Harp v. State

• Decision Date: 05 May 1894
• Citation: 26 S.W. 714
• Parties: HARP v. STATE.
• Court: Arkansas Supreme Court

26 S.W. 714

HARP v. STATE.

Supreme Court of Arkansas.

May 5, 1894.

Appeal from circuit court, Logan county; Jeptha H. Evans, Judge.

Bob Harp was convicted of perjury, and appeals. Reversed.

The appellant was indicted twice at the January term of the Logan circuit court for perjury. The assignment of perjury in the first (omitting all formal parts) was that, on the trial of one Bill Harp for selling liquor, appellant testified "that the defendant had not in the county of Logan, within one year next before the 11th day of August, 1893, sold liquor," etc., to J. L. Womack, a minor, etc. In the second the assignment is that the appellant, on the trial of one Bill Harp for selling liquor, testified that the defendant, Bill Harp, did not sell liquor to J. L. Womack, a minor, on the night of the 3d day of July, 1893, when the said Bill Harp, J. L. Womack, and Bob Harp were in company at Spielerville. The indictments charged the crime in apt words, but I have not set them out in full because of their length. A demurrer to the first indictment was overruled. The defendant (appellant) waived arraignment, and entered a plea of not guilty. A jury was duly impaneled and sworn to try said cause, and the jury by consent returned the following verdict from the box: "We, the jury, find the defendant not guilty as charged. Frank Gorrell, Foreman." Thereupon the following order was entered: "It is considered that the defendant be held in custody to await the action of the grand jury in said cause." On the following day the grand jury returned the second indictment, containing the assignment of perjury above set forth. To this indictment appellant filed his plea of former acquittal, as follows: "The defendant alleges that he was, on the ____ day of January, 1894, duly acquitted, by the verdict of a jury and the judgment of the Logan circuit court, of the identical offense charged in the indictment now pending against him. Copies of said verdict, judgment, and indictment are hereto attached as exhibits." He alleges that the offense charged in the indictment upon which he was tried and acquitted, and the offense charged in the indictment now pending against him, are one and the same identical offense, and that the Bob Harp mentioned as defendant in the first indictment, and this defendant, Bob Harp, is the same identical person, as he is ready to prove. He therefore asks to be discharged from further prosecution for said offense. The state interposed a demurrer to the plea, which was sustained. Appellant was tried upon the second indictment, and convicted.

Edwin Hiner, for appellant. James P. Clarke, Atty. Gen., and Chas. T. Coleman, for the State.

WOOD, J. (after stating the facts).

1. The first assignment of error is "the overruling defendant's plea of former acquittal." The state contends that the plea was not verified by the record. What is meant by verification? "An averment by the party making a pleading that he is prepared to establish the truth of the facts which he has pleaded." "In pleading literally, a making out to be true, and assertion of the ability of the pleader to prove, the matter alleged in his plea." Bouvier's and Burrill's Law Dicts. The old formula was: "And this the said plaintiff (or defendant) is ready to verify." Steph. Pl. 434. So, to verify by the record is to prove by the record. Archb. Cr. Pr. & Pl. 113. The language of the plea itself on this point is: "Copies of said verdict, judgment, and indictment are hereto attached as exhibits." The clerk has brought into this record the first indictment, the verdict, and the final order of the court thereon. By what authority, unless they were introduced and considered as part of defendant's plea? They are not marked as exhibits to the plea, nor designated as a part of said plea. But it was the duty of the clerk to copy them as they were. The presumption is that he has brought them into the transcript just as they were offered, whether as attached to the plea or produced for the inspection of the court. If the defendant had not designated them as exhibits, the clerk could not do so. At any rate, they were a part of this record, which is proof convincing that they were considered by the court in some form in passing upon the demurrer; otherwise, the clerk was guilty of officiousness or inadvertence. We will not go beyond the record to accuse him of either, but will consider the case as it appears to have been considered by the court below. In State v. Clark, 32 Ark. 237, Chief Justice English said: "The plea of former jeopardy in this case was not in good form — it failed to set out the facts appearing of record. But it seems the parties agreed to try it as a formal plea, and we have treated the case as if the plea has set out all the facts, and been demurred to in the court below, though no formal demurrer was interposed." So here we may say, though a formal demurrer has been interposed, the parties treated it as passed upon by the court in connection with the record upon the first indictment. Mansf. Dig. § 2179, provides: "Neither a joinder in demurrer nor reply to the plea of former acquittal or conviction shall be necessary; but the demurrer shall be heard and decided, and the plea shall be considered as controverted by denial, and by any matter of avoidance that may be shown in evidence." The clerk certifies "that the foregoing 23 pages contain a true and perfect transcript of the record and proceedings in the circuit court of said county on indictments, Nos. 15 and 36, in the cause therein set forth." No. 36 is the present case, and the proceedings in No. 15, which was the first indictment, were then considered in this cause. The clerk was authorized to make a transcript in no other. The best authors upon criminal procedure say "that autrefois acquit and convict are among the favored pleas, admitting of a lower degree of certainty than the indictment, and a still lower than a dilatory plea." Bish. Cr. Proc. § 808; Bish. Div. & Forms, § 1042; Archb. Cr. Pr. & Pl. 111; Co. Litt. 303a. This certainly accords with the doctrine upon the subject as declared by the American courts, which is but an emanation of the spirit of the constitution itself, that secures the inalienable right. Const. U. S. art. 5, "Amendments;" Com. v. Roby, 12 Pick. 502; People v. Goodwin, 18 Johns. 201; U. S. v. Gibert, 2 Sumn. 42, Fed. Cas. No. 15,204.

2. The majority of the court think the facts presented by this record indicate a sufficient verification. Treating the plea, therefore, as verified, was it sufficient in substance? Mansfield's Digest (section 2176) provides: "An acquittal by a judgment on a verdict or a conviction shall bar another prosecution for the same offense, notwithstanding a defect in form or substance in the indictment on which the acquittal or conviction took place." Judge Cockrill, in State v. Ward, 48 Ark. 36, 2 S. W. 191, correctly laid down the rule: "That jeopardy begins when a jury in a criminal case is impaneled and sworn, in a court of competent jurisdiction, to try the prisoner under an indictment sufficient, in form and substance, to sustain a conviction. Before verdict and judgment thereon, the indictment must be sufficient in form and substance. But, under our statute, jeopardy attaches after verdict and judgment thereon, whether the indictment is sufficient in form or substance, or not. 1 Bish. Cr. Law, § 1023. Will jeopardy attach on the bringing in of a verdict of acquittal or conviction, and before judgment is entered? We think not. Mr. Bishop says: ...