Gordon v. State
| Citation | 90 So. 95,127 Miss. 396 |
| Decision Date | 12 December 1921 |
| Docket Number | 22095 |
| Court | United States State Supreme Court of Mississippi |
| Parties | GORDON v. STATE |
APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.
Charley Gordon was convicted of manufacturing intoxicating liquor and he appeals. Affirmed.
Cause affirmed.
Davis & Hill, for appellant.
H. C Holden, attorney-general for the state.
Appellant was convicted of manufacturing intoxicating liquor, and sentenced to the penitentiary for a period of three years, and from this conviction and sentence prosecutes this appeal.
At the November, 1920, term of the circuit court of Forrest county there were two charges pending against appellant, one for unlawfully and feloniously making intoxicating liquor, which had been preferred by indictment returned by the grand jury at that term, and one for unlawfully having intoxicating liquor in his possession, which last charge had been preferred by affidavit before a justice of the peace, and which was in the circuit court by appeal from a conviction in the justice court. When these cases were called in the circuit court, the defendant entered a plea of guilty to the misdemeanor. The felony charge was thereupon passed to the files by the district attorney, and the defendant, having paid the fine and costs imposed in the case in which he had entered a plea of guilty, was discharged.
At the April, 1921, term of the court, the district attorney filed a motion to withdraw from the files the indictment for making intoxicating liquors and to redocket the same for trial. This motion was sustained, and defendant was put to trial on this indictment and convicted. Before the jury was impaneled, the defendant interposed two pleas of former jeopardy, one setting up that he had entered a plea of guilty to the charge of unlawfully having whisky in his possession under an agreement with the district attorney that the indictment upon which he was then arraigned would be passed to the files; that said indictment had been previously passed to the files, and that this constituted an acquittal of the charge; the other plea setting up autrefois convict, in that both charges grew out of the same transaction and were predicated upon the same facts. Demurrers were interposed and sustained to each of these pleas.
The argument in support of the first plea proceeds upon a total misconception of the effect of passing an indictment to the files. The district attorney may be willing to pass an indictment to the files pending good behavior, or for other cause, when he would be unwilling to recommend a nolle prosequi, and it often happens that a defendant is willing to accept this arrangement as the best settlement available. It may be that the passage of an indictment to the files is usually the end of the matter, but it is in no sense an acquittal of the charge. It simply postpones the evil day if the district attorney shall, in the future, elect to withdraw it and proceed with the trial.
Appellant complains that the district attorney has violated his agreement, and that for this reason a further prosecution of this indictment should not be permitted. We do no so understand the averments of the plea. The district attorney did not agree that the...
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Beckwith v. State, 91-IA-1207
....... We have also held that "retiring" or "passing" an indictment to the files is not an acquittal barring further prosecution, following which the case may be reopened upon motion of the State. Walton v. City of Tupelo, 229 Miss. 193 at 196, 90 So.2d 193 at 194 (1956); Gordon v. State, 127 Miss. 396, 90 So. 95 (1921). . Pursuant to Sec. 22 of our Constitution, this Court has held that following a mistrial declared because of a hung jury, a nolle prosequi entered at the request of the State did not terminate the original jeopardy, and the State was not ......
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Fogleman v. Hubbard
...by which the State can “postpone” a criminal judicial proceeding. Hall v. State, 187 So.3d 133, 137 (Miss. 2016) (quoting Gordon v. State, 90 So. 95, 95 (Miss. 1921)). Normally, the State will pass an indictment, or a portion thereof, to the files when it is “unwilling to recommend a[n] [or......
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Klopfer v. State of North Carolina, 100
......472, 48 N.E. 261 (1897); Lifshutz v. State, 236 Md. 428, 204 A.2d 541 (1964), cert. denied, 380 U.S. 953, 85 S.Ct. 1087, 13 L.Ed.2d 971; Commonwealth v. Dowdican's Bail, 115 Mass. 113 (1874) (indictment may be filed away only after verdict and then only with the consent of the accused); Gordon v. State, 127 Miss. 396, 90 So. 95, 18 A.L.R. 1150 (1921) (consent of defendant necessary); Rush v. State, 254 Miss. 641, 182 So.2d 214 (1966) (but not if defendant was in a mental institution at the time the indictment was retired to the files). At one time, Illinois decisions indicated that when ......
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Flynt v. State
...... that a "district attorney may be willing to pass an indictment to the files pending good behavior, or for other cause, when he would be unwilling to recommend a nolle prosequi, and it often happens that a defendant is willing to accept this arrangement as the best settlement available." Gordon v. State, 127 Miss. 396, 90 So. 95 (1921). Furthermore, we have held that a prosecutor's decision to pass an indictment to the court's inactive files, like an order of nolle prosequi, is not an acquittal on the merits and does not implicate a criminal defendant's right against double jeopardy. ......