State v. Kennedy
| Decision Date | 17 January 1910 |
| Citation | 96 Miss. 624,50 So. 978 |
| Court | Mississippi Supreme Court |
| Parties | STATE OF MISSISSIPPI v. JEFFERSON KENNEDY ET AL |
March 1910
FROM the circuit court of Smith county, HON. ROBERT L. BULLARD Judge.
Kennedy a man, and Stella Fraweek, a woman, appellees, were jointly indicted for unlawful cohabitation, and pleaded former jeopardy. The state demurred to the plea; the court overruled the demurrer, and judgment final was entered for the defendants and the state appealed to the supreme court.
The appellees were jointly indicted for unlawful cohabitation, at the October, 1908, term of court, and were put on trial, but after the state had offered evidence the district attorney in open court, with consent of the court, over the objection of defendants, entered an order of nolle prosequi. Subsequently, at the October, 1909, term of court the appellees were again indicted for the same offense, and to this second indictment they pleaded former jeopardy, predicated of the judgment of nolle prosequi above mentioned.
Demurrer overruled.
George Butler, assistant attorney-general, for appellant.
The two indictments show that the offenses were not the same. In the first indictment it was alleged that the appellees had been unlawfully cohabitating together during and for two years prior to the finding of the indictment which was dated October 30, 1908. The second indictment alleges that the appellees had been living in unlawful cohabitation during and for two years prior to the finding of the indictment, which was dated October 26, 1909. In the first indictment it is alleged that the appellees habitually engaged in unlawful cohabitation during and for two years prior to October 30 1908. The second indictment alleges that the appellees habitually indulged in sexual intercourse for, and during two years prior to October 26, 1909. Thus it will be seen that under the indictments as drawn, the appellees are charged with habitual sexual relations during two years prior to the return of the indictments. Now, appellees could not have been tried under the indictment of October, 1908, for an offense occurring subsequently to the finding of that indictment, and even if they had been actually acquitted on the merits of the indictment of 1908, such would not have operated as a bar to a subsequent offense committed after October, 1908, and prior to October, 1909. If appellees lived together, as alleged in this subsequent indictment, and as shown by the plea, during 1909, they could have been tried upon this indictment, even though they had been actually acquitted or convicted on the prior indictment; and if we concede that the plea would have been good as a defense at common law to the offense charged by the first indictment, it does not affect this case. For the plea was too broad, and covers a year of time for which appellees had not been indicted. If the...
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Beckwith v. State, 91-IA-1207
...Gordon v. State, 127 Miss. 396, 90 So. 95 (1921); see also State v. Thornhill, 251 Miss. 718, 171 So.2d 308 (1965); State v. Kennedy, 96 Miss. 624, 50 So. 978 (1910). Predictably, however, the Supreme Court's attitude towards this important individual right changed. In 1969, the Court held:......
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Caston v. State
...that the State can re-indict an accused for the same offense after an order of nolle prosequi has been entered. See State v. Kennedy, 96 Miss. 624, 50 So. 978 (1910); State v. Thornhill, 251 Miss. 718, 723, 171 So.2d 308, 310 (1965). In short, "`where a nolle prosequi is entered the particu......
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De La Beckwith v. State
...355, 128 So. 891 (1930) (second prosecution not barred by nolle prosequi of previous indictment after a mistrial); State v. Kennedy, 96 Miss. 624, 50 So. 978 (1910); State v. Thornhill, 251 Miss. 718, 171 So.2d 308 (1965); Galloway v. State, 574 So.2d 1 (Miss.1990). ¶74 Appellant cites as s......
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Jones v. State
...of course, in such state of case a defendant would not be permitted to plead former jeopardy. Roberts v. State, 72 Miss. 728; State v. Kennedy et al., 96 Miss. 624. amendment was never intended to and does not, deny to the defendant a plea of former jeopardy where the case has been actually......