Johns v. State

95 So. 84 | Miss. | 1922

Sykes, P. J.,

delivered the opinion of the court.

The appellant was indicted, tried, and convicted of robbery, and sentenced to serve a term of five years in the penitentiary.

There were two indictments returned against this appellant for robbery, one for robbing Tate Gabbert, and the second for robbing Thomas Johnson. He was first tried and acquitted of the crime of robbing Tate Gabbert, and the following week was tried and convicted of robbing Thomas Johnson. This appeal is from the Johnson conviction. To the indictment in this case the defendant filed a plea of autrefois acquit. A demurrer was sustained to this plea.

The testimony in both cases is substantially the same. The entire details of the transaction were gone into in both trials. Briefly stated this testimony was to the effect that several men were gambling at the home of. Tate G-abbert along about eleven o’clock at night, when three men came in with their pistols pointed and ordered the gamblers to throw up their hands and turn their faces to the wall. This gentle request was complied with, and the robbers then bound the hands and feet of their victims, and proceeded to rifle the pockets of G-abbert and Johnson, getting several hundred dollars from each. They also took some money that was on the table. Two or more of the robbed men testified that they recognized this defendant during the robbery; that in some way his mask slipped from his nose, and allowed them to see his face. There is some testimony to the effect that defendant had attempted to disguise his face by putting a yellow substance on it. There is testimony that the appellant and another man were seen and recognized on the public highway in a Studebaker car. It is, however, unnecessary to set out in full the testimony as to the identity of the defendant.

The defense was an alibi. The defendant was a resident of the city of Memphis. Several people testified to the fact that the night the robbery took place there was a birthday party at the home of Mr. and Mrs. Shipp, and that among those who attended this party was the defendant; that he came there in a Studebaker car along about ten o’clock, and remained there until twelve or after. At least five witnesses, three men and two women, testified to these facts.

It is first argued by counsel for the appellant that the robbery of these two men was but one offense; that identically all of the testimony introduced in this case was introduced in the first trial; that it is all a part of the res gestae} and that the acquittal in the first trial necessarily was an acquittal of the robbery of each and all of these men. There are cases cited by counsel for the appellant, principally larceny cases, which hold that in those cases this plea would be Avell taken. Other states have adopted a different rule in larceny cases. Some authorities make a distinction between cases of larceny and of robbery. In this state the rule is that, where two or more persons are robbed at the same time, in one transaction, each robbery constituted a separate and distinct offense, and that a prosecution in one case will not bar a subsequent prosecution in the other. This rule is thus laid down in 16 C. J., p. 285:

“Where accused robbed two persons by pointing a pistol at each, a prosecution for one of such robberies does not prevent a subsequent prosecution for the other.”

8 R. C. L., par. 139, p. 151, states this rule as follows: “A putting in jeopardy for one act is no bar to a prosecution for a separate and distinct act, merely because they are so closely connected in point of time that it is impossible to separate the evidence relating to them on the trial for the one of them first had. Consequently a plea of former jeopardy will not be sustained where it appears that in one transaction two distinct crimes were committed. Based on this rule it has been held that, if the killing of two persons is by distinct and separate acts, though done the same time and as part of the same transaction, an acquittal for the killing of one is not a bar to a prosecution of the same person for the killing of the other; and where several persons are robbed at the same time the offender may be indicted and convicted for the robbery of each person as a distinct offense.”

In 1 McClain on Criminal Law, par. 477, p. 459, it is stated: “It has been said that taking at the same time the several property of different persons who are put in fear by the same act may be charged as one crime or robbery. But other cases hold, and apparently with better reason, that where the assault is upon several different persons there will be distinct offenses of robbery committed as to each of them although the transaction is continuous.”

See, also, 1 Wharton on Criminal Law (11th Ed.), par. 393, p. 509.

In this state one of the leading cases dealing with this question is that of Teat v. State, 53 Miss. 439, 24 Am. Rep. 708. In that case Teat was indicted for the murder of two men in the same transaction. He was tried and acquitted of the murder of one, and this question arose in the second trial. Among other things in that opinion it is said:

“It has been frequently said that one of the tests by which the conclusiveness of a plea of former jeopardy is to be tried is the question, whether the testimony by which it is proposed to establish the new offense is the same in every respect as that which was necessarily • used in proving the first, and that where this question is answered in the affirmative it demonstrates the correctness of the plea. Without impugning the soundness of the rule, it is manifest that it will not apply in a case where all the testimony, though admissible as a part of the res gestae in the first trial, was not absolutely essential therein; and it is this very testimony (unessential though admissible in the first trial) which goes to prove the offense charged in the second.”

In this case, though.the testimony of the robbery of each of these men was admissible in both trials, yet it wras not essential in the instant case to prove the robbery of Tate Gabbert. The court was correct in sustaining the. demurrer to this plea.

While there is sufficient testimony to sustain a conviction in this case, it is a very close case on the facts. Without further reciting the testimony it is sufficient to say that the week before the trial of this case a jury of this county, upon the same testimony, acquitted this defendant of robbing Tate Gabbert. The alibi witnesses of the defendant are not impeached, while there was some question about whether or not the state’s witnesses recognized this defendant the night of the robbery. Some of the testimony indicates that a part of the victims were inclined to believe they were robbed by negroes, while others thought some of them were white men. One of the men also testified that this defendant was not one of the robbers. This question, however, was purely one of fact, to be decided by the jury. Being, however, such a close case upon the facts, it was very necessary that the court commit no error in the introduction and rejection of testimony.

The sheriff of this county was very active in attempting to arrest these robbers, for which he should be commended. He traced a car from near the house of the robbery some distance toward Memphis. There was some difference in the tires, which enabled him to follow the car. The defendant owned a Studebaker car, which was introduced at the trial. Over the objection of the defendant the sheriff testified that he had seen the car that made the tracks that he followed; that he had taken possession of this car, and had it for the inspection of the jury. The jury then were allowed to inspect the car of defendant, and the sheriff testified positively that that was the car that made the tracks the night of the robbery. This testimony was incompetent and inadmissible. The witness should have described in detail the tracks. He should not have been permitted to testify that the car of the defendant was the one that made these tracks. It was for the witness to describe in detail the tracks, and for the jury to conclude whether or not the defendant’s car was the one that made the tracks the night of thé robbery. Cumberland v. State, 110 Miss. 521, 70 So. 695; Herring v. State, 122 Miss. 647, 84 So. 699; Pearson v. State, 97 Miss. 841, 53 So. 689.

Inasmuch as the judgment of the lower court must be reversed, and the cause remanded, for this error, it will be unnecessary to consider any of the other assignments of error.

Reversed and remanded.