Esmon v. State
| Citation | 31 Tenn. 14 |
| Parties | ESMON v. THE STATE. |
| Decision Date | 30 September 1851 |
| Court | Supreme Court of Tennessee |
Esmon was indicted, as stated in the opinion, in the circuit court of Monroe county. At the September term, 1851, Alexander, judge, presiding, he was convicted by a jury, and judgment rendered accordingly; whereupon he appealed in error.
Brown, for the prisoner, cited Brice v. The State, 2 Tenn. 254, 255;Campbell v. The State, 9 Yerg. 333-337.
Attorney-General, for the State.
This is an indictment under the 55th section of the Penal Code of 1829.
There are two counts in the indictment. The first charges that the defendant “unlawfully, maliciously, and feloniously did bite off the right ear of Samuel Ervin.” The second count varies the charge by stating that he “did bite off part of the right ear of Samuel Ervin,” etc.
The defendant was tried, and found not guilty upon the first count, but was convicted on the second count. A new trial was granted, on the defendant's motion, in general terms. And at the following term of the court the defendant was again put upon his trial upon both counts of the indictment, and was found guilty upon both. Upon this verdict judgment was pronounced that the defendant be confined in the penitentiary-house in this state for the term of two years; from which judgment he appealed in error to this court.
In putting the defendant to answer again on the first count of the indictment, of which he had been acquitted on the previous trial, the court erred.
Each count of an indictment is regarded as containing the charge of a distinct and substantive offence. And if, on one trial, the defendant be acquited of the charge in either count, he cannot be again put in jeopardy upon that charge; no matter whether, in point of fact, the offences charged be separate and distinct in their nature, or the same offence charged in different forms to meet the different aspects of the proof. This doctrine and the reasons upon which it is founded are fully discussed in Campbell v. The State, 9 Yerg. 333.
As upon this ground a new trial must be awarded, we omit, for the present to comment upon the sufficiency of the proof, as set forth in the record, to establish the malice required by law to constitute the offence charged.
Judgment reversed.
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Usary v. State
...And that each is regarded as charging a distinct offense, see Campbell v. State, 17 Tenn. 333, 9 Yerg. 333, 30 Am.Dec. 417; Esmon v. State, 31 Tenn. 14, 1 Swan. 14; Boyd v. State, 47 Tenn. 69, 7 Cold. 69; State v. Lea, 41 Tenn. 175, 1 Cold. 175. In the Esmon Case, supra, it was said, "Each ......
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Usary v. State
...... such count. For the rule that each count must be a complete. indictment in itself, see Rice v. State, 50 Tenn. 215, 221, 3 Heisk. 215, 221. And that each is regarded as. charging a distinct offense, see Campbell v. State,. 17 Tenn. 333, 9 Yerg. 333, 30 Am.Dec. 417; Esmon v. State, 31 Tenn. 14, 1 Swan. 14; Boyd v. State,. 47 Tenn. 69, 7 Cold. 69; State v. Lea, 41 Tenn. 175,. 1 Cold. 175. In the Esmon Case, supra, it was said,. "Each count of an indictment is regarded as containing. the charge of a distinct and substantive offence. And if, on. one trial, the ......
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Hensley v. State
...upon which he has been so found guilty, in the event that a new trial has been granted, or the judgment arrested upon that count. Esmon v. State, 31 Tenn. 14;Gerard v. People, 73 Ill. 322;Durham v. People, 4 Ill. 172;Weinzorpflin v. State, 7 Blackf. 186;Dickinson v. State, 70 Ind. 247;Lamph......
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Hensley v. The State
...... not guilty upon another count of the same indictment, he may. not be again tried upon the count upon which he has been so. found guilty, in the event that a new trial has been granted,. or the judgment arrested, upon that count. Esmon v. State, 31 Tenn. 14, 1 Swan 14; Gerard v. People, 3 Ill. 362; Durham v. People, 4 Ill. 172; Weinzorpflin v. State, 7 Blackf. 186; Dickinson v. State, 70 Ind. 247; Lamphier v. State, 70 Ind. 317 at 319; Harvey v. State, 80 Ind. 142. . . The. striking peculiarity of the ......