Gunter v. State

Decision Date25 June 1896
Citation111 Ala. 23,20 So. 632
PartiesGUNTER v. STATE.
CourtAlabama Supreme Court

Appeal from circuit court, Blount county; George E. Brewer, Judge.

Robert Gunter was convicted of assault with intent to murder, and appeals. Reversed.

The appellant was indicted, tried and convicted for an assault with intent to murder one Monroe Debtor, and sentenced to the penitentiary for six years. The defendant interposed a plea of former acquittal, the averments of which are sufficiently set forth in the opinion. To this plea the state demurred on the grounds, First, that the plea shows on its face that the offense charged in the indictment was a different and distinct offense from the one alleged in the plea; and second, that the defendant was tried for the murder of George Breazle, and was now on trial under an indictment for an assault with intent to murder. This demurrer was overruled. The facts of the case pertaining to the rulings of the court upon the evidence which are reviewed on the present appeal are sufficiently stated in the opinion.

Inzer &amp Ward and J. E. Brown, for appellant.

Wm. C Fitts, Atty. Gen., for the State.

HARALSON J.

1. It is the settled rule of this court, that a defendant cannot be lawfully punished for two distinct felonies, growing out of the same identical act, and where one is a necessary ingredient of the other; that a series of charges cannot be based upon the same offense, and subdivided into two or more indictable crimes. So, it has been held, that where the same act of unlawful shooting resulted in the death of two persons, an acquittal or conviction of the trial of one would be a good defense on a second trial for the alleged murder of the other, for the reason that the killing constituted but one crime, which could not be subdivided and made the basis of two prosecutions. Clem v. State, 42 Ind. 420. And again, where one blow produces two separate assaults and batteries on two different persons, a conviction of one may be pleaded in bar to an indictment for the other, for the reason that the defendant cannot be punished for two distinct assaults growing out of the same identical act. State v Damon, 2 Tyler (Vt.) 387; State v. Cooper, 13 N. J. Law, 361. These cases and the principles announced, were referred to and approved in Hurst v. State, 86 Ala. 604, 6 So. 120, where the same question was considered and decided by this court upon a careful review of many authorities. Hurst was indicted, tried and convicted for having introduced a file into the county jail, with the intent to facilitate the escape of a prisoner, confined on a charge of a misdemeanor. At the same term of the court, defendant was indicted, tried and convicted for the same act of conveying into the county jail the same file with which to facilitate the escape of another prisoner, confined on a charge of felony, and it was held, on a plea of autrefois convict, that the first conviction was a bar to the indictment in the latter case. O'Brien v. State, 91 Ala. 25, 8 So. 560; Moore v. State, 71 Ala. 387; Gordon v. State, Id. 317. It must not be overlooked, however, that the same individual may at the same time and in the same transaction commit two or more distinct criminal offenses, and an acquittal of one will not bar punishment for the other, as if in the same affray, one person shoots and kills one person, and by a second act shoots and wounds another. In such case, the two results, the killing of the one and the wounding of the other, by different acts of shooting, cannot be said to grow out of the same unlawful act, but out of two distinct acts, and the party shooting is responsible for the two results from the two separate acts, and may be indicted and punished separately for each. State v. Standifer, 5 Port. (Ala.) 523; Cheek v. State, 38 Ala. 231; and authorities supra.

The plea in this case sets up that the defendant was indicted for the murder of George Breazle, and that he was tried and acquitted therefor. Among other facts pleaded it is stated "And the said defendant says, that he is in fact, that he was so indicted and acquitted as aforesaid, is one and the same person, and that the assault and murder of which he, the said Robert Gunter, was so indicted and acquitted as aforesaid, and the assault with the intent to commit murder of and for which defendant is now indicted, are one and the same assault, and committed at one and the same time; that the killing of said Breazle took place under the same prosecution, and not other and different assaults, for other and different prosecutions, but that it was one transaction committed at one and the same time," etc. The above is a loose and very unskillful averment, if that was the intention, of the identity of the act by which the killing of the one and the wounding of the other person was effected. It speaks of two assaults, the death of one person following the one, and the wounding of another, following the other, and avers that they are one and the same assault ***...

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