Smith v. The State

• Decision Date: 20 January 1890
• Citation: 67 Miss. 116,7 So. 208
• Court: Mississippi Supreme Court
• Parties: JACK SMITH v. THE STATE

7 So. 208

67 Miss. 116

JACK SMITH v. THE STATE

Supreme Court of Mississippi

January 20, 1890

October 1889

FROM the circuit court of Tallahatchie county, HON. GEO. WINSTON Judge.

On the 16th day of February, 1889, the appellant was indicted in the court below, the charge being that he "did wilfully and unlawfully disturb the peace of a congregation assembled lawfully at New Hope church for religious worship, by striking and offering to fight Robert Jennings, and saying 'G--d d--. clan of hell,' and other offensive conduct and language to the jury unknown. Contrary etc."

The defendant filed a special plea setting up that on the 25th day of August, 1888, he had been regularly arraigned and tried before a justice court of the county for the identical offense charged against him in the indictment, and had been acquitted. The affidavit upon which the former trial was had was made a part of the plea, and is in the following words:--

"The state of Mississippi, county of Tallahatchie. Before me, W D. Solomon, a justice of the peace of the county aforesaid beat no. 3, J. W. Thomas, who makes oath that J. H. Smith, on or about the 10th day of August, 1888, in the county aforesaid, in said district, did feloniously assault with metallic knucks one R. J. Jennings, in New Hope church, in presence of the congregation assembled for public worship and did at the same time use profane language in the presence of the congregation assembled, and did exhibit and use a pair of metallic knucks on the person of R. J. Jennings, against the peace, etc." But the plea did not state that the alleged acts charged in the indictment were committed within the territorial jurisdiction of the justice.

The state demurred to this plea. The demurrer was sustained, and the defendant was given leave to plead over. Thereupon, on the plea of not guilty, he was tried, convicted, and sentenced to pay a fine and costs. From this judgment defendant appeals. A motion for a new trial was overruled, but the record contains no bill of exceptions, and none of the testimony is set out.

Judgment affirmed.

W. S. Eskridge, for appellant.

1. If appellant had been acquitted in the circuit court of the same offense for which he was indicted, it would be clear that the court erred in sustaining the demurrer to the plea. Under the constitution the defendant cannot be twice tried for the same offense. The record shows that the defendant was duly tried and acquitted for the same offense, and the demurrer admits this. The affidavit charges that the defendant did wilfully disturb the peace of the congregation at New Hope church. The indictment charges the same offense, at the same place. The charges are therefore identical. 1 Bish. Cr. L., § 1051.

2. If the defendant had been tried and acquitted on the charge of assault and battery alone, I maintain that he could not be convicted on the indictment for another offense growing out of the same facts. 1 Bish. Cr. L., §§ 1057, 1060.

The affidavit does not technically charge an assault and battery, but it fully and distinctly makes out the charge of disturbing the congregation assembled for religious worship.

T. M. Miller, attorney-general, for the state.

1. The test of the sufficiency of a plea of former jeopardy is whether the evidence necessary to support the second indictment would have been sufficient to procure a conviction upon the first. 1 Wharton Cr. L., § 565.

Here proof of disturbing religious worship by profane language, as charged in the indictment, would have had no tendency to establish the first charge, which was mere assault and battery.

On the trial of the charge contained in the affidavit, a disturbance of religious worship was not necessarily...