Johnson v. State

• Decision Date: 04 May 1891
• Citation: 9 So. 208,27 Fla. 245
• Parties: JOHNSON v. STATE.
• Court: Florida Supreme Court

9 So. 208

27 Fla. 245

JOHNSON v. STATE.

Florida Supreme Court

May 4, 1891

Error to circuit court, Polk county; G. A. HANSON, Judge.

Syllabus by the Court

SYLLABUS

1. The defendant was indicted in a single count for murder in the first degree. On a first and second trial he was convicted of murder in the second degree, the verdict at both trials being silent as to the higher crime. Held, that this is tantamount to an affirmative acquittal of the higher offense.

2. Where a party is tried upon an indictment that in a single count charges the highest degree of an offense, and that includes lower degrees of the same crime, or that in several counts charges such highest degree and the lower degrees, and he is convicted of one of such lower grades of the offense on a new trial, obtained at his request, he cannot again be tried for, or convicted of, any higher grade of crime than that of which he was at first convicted.

3. In such cases, upon such second trial, the party can be arraigned and tried upon the same indictment for the offense of which he was convicted on the first trial, with directions from the court to the jury that they shall confine their inquiries to the offense of which the party was at first convicted, and to such lower grades of the offense of which he was convicted as may be legally included therein.

4. In such cases, upon the second trial, it is unnecessary to specially plead such former acquittal of the higher offense.

5. It is error for the jury, after they have retired to consider their verdict, to have access to law-books. They should get the law of the case by instructions from the court, and not from their own perusal of the books.

COUNSEL J. B. Wall, Wilson & Wilson, and Crosier &amp McDermott, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

TAYLOR, J.

On the 27th day of January, 1887, in the circuit court of Polk county, an indictment containing but a single count was found against the plaintiff in error, Francis A. Johnson, charging him with murder in the first degree of one John C. Newcastle. In May, 1887, upon this indictment, Johnson was tried and convicted of murder in the second degree; the jury rendering the following verdict: 'We, the jury, find the defendant Francis A. Johnson, guilty of murder in the second degree; so say we all.' Motion for new trial being refused, Johnson was sentenced to imprisonment in the penitentiary for life and from this judgment took writ of error to this court. At the January term, 1888, of this court, this judgment was reversed, and a new trial ordered, for reasons stated in the opinion of the court. Johnson v. State, 24 Fla. 162 4 South. Rep. 535. Afterwards, on the 11th of June, 1890, Johnson was again arraigned in the circuit court of Polk county upon the same indictment, and then interposed the following pleas:

'And the said Francis A. Johnson, in his own proper person, came into court, and, having heard the said indictment read, says that the state of Florida ought not further to prosecute the same against him, because, he says, that heretofore, at a term of the circuit court aforesaid, county of Polk, holden on the 16th day of May, A. D. 1887, this defendant was arraigned upon the said indictment, to which indictment this defendant pleaded not guilty, and the said state joined issue on said plea, and the jurors, thereupon duly summoned, impaneled, and sworn to try said issue, upon their oaths did say that this defendant was not guilty of murder in the first degree, as charged in said indictment, but was guilty of murder in the second degree; and thereupon this defendant was by the judgment of the court sentenced to imprisonment in the state-prison for the term of his natural life, which judgment was afterwards, by the supreme court of the state of Florida, reversed, and this defendant granted a new trial.'

'(2) And this defendant, further pleading, says that at another term of the circuit court holden for said county of Polk, on the 12th day of November, A. D. 1889, he was again arraigned upon the said indictment, and pleaded not guilty, as stated. The jury, duly summoned, impaneled, and sworn to try said issue, upon their oaths did say that said defendant was not guilty of murder in the first degree, but was guilty of murder in the second degree,--all of which will appear by the records of the court, reference thereto being prayed; and which verdict was set aside, and a new trial granted,--all which matters and things pertaining to the trial and conviction of this defendant will more fully appear by the record of said court, reference thereto being prayed; and the said Francis A. Johnson avers that he and the Francis A. Johnson who was defendant in the trials recited in this plea, and convicted as aforesaid, are one and the same person, and not divers and different persons, and that the indictment upon which this defendant was tried, as aforesaid, is the same indictment which he is now called upon to answer,' etc.

Upon the interposition of these special pleas, the state, by its attorney, moved the court to strike the same from the files upon the following grounds: '(1) Because if the facts as set forth in said pleas are true, they constitute no defense to this charge; (2) because said pleas are too general in substance; (3) because if the facts set forth in said pleas were true, it would not entitle said defendant to a discharge; (4) because said pleas are insufficient in law.' This motion was sustained, and the pleas were stricken, to which the defendant excepted. Johnson was then put upon trial for murder in the first degree, as charged in the indictment, which trial resulted in the following verdict: 'We, the jury, find the defendant guilty of murder in the first degree, and recommend him to the mercy of the court.' Motion in arrest of judgment was then made upon the following grounds: '(1) Because the court erred in sustaining the motion of the state's attorney to strike the special plea in bar of the defendant, filed on the 11th day of June, A. D. 1890; (2) because the court erred in overruling the special plea in bar of the defendant, filed on the 11th day of June, A. D. 1890; (3) because, as shown by the records of the court, the defendant has been twice acquitted of the crime of murder in the first degree, and convicted of murder in the second degree.' This motion was overruled, and an exception taken. Motion for a new trial, upon various grounds not necessary to mention, was then made and denied, and the defendant was sentenced to confinement in the penitentiary for life. From this judgment the case is brought here upon writ of error.

As will appear from this statement of the case, Johnson has been tried three times upon the same indictment, containing but a single count, in which he is charged with murder in the first degree. The two first trials resulted in a conviction, each time, of murder in the second degree; the last trial, now under review, resulting in a conviction of murder in the first degree, with recommendation to mercy. The interposition of the special pleas in bar at the last trial presents the question: Can a party who has been tried under an indictment charging the highest grade of any given crime that includes lower degrees of the same offense, and who has been convicted upon such trial of one of the lesser degrees, upon a new trial, obtained at his request, be again put in jeopardy for the highest offense charged in such indictment, or for any grade of the same offense higher than that of which he was convicted?

Though there is dicta in the cases of Potsdamer v. State, 17 Fla. 895, and Mann v. State, 23 Fla. 611, 3 South. Rep. 207, tending towards an answer to this question in the negative, yet the question is now pointedly before this court for the first time. While there are some authorities holding a different view, the preponderant current of the decisions maintains that a conviction for the lesser grade of offense is an acquittal of all grades above it in degree included in the same indictment, though there is no express declaration of such acquittal in the verdict; and that upon a new trial, obtained at the convict's request he cannot be again put in jeopardy for any grade of offense higher in degree than that of which he was at first convicted. We think the latter the correct view, and the rule that must prevail here. The decisions that hold a contrary view are either confined to specia, statutory construction, or are premised upon the mistaken idea that the doctrine 'that a verdict of express conviction of a lower is an acquittal of the higher grade of the same offense, though such acquittal be not expressed,' is founded in technical fancy, with nothing of substance to rest upon. That a verdict convicting of the lesser, non-expressedly acquits of the greater, offense, there can be no doubt. If not, then a party charged with and tried for murder, but convicted of manslaughter, with nothing said as to the higher grade, when such conviction stands undisturbed, could be again tried for every successive higher grade of the same crime, until he stood convicted or acquitted of the highest charged. The silence of the verdict as to the higher grade of offense for which the prisoner was tried has, through a long line of modern decisions, come to be considered just as affirmative and decided an acquittal of such higher grade as though the verdict had, in express terms, found an acquittal thereof. And this practice as to the legal effect of verdicts expressly finding upon one, and remaining silent as to other, issues involved in the trial, has, we find, taken the place of what was formerly a very strict requirement in the rendition of verdicts; that is, that they should...