*1 IN THE SUPREME COURT.' State r. Nash. S.R. NASH. STATE Assav.lt severalis an assault each—Former upon upon Acquittal. An upon 1. indiscriminate several is
each individual. 2. plea acquittal, of former sufficient that transaction, grow should out of the same (¡Fence, be for must both in law and in fact —an exact and complete identity charged. two offences (Mr. Ashe, dissenting.)
(State Phil., Bat., 98; Merritt, 134, & Dev. State v. Ib., 120; Revels, Birmingham, Busb., 200; Fayetteville, State v. , 371, cited, distinguished approved 1. Mur State v. Lind And say, Phil., Fayetteville eases, 468, Merritt's cited and com opinion.) on Mr. dissenting mented Justice Ashe in the Term,
INDICTMENTfor assault and at Fall tried Court, Graves, before J. Superior Richmond defendant The was indicted assault and battery committed upon one Nathan his defence Reyuolds, relied returned acquittal. “ verdict as That was in- follows: defendant special at dicted term of this court for an assault present Atlas that trial the state showed in evi- Spivey, that December, 1879, 23rd the said Atlas day Reynolds, Nathan and some Spivey more eighteen per- sons, horns, went to bells, the defendant’s house with guns, and tin house, and marched around pans, and when about leave fired off the guns; crowd, fired a at thereupon them and direction gun twice, succession, and one shot struck the rapid said and that such trial defendant was ac- Spivey; further, the evidence quitted jury; defendant, to the same acts of the that the Nathan was stricken shot Reynolds TERM, ». Nash. *2 facts If these aforesaid. in law fired as the defendant’s gun in the find favor amount to a former then acquittal, to a former if in not amount defendant; but law do they find not formerly then that he was acquitted.” acquittal, they Honor, defendant, rendered His being the state ap- and the solicitor for accordingly, judgment pealed. General,for the State.
Attorney Walker,
Messrs.Burwell & for defendant. it is J. not acquittal, Ruffin, that should out of sufficient the two grow for offence; must be the same transaction; same, bothin and in laiv. note to 1st Bennett and See fact Cases, Heard’s Crim. Leading Vandercomb,516,
In the case of there re Rex v. principal by Mr. to, ferred and which was as stated argued, held, it before all that judges England, Buller, such, unless the first indictment were as that the defendant been convicted it the facts con by proof have might then, second, tained former can to latter. be no bar Bat., 98, this.court, & it Dev. discussing that two offences have several circumstances very point, may some circum common, and to constitute either yet other and it is the on the record allegation stance is added circumstance, each, of this additional peculiar crimes; and therefore it is constitutes them distinct not on an indictment sufficient to make a always judgment other, that a bar to an indictment for the the same evi and material to both. The true competent Could the test is as stated Rex : v. Vandercomb first indictment been upon proof convicted upon @52 «. Nash. facts, as but, forward in al- evidence, as brought
leged in the record the second.
Upon was, that Bench principle court of King’s held in Rex v. 3 B. and C., 502, Taylor, it appeared manifest court, indictments, inspection defend-, the offences could same, not be the ant could not averment show them to same, be the be- cause that would be to contradict the record.
Now to apply this principle ease The first : indictment was for an assault on one could the de- Spivey; fendant have been thereof possibly convicted upon proof the averments contained in wit, the record of the second, to *3 of an assault upon the ? prosecutor Reynolds
A is violence to another, done person there be but a though committed, act of violence single yet if its affect two or more there must consequences persons, be a number of corresponding distinct offences perpetrated. it has been held that an on a Accordingly acquittal charge- A, to no bar to an attempting poison was indictment B, poison the same occasion and attempting although by the same act of case, because in such it was preparation^, said, there were Warren, two distinct offences. 1 People C., Parker C. 388. it like manner was held in State v. Porter, 523, 5 one commit an assault Standifer, one by stroke conviction an acquittal one, the assault was no bar to a alleging for the the other. And subsequent prosecution still more to the was the of our own court in purpose ruling Merritt, Phil., 134, effect, State v. to the that an indiscrimi nate assault upon was an several each' one of them. every
It is true that a decision to the contrary this was ren- Damon, rendered the court of Vermont State v. Ty- ler, 390; but it is a note Arehbold’s Criminal Pr. PL, 112., to be re- authority TERM, v. Nash. to reason, Bennett pugnant Heard, 584, not law. clearly
The decision in State v. ap has been twice supra, (State proved Busb., Birmingham, Revels, , Ib and the 200,) principle upon pro ceeded asserted in clearly writers many elementary on criminal law, ; 2 (1 Chitty, East., P. C., 457 519 1; Whar ton, 505,) as it seems to us is easily distinguished the State Town Fayetteville, Mur, 371, the con duct of was complained one of mere and the omit neglect, ted duty one, streets keeping entire repair not susceptible of division into so that each be parts, may come the of a subject prosecution.
How can it be certainly known what motive induced the verdict the former trial? For aught seen, can in that case disbe wholly stricken, as to being lieved evidence or even Spivey’s as. his being fired If company so, then upon. the verdict should not clearly stand in the of a way pros for the ecution battery upon who was and who It actually injured. true the last verdict establishes .is (he fact both of his him, presence done injury in the case which are we to supposed, former or adopt—the latter ? No such finding can arise in difficulty the case of two act, same identical for then the *4 verdict will first conclude as to' the truth of matter every it, and will to it necessary draw intend every ment as well law as fact—a that cannot be done thing of two in favor contradictory verdicts.
The safe rule is to stand only the decisions of our courts, to hold that the plea cannot avail, unless there should be an exact and iden- complete in the two offences tity charged. conclusion therefore is
Our relied on was to the not a bar pending prosecution against mt, defend jSTash. and the state was entitled the special ver- judgment upon dict. reversed, this be
The below will judgment certified.
Ashe, J., After a careful consideration dissenting. case, find unable to concur with the myself I majority in the views my the court expressed RuffiN. brother indictment charges defendant with
The de- having peace by public stroyed assaulting beating its citizens. qúestion a between the is not assailant and the
It injured far as are concerned, so; personally party injuries aby redressed civil action. But it is a bemay be- question citizen, and when the crime tween government in the indictment the defendant against which was another, assault committed on at the and with time and place, same instrument and blow, the same stroke transaction is one and not di- state, is one against visible. It and the state the one crime and it in its prosecute cannot split parts the defendant has when been tried and therefore acquitted competent jurisdiction the assault and bat- one, it in bar of tery the other. battery upon on this decisions I find to subject be contradictory, think the I authorities con- support my position am sustained in I clusion. the following : Phil., Lindsay, the State court held that was indicted for an assault and battery, and it .in a former found him others, him charged against was given in evi- with other acts of like character, his conviction of the to the second a bar prosecution. riot *5 TERM, 1882.- 655 v. Nash. State, Tex., 76, 45 it was decided that v. Wilson of different articles differ stealing property belonging ent at the same time but one place, offence state, cannot and that the accused be convicted indictments, defendant upon separate charging parts A of one transaction as a distinct offence. conviction on one the indictments bars a other. State, Tex., 3 (Court the same effect Addison v. ; State, Tex., 151; Hudson v. State, 40 9 Jackson
App.,)
(Ib.)
327;
Williams,
Ind.,
101 Lorton
Humph.,
State, Miss., 55.
In State v. Egglisht, defendant had delivered at-the same time and the same act teller checks, of a bank four to have been forged purported drawn four different it was held that this consti parties, tuted but one checks, and uttering forged couviction of the checks was a bar uttering.one to a conviction for the others. In Indiana it uttering has been decided where the same act results death two more, or the person the act is convicted committing on a trial acquitted the murder of for. one, he cannot be indicted other, for the murder of the when the evidence offered on the last trial is the same and in no from that wise different on the trial of the employed indictment,.and the crimes in the two indictments in all their are identical parts, incidents circumstances. Ind., State, 42 Clemv.
The case more is that of directly point the State v. Damon, 2 Tyler 390. The defendant was (Vermont), there indicted assault and battery one Miller and ” “ former conviction an indictment for an as- sault and batter-yon -Doty/allegingthat wounding of each was the same stroke and at the same time. The its “It opinion: appears wounded at affray, same time *6 i>. Nash. made, regular and with same stroke. On a complaint he has been convicted before a of competent jurisdic- court Miller, tion for and Frederick assaulting, beating wounding assault- those stands here indicted for persons. He and other of those beating, Elias ing, Doty, wounding and the the former con- in bar defendant pleads viction The only which' he to be offence. for the same alleges is, con- already whether the defendant has been question victed of the in the indictment. Of doubt, record, there can be no for it is apparent indictment, in that of the assault battery charged were at he was convicted by Mr. Justice Randall, made the same the same wounds piace affray, This is the same instrument and the same stroke. by by not a between either of the by persons injured question redress has assailants; their obtained But it is a be them actions. by by private between the and its government question subject, be court are indictment cannot clearly opinion sustained.” said, it is
But of the of the majority is that that case so declared by and has been authority, Oases; Bennett Heard in their notes to their Leading and that it is also of Archbold PL the annotator by and Pr. It is the authority. against supreme that of the commentators three court of Vermont. So far of the as the weight authority concerned, I stand prefer court. authority
The case of Rex as for the cited Vandercomb that unless the could been con- position, facts, indictment, the first victed of the upon proof evidence, not as forward but as brought alleged indictment, con- record second of former could not ? In many avail him. Can that be law viction ascertain, would be cases evi- impossible except TERM, ». Nash. dence, whether the offences are same, where there are different indictments for offences that are of the same char- A, acter and grade. instance, is Suppose indicted jointly B, C, for an assault on and both are convicted, and af- terwards A is indicted for the assault, the record would not fact; show that and unless he were permitted show the fact he would be twice proof, convicted for the same offence. The evidence must admitted, necessarily such, according to my has been the *7 experience, prac- tice this state. which is principle enunciated in Damon, I think is sustained the case of the State v. Town Fay
etteville,
I am error in the judg- court. ment superior Error.
Per Curiam.