Moseley v. State, CR--75--71
| Decision Date | 08 September 1975 |
| Docket Number | No. CR--75--71,CR--75--71 |
| Citation | 258 Ark. 485,527 S.W.2d 616 |
| Parties | John R. MOSELEY, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
James R. Howard, Little Rock, for appellant.
Jim Guy Tucker, Atty. Gen., by Robert A. Newcomb, Asst. Atty. Gen., Little Rock, for appellee.
The appellant, John R. Moseley, was indicted by the Pulaski County Grand Jury for the delivery of a controlled substance, amphetamine sulfate dextro, in violation of Act 590 of 1971 as amended. On arraignment Moseley pleaded not guilty and filed a motion to quash the indictment on the ground that a narcotics agent, one of the prosecuting witnesses, and other unauthorized personnel were in the grand jury room when the indictment was returned. The motion to quash the indictment was denied by the trial court and upon jury trial Moseley was found guilty and sentenced to ten years in the Arkansas Department of Correction and fined $5,000.
On appeal to this court the judgment was reversed and the cause remanded with directions that the indictment be quashed (Moseley v. State of Arkansas, 256 Ark. 716, 510 S.W.2d 298). The indictment was quashed by the trial court in compliance with the mandate of this court. Subsequently, on August 21, 1974, the prosecuting attorney filed information again charging Moseley with the same offense. Moseley interposed the plea of double jeopardy and after denial of additional motions in the trial court and in this court, the case proceeded to jury trial and Moseley was again found guilty and a sentence of eight years imprisonment and a $5,000 fine was imposed. Upon appeal from this second conviction Moseley relies on the following points for reversal:
'I. The lower court erred in overruling the motion of the defendant to dismiss case number CR--74--1318 for the reason that the defendant had been placed in double jeopardy.
II. The court erred in not granting a mistrial when it appeared that the jurors had, contrary to the court's instructions, read an account of the trial in the newspaper.'
We find no merit to either contention.
The general rule on the first point involved is set out in 22 C.J.S. Criminal Law § 273 as follows:
'An accused cannot benefit by the verdict of the jury if he chooses to appeal from it; hence, he is estopped to plead a prior conviction where his conviction has been reversed for error on an appeal or writ of error brought by himself . . ..'
This court has consistently followed the above rule. In Paschal v. State, 245 Ark. 396, 432 S.W.2d 879 (1968), a felony conviction was reversed because the trial court erroneously refused to direct a verdict for the accused on the ground that the evidence was insufficient to support the conviction. We remanded the case for a new trial and in reviewing the claim of double jeopardy, we quoted from Miller, Criminal Law, § 186(c) (1934), as follows:
In Paschal, supra, we also expressed the same view by quoting with approval from the early case of Johnson v. State, 29 Ark. 31 (1874), as follows:
"It is true that, by a constitutional provision as well as by the common law, no man can be twice put in jeopardy of life or limb for the same offense; but, where the first jeopardy has resulted in his conviction, it is rather a merciful interposition of the court, than any invasion of his rights, to set aside the conviction upon his own application in order to afford him the opportunity of another trial."
In support of his argument of double jeopardy the appellant cites Art.Stat.Ann. § 43--1224 (Repl.1964) as follows:
'Acquittal or conviction as bar.--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.'
The appellant apparently overlooks the statutory definition of 'conviction' as set out in Ark.Stat.Ann. § 43--1224.3(2) (Supp.1973) as follows:
'There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court.' (Emphasis added).
The cases cited by the appellant are distinguishable on their facts from the case at bar. In State v. Ward, 48 Ark. 36, 2 S.W. 191 (1886), Ward was indicted for embezzlement. He demurred to the indictment; the demurrer was sustained as to the one count and overruled as to the others. A jury was impaneled and sworn and at the close of the day, the trial not being concluded, they were allowed by the court upon consent of the parties to separate. On the second morning of the trial one of the jurors was absent on account of the sickness of one of his family and the court then, for the first time discovering that the defendant had not been arraigned and had not entered a plea to the indictment, upon a motion of the prosecuting...
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Wright v. State, CR
...of the news article. We cannot say that the trial court abused its discretion in refusing to grant a mistrial. See Moseley v. State, 258 Ark. 485, 527 S.W.2d 616 (1975); and Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). Neither can we agree with appellant's contention that the trial c......