20 Fla. 869 | Fla. | 1884
delivered the opinion of the court.
In October, A. D. 1883, George J. Boswell was indicted for an assault with a deadly weapon, with intent to murder one Jacob C. Clements. On the 11th day of March, 1884, the defendant filed plea in bar. This plea in bar alleges that on the 28th day of September, A. D. 1883, he, defendant, was arrested on a warrant issued by one J. W. Fleming, a Justice of the Peace for the county of Hernando ; that such warrant -was based upon an affidavit made by one W. H. Havrou, charging the defendant with the commission of an assault and battery upon Jacob C. Clements, on the 23d day of Sept., 1883; that the defendant was arrested
To this plea the State Attorney demurred as follows :
1. Said plea sets up no sufficient defence in bar of said prosecution.
2. Said plea does not show that the alleged conviction of the defendant was had before a court having jurisdiction of the cause herein charged against the defendant.
8. Said plea does not show that the defendant was convicted of the crime of assault with intent to murder.
The court sustained the demurrer and the counsel for the defendant duly excepted to such judgment of the court.
The case was tried and the jury found the prisoner guilty of an aggravated assault and recommended him to mercy. . .
Counsel for defendant then moved for a new trial upon the following grounds:
1. The court erred in sustaining the State’s demurrer to the defendant’s plea autrefois convict
2. In overruling and setting aside the defendant’s plea of autrefois convict.
4. The verdict is contrary to law.
5. The verdict is contrary to the evidence.
This motion for a new trial was overruled and an exception taken.
The defendant was then sentenced by the court to pay-a fine of fifty dollars and costs.
The defendant brings the case here on writ of error.
The principal question arising in this case is one of importance. Does the conviction of a defendant upon a plea of guilty of assault and battery in a court held by a Justice of the Peace bar the conviction of the same defendant of an aggravated assault.
By our laws Justices of the Peace have power to try cases of assault or assault and battery, not charged to have been committed riotously, or upon any public officer in the execution of his duty, or with intent to commit any other offence. And of all other offences punishable by fine not exceeding one hundred dollars, or punishable by imprisonment in the county jail not exceeding three months, or punishable by both fine and imprisonment. McC. Dig., 662.
An assault with a deadly weapon, with a premeditated design to effect the death of the person so assaulted, is made a felony, and is punishable by imprisonment in the State penitentiary not less than two years and not more than seven, or by fine of not less than five hundred dollars McC. Dig., 354, §29.
It is also provided that “ whoever assaults another with a deadly weapon, not having a premeditated design to effect the death of the person assaulted, shall be deemed guilty of an aggravated assault, and upon conviction shall be pun
The law gives to Justices of the Peace no authority or power to try parties charged either with the crime of an assault with a deadly weapon with a premeditated design to effect death, or with what is above denominated an aggravated assault. A legal acquittal or conviction in any court of competent jurisdiction is sufficient inlaw to preclude any subsequent proceedings for the same offence in any other court. The court must have been a court having jurisdiction.
Had this defendant been again arrested in a court held by a Justice of the Peace for an assault and battery, his plea of autrefois convict would have been good, and would have barred such second attempt to try him on that charge. The Circuit Court alone has jurisdiction of the crime charged in the indictment and of the crime of which he is found guilty. The crimes charged are distinct and different in their nature, and while the courts of Justices of the Peace have sole jurisdiction of assault and battery, the Circuit Courts have sole jurisdiction in assault with intent to murder and aggravated assaults. In cases of concurrent jurisdiction in different tribunals, the one first exercising jurisdiction acquires control to the exclusion of the other. Counsel for the defendant cites Ex parte Lange, 18 Wall., 163. Justice Miller, in the opinion in that case, says: “ If there is anything settled in the jurisprudence of England and America it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there
The rule is well settled that the former acquittal or conviction must have been for the same identical act and crime. Burns & Cary vs. The People, 1 Park., C. R., 182; 1 Black Com., 336.
In the case of Prine and Smith vs. The State, 51 Texas Rep., the facts were as follows: The defendants were ar
In the case of Bob. White vs. The State, 9 Texas Ct. Ap., 890, the facts were, that the defendant was tried and convicted for an aggravated assault. To the information he interp. sed á special plea of former acquittal before a Justice of the Peace on a charge of assault and battery. The court of appeals in reviewing the case, say: “ The defendant having been tried and acquitted upon a complaint before a Justice of the Peace, and the justice not having jurisdiction of the offence here charged in this information, the defendant can plead it only to prevent a conviction of a simple assault, or assault and battery. While it would have been proper for the court to have submitted the special plea to the jury with the plea of not guilty, so that it would have been a bar to a conviction of simple assault and battery, yet, as the jury found the defendant guilty of an aggravated assault and battery, that being an offence of which the justice had no jurisdiction, and the defendant
In the State vs. Foster, 33 Iowa Rep., 525, the facts were that the defendant was indicted for an assault with intent to inflict a great bodily injury. He pleaded a former conviction before a Justice of the Peace, on a charge of assault and battery, alleging that the same act is the’foundation of both charges. A demurrer to the plea was overruled. “The Supreme "Court of Iowa in reviewing the case, says: The demurrer could only have been overruled by the district court upon the view that the offences charged are, in each case, identical, or the one for which defendant was convicted before the justice includes the one charged in the indictment. But neither proposition can be admitted. * * * Admitting that the offence of assault and battery, and assault with intent to commit a great bodily injury, are degrees oí the same offence, it must be conceded that the first named is of lower degree and does not include the offence of the higher degree. To this proposition there can be no objection. While an assault with an intent to commit a great bodily injury may include an assault and battery, it is clear, that the - assault and battery cannot include the higher assault; the less cannot include the greater. A conviction or acquittal, in order to be a bar 'to another prosecution must be for the same offence, or for an offence of a higher degree, and necessarily including the offence for which'the accused stands indicted. It follows that a conviction or acquittal for a minor offence is no bar to a prosecution for a greater offence except in the case of acquittal for manslaughter, which would bar an indictment
In .the case before us the defendant is indicted and tried for an offence of which the Justice of the Peace had no jurisdiction; the Circuit Court in which he was tried had no original jurisdiction of the offence for which he was tried in the- Justice’s court. If the jury in the Circuit Court had found the defendant, only guilty of an assault and battery, a minor offence for which he had been tried and convicted in the Justice’s court, then the plea autrefois convict would have been a bar to a conviction in the Circuit Court, provided the same had been submitted to the jury with the plea of not guilty. But they found him guilty of another and higher offence, and his special plea could not have availed him had it been so left to the jury.
The demurrer, we think, was properly sustained.
The other assignments of error are as follows :
“ In instructing the jury that they could not convict the defendant of assault and battery or of'a bare assault under the indictment.” “ The verdict is contrary to law and the evidence.” The charge given by the Judge to the jury nowhere appears in the bill of exceptions. We are, therefore, not informed whether he so charged the jury or not. The presumption is, in the absence of such charge, that it was correct, and that the law was properly given to the jury. The only reference to the charge in the record is as follows: “And the said Judge, under his charge and instructions, submitted the issue and the evidence to the jury.”
The judgment is affirmed.