Opinion
No. 28821.
November 10, 1930.
1. CRIMINAL LAW. That district attorney, at close of evidence, entered nol. pros. did not prevent subsequent prosecution under another indictment ( Constitution 1890, section 22).
Constitution 1890, section 22, provides that there must be an actual acquittal or conviction on the merits to bar another prosecution.
2. CRIMINAL LAW.
Instruction, if jury believed defendant sold liquor "as testified to by state's witness," to find defendant guilty, held not prejudicial.
3. CRIMINAL LAW.
In liquor prosecution, instruction that "case like this is easy fabricated and difficult to defend," and if jury had reasonable doubt they should acquit, held properly refused (Hemingway's Code 1927, section 591).
APPEAL from circuit court of Jones county, Second district. HON.W.J. PACK, Judge.
Collins Collins, of Laurel, for appellant.
The court below erred in refusing to sustain the special plea of former jeopardy and discharge the defendant in case No. 152. Appellant is aware of the fact that ordinarily a nol pros of a case cannot be plead successfully as a defense. But in cases of the kind before the court where the jury has been empanelled, and where the court has exhausted its resource with reference to its testimony and has undertaken to put in every sale and any sale for two years previous as alleged in the indictment, and fails to make its case it cannot be said that the defendant has not been put in jeopardy in that case. That same effect is produced as is produced when the court gives a peremptory instruction. The same effect is produced as would be produced if the case on the testimony was permitted to the jury and the jury would go out and formally acquit the defendant as it would have to do.
The court erred in granting the following instruction to the state:
The court instructs the jury for the state that if you believe from the evidence in this case, beyond a reasonable doubt that the defendant John Maxey did, in the month of August, 1928, in the second judicial district, Jones county, Mississippi, unlawfully sell intoxicating liquor as testified to by the state's witness, then under the law it is your sworn duty to find the defendant guilty as charged.
It singles out the state witness or witnesses and unduly emphasizes his testimony.
The court erred in refusing to grant defendant the following instruction: The court instructs the jury for the defendant, that a case like this is easy fabricated and difficult to defend and if you have a reasonable doubt arising from the evidence or lack of evidence, you must turn defendant loose.
Johnson v. Walker, 39 So. 49.
Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.
Appellant's first specification of error is that the court erred in overruling his special plea of former jeopardy. This plea set up the trial at the October, 1929, term of court as a bar to the trial at the October, 1930, term, but there was no actual acquittal or conviction on the merits in the October trial, the case was nol prossed.
Section 22 of the Constitution of Mississippi provides that:
No person's life or liberty shall be twice placed in jeopardy for the same offense, but there must be an actual acquittal or conviction on the merits to bar another prosecution.
The state contends therefore, that although the jury was impaneled at the October term of court, and all the state's testimony was taken, there was no actual acquittal or conviction on the merits, as the case was nol prossed by the district attorney. Hence it does not bar another prosecution for the same offense.
State v. Kennedy, 96 Miss. 624, 50 So. 978; Conwill v. State, 124 Miss. 716, 86 So. 876; Price v. State, 104 Miss. 288, 61 So. 314; Bell v. State, 115 So. 896; Jones v. State, 144 Miss. 52, 109 So. 265; Chandler v. State, 140 Miss. 524, 106 So. 265; Lovern v. State, 140 Miss. 635, 105 So. 759.
It is true that an instruction which gives undue prominence to a particular matter is bad, but the instruction given the state does not single out any particular bit of testimony, for under it the jury to convict the defendant must believe the entire state's case.
Piggott v. State, 107 Miss. 552, 65 So. 583; Murphy v. State, 119 Miss. 220, 80 So. 636; Hart v. State (Miss.), 115 So. 887.
It was not error to refuse the instruction requested by appellant.
Carter v. State, 140 Miss. 265.
The grand jury returned two indictments against the appellant, each charging him with the sale of intoxicating liquor, one of them being numbered 150, and the other, 152.
At the October, 1929, term of the court below, the appellant was tried on indictment No. 152, and at the close of the evidence, the district attorney, with the permission of the court, entered a nol pros. At a subsequent term of the court, the defendant was tried on the other indictment, No. 150. He filed a special plea of former jeopardy thereto, the ground of which is that on the former trial evidence was introduced by the state as to sales of intoxicating liquor made by the appellant covering the period of time within which sales must have been made, if at all, under indictment No. 150, on which he was then being tried. This plea was not permitted to prevail, and that fact constitutes one of the assignments of error here.
The argument in support of the plea is, in substance, that under the evidence on the former trial the appellant was entitled to a directed verdict if not guilty which would have barred the prosecution under indictment No. 150, and that he could not be deprived of that right by the entry of a nol pros by the district attorney. One of several answers to this contention is that under section 22 of the Constitution "there must be an actual acquittal or conviction on the merits to bar another prosecution."
The court below charged the jury for the state: "That if you believe from the evidence in this case, beyond a reasonable doubt that the defendant John Maxey did, in the month of August, 1928, in the Second judicial district, Jones county, Mississippi, unlawfully sell intoxicating liquor, as testified to by the state's witness, then under the law it is your sworn duty to find the defendant guilty as charged." This instruction is objected to because of the words therein "as testified to by the state's witness." These words could have and probably should have, been omitted from the instruction; but the record does not disclose that the appellant was, or could have been, in any way prejudiced thereby.
The appellant was refused the following instruction: "The court instructs the jury for the defendant, that a case like this is easy fabricated and difficult to defend and if you have a reasonable doubt arising from the evidence or lack of evidence, you must turn defendant loose." This instruction is said by counsel for the appellant to have been approved in Johnson v. Walker, 86 Miss. 757, 39 So. 49, 1 L.R.A. (N.S.) 470, 109 Am. St. Rep. 733. That was a bastardy case in which a verdict and judgment was rendered for the plaintiff. The defendant, who was the appellant in the supreme court, complained of the admission of certain testimony, which the court said could not have prejudiced him for several reasons; one being that he was granted an instruction that "this is a case where the charge is easy to fabricate and difficult to defend," and which the court said was "quite as liberal to the defendant as he was entitled to, and must have minimized the effect of this corroborative evidence." The appellant having been granted the instruction could not complain thereof, and the appellee having obtained a verdict had also no cause to complain thereof, so that no question of the propriety of granting it was presented to or decided by the court. The instruction is a "comment on the testimony" which counsel for the appellant could very well have made when addressing the jury but which a trial judge is forbidden to make by section 793, Code 1906, Hemingway's Code 1927, section 591.
Affirmed.