Floyd v. State

• Decision Date: 23 July 1906
• Parties: FLOYD v. STATE
• Court: Arkansas Supreme Court

96 S.W. 125

80 Ark. 94

FLOYD v. STATE

Supreme Court of Arkansas

July 23, 1906

Appeal from Phillips Circuit Court; Hance N. Hutton, Judge reversed.

STATEMENT BY THE COURT.

The defendants, Henry Floyd and Isaiah Bogan, two negroes, were indicted by the grand jury of Phillips County for the crime of robbery. The indictment alleged that the robbery was committed on a person whose name was unknown to the grand jury, and that the defendants forcibly and feloniously took from such person $ 42 of "gold, silver and paper money currency of the United States." The defendants entered pleas of former conviction and not guilty. A demurrer was sustained to the pleas of former conviction, and they were tried on pleas of not guilty. They were convicted of robbery and sentenced to be imprisoned for the term of five years in the penitentiary. Defendants appealed.

Judgment reversed.

W. G. Dinning, for appellant.

1. The court erred in sustaining a demurrer to the defendant's plea of former conviction in a justice of the peace court. Kirby's Digest, § 2299; 42 Ark. 270; 89 Ala. 172; 53 Ark. 24; 24 Am. & Eng. Enc. Law, 992; 70 Ark. 163; 33 Ark 561; 49 Ark. 147; 72 Ark. 530.

2. If an indictment is valid, and is dismissed without defendant's consent after jeopardy has attached, he can not again be prosecuted for the same offense. 17 Am. & Eng. Enc Law (2 Ed.), 590; 14 Cent. Dig. 978; Ib. 979.

3. An indictment alleging the larceny of gold. silver and paper money, currency of the United States, of the value of $ 42 is not supported by proof of the taking of $ 42 in money, without further proving the kind of money, and that it was currency of the United States. 60 Ark. 141; 62 Ark. 538; 71 Ark. 417. And the same degree of exactness of description is required in an indictment for robbery as for larceny. 18 Enc. of Pl. & Pr. 1221; 25 Ind. 403; 13 Ind. 70; 1 Ohio St. 422; 9 Tex.App. 147.

Robert L. Rogers, Attorney General, and G. W. Hendricks, for appellee.

OPINION

RIDDICK, J., (after stating the facts.)

This is an appeal by Henry Floyd and Isaiah Bogan from a judgment convicting them of robbery and sentencing them to imprisonment in the penitentiary for a term of five years.

The first question presented arises on the plea of former conviction filed by the defendants. This plea set up that they had, prior to the finding of the indictment in this case, been convicted before a justice of the peace for the crime of petit larceny, and fined $ 10 each for the same act complained of in this indictment. The State demurred to their plea of former conviction, and the court sustained the demurrer.

It is well settled that an acquittal or conviction for a minor offense included in a greater will bar a prosecution for the greater, if on an indictment for the greater the defendant could be convicted of the less. State v. Smith, 53 Ark. 24, 13 S.W. 391; Southworth v. State, 42 Ark. 270; Powell v. State, 89 Ala. 172, 8 So. 109; People v. Defoor, 100 Cal. 150, 34 P. 642; Morey v. Commonwealth, 108 Mass. 433; 17 Am. & Eng. Enc. Law (2 Ed.), 599.

Tested by this rule, the plea of former conviction set up in this case was good. A conviction of a lower offense, fraudulently procured by the defendant for the purpose of shielding himself against a prosecution for a higher offense, would, of course, constitute no valid defense. Bradley v. State, 32 Ark. 722. But there is no charge of fraud or collusion in this case, for the question arises on a demurrer to the plea of defendant, and the only question is whether a former conviction for petit larceny will bar a prosecution for robbery founded on the same act. As a charge of robbery includes larceny, and as these defendants under the indictment in this case can be convicted of petit larceny, the same crime as that for which they have already been convicted, it follows that a trial on this indictment would be a trial for the offense for which they have already suffered punishment. They can not be convicted of robbery without proof of larceny, for there can be no robbery without larceny. But they have already been convicted of larceny and punished, and can not be convicted of that crime again. It follows, therefore, that they can not be convicted of robbery, for a conviction of robbery would be a conviction of larceny also. Keeton v. State, 70 Ark. 163, 66 S.W. 645; Bowlin v. State, 72 Ark. 530, 81 S.W. 838.

The court, therefore, in our opinion, erred in sustaining the demurrer to the plea of former conviction before a justice of the peace; for, if the allegations thereof are true, defendants have a good defense against the indictment for robbery.

The demurrer was properly sustained to the other plea of former conviction. This plea was based on the fact that these defendants had been convicted on a former indictment for the same offense, which conviction was...