Mitchell v. State

• Decision Date: 12 November 1918
• Docket Number: 8 Div. 614
• Parties: MITCHELL et al. v. STATE. On Rehearing, ______, 1918 December 17, 1918
• Court: Alabama Court of Appeals

80 So. 730

16 Ala.App. 635

MITCHELL et al. v. STATE.

8 Div. 614

Court of Appeals of Alabama

November 12, 1918

On Rehearing, ______, 1918

December 17, 1918

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Earley Mitchell and Coleman Prince were convicted under an indictment charging them with placing an obstruction or impediment upon railroad tracks in a manner rendering liable any engine, car, or other vehicle thereon to be thrown from the track. From the judgment of conviction, they appeal. Affirmed on rehearing.

Bricken J., dissenting.

Wert &amp Lynne, of Decatur, for appellants.

F. Loyd Tate, Atty. Gen., for the State.

BRICKEN J.

This is a joint appeal by the two defendants named. They were jointly tried and convicted under an indictment preferred by the grand jury of Morgan county at the November term, 1917, of the circuit court. This indictment contained two counts, as follows:

"The grand jury of said country charge that before the finding of this indictment Earley Mitchell and Coleman Prince did wantonly or maliciously place an impediment, to wit, a cross-tie, upon the track of the Louisville & Nashville Railroad Company, a corporation, in such manner as to render liable any engine, car, or other vehicle to diverge or to be thrown from the track upon which it was running."

"(2) The grand jury of said county further charge that before the finding of this indictment Earley Mitchell and Coleman Prince did wantonly or maliciously place an obstruction or impediment, to wit, a cross-tie, upon the railroad tracks of the Louisville & Nashville Railroad Company, a corporation, in such manner as to render liable any engine, car, or other vehicle to diverge or be thrown from the track upon which it was running, against the peace and dignity of the state of Alabama." Before entering upon the trial under this indictment, the defendants interposed a plea of former jeopardy, in which they allege that they were, on, to wit, May 9, 1917, arraigned on an indictment which is set out in their plea; that they pleaded not guilty, and were jointly placed on trial before a jury; that all the witnesses for the state were examined, and that at the conclusion of the testimony the defendants moved to exclude the evidence from the jury; that thereupon the solicitor moved to dismiss the cause, and that the defendants be held to await the action of the grand jury in preferring another indictment; that the court granted this motion over the objections of the defendants and made an order dismissing the cause and holding the defendants to await another indictment. The plea also alleges that defendants are charged in the present indictment with an offense which is based upon and is of the same transaction as alleged in the indictment on which they had formerly been tried and placed in jeopardy. This plea was in due form and properly verified.

The solicitor demurred to this plea, assigning as grounds of demurrer that it was filed after the defendants had pleaded not guilty to the indictment, and therefore came too late, and on the further grounds that the plea failed to allege that they had been put upon trial for the same offense as charged in the indictment. The court sustained the demurrer.

The judgment entry recites that upon the defendants being arraigned they filed a plea of former jeopardy, and therefore the judgment entry shows that either the plea of former jeopardy was filed before the plea of not guilty was entered, or that the court had allowed the plea of not guilty to be withdrawn and the plea of former jeopardy to be filed. This, of course, was within the sound discretion of the court.

The material question, therefore, is as to whether or not there was error in sustaining the demurrer to the plea of former jeopardy. The record shows that the indictment upon which the defendants were tried and convicted was drawn under section 7677 of the Code of 1907, as amended by the act approved April 12, 1911 (Acts 1911, p. 380). The indictment follows the language of the statute and is sufficient to charge an offense. The plea of former jeopardy shows that these defendants were first placed upon trial under an indictment which was drawn under section 7677 of the Code of 1907. Under the averments of the plea, the defendants had been placed in jeopardy under this indictment. Turk v. State, 140 Ala. 110, 37 So. 234. It is evident that the court based its ruling in sustaining the demurrers to the plea on the ground that the indictment under which the appellants were placed on trial charged a different offense from that upon which they had been placed in jeopardy on the first trial.

Section 7677 of the Code as amended (Acts 1911, p. 380) denounces three distinct offenses, to wit: (1) Wantonly or maliciously injuring a railroad; (2) placing impediment or obstruction on a railroad in such manner as to render liable an engine, etc., to diverge or be thrown from the track; and (3) for salting the track of a railroad for the purpose of attracting cattle thereon.

The first indictment upon which these defendants were put to trial charged them with having injured a railroad by placing an obstruction thereon, and, as before stated, was drawn under section 7677 of the Code of 1907. The indictment upon which the defendants were tried, or the new indictment, was also drawn under the same section (7677) of the Code, as amended, and charged an offense under the second clause of the section. The plea of former jeopardy clearly shows that the one act of placing the obstruction, to wit, a cross-tie, on the track, was the same offense for which the defendants were prosecuted. The state thereby had elected to prosecute them for placing it on the track and injuring the railroad, and had elected to prosecute the crime in one of its phases, and therefore could not afterwards prosecute the same criminal act under another phase. Hurst v. State, 86 Ala. 604, 6 So. 120, 11 Am.St.Rep. 79; Moore v. State, 71 Ala. 307. In other words, the state, having elected to prosecute the defendants, and under a good and valid indictment placed the defendants upon their trial for the offense of having placed the cross-tie on the track, and injuring the railroad, could not again prosecute them for the same act of placing the cross-tie upon the track in such manner as to be liable to cause an engine to diverge or be thrown therefrom. Furthermore, in the instant case it cannot be doubted that, under section 6311 of the Code of 1907, the defendants could have been found guilty under the first indictment of an attempt to injure the railroad, etc., which lesser offense was included in the greater offense charged in the indictment, and under the provisions of said section the jury could have found the defendants not guilty of the offense as charged, but, if the evidence warranted it, guilty of an attempt to commit such offense, without any special count in the indictment for such attempt. The offense charged in the first indictment was also embodied in the second indictment; and the former jeopardy as laid in this plea was a defense to them as against that indictment. It has repeatedly been held that one cannot be prosecuted for two offenses growing out of the same act. State v. Johnson, 12 Ala. 840, 46 Am.Dec. 283; Foster v. State, 39 Ala. 234; Drake v. State, 60 Ala. 44; Walkley v. State, 133 Ala. 188, 31 So. 854.

We are therefore of the opinion that the court erred in sustaining the demurrer to the plea of former jeopardy. It is not necessary to discuss other questions contained in the record. For the error pointed out, the judgment of conviction is reversed, and the cause remanded.

Reversed and remanded.

BROWN P.J. (dissenting).

In order to sustain a plea of former jeopardy against an appropriate demurrer, it must appear with certainty to a common intent from the averments of the plea that the offense or some grade or degree thereof charged in the second indictment was embraced in the first indictment.

"This is ascertained by applying the established test whether the facts alleged in the indictment for the latter offense, if proved to be true, would warrant a conviction on the first indictment." Foster v. State, 39 Ala. 233; Harrison v. State, 36 Ala. 248; Henry v. State 33 Ala. 389; Gordon v. State, 71 Ala. 315; Sanders v. State, 55 Ala. 42; Foster v. State, 88 Ala. 182, 7 So. 185.

And it must further appear that there was a verdict of the jury on the issues presented or an unauthorized withdrawal of the case from the jury.

When this test is applied, the defendants are concluded by the very judgment set up in their plea showing that the first indictment upon which they were put to trial charged them with the offense denounced by the first clause of the statute, wantonly or maliciously injuring a railroad, while the proof offered showed that they were guilty of the offense denounced by the second clause of the statute, wantonly or maliciously placing an obstruction upon the track of a railroad in such manner as to render an engine or car running thereon to diverge or be thrown from the track--the offense charged in the second indictment. It is well settled that, however closely connected in point of fact the offenses may be, if in contemplation of law they are distinctly different, the indictment and trial for one is not a bar to an indictment and trial for the other. Gordon v. State, supra.

The case presented by the defendants' plea is not that of one act constituting a violation of two or more statutes and an election by the prosecution of one of these offenses by indictment, trial and conviction, or acquittal, as in Hurst v. State, 86 Ala. 604, 6 So. 120, 11 Am.St.Rep. 79, or the case of entering upon a trial under a valid indictment for some...