Johns v. State

• Decision Date: 05 February 1923
• Docket Number: 23071
• Court: Mississippi Supreme Court
• Parties: JOHNS v. STATE

95 So. 84

130 Miss. 803

JOHNS v. STATE

No. 23071

Supreme Court of Mississippi

February 5, 1923

1. CRIMINAL LAW. Where two or more persons robbed at the same time, separate offenses, and acquittal in one case is not bar to a prosecution in another.

Where two or more persons are robbed at the same time, in one transaction, each robbery constitutes a separate and distinct offense, and an acquittal of robbery in one case is not a bar to a prosecution in the second case.

2. CRIMINAL LAW. Error to allow witness to state conclusion that automobile of defendant made tracks near scene of crime.

Where a case is very close upon the facts, it is reversible error to allow a witness to state that the automobile of the defendant is the one that made the tracks near the scene of the robbery. The witness should state the facts relating to the tracks, describing the peculiarities of the tracks. It is a question, then, for the jury to state whether or not the car in evidence made the tracks described by the witness.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of Tate county, HON. GREEK L. RICE, Judge.

Willie Frank Johns was convicted of robbery, and he appeals. Reversed and remanded.

Judgment reversed and cause remanded.

J. F Dean, for appellant.

It has been repeatedly held that if a man takes from different owners, different things from different rooms of the same house, at as nearly as possible the same time, that this is but one larceny, but one criminal intent, but one asportation. Nichols v. Com, 78 Ky. 180. That robbery was one entire transaction just as much as it would have been if the robber had, in the absence of the owners of the money, gone into that house and ransacked the different rooms and had taken, stolen and carried away the money of each of the men robbed. This would have constituted but one larceny and if he had been tried and acquitted of the larceny of Tate Gabbert's money, he could have plead the acquittal in bar of any other prosecution for taking the money of Johnson. What difference can there be in principle? I call the court's attention especially to Hudson v State, 9 Texas, Ct. App. 151, 35 Am. Rep. 732, in which the defendant was charged with the larceny of several articles of different owners, in different rooms of the same house. He was tried for the larceny of one article belonging to one person and was convicted. Upon an indictment alleging the larceny of a different article, from a different person, on the same occasion, he plead former conviction as a bar and the court held the plea good, citing numerous authorities. See, also, Fisher v. Com, 89 Am. Dec. 620, in this case there were two indictments, one for stealing a horse belonging to one man and another for stealing a wagon and harness belonging to another man. The court said: "We do not regard the two indictments for different grades of the same offense, nor for different and independent offenses but different offenses arising out of one and the same transaction having most of their constituent elements in common with each other, either of which may have been the subject of conviction by proving the entire transaction, and yet one of them having resulted in either a conviction or an acquittal, no conviction could be had as to the other without reproducing the same transaction in evidence."

Where defendant uttered four forged checks purporting to have been signed by four different persons, at the same time, there was but one offense. State v. Egglesht, 41 Iowa 574, 20 Am. Rep. 612; Deshazo v. State, 65 Ark. 38; Lindsay v. State, 61 N.C. 468. Only substantial identity is essential to support a plea of former jeopardy. So. Rep., Oct. 16, 1922, Vol. 93, page 95. No narrow nor illiberal construction should be given to the words of the fundamental law in which they are embodied. Ex parte Lange, 21 U.S. Law Ed. 879.

Again I say that defendant has been tried and acquitted for everything that occurred at Tate Gabbert's on the night of March 25, 1922, and to hold otherwise is to place a narrow and illiberal construction on the words of the fundamental law in which they are imposed. This court must be exceedingly technical to hold otherwise. See, also, Glem v. State, 13 Am. Rep. 369; State v. Hennsey, 13 Am. Rep. 253; Commonwealth v. Robinson, 30 Am. Rep. 674; Wilson v. State, 23 Am. Rep. 603; Quitzau v. State, 28 Am. Rep. 386; Dottson v. State, 93 So. 579.

Again the court erred in allowing Dr. Williams to state as a fact, over the objections of defendant, that the car owned by Johns which he had in his possession, made the tracks traced by him the morning after the robbery. This testimony was not given as an opinion but was a statement of a fact and was admitted as such. The jury had nothing to consider, no conclusions to draw, the good doctor had relieved them of that duty which the law imposed upon them and upon them alone. If he had undertaken to give this as his opinion it would not have been admissible. He should have stated what he saw, described the tracks, described the tires on the car and then left the jury to draw their own conclusions after viewing the car. The court even erred in allowing the doctor to say it was Johns' car, because he had the original records, as he claimed and actually introduced them unauthenticated as the law requires. The later admission of Johns removed this error but it does not remove the atmosphere of the trial, in which defendant had no rights that the state was bound to respect.

It was later shown by undisputed testimony that the tires had been changed on the car after the arrest of Johns, since the night of the robbery and were not the same tires which were on the car on the 25th day of March, but the doctor did not know this and in his anxiety to convict made the tracks fit the car as it then was. There can be no calculating the baneful effort of this testimony coming from the sheriff, upon that hand-picked jury. That statement was made and admitted for the purpose of clinching a verdict of guilty and it evidently had the desired effect.

H. T. Odom, special assistant attorney-general, for the state.

On April 26, 1922, the grand jury of Tate county returned two indictments against appellant, Willie Frank Johns, one numbered 2603 charging the robbery of Tate Gabbert; and the other numbered 2609 charging the robbery of Thomas Johnson, both offenses growing out of the statement of facts, hereinbefore set forth.

Appellant was put to trial on indictment 2603 charging the robbery of Tate Gabbert, and on this cause appellant was acquitted by the jury. At the same term of the court, three days later, appellant was arraigned on indictment No. 2609, charging the robbery of Thomas Johnson. Appellant filed a plea in bar to this indictment, as appears at page 6 of the record, alleging former jeopardy for the same offense. Said plea and exhibits filed therewith, found on pages 7 and 8 of the record, show that appellant had been acquitted on the charge of robbing Tate Gabbert on the same occasion. To said plea of the appellant, the district attorney interposed a demurrer setting forth in substance the following grounds of demurrer, which appear at page 9 of the record:

1. That indictment No. 2609 charged appellant with robbing a different person from indictment No. 2603, for which appellant had been acquitted. 2. That indictment No. 2609, charged a felonious taking of property by the defendant from Thomas Johnson, by putting him in the fear of some immediate danger, while indictment No. 2603 charged the felonious taking of property by the same means from an entirely different person; and that these were separate and distinct violations of the law. 3. It is alleged that said plea was insufficient in law. The court sustained said demurrer, as appears at page 10 of the record, and this action of the court is one of the errors assigned by appellant. And as I see it, this is the principal point involved in this appeal.

At page 89 of the record we find the following agreement: "Agreement of counsel as to record of other trial. It is agreed by counsel herein that the evidence in the case of the State v. Willie Frank Johns, number 2603, is practically the same as the evidence in this case."

The contention of counsel is that the robbery was one entire transaction and that since appellant was acquitted on the charge of robbery of Tate Gabbert, that he cannot be subsequently convicted for robbing Thomas Johnson, because the robbery of Johnson and the robbery of Gabbert grew out of the same facts, and that he cannot be twice placed in jeopardy for the same offense. In support of this theory he cites a number of cases from other states, which hold that where the accused is charged with larceny of goods from several parties on the same occasion, that an acquittal or conviction on an indictment for stealing from one of the parties bars a subsequent prosecution for the same offense, charging larceny from another person at the same time.

I do not think it necessary to discuss or criticize these authorities, because none of them deal with the question of robbery, and further, because I shall cite authorities which, in my opinion are conclusive of the proposition under discussion. Here, however, I desire to call the court's attention to the fact that counsel for appellant have cited no authorities on this point from our supreme court.

I am not unmindful of section 22 of our state Constitution which forbids putting a person twice in jeopardy for the same offense. But my contention is that where two or more persons are robbed at the same time and by the same means, that this constitutes a case where the robbing of each individual is a separate and distinct offense. My position is sustained in 16 C. J. at page 285,...