Rosser v. Commonwealth

• Decision Date: 12 January 1933
• Citation: 159 Va. 1028
• Parties: R. W. ROSSER, JR. v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 1028

159 Va. 1028

R. W. ROSSER, JR. v.COMMONWEALTH.

Supreme Court of Virginia, Richmond.

January 12, 1933.

Present, All the Justices.

1.AUTREFOIS, ACQUIT OR CONVICT — Jeopardy — When Party Is Placed in Jeopardy — General Rule.— The general rule, supported by the weight of authority and the best considered cases, is that when a person has been placed on trial, on a valid indictment, before a court of competent jurisdiction, has been arraigned, has pleaded, and a jury has been impaneled and sworn, he is in jeopardy.

2.AUTREFOIS, ACQUIT OR CONVICT — Jeopardy — When Party in Jeopardy — Nolle Prosequi.— After the jury has been sworn, if a nolle prosequi is entered and the indictment is dismissed without the consent of the accused, it amounts to an acquittal and bars further prosecution for the same crime unless there be manifest and urgent necessity for the entry of the nolle prosequi.

3.AUTREFOIS, ACQUIT OR CONVICT — Nolle Prosequi — Effect as an Acquittal.— The true rule would seem to be that after a trial has commenced the Commonwealth's attorney, though he has the power, has not the right to terminate the prosecution without a verdict, and his refusal of record to further prosecute the indictment has the effect of, and amounts to, an acquittal of the defendant, unless it is done with his consent.

4.AUTREFOIS, ACQUIT OR CONVICT — Section 4773 of the Code of 1919 — Application to Case Where Indictment Was Dismissed upon the Entry of a Nolle Prosequi — Case at Bar.— Section 4773 of the Code of 1919 was intended to apply when a person had been brought to trial under a defective indictment upon the facts and merits, and acquitted; he may then plead such acquittal in bar of a second prosecution for the same offense, notwithstanding the defective indictment.In the instant case the essential requirements for the application of the statute were entirely lacking; there was no acquittal upon the facts and merits; and there was no defective indictment involved.But the prior case was dismissed upon the entry of a nolle prosequi by the Commonwealth, without the consent of the accused.

5.AUTREFOIS, ACQUIT OR CONVICT — Jeopardy — Definition of Jeopardy — Trial by Court without Jury.— Jeopardy means the danger of conviction.In so far as the accused is concerned this danger exists and is just as real when he is being tried by the court without a jury as it is when he is being tried by a jury.

6.AUTREFOIS, ACQUIT OR CONVICT — Trial before Court without Jury — When Jeopardy Begins.— In a trial before a court without a jury the danger of conviction or jeopardy of an accused begins when the trial has reached the stage where the Commonwealth begins to introduce its testimony.That stage in such a trial is equivalent to the swearing of the jury when the accused is tried by jury.

7.AUTREFOIS, ACQUIT OR CONVICT — Trial before Court without Jury — Effect of Waiver of Jury.— The Constitution empowering the court to try a criminal case without the intervention of a jury does not deprive the accused of any protection he would have had if tried by jury.He simply waives the jury trial, nothing else.

8.AUTREFOIS, ACQUIT OR CONVICT — Trial before Court without Jury — Effect of Waiver of Jury.— It was certainly not intended that in a trial before a court without a jury, the Commonwealth, after introducing its evidence and finding it had failed to make a case against the accused, would be permitted to nolle prosequi the indictment and be entitled to subject the accused to another trial for the same offense.

9.AUTREFOIS, ACQUIT OR CONVICT — Jury Waived — When Person Is Placed in Jeopardy.— A person has been placed in jeopardy when he has been indicted, arraigned and pleaded and the jury empaneled and sworn to try the case, and in cases like the one at bar, where the jury is dispensed with under section 8 of the Constitution, and by consent the case is submitted to the court for trial without a jury, jeopardy begins after the accused has been indicted, arraigned and has pleaded, and the court has begun to hear the evidence.That stage of the trial before the court is equivalent to the swearing of the jury where a case is tried by jury.

10.AUTREFOIS, ACQUIT OR CONVICT — Jury Waived — Nolle Prosequi — Case at Bar.— In the instant case accused was indicted, arraigned and entered his plea of not guilty.A jury was waived and the case was submitted to the court without a jury.When the evidence was partly heard the Commonwealth entered a nolle prosequi to the indictment and the court dismissed it.Accused did not consent to the entry of the nolle prosequi and the dismissal of the indictment.At another term accused was again indicted for the identical crime which was charged in the prior indictment, which had been dismissed by the court.To this second indictment accused filed a special plea of autrefois acquit.On motion of the Commonwealth the special plea was stricken out and accused was again placed upon his trial before a jury under the second indictment and convicted.

Held: That the court erred in striking out the special plea of autrefois acquit.

Error to a judgment of the Corporation Court of the city of Lynchburg.

The opinion states the case.

A. S. Hester, for the plaintiff in error.

John R. Saunders, Attorney-General, and Edwin H. Gibson and Collins Denny, Jr., Assistant Attorneys-General, for the Commonwealth.

GREGORY, J., delivered the opinion of the court.

Rosser was indicted for malicious assault, tried and convicted by the jury, and sentenced to serve one year in the penitentiary.

At the May, 1930, term of the corporation court, Rosser was indicted.On May 7, 1930, he was arraigned and entered his plea of not guilty.Thereupon, with his consent and the concurrence of the Commonwealth's attorney and of the court, a jury was waived and the case was submitted to the court without a jury for trial in accordance with section 8 of the Constitutionas amended in 1928.When the evidence was partly heard the Commonwealth entered a nolle prosequi to the indictment and the court dismissed it.Rosser did not consent to the entry of the nolle prosequi and the dismissal of the indictment.

On September 5, 1930, Rosser was again indicted for the identical crime which was charged in the prior indictment and which had been dismissed by the court.To this second indictment, Rosser filed a special plea of autrefois acquit.He claimed that he had been placed in jeopardy by the first trial.The Commonwealth immediately moved to strike the special plea, the court sustained the motion and it was stricken out.Rosser was again placed upon his trial before a jury under the second indictment and his conviction and sentence followed.

There are several points raised in the petition.The principal one, however, is directed at the ruling of the court in striking out the special plea.A determination of the correctness of the action of the court in this regard will render it unnecessary to decide any of the other questions presented.

Upon the motion to strike out the special plea, the Commonwealth admitted, and upon this writ of error, now concedes that the offenses charged in the first and second indictments are identical and that Rosser who now stands convicted under the second indictment is the same person who was indicted and partially tried under the first indictment which was dismissed when the nolle prosequi was entered.Therefore, the question becomes one of law and it is this: Has Rosser been "put twice in jeopardy for the same offense," in violation of section 8, of the Bill of Rights, and may he successfully plead the order of dismissal of the first as a bar to the prosecution under the second indictment?In other words, was Rosser placed in jeopardy under the partial trial of the first indictment?

The general rule, supported by the weight of authority and the best considered cases, is that when a person has been placed on trial, on a valid indictment, before a court of competent jurisdiction, has been arraigned, has pleaded, and a jury has been empaneled and sworn, he is in jeopardy.16 C.J. section 364;8 R.C.L., page 138.

After the jury has been sworn, if a nolle prosequi is entered and the indictment is dismissed without the consent of the accused, it amounts to an acquittal and bars further prosecution for the same crime unless there be manifest and urgent necessity for the entry of the nolle prosequi.8 R.C.L., page 152, section 140;16 C.J. 244, 248;Andrews State, 174 Ala. 11, 56 So. 998, Ann. Cas. 1914B, 760, 764;State Slorah, 118 Me. 203, 106 Atl. 768, 4 A.L.R. 1256;Runyon Morrow, Judge, 192 Ky. 785, 234 S.W. 304, 19 A.L.R. 632;State Thompson, 58 Utah 291, 199 Pac. 161, 38 A.L.R. 697.

The reason for this rule is found in Commonwealth Hart, 149 Mass. 7, 20 N.E. 310, where this is said:

"Where a prosecution is terminated during the progress of a trial by the entry of a nolle prosequi by the Commonwealth's attorney, with the consent of the defendant, the general right of a defendant on trial to insist upon a determination of the trial which will bar another prosecution is admitted; but it is claimed that the attorney for the Commonwealth has a right to enter a nolle prosequi during a trial, and leave with the defendant his right to a verdict, and that if the defendant does not insist upon that right, but accepts his discharge without a verdict, there will be no bar to another prosecution.

"It would seem that after the termination of a prosecution there would be nothing before the court upon which a verdict could be...