111 So. 423 | La. | 1927
The defendant was charged by information containing one count with breaking and entering in the nighttime and larceny under the provisions of Act
When burglary and larceny are charged in one count, the indictment or information is for burglary only. State v. Desselles,
There is a line of cases which hold that when a verdict rendered upon a valid indictment or information finds the accused guilty of an offense unknown to the law, or is so uncertain and imperfect in form and substance that no judgment can be given upon it, and it is therefore set aside, such verdict does not operate as an acquittal, and is no bar to a further prosecution under the same indictment, or for the same offense contained therein, and that when, in such case, judgment is arrested by this court, the accused will not be discharged, but will be remanded for another trial under the same indictment or information. State v. Johnson,
When an accused is charged with one offense and is found guilty of an offense not contained in the one charged, he is entitled on arrest of judgment to be discharged. The effect of arresting judgment in such case is to put an end to the prosecution for the offense set forth in the information or indictment. State v. Pratt, 10 La. Ann. 191; State v. Murdoch, 35 La. Ann. 729; State v. Day, 37 La. Ann. 785.
The case of State v. Robertson, 48 La. Ann. 1024, 20 So. 166, is exactly in point. There the defendant was indicted in one count for burglary and larceny. The trial judge stated, among other things, in this charge to the jury:
*1071"That they could find the three following verdicts, viz.: (1) Guilty as charged; (2) guilty of larceny; (3) not guilty."
Defendant excepted to the charge that under the indictment he could be convicted of larceny. The jury found him guilty of larceny. On appeal, this court held that the charge was erroneous; that the conviction of defendant for larceny was illegal. The court annulled the verdict and sentence and ordered the accused to be set at liberty and his bond canceled. The court recognized that the verdict operated as an acquittal of the crime charged in the indictment; otherwise, it would not have ordered defendant's discharge, but would have remanded him for a retrial for the offense set forth in the indictment.
This court has also held that, where an indictment for murder was not a valid indictment for manslaughter, in setting aside the invalid verdict for manslaughter solely on that ground, the verdict of guilty of manslaughter, although invalid as a conviction of manslaughter, was a valid acquittal of the crime of murder as charged in the indictment. See State v. Foster, 7 La. Ann. 255; State v. Freeman, 17 La. Ann. 69; State v. Morrison, 31 La. Ann. 211; and State v. Victor, 36 La. Ann. 978. In each of said cases the court ordered the defendant discharged, subject to prosecution on a valid indictment or information for manslaughter.
Appellant contends that defendant is estopped to set up the plea of autrefois acquit, because he applied for and obtained a new trial. In support of its contention, appellant cites Const. of 1921, art. 1, § 9, providing, in part, as follows, viz.:
"* * * Nor shall any person be twice put in jeopardy of life or liberty for the same offense, except on his own application for a *1072 new trial, or where there is a mistrial, or a motion in arrest of judgment is sustained."
The contention cannot be sustained. Inasmuch as we have concluded the finding of the jury in this case was, in legal effect, an acquittal of the defendant of the crime charged, it follows, as a necessary consequence, that the verdict fixed his substantial rights. His most substantial right, perhaps, is the one which, under the Constitution of the state, he became invested by his acquittal to plead as a defense that he cannot be put in jeopardy twice for the same crime.
The provisions of the Constitution limiting the plea of former jeopardy to those cases only where there has been no application for a new trial, no mistrial and no motion in arrest of judgment can have no application to a case of this kind. If there is a mistrial, the defendant's life or liberty may be put in jeopardy again for the crime charged in the indictment or information. If a verdict is set aside on a motion either for a new trial or in arrest of judgment, the defendant's life or liberty may be put in jeopardy again for the crime which he was illegally convicted of, but not for a crime which he was acquitted of by the verdict; otherwise, a defendant charged with murder and convicted of manslaughter could not file a motion for a new trial or in arrest of judgment without putting his life and liberty in jeopardy again for the crime of murder.
For the reasons assigned, the judgment appealed from is affirmed.
*1073LAND, BRUNOT, and THOMPSON, JJ., dissent.