, 282 S.W.2d 357, and cases there cited. In the Davis case we said '* * * a defendant, who, upon his own motion, extricates himself from jeop......
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...then he cannot by his own act avoid the jeopardy in which he stands and then assert it as a bar to a subsequent jeopardy. Davis v. State, 199 Tenn. 51, 282 S.W.2d 357, and cases there cited. In the Davis case we said '* * * a defendant, who, upon his own motion, extricates himself from jeop......