Usary v. State

• Decision Date: 18 January 1938
• Parties: USARY v. STATE.
• Court: Tennessee Supreme Court

112 S.W.2d 7

172 Tenn. 305

USARY v. STATE.

Supreme Court of Tennessee.

January 18, 1938

Error to Circuit Court, Sullivan County; Shelbourne Ferguson Judge.

C. A Usary was convicted of driving carelessly and heedlessly and in wanton disregard of the rights of others, and he brings error.

Affirmed.

John R Todd, Jr., of Kingsport, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

CHAMBLISS Justice.

Plaintiff in error was indicted under two counts, the first charging driving while drunk, and the second driving "carelessly and heedlessly and in wanton disregard of the rights and safety of others." At the May term, 1936, he was tried and the jury reported not guilty upon the first count of the indictment, but that they could not agree as to the second count. The court thereupon accepted the verdict as to the first count, driving while drunk, and sent the jury back with instructions to consider further the second count only. The record shows that the next day the court entered a mistrial, the jury not having been able to reach an agreement, and the case was continued for trial upon the second count to the next term. At the September term following, plaintiff in error filed a plea of autrefois acquit, alleging, in substance, the facts above stated, and further averring that thereupon counsel representing the defendant moved the court "that by reason of the jury returning a verdict of not guilty on the first count of the indictment which was accepted by the court, that the defendant be now and forever discharged and released from this indictment. Which motion was overruled by the court. Therefore the defendant C. A. Usary, pleads former jeopardy and acquittal on the indictment in this case, and prays the judgment of the court thereon and prays to go hence without day."

This plea was overruled by the court and at the following May term plaintiff in error was put upon trial on the second count and convicted thereon and his punishment fixed at a fine of $50 and ten days' confinement in the county jail, from which judgment he has appealed.

While an assignment in this court raises the question of the preponderance of the evidence, we do not think any detailed discussion of this assignment is called for. There is positive testimony by several witnesses, officers and others, that there had been a wreck on the highway between Kingsport and Bristol on a certain night and that plaintiff in error drove his car at high speed and in a generally reckless manner upon and into the midst of the scene, where a number of cars were parked and several had been wrecked, and ran violently into and against one or more of them. While the defendant took the stand and undertook to dispute this testimony and deny the charge, and introduced one or two witnesses in his behalf, it cannot be seriously contended that there is a preponderance of evidence against the verdict.

The question most earnestly argued arises on the plea in abatement, to which reference has been made. This plea is based upon the contention that the action of the trial court in receiving the verdict of not guilty upon the first count of the indictment amounted in law to an acquittal upon the second count, the question presented being whether or not a trial judge may receive a verdict upon one or more counts of an indictment, where the trial jury is unable to reach an agreement upon all counts, without discharging the accused as having been once put in jeopardy as to the second count.

It is conceded by counsel for the accused and for the State that the precise question has not been directly passed upon in this State in any reported case. However, as stated in the brief of the Attorney General, the rule is well settled in Tennessee that each count is, in legal contemplation, a separate indictment and must contain all the averments necessary to constitute the offense sought to be charged in such count. For the rule that each count must be a complete indictment in itself, see Rice v. State, 50 Tenn. 215, 221, 3 Heisk. 215, 221. And that each is regarded as charging a distinct offense, see Campbell v. State, 17 Tenn. 333, 9 Yerg. 333, 30 Am.Dec. 417; Esmon v. State, 31 Tenn. 14, 1 Swan. 14; Boyd v. State, 47 Tenn. 69, 7 Cold. 69; State v. Lea, 41 Tenn. 175, 1 Cold. 175. In the Esmon Case, supra, it was said, "Each count of an indictment is regarded as containing the charge of a distinct and substantive offence. And if, on one trial, the defendant be acquitted of the charge in either count, he cannot be again put in jeopardy upon that charge," etc. In this case and in Boyd v. State, supra, where like language is used, the court limited the plea of jeopardy to those counts on which a verdict had been reached, thus, by clear implication indicating that the plea would not apply to a count as to which no verdict had been reached.

Certainly, if plaintiff in error had been separately indicted for the two offenses it could not be successfully insisted that an acquittal upon one of these charges would operate to discharge him under his plea of former jeopardy; and, since separate counts of an indictment are in legal contemplation each separate indictments, we are unable to see how the failure of the jury to agree as to both counts of one indictment would so operate.

Under the facts here appearing the defendant got the full benefit of the verdict of the jury on the count as to which an agreement was reached. We cannot conceive how he has been in any wise prejudiced, or in any sense put twice in jeopardy other or further than in any case in which an accused is subjected to a second trial following a mistrial resulting from failure of the jury to agree on a verdict on the first trial. It is, of course, well settled that the plea of former jeopardy is not available in such case.

The learned Attorney General has so well expressed what we conceive to be correct views of this question, that we quote at length from his brief, including the authorities cited:

"The power of the trial jury in the present case to have acquitted upon the first count, and to have convicted upon the second count is unquestioned, and could not be questioned under our authorities. Now then, does the right of the jury to reach a verdict upon one of two counts necessarily depend upon their right to reach an agreement upon the other count? If the jury be in accord upon one count, should they not have the right to return a verdict upon such count, irrespective of their inability to reach such agreement upon the remaining count?

"But the State is not without ample authority in other jurisdictions as to the right of the trial jury to return a verdict upon certain counts of indictments containing more than one count, while unable to reach agreements upon the remaining counts. In State v. Klauer, 70 Kan. 384, 78 P. 802; in State v. Weiss, 84 Kan. 165, 113 P. 388, 36 L.R.A.,N.S., 73; in State v. McGee, 55 S.C. 247, 33 S.E. 353, 74 Am.St.Rep. 741; in Dolan v. U.S., 8 Cir., 133 F. 440, 69 C.C.A. 274; in Linden v. U.S., 3 Cir., 2 F.2d 817, and finally in Selvester v. U. S., 170 U.S. 262, 18 S.Ct. 580, 581, 42 L.Ed. 1029, the power of the trial judge to receive a verdict of the jury upon certain counts of the indictments, where the jury was unable to agree upon the issues contained in the other counts, was expressly upheld. It is true that in virtually all of these cases the verdict reached upon the counts upon which agreement was had was a verdict of conviction, rather than one of acquittal, but when we concede to the jury the right to return a verdict on certain counts, while disagreeing as to certain others, we of necessity must concede to that body the right to return a verdict in favor of either party to the litigation.

"There is an interesting and

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