Young v. State

• Decision Date: 29 November 1947
• Citation: 206 S.W.2d 805,185 Tenn. 596
• Parties: YOUNG et al. v. STATE.
• Court: Tennessee Supreme Court

206 S.W.2d 805

185 Tenn. 596

YOUNG et al. v. STATE.

Supreme Court of Tennessee.

November 29, 1947

Error to Circuit Court, Hamblen County; Shelburne Ferguson, Judge.

Henry B. Young and Lee Graham were convicted of housebreaking and larceny, and they bring error.

Judgment affirmed.

C. Frank Davis, of Morristown, for plaintiffs in error.

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

PREWITT Justice.

These two defendants were convicted of housebreaking and larceny with their maximum punishment fixed at five years in the penitentiary.

The defendants do not make any question as to the facts but contend that the trial judge erroneously overruled a plea of autrefois acquit.

It appears that at the October term, 1946, the defendants were indicted in the circuit court of Hamblen County by an indictment charging them with housebreaking and larceny. The building claimed to have been broken into was set out in the indictment as the business house of Leon Clifton, and the property claimed to have been taken was alleged to be that of the said Leon Clifton.

At the trial it developed that there was a variance between the proof and the indictment with reference to the ownership of the building, as well as that of the personal property, and a verdict of not guilty was returned.

At the same term of court, and on the following day, another indictment was returned against the defendants containing two counts and charging them with breaking into the storehouse of Clifton's, Inc., a corporation. The State concedes that the building broken into and the property alleged to have been taken were the same in each of the indictments. The trial judge overruled the plea.

In Hite v. State, 17 Tenn. 357, the Court laid down the rule that to entitle a prisoner to the benefit of the plea it is necessary that the crime charged be precisely the same in each indictment, and said at page 378 of 17 Tenn.:

'* * * But, if the variances are in those things which are material, autrefois acquit cannot be pleaded in bar--either the first indictment was ineffectual, and therefore the acquittal of no avail, or the record will prove not applicable to the evidence, and therefore the objection is needless; * * *.'

Thus, if there be a material variance between the averments, the two prosecutions are separate as a matter of law.

In 22 C.J.S., Criminal Law, § 268, the author states in substance that if the accused be acquitted upon the ground of material variance he cannot plead the acquittal as a bar, for he has never been in jeopardy, and when tried on a new indictment the crime alleged is not the same crime as in the former indictment.

In the present case the first indictment placed ownership in an individual, and the second indictment placed ownership in a corporation in which the individual is a stockholder.

In Parker v. Bethel Hotel Co., 96 Tenn. 252, 34 S.W 209, 31 L.R.A. 706, it was held that a corporation and its stockholders are separate and distinct entities, and that a stockholder of a...