delivered the opinion of the court.
On the 26th of August, 1871, George Steen and William Steen were fired upon, and instantly killed, as they were riding together on the public highway in Montgomery County. Two witnesses, who were approaching them from an opposite direction, and who were about a hundred and fifty yards distant, testified that there were two distinct reports of firearms, almost, but not quite, simultaneous, and that instantly afterwards the appellant, Madison Teat, and his brother-in-law, A. J. Scott, climbed over the fence from which the firing had come, and walked into the road towards the dead bodies, each with a double-barrelled gun in his hands; and as they passed by the bodies, Scott fired again into the prostrate form of George Steen, and then both of the murderers disappeared in the woods on the other side of thé road. They fled the country, but Teat was apprehended in the State of Missouri, brought back, and put upon his trial at the April Term, 1872, of the Circuit Court of Montgomery County. Two indictments had been found by the grand jury, in one of which Madison Teat and A. J. Scott were jointly charged with the murder of George Steen, and in the other they were jointly charged with the murder of William Steen. The indictment charging the murder of George was by the clerk of the court marked No. 3, and that charging the murder of William was marked No. 4. Teat was arraigned and put on trial upon indictment No. 3 for the murder of George, but, by some inexplicable accident during the progress of the cause, indictment No. 4 supplanted No. 3, and was by the jury taken out with them in their final deliberations, and upon this they brought in a verdict of guilty. The trial lasted for several days, and the record shows that, while the arraignment, and several of
Several grounds of demurrer were assigned, but they may be reduced to two: 1. That the plea does not allege that there had been any verdict of acquittal rendered upon indictment No. 3, upon which the accused had been theretofore arraigned; 2. That the plea is not responsive to all the counts in the new indictment.
It will be seen that the antagonistic positions held by the defendant and the State on the first ground of demurrer are these: The defendant contends that, having been duly ar
The view urged by the State is, that an accused person is never put in jeopardy until there has been a verdict returned for or against him, and that until there has been a verdict so returned he can never invoke the protection of the common-law maxim, Nemo debet bis puniri pro uno delicto, nor of the constitutional provision, that “ no person’s life or liberty shall be twice placed in jeopardy for the same offence.”
There are few questions in the criminal law upon which the authorities are more irreconcilably at conflict than the one presented by these antagonistic views. Without elaborating a question which has been so often and so exhaustively discussed, we feel no hesitation in announcing our concurrence in that line of decisions which hold that a party is placed in jeopardy whenever, upon a valid indictment, in a court of competent jurisdiction and before a legally constituted jury, his trial has been fairly entered upon; and that if thereafter the jury is illegally, improperly and unnecessarily discharged by the court, it operates as an acquittal, so that he can never thereafter be arraigned for the same offence. It was held in Price’s Case, 36 Miss. 531, that the court could discharge a jury who were unable to agree, and that such discharge would not operate as an acquittal; and some portions of the language used in that case would seem to inculcate the doctrine that nothing short of an actual verdict of acquittal or conviction would support a plea of former jeopardy. But in Josephine’s Case, 39 Miss. 613, it was expressly declared that the court could not discharge the jury, except where there existed some legal necessity for so doing, as where it was demonstrated that they could not agree, or the term was about to expire, or some other legal or physical impossibility to the rendition of a verdict existed. In the doctrine thus stated
But if an acquittal would ensue by operation of law from a discharge proceeding from tyranny, it must spring also from one proceeding from a mere whim or caprice; and if from the latter, then equally will it follow where the discharge of the jury has been caused by some blunder or accident with which the accused had no connection. In the case at bar the accused was in the hands of the court from the time of his arraignment, with no power to direct its action, save to demand a fair trial, according to the forms of law. One of the rights guaranteed to him was, that the jury before whom he was arraigned should true deliverance make upon the issue joined; and when he was deprived of this right by a blunder of the ministers of the law, for which he was in no manner responsible, he was shielded by the Constitution from a second jeopardy. Thus, in the recent case of Finch v. State, ante, 363, the jury, on an indictment for a felony, returned a verdict of guilty during the absence of the prisoner, who was in jail, and were thereupon discharged; we held that the verdict so returned was a nullity, but that the accused could never again be tried for the same offence, and therefore directed his release.
We desire to be understood as limiting ourselves to the case before us, and not as holding that every accidental discharge of the jury will operate as an acquittal. We certainly do not mean to say that this result would flow from the escape of one or more jurors, or from the dispersion of the entire jury, without the order or consent of the court. We will let each case stand upon its own facts, and content qurselves with declaring that under the circumstances of the case at bar the defendant
In the new indictment, however, under which the present conviction took place, there was a count for the murder of William Steen, and also one for the murder of William and George Steen. Did the legal acquittal of the murder of George Steen operate as an acquittal of the murder of William, or of the joint murder of both ? Counsel for the accused so contend, resting their argument substantially upon two grounds: first, that each murder, or the joint murder of both, was established, and could only be established, by the same proof in totidem verbis, by which the murder of George Steen alone had been attempted to be proved; secondly, that there had been but a single act on the part of the accused, for which he could be but once tried, regardless of how many violations of law might have been wrought by the act.
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 offence 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 gestee 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 offence charged in the second. Thus, if in the same rencounter I kill two men, with an interval of one minute or less between the two mortal strokes, the State may well prove the killing of the second man, as being a part of the res gestee, upon the trial for the murder of the first; and if I was first put on trial for the killing of the second, it would be absolutely necessary, perhaps, to prove the facts in relation to the killing of the first, so as to show the nature of the killing of the second. But whether first arraigned for either, it is evident that a verdict thereon will not bar a trial for the other, although the testimony on the second
While in many of the cases the identity of proof is stated to be conclusive of the validity of the plea, without noting the distinction here drawn, yet these were all cases where one crime was merged in the other, or where one act resulted in a double crime, as, for instance, where a party in burning a house was guilty also of the murder of its occupants, who were consumed in the flames. Of this character were the cases of State v. Cooper, 1 Green (N. J.), 361; State v. Shepard, 7 Conn. 54; Commonwealth v. Squire, 1 Met. 258; Hickey v. State, 23 Ind. 21.
It is believed that no well-considered case can be found where a putting in jeopardy for one act was held to bar a prosecution for another separate and distinct one, merely because they were so closely connected in point of time that it was impossible to separate the evidence relating to them.
The second ground urged in support of the idea, that an acquittal of the murder of George Steen operated as an acquittal also of the murder of William, as well as of the joint murder of both, is, that both murders were in fact but a single act, and therefore can be the subject of but one indictment or trial.
It is to be observed that while this view is urged by counsel in argument, it is not clearly contained in the plea, in which it is only averred that the killing of George “ was the same identical transaction as the killing of William, and that the evidence necessary to legally convict on the trial of the second indictment would have secured a conviction on the first trial.” It will be noted that there is a failure to allege that there was but a single act committed by the accused, which resulted in a double killing, as that there had been but a single shot fired, which had produced both deaths.
In Vermont it was held that, where by a single stroke of a knife two persons were wounded, a conviction for wounding one operated as a bar to a prosecution for the assault upon the other. State v. Damon, 2 Tyler (Vt.), 387. In analogy to this ruling seem to be State v. Fayetteville, 2 Murphy (N. C.), 371; Fisher v. Commonwealth, 1 Bush (Ky.), 211; State v. Cooper, 1 Green (N. J.), 361; Roberts v. State, 14 Ga. 8; State v. Benham, 7 Conn. 414.
In Virginia, on the contrary, it was determined that, where by a single discharge of a gun two persons were wounded, there might be two trials and two convictions. Vaughan v. Commonwealth, 2 Va. Cas. 273. In analogy with this decision seem to be the cases of State v. Standifer, 5 Porter (Ala.), 523 ; State v. Thurston, 2 M’Mullan (S. C.), 382; People v. Warren, 1 Parker Crim. Rep. 338 ; Commonwealth v. Andrews, 2 Mass. 408. Neither the pleading nor the proof in the case at bar renders a decision of this question necessary.
The plea does not aver the death of both from a single fire, and the evidence presumptively negatives it. There were two distinct and distinguishable discharges of fire-arms from the fence-corner, to say nothing of the subsequent shot fired by Scott into the prostrate body of George Steen. Now, all of these shots, in legal contemplation, were fired by Teat, even though in point of fact they may all have been fired by Scott, or rather the law holds them both responsible for both discharges.
If, as is most probable, Teat and Scott each fired from the fence-corner, then the act of each was the act of the other, and each is to be treated as having fired twice. It is thus seen that the action of the defendant was not limited to a single act, but that he is to be held as having discharged two separate guns, by which two men were slain.. Under such circumstances, there can be no sound reason for holding that an acquittal as to one operates as a bar to a trial for the other.
In the absence of any averment or evidence that in point of fact it was the shot from one gun that killed both men, we
We conclude that the technical acquittal of the murder of George Steen did not operate as an acquittal of the murder of William Steen, and that the second ground of demurrer to the plea of autrefois acquit, namely, that the plea did not extend to the whole indictment, was well taken, and the demurrer therefore properly sustained.
It is objected, however, that if the murder of George Steen and of William Steen were different offences, they cannot be joined in the same indictment, and that the judgment rendered thereon must therefore be arrested. This is erroneous. It is well settled that two offences of the same character, though committed at different times, may be joined in the same indictment. It is said to be bad practice, and the State upon motion may, in the discretion of the court, be compelled to elect upon which she will proceed; but if no motion to that effect is made, the judgment after verdict will not be arrested. In this case no such motion was made. 1 Chitty Crim. Law, 253 ; Young v. The King, 3 T. R. 98, 105; 2 East P. C. 515 ; Sarah v. State, 28 Miss. 267.
We perceive no error in the record. Wherefore the judgment is affirmed.