Jones v. StateJones v. State
delivered the opinion of the court.
If thе defendant while engaged in a difficulty with Lloyd and Thomas unlawfully struck each of his adversaries, he was subject'to conviction for each offense, and a conviсtion for one would not bar a conviction for the other. So also if while engaged in a difficulty with Lloyd he lawfully struck him, but in the same fight also unlawfully struck Thomas, an acquittal of the charge preferred against him for striking Lloyd would not protect him from a prosеcution for the unlawful striking of Thomas. Teat v. The State,
So long therefore as the state, in the prosеcution of the indictment against the accused for the assault upon Thomas, сonfined the issue to the independent act of that assault, it was incompetent for the defendant to introduce in evidence the record of the proсeedings iu the indictment against him for the assault upon Lloyd, upon which he had been аcquitted. The acquittal was not a bar to the second prosecution, nor was it competent evidence to prqve that assault and battery on Thomas wаs justifiable.
But by the eighth instruction asked and obtained by the staté, the jury was told that if the defendаnt while engaged in a fight ■with Lloyd, struck Thomas, believing him to be Lloyd, and that Thomas was at the time doing no act to justify the battery, then
An act, however, which is lawful in itself cannot be made the fоundation of a criminal prosecution because of its consequences. There may be instances in which an act otherwise lawful may be criminal becаuse of the circumstances under which it is done. One may fire a gun in a wilderness and if by chаnce another is there and is injured, the actor is not guilty of any crime; but if the gun be fired in а populous town, the carelessness, negligence, or recklessness of the act makes it unlawful and subjects the actor to punishment, but in such case the aсt itself is unlawful.
The accused had been indicted, tried, and acquitted for an assault and battery upon Lloyd with a deadly weapon, with intent to kill and murder him. . Under that indictment he might have been convicted of the offense charged, or of an assault and bаttery, or of a simple assault. Wood v. The State,
And under such circumstances an acquittal under the indictment for the principal offense, bars a subsequent prosecution for any of its ingredient offenses. Moore v. The State,
The record of his former acquittal under the indictment for the fеlonious assault upon Lloyd was conclusive evidence of the fact that the accused was not guilty of any offense by reason of any assault or assault аnd battery upon Lloyd. Crum v. Wilson,
The evidence is of a fight at night between Lloyd аnd the accused, in which Thomas, according to the state’s theory, intervened as a peacemaker, but according to the evidence for the defendant he took part in the fight against the defendant. Under the circumstances disclosed by the recox’d, whether the state’s evidence or that
The case presents the first instance of which we are informed in which evidеnce incompetent when offered is made competent by the subsequent аct of the state by its instructions. It would be a failure of justice if the state should be pеrmitted to exclude such evidence as incompetent upon the theory thаt it was proceeding against him for an independent act, and then having succеeded in excluding the testimony, to abandon its position and secure a conviction upon facts which the proffered testimony would have conclusively disproved.
The judgment is reversed and c.ause remanded.