State v. Smith
| Decision Date | 28 May 1973 |
| Docket Number | No. 47331,47331 |
| Citation | 278 So.2d 411 |
| Parties | STATE of Mississippi v. Tommy Lynn SMITH. |
| Court | Mississippi Supreme Court |
James H. Herring, Dist. Atty., Canton, A. F. Summer, Atty. Gen., Jackson, for appellant.
John S. Holmes, J. H. Hogue, Jr., Yazoo City, for appellee.
This is an appeal by the State of Mississippi from a judgment of the Circuit Court of Madison County sustaining a plea in bar and motion of appellee Tommy Lynn Smith to quash an indictment charging him with armed robbery. We affirm.
The only error assigned is that the trial court was in error in sustaining appellee's plea in bar and motion to quash the indictment. We find no merit in this assignment. We are indebted to the trial judge for favoring us wich an excellent opinion in this case. Since it has been most helpful to us and is such a thorough discussion of the facts and law involved, we are taking the liberty of incorporation most of it in our opinion. The pertinent part of the opinion is as follows:
The plea in Bar and Motion to Quash the indictment seeks to bar the trial of the defendant Tommy Lynn Smith on an indictment for the armed robbery of John Allen Rorer in which sixty dollars ($60.00) in good and lawful money of the United States of America and checks of an unknown value, a more specific description of which to the Grand Jury is unknown, which case is now pending on the State docket in Madison County, Mississippi, and is subject to trial in this term of the court. This plea of the defendant raises the defenses of collateral estoppel, res judicata, and former acquittal.
In order to consider this matter it is necessary to state what has transpired prior to this time and what is said to be some of the facts in the case.
Austin Glenn Whitaker, Jr., John Isonhood, and Tommy Lynn Smith were jointly indicted at the September, 1971, term of the Madison County Circuit Court for the murder of John Allen Rorer, which is Cause No. 9958 on the State docket in Madison County, Mississippi. Severance was granted in this matter. Also, at the September 1971 term of this Court, Austin Glenn Whitaker, Jr., John Isonhood, and Tommy Lynn Smith were jointly indicted for the armed robbery of John Allen Rorer. At the September 1971 term of the Circuit Court of Madison County, Mississippi Tommy Lynn Smith was tried for murder in Cause No. 9958 and this trial resulted in a mistrial. He was again tried on this murder indictment during the March 1972 term of Madison County Circuit Court before a jury and the result of this trial is that a general verdict of not guilty was returned by the jury in favor of the defendant.
It is now necessary to consider some of the events and testimony and instructions on the law given the jury by the court at the request of the State in order to properly consider this Plea of the defendant. There is no question but what the two indictments arise out of one incident that happened on the 9th day of February, 1968. In the case in which this defendant was tried on the murder charge the record reflects through the testimony of Austin Glenn Whitaker, Jr. that he, John Isonhood and this defendant planned to rob John Allen Rorer. That Whitaker and this defendant entered the Cash Oil Company which was operated by John Allen Rorer on February 9, 1968. That Whitaker struck John Allen Rorer on the head with a pool cue stick which had been broken, that he then dropped the stick and it was picked up by this defendant and this defendant struck Rorer on the head numberous times. That Whitaker got money out of the cash drawer, threw part of it on the floor and he and this defendant then left and later that night went to Jackson. It is undisputed that John Allen Rorer was taken to the University Hospital at Jackson, Mississippi, where he lived for about three (3) weeks and then died without ever regaining consciousness and that his death came about as a result of the blows to his head administered during the robbery. This defendant admitted through his attorney and throughout the trial of the murder case that Mr. Rorer was killed and that his death was a result of injuries inflicted on February 9, 1968, at the Cash Oil Company. The jury was asked that if the court instructs that if you believe from the evidence beyond a reasonable doubt that the defendant participated in the robbery and as a result thereof Mr. Rorer was beaten and this beating accelerated his death in any way, that he is guilty of murder and they were asked could they follow that instruction. At the trial of the murder case the State requested certain instructions. The instructions requested by the State were necessary to properly instruct the jury in their deliberation as to the guilt or innocence of this defendant on the murder charge.
Here the court set out in full the relevant instructions granted the state and defendant, but it is not necessary to set them out here since they are discussed in the court's opinion.
There was other testimony on behalf of the state in the murder trial that the defendant Tommy Lynn Smith participated in the crime, other than the testimony of Austin Glenn Whitaker, Jr.
The defendant in this Plea contends the Fifth Amendment principle, double jeopardy applying to the State through the Fourteenth Amendment prevents his trial on the robbery indictment because the State is collaterally estopped from relitigating those issues already determined in his favor at the murder trial, determinations which make his conviction on the robbery charge a logical impossibility. In the recent United State Supreme Court case of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Court set out certain principles. This is a summary of that case and the decision of the Court. Six men were engaged in a poker game and were robbed by three or four masked gunmen. Ashe was tried in the state court for the robbery of one of the players, which trial resulted in an acquittal. Ashe was again tried in the state court for the robbery of another of the players and in this trial was convicted. The witnesses in the two trials were for the most part the same and the State's evidence establishing the facts of the robbery was not contradicted, but the testimony identifying Ashe as one of the robbers was substantially stronger at the second trial. Some several years later Ashe brought a habeas corpus proceeding in United States District Court for the Western District of Missouri, claiming that the second prosecution had violated his right not to be twice put in jeopardy. The writ was denied and the United States Court of Appeals for the Eighth Circuit affirmed and it was reversed by the United States Supreme Court in an opinion by Mr. Justice Stewart, explaining the view of seven members of the Court, holding that since the single rationally conceivable issue in dispute before the jury was whether the defendant had been one of the robbery, the Federal rule of Collateral Estoppel, which is embodied in the Fifth Amendment currently against double jeopardy, made the second trial wholly impermissible. The Court said in that case that the principle of collaternal estoppel means that when an issue of ultimate fact has once been determined by a valid...
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