Turner v. State, 5488
Decision Date | 30 March 1970 |
Docket Number | No. 5488,5488 |
Citation | 452 S.W.2d 317,248 Ark. 367 |
Parties | Dennis TURNER, Appellant, v. STATE of Arkansas, Appellee. |
Court | Arkansas Supreme Court |
Shaver, Tackett, Young & Patton, by Frederick G. Harrelson, Jr., Texarkana, for appellant.
Joe Purcell, Atty. Gen., Don Langston, Mike Wilson, Asst. Attys. Gen., Little Rock, for appellee.
The issue in this case is whether appellant, Dennis Turner, who was tried and acquitted of first degree murder can now be charged and tried for robbery which arose out of the same act. The appellant was charged by the filing of an Information with 'willfully, feloniously and violently taking from the person of Larry Wayne Yates, on the 25th day of December, 1968, a sum of money in excess of $300.00 in currency, forcibly and against the will of said Larry Wayne Yates, by intimidating and putting in fear the said Larry Wayne Yates and while perpetrating robbery, Defendant Dennis Turner did feloniously, willfully, and with malice aforethought, and with premeditation and deliberation, did kill and murder Larry Wayne Yates with a gun * * * in violation of Arkansas Statute 41--2205.'
Appellant was acquitted of murder by a jury on April 24, 1969, and was charged by a grand jury indictment on October 3, 1969, with the crime of robbery. The appellant sought dismissal of the indictment on the grounds that it constituted double jeopardy, and res judicata. The court denied appellant's motion to dismiss and granted him this appeal. For reversal appellant contends that the doctrine of double jeopardy and res judicata preclude a relitigation of the issue of robbery between the state and the appellant. Five points are asserted for reversal, but all relate to these two issues.
On appeal it is stipulated: 'That the murder charge, of which Defendant Dennis Turner was acquitted, and the robbery charge arose out of the same set of facts, circumstances, and on the same occasion.
'That the same testimony adduced by the State of Arkansas in the murder trial will necessarily need by reintroduced in this robbery charge.'
The information accusing the appellant with murder was two-pronged: (1) that the murder was committed in perpetration of the crime of robbery and (2) that appellant committed the murder 'feloniously, willfully, and with malice aforethought, and with premeditation and deliberation.' This is permissible by Ark. Stat.Ann. § 41--2205 (Repl.1964) which is our felony-murder statute.
We disagree with appellant's contentions that the indictment should be dismissed on the principle of double jeopardy. This question was discussed in the Washington case of State v. Barton, 5 Wash. 234, 105 P.2d 63, and also in the Idaho case of State v. Hall, 86 Idaho 63, 383 P.2d 602. Both Barton and Hall had been accused of murder in the first degree, it being alleged that each killed a person while engaged in the perpetration of the crime of robbery. In each instance, there was an acquittal on the charge of murder, and the defendants were subsequently charged with robbery. In rejecting the argument of double jeopardy in Barton, the Washington Supreme Court said:
'Appellant contends that the offense of murder in the first degree, as charged in the information in the prior case, necessarily includes the offense of robbery; and that, therefore, his acquittal in that case operates as a bar to the information in the present case.
Likewise in holding against the contention of double jeopardy in State v. Hall, supra, the Supreme Court of Idaho said:
'The allegation that the homicide occurred in the perpetration of a felony, does not charge the accused with the commission of the felony referred to, nor make it an offense included in the murder charge; it merely characterizes the murder as to degree. * * *
The court then quoted from 22 C.J.S. Criminal Law § 278, (1), Page 717, as follows:
'The test is the identity of the offenses, and not the identity of the occurrences or facts out of which they arise; it is not whether accused has already been tried for the same act, but whether he has been put in jeopardy for the same offense.'
It definitely appears that this is the rule followed by a great majority of the states.
Though Arkansas has no exact case in point, the case of Binganan v. State, 181 Ark. 94, 24 S.W.2d 969, is certainly analagous. There, Binganan was convicted for forging and uttering a check, but upon appeal to this court, upon confession of error by the Attorney General, the cause was reversed. Binganan was also indicted for obtaining money under false pretenses by the issuance of the same check. He pleaded his former acquittal. In rejecting this argument, we said:
So, though acquitted on the charge of forgery, Binganan was then convicted of false pretenses, the offense being the writing of the same identical check, and the conviction being based upon the same proof used in the forgery case.
It will be noted that the test set out in Binganan is the identical test set out in the general rule heretofore cited. We find no merit in this contention.
Nor do we agree that the robbery indictment should be dismissed under the doctrine of res judicata.
There are no criminal cases in this state relative to the application of res judicata, but we have several civil cases, and the principle is, of course, the same. The doctrine of res judicata, is discussed in several Arkansas cases. In order to sustain a plea of res judicata, it must appear that the cause involves the same subject matter as that determined or which could have been determined in a former suit between the same parties. The bar of the former judgment extends to those questions of fact and law which were decided in the former action or which might have been but were not presented. See Ozan Lumber Co. v. Tidwell, 213 Ark. 751, 212 S.W.2d 349; Andrews v. Victor Metal Products Corp., 235 Ark. 568, 361 S.W.2d 19.
In Hastings v. Rose Courts, 237 Ark. 426, 373 S.W.2d 583, we said:
' * * *"
Applying the language quoted to the case before us, it is at once apparent that res judicata is not applicable. The only question determined in the murder trial was whether Turner was guilty of murder. That question has now been adjudicated. But the question of whether he was guilty of robbery was not adjudicated in the first case, and under our statutes, could not have been determined. Murder and robbery cannot be joined together in one indictment. Ark.Stat.Ann. § 43--1010 (Repl.1964). In fact, there is no offense that can be jointly tried with murder, although that charge includes both first and second degree murder, and manslaughter. Since Turner could not legally be tried for the offense of robbery at the same time he was being tried for murder (and was not so tried), his acquittal on the murder charge certainly was not an adjudication of his guilt or innocence on the robbery charge. This question was likewise discussed in the Washington case of State v. Barton, supra, and also in the Idaho case of State v. Hall, supra. On the question of res judicata, the Washington court said:
'The...
To continue reading
Request your trial-
People v. Wilder
...states have reached the opposite conclusion. See, e. g., State v. Clayton, 109 Ariz. 587, 514 P.2d 720 (1973); Turner v. State, 248 Ark. 367, 452 S.W.2d 317 (1970), rev'd on other grounds sub nom. Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972); Slater v. State, 316 S......
-
Whalen v. State
...Ill.Supr., 62 Ill.2d 146, 340 N.E.2d 9 (1975), cert. denied, 426 U.S. 925, 96 S.Ct. 2635, 49 L.Ed.2d 379 (1976); Turner v. State, Ark.Supr., 248 Ark. 367, 452 S.W.2d 317 (1970), and 251 Ark. 499, 473 S.W.2d 904 (1971), rev'd, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972); State v. Hall......
-
Mason v. State
...S.W.2d 28 (1993). In March 1970, less than one month before Ashe was decided, this court handed down Turner v. State, 248 Ark. 367, 371, 452 S.W.2d 317 (1970)(plurality opinion) (Turner I), where we stated that "[t]here are no criminal cases in this state relative to the application of res ......
-
Newton v. State
...successive trials or multiple punishment for both are permissible. State v. Clayton, 109 Ariz. 587, 514 P.2d 720 (1973); Turner v. State, 248 Ark. 367, 452 S.W.2d 317 (1970), reversed on other grounds, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972); Slater v. State, 316 So.2d 539 (Fla.1......