State v. Reeves

• Decision Date: 23 December 1918
• Docket Number: No. 21008.,21008.
• Citation: 208 S.W. 87,276 Mo. 339
• Parties: STATE v. REEVES et al.
• Court: Missouri Supreme Court

208 S.W. 87

276 Mo. 339

STATE v. REEVES et al.

No. 21008.

Supreme Court of Missouri, Division No. 2.

December 23, 1918.

Appeal from Circuit Court, Mississippi County; E. M. Dearing, Special Judge.

Steve Reeves and Odie Reeves were indicted for murder and as being accessories to the offense. Steve Reeves was convicted of murder, and Odie Reeves was convicted of being an accessory, and they appeal. As to Steve Reeves judgment affirmed, and as to Odie Reeves reversed and cause remanded.

Upon an indictment charging them with murder in the first degree for the killing of one L. B. Pritchard, defendants were tried in the circuit court of Mississippi county, found guilty of murder in the second degree (except as to defendant Odle Reeves, which will be discussed at length in the opinion), and each sentenced to 10 years' imprisonment.

Defendants duly appealed. This is the second appeal in the cause. The opinion upon the first appeal will be found reported in 195 S. W. 1027, wherein a full statement of the facts is set forth.

The indictment was in three counts, and was the same upon both trials. Since upon the first trial a codefendant, Dave Ross, was acquitted, we will refer to the indictment as though Ross were not named therein.

Each count of the indictment charges the defendant with murder in the first degree for the killing of said Pritchard. The first count charge's that defendant Steve Reeves assisted in committing the murder by use of a "wooden stick four feet long, three inches wide, and one inch thick, of the weight of about four pounds," and that defendant Odie Reeves likewise assisted by the use of "an instrument about the length of sixteen inches, and the width of two inches, and the thickness of one inch, and of the weight of two pounds, of some hard substance and material, the exact kind to this grand jury unknown."

The second count charges that defendant Steve Reeves committed the murder by use of the above-mentioned four-pound wooden stick, and that defendant Odie Reeves was present, inciting, aiding, and commanding Steve Reeves to commit said murder.

The third count charges that defendant Odie Reeves committed the murder by use of the said unknown two-pound instrument, and that defendant Steve Reeves was present, inciting, aiding, and commanding Odie Reeves to commit said murder.

Upon the first trial the present defendants were found guilty of murder in the second degree under the first count, but the verdict was silent concerning the second and third counts. The judgment upon that verdict was reversed and the cause was remanded upon the first appeal. The verdict upon the second trial was for murder in the second degree (except as hereinafter explained), without referring to either count of the indictment.

Before the second trial was begun the defendants, by leave of court, filed a plea in bar setting up the claim of former jeopardy. It is unnecessary to set forth in full the allegations of the plea in bar. In substance, it may be said to have presented tie contention that since each of the three counts charged the same offense, and since the verdict of guilty on the first count upon the first trial amounted to an acquittal on the second and third counts, therefore, having once been acquitted of the offense, they could not again be tried therefor, but were entitled to be discharged.

The state filed a demurrer to the plea in bar, which was sustained.

Such further facts as shall be necessary to an understanding of the points now under review will be mentioned in the course of the opinion.

Haw & Brown and Russell & Joslyn, all of Charleston, for appellants.

Frank W. McAllister, Atty. Gen., and Shrader P. Howell, Asst. Atty. Gen., for the State.

WILLIAMS, J. (after stating the facts as above).

I. Appellants' main contention for a reversal is that the court erred in sustaining the demurrer to their plea of former acquittal.

It will be seen by reference to the indictment that each of the three counts charge the commission of the same crime. The first count charges each as principal, and the second and third counts charges each, respectively, as principal and as accessory before the fact.

The real necessity for formally charging the defendants as accessories before the fact does not appear, since under the present law in this state such accessory "may be charged, tried, convicted, and punished in the same manner as the principal in the first degree." Section 4808, R. S. 1909.

But whatever may have bee: the purpose of the pleader, it is immaterial here. We merely mention the foregoing rule to show that there can be no doubt but that the identical crime was charged in each of the three counts.

The exact legal question which the present case presents is this: When a defendant is tried upon an indictment in three counts, each charging the same crime, and the jury returns a verdict of guilty under the first count, but is silent as to the two remaining counts is there in law an implied acquittal upon the remaining counts, and, if so, does such implied acquittal (after the judgment, upon appeal by defendant, has been reversed and the cause has been remanded) entitle the defendant to be discharged on the theory that he has been once acquitted of the crime for which he Is again sought to be tried?

We have reached the conclusion that the above question must be answered in the negative.

Appellants contend that the silence of the verdict upon the first trial concerning the second and third counts (there having been an express verdict of guilty on the first count) amounted to an acquittal upon said counts, and that therefore this case should fall within, and should be controlled by the rule announced in the case of State v. Headrick, 179 Mo. 300, 78 S. Wt. 630. That case in effect held that, under an indictment in two counts (each count charging the same crime), the express verdict of not guilty under the second count was a bar to the enforcement of an express verdict of guilty under the first count, and that the defendant should be discharged.

Whether the Headrick Case was correctly ruled we are not now called upon to decide. It will be sufficiently timely to re-examine that case when the precise question there ruled is again presented and directly involved in the determination of a case. The fact that there was an express verdict of acquittal in that case, while in the present case there was not, sufficiently distinguishes the two cases to relieve the Headrick Case from serving as a useful precedent in the instant case.

It occurs to us that the principal error in appellants' contention in the case at bar is in assuming that the silence of the first verdict as to the second and third counts amounted to an acquittal under those counts.

It is true that appellant cites cases from this state using the general language that a verdict of guilty under one count amounts to, an acquittal upon the remaining counts concerning which the verdict is silent. And such appears to be the general rule applicable in most states. But nowhere have we been able to find that the above general rule has ever been applied (certainly not expressly applied) to a situation where the separate counts charge the same crime.

The present point (so far as our research has extended)" does not appear to have been frequently treated.

The only case which we have been able to find which discusses the exact point now under review is the case of Brown v. United States, 2 Ind. T. 582, 52 S. W. 56. In that case the rule, which we think is the correct one and here applicable, was stated as follows:

"If an indictment contain more than one count, and different offenses are set up in different counts, then, on conviction on one, and silence by the jury as to the other, the defendant stands acquitted as to the counts not mentioned in the verdict, and as to those counts, a plea of former jeopardy will be sustained, even though on the motion of the defendant the verdict of guilty on the count upon which he was convicted be set aside and a new trial granted. In such case he can only be again put upon his trial on the count of the indictment upon which he had been convicted. But when the different counts are simply formal variations in stating the same offense, then the granting of a new trial opens the whole case, and the defendant may be put upon his trial, and convicted on any of the counts." 2 Ind. T. loc. cit. 590-591, 52 S. W. 58.

Any other view would, to our mind, lead to an absurdity. It would amount to saying that the mere inference of acquittal arising from the silence of the verdict as to certain counts was strong enough to overcome a verdict of guilty finding expressly to the contrary under a count charging the identical crime.

Under the facts stated in the plea in bar in the present case the silence of the first verdict as to counts two and three did not therefore warrant an inference of acquittal or amount to a verdict of acquittal thereunder. Since this is true, the plea in bar failed to state facts sufficient to show a former acquittal of the defendants, and the demurrer thereto was properly sustained.

II. It is contended that the court erred in failing to sustain a demurrer to the evidence as to defendant Odle Reeves. In this behalf it is insisted that there is no evidence to show that Odie Reeves struck deceased. We are unable to agree with this contention. Witness Tom Bird testified that, at the invitation of Odie Reeves, Steve, Odle, and himself were in the building to overhear an expected conversation between Pritchard (deceased) and Ross; that shortly afterwards Ross and Pritchard had the conversation, and immediately thereafter Odie and Steve rushed together out of and around the corner of the building; that instantly he heard a lick struck, and immediately thereafter "they came around in front of the door fighting, and somebody struck Pritchard aad he fell"; this witness further testified that, while he was not...