Fox v. State

• Decision Date: 23 June 1888
• Citation: 8 S.W. 836
• Parties: FOX <I>v.</I> STATE.
• Court: Arkansas Supreme Court

8 S.W. 836

FOX

v. STATE.

Supreme Court of Arkansas.

June 23, 1888.

Appeal from circuit court, Marion county; R. H. POWELL, Judge.

W. F. Pace, for appellant. D. W. Jones, Atty. Gen., for the State.

COCKRILL, C. J.

Fox was indicted for robbing one Everedge, and was acquitted. He was then indicted for the false imprisonment of Everedge. He pleaded the acquittal of the first charge in bar of the prosecution of the second, alleging that the transaction and the offense in the two cases were the same. The court sustained a demurrer to the plea. The defendant was tried and convicted, and appeals. The question is, does the acquittal of the charge of robbery bar the subsequent prosecution for false imprisonment? Each indictment charges that Fox assaulted Everedge, and sets forth the circumstances of the assault. The demurrer to the plea admits that there was but one assault; that is, that each indictment refers to the same assault. Now, an assault is an essential ingredient in every robbery, and, perhaps, in every offense of false imprisonment. False imprisonment is classified as a species of aggravated assault, (2 Bish. Crim. Law, § 747;) and the circumstances of the offense charged in this case would certainly assign it to that classification. If there was no assault committed, Fox was not guilty of the offense of false imprisonment, because, if innocent of simple assault, he could not be guilty of the aggravated offense. Under the indictment for robbery, he might have been convicted of a simple assault. Davis v. State, 45 Ark. 464; Hall v. State, 50 Ark. ___, 6 S. W. Rep. 20. The verdict of not guilty on the trial under the indictment for robbery was an acquittal of all the minor offenses charged in the indictment. It was therefore an acquittal of the simple assault. If it is true, as the demurrer admits, that the same assault is charged in the second indictment, then Fox stands acquitted of the assault, and therefore cannot be convicted of the offense of false imprisonment, of which the assault is a necessary element. "According to the general and better doctrine," says Bishop, "a conviction or an acquittal of a common assault will bar proceedings for an assault to do great bodily harm, and other assaults aggravated in like manner." 1 Crim. Law, § 1058. The case of State v. Nichols, 38 Ark. 550, is not in conflict with, but is a limitation upon, this doctrine. In that case the offense charged in the indictment was maiming, which is a felony. The defendant pleaded a conviction of assault and battery before a justice of the peace for the acts which resulted in the maiming, but the court disallowed the plea. The limitation made by that case upon the doctrine announced by Mr. Bishop, as explained in Southworth v. State, 42 Ark. 270, is that a conviction of a misdemeanor before a justice of the peace, punishable by fine only, is no bar to a prosecution for a grade of the offense amounting to felony, of which the justice had no jurisdiction. To the same effect, see Prine v. State, 41 Tex. 300; Com. v. Curtis, 11 Pick. 134; State v. Foster, 33 Iowa, 525; Freeland v. People, 16 Ill. 380. The qualification does not affect this case. If it is true, as admitted by the demurrer, that Fox was acquitted in the circuit court, on the former trial, of the essential ingredients of the offense now charged against him, this prosecution cannot proceed. Whart. Crim. Pl. §§ 467, 471; 1 Bish. Crim. Law, § 1057; State v. Smith, 43 Vt. 324; State v. Mikesell, 70 Iowa,...