State v. Brannon

• Court: Missouri Supreme Court
• Writing for the Court: WAGNER
• Citation: State v. Brannon, 55 Mo. 63 (Mo. 1874)
• Decision Date: 31 January 1874
• Parties: STATE OF MISSOURI, Defendant in Error, v. CARROLL BRANNON, Plaintiff in Error.

55 Mo. 63

STATE OF MISSOURI, Defendant in Error,

v.CARROLL BRANNON, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1874.

Error to Henry Circuit Court.

W. P. Johnson, for Plaintiff in Error.

I. This defendant was indicted for robbery in the first degree, but there was only one count in the indictment and it did not embrace robbery in the second degree. The case was submitted to a jury, and a verdict returned of robbery in the second degree, which is, under the decisions of this court, an acquittal of the offense charged in the indictment, and defendant ought not to have been tried again under the law. (State Const., Art. I, § 19; Bish. Crim. Law [3d Ed.], §§ 858-61, 865-75; 5 Ind., 291; State vs. Ross, 29 Mo., 48; State vs. Ball, 27 Mo., 227; State vs. Kattleman, 35 Mo., 105; 3 Greenl. Ev., § 36.)

II. But it may be said, that, although acquitted of the charge of robbery in the first degree, yet the indictment also embraces grand larceny; but I submit, that the major includes the minor; that when one is charged with the crime of murder in the first degree, and is tried and acquitted by a jury, he cannot be again tried upon the same or another indictment for an inferior degree of homicide; and the same rule holds in a case of robbery in the first degree. If a new indictment were found against this defendant, for the same supposed offense, he could plead his acquittal in bar, and could not be again tried on the same indictment. (3 Greenl. Ev., § 36; 1 Bish. Crim. Law, §§ 87-89; 17 Wend., 386; 26 Penn., [2 Casey] 513.)Ewing, Att'y Genl., for Defendant in Error.

The indictment in this case is a good grand larceny indictment. (1 Wagn. Stat., 456, § 25.) The defendant was found guilty of grand larceny in this court, and there can be no objection thereto.

At the first trial the defendant was tried and found guilty of robbery in the second degree; and by implication not guilty of robbery in the first degree. And the point is made that the defendant could not afterwards be tried for larceny, when the finding of the jury was dismissed by the court as to the robbery in the second degree. We here insist, in as much as the finding of the jury for robbery in the second degree in the indictment for robbery in the first degree was a nullity, and as no judgment could be rendered thereon, that the case stood as if there had been no trial.

Here the jury found defendant guilty of an offense for which he was not tried, and now must the defendant go discharged? (State vs. Koerner, 51 Mo., 174.) This case is not analogous to one where a party is charged with murder, and the jury finds him guilty of a lesser grade of homicide. In homicides, when for instance, the indictment is for the highest grade--murder--the jury could under a count for murder alone, find the defendant guilty of any grade of homicides below murder. (Plummer vs. State, 6 Mo., 231; Mallison vs. State, 6 Ind., 399; State vs. Watson, 5 Mo., 497; State vs. Ostrander, 30 Mo., 13.) The reason of this is, that homicide is the genus, and the various grades thereof, such as murder in the several degrees, manslaughter &c., constitute the species. But this is not true of robbery (in its degrees) and larceny, and hence the doctrine contended for by the defendant's counsel can have no application here.

The case of the State vs. Ross, 29 Mo., cited contra, has no application to this kind of offense, because the verdict in this case was a nullity, and was not responsive to the indictment and was wholly unauthorized by law.WAGNER, Judge, delivered the opinion of the court.

The defendant was indicted for robbery in the first degree. A trial was had and the jury brought in a verdict against him of robbery in the second degree. The jury was then discharged, and the court subsequently, of its own motion, set the verdict aside. The defendant then made his motion to be released from further custody, on the ground that he had been acquitted of the offense charged against him in the indictment. This motion was overruled, and at a succeeding term he was again tried and convicted of larceny. As there were no degrees in the crime charged in the indictment, the first verdict was palpably erroneous and not responsive to any issue presented. But under what may now be considered the well established rule in this State, it operated as an acquittal of the offense of robbery in...