Jones v. State

• Decision Date: 21 June 1926
• Docket Number: 25830
• Court: Mississippi Supreme Court
• Parties: JONES v. STATE. [*]

109 So. 265

144 Miss. 52

JONES v. STATE. ^[*]

No. 25830

Supreme Court of Mississippi

June 21, 1926

Suggestion of Error Overruled July 22, 1926.

CRIMINAL LAW. When conviction for manslaughter under indictment for murder is reversed on application of defendant, cause stands for trial de novo on original indictment, and defendant may be tried again for murder (Constitution 1890, section 22).

Under section 22 of the Constitution of 1890, providing that "No person's life or liberty shall be twice placed in jeopardy for the same offense; but that there must be an actual acquittal or conviction on the merits to bar another prosecution," the last clause of said section has the effect of changing the former rule that on a reversal of a conviction of manslaughter under an indictment for murder the accused could only be tried on the second trial for manslaughter. Under said constitutional provision, when the judgment of conviction of manslaughter is reversed on the application of the defendant, the cause for trial de novo on the original indictment, and the accused may be again placed on trial for murder.

SMITH C. J., dissenting.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Yazoo county, HON. W. H. POTTER, Judge.

Ethel Jones was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

J. C. Holmes, for appellant.

The record presents but a single question: Can a defendant who has been tried on a valid indictment for murder and found guilty of manslaughter thereunder, where the verdict of the jury has been set aside on his application and a new trial granted, again be placed on trial for murder on the same indictment? This involves a construction of the former jeopardy clause of our state Constitution, as the same appeared in section 22, Constitution of 1890, and the Constitution prior thereto.

The question is not new to the jurisprudence of this or other states, and has been answered in the negative by the great weight of authority, including the decisions of our own state. Clark's Crim. Procedure, p. 392, and authorities there cited; 16 C. J. 261 and 272.

The supreme court of Mississippi has followed the majority view and has adhered thereto both prior to and since the adoption of the Constitution of 1890, as appears from the following authorities: Hurt v. State, 25 Miss. 378; Rolls v. State, 52 Miss. 391; Powers v. State, 83 Miss. 699.

It may be argued, however, that the amendment to the Constitution of 1890 has changed the prevailing doctrine of former jeopardy in this state. The amendment added the following clause: "But there must be an actual acquittal or conviction on the merits to bar another prosecution."

This amendment, of course, did have the effect of narrowing the general doctrine of former jeopardy. Under the former provision of the Constitution where a defendant was arraigned under a valid indictment in a court of competent jurisdiction and pleaded not guilty, and a jury was empaneled and sworn to try the issue, he was considered as having been placed in jeopardy. If thereafter the case proceeded with the taking of testimony, but was discontinued because of the discovered disqualification of a juror or, at the instance of the state, the entering of a nolle prosqui, or for other cause arising in the progress of the trial but before the verdict of the jury was rendered, the defendant was considered as having been placed in jeopardy and could not again be placed on trial for the same offense. It was such a situation as this that the amendment to the Constitution of 1890 was intended to avoid and, of course, in such state of case a defendant would not be permitted to plead former jeopardy. Roberts v. State, 72 Miss. 728; State v. Kennedy et al., 96 Miss. 624.

The amendment was never intended to and does not, deny to the defendant a plea of former jeopardy where the case has been actually submitted to the jury on its merits and a verdict rendered thereon, because in such case there has been just what the Constitution of 1890 contemplates; viz., an actual acquittal or conviction upon the merits. Such is the case at bar. The trial proceeded to a verdict at the hands of the jury. The jury after the submission of all the evidence, was instructed that they might find the defendant guilty of murder or manslaughter or not guilty. Under these instructions and with all of the evidence before the jury, the jury by its verdict, rendered on the merits of the case, said that the defendant was not guilty of murder, but was guilty of manslaughter.

It cannot be gainsaid that one who has had his case submitted to a jury on a consideration of all of the evidence in the case and the instructions of the court, and has had a finding of the jury of either guilty or not guilty thereon, has been either convicted or acquitted on the merits. The fact that the verdict of the jury may have thereafter been set aside does not change the irresistible truth that he has been either convicted or acquitted. If no application by the defendant had ever been made to set aside the verdict of the jury, it would not be even suggested that he had not been actually convicted or acquitted on the merits. In such case the question before us, therefore, simply resolves itself into a consideration of whether or not his application to have the verdict set aside is a waiver of his constitutional protection and guaranty. Our court in a case such as the case at bar has said that it is not. This case should be reversed.

J. L. Byrd, Assistant Attorney-General, for the state.

The only question for decision on this appeal is: Can a defendant indicted for murder, tried and convicted for manslaughter, who secures a new trial, be again tried for murder? This question was once before this court in the cases of Callicoat v. State, and Strickland v. State, 95 So. 318, but the majority opinion does not decide the point. We do not see how we can do better in enlightening the court in the matter than to quote from the brief of the attorney-general of the state upon this very question, in the Strickland case:

"We have a line of authorities in this state illustrated by the Hurt case, 25 Miss. 378, which hold that on a prosecution for murder, a finding by the jury that the accused is guilty of manslaughter, is an 'implied' acquittal of the charge of murder. Other cases holding to the same effect are Morris v. State, 8 S. & M. 762; Rolls v. State, 52 Miss. 391; Powders v. State, 83 Miss. 691, 36 So. 6; Walker v. State, 123 Miss. 517, 86 So. 337.

"Our court in the Walker case, supra, following the doctrine that it was fatal error to grant a manslaughter instruction where the evidence established either murder or the innocence of the accused, and also that a conviction of manslaughter was an 'implied' acquittal of murder, reversed the case and discharged the appellant. The doctrine of 'implied acquittal' is opposed to the weight of authority and can no longer be in force in Mississippi under the present 'former jeopardy' clause in our Constitution, where the judgment is reversed on application of the accused.

"We see that including the Constitution of 1869 all of our constitutions contain a former jeopardy clause almost identical with that found in the Constitution of the United States. But when our present Constitution of 1890 was adopted, the framers saw fit to modify our 'former jeopardy' clause materially by means of section 22 of our present Constitution.

"I only mention the case of Morris v. State, 8 S. & M. 762, which was decided in 1847. The court there held in a short opinion that a verdict of guilty on one count was tantamount to an acquittal on the other counts in the indictment. At this time the Constitution of 1832 was in force, but the 'former jeopardy' clause is not mentioned in the opinion.

"We find a lengthy and very elaborate discussion of the exact point in question in Hurt v. State, 25 Miss. 378, which, by the way, is the only Mississippi case I have been able to find which goes exhaustively into the subject. This case holds that a conviction of manslaughter is an 'implied' acquittal of murder and operates as a discharge of the prisoner. The reasoning of Justice FISHER in that case is the best that I have seen in support of the position taken and under the Constitution of 1832 in effect at that time, may be logically sound. However, many texts on criminal law and various courts, among which is the supreme court of the United States, have adopted the opposite view.

"Then we find the rule to the same effect stated in the Rolls case, supra, 52 Miss. 391, decided in 1876, but here no authorities were cited and no reasons are given in support thereof and the 'former jeopardy' clause is not mentioned. In fact this portion of the opinion is mere dictum.

"In the Powers case, supra, it is also stated that one indicted for murder and convicted of manslaughter cannot again be placed on trial for murder, and the reason given is the constitutional guaranty against being twice put in jeopardy for the same offense. The Rolls case, supra, 52 Miss. 391, is cited for the rule. The Powers case, supra, was decided in 1903, when the Constitution of 1890 was in effect, but apparently the court's attention was not called to the material change of the 'former jeopardy' clause after the decision of the Rolls case there relied on.

"A recent decision following the rule laid down in the Hurt case, 25 Miss. 378, is Walker v. State, 123 Miss 517, 86 So. 337. I have carefully studied the opinion in this case and also the briefs both for the state and the appellant, and find that nowhere is mention made of the material change in our 'former jeopardy' clause of the Constitution of 1890. It was apparently decided upon the idea that our Cons...