Opinion
No. 35327.
February 14, 1944.
1. CRIMINAL LAW.
Where offense of assault with intent to murder was committed by use of shotgun with only one shot fired but scattering missiles struck and wounded two sisters, an acquittal under indictment returned for offense against one sister was not bar to prosecution on indictment for offense against the other.
2. CRIMINAL LAW.
Where different persons are killed or wounded by single shot or blow or by the same act, each injury is regarded as constituting a separate or distinct offense.
APPEAL from Circuit Court of Claiborne county, HON. R.B. ANDERSON, Judge.
Caruthers Gholson, of Port Gibson, for appellant.
The record reveals that the defendant had been tried before for the same act and shows that he had been acquitted for the firing of the same shot for which he was convicted in this cause. Prior acquittal should bar a second trial for the same offense.
Since there was but one act, there could be but one offense. It has been held that where the same act or stroke results in the death of two persons an acquittal or a conviction of the murder of one bars a subsequent prosecution for the killing of the other because the killing is but one crime and cannot be divided.
Hurst v. State, 24 Ala. 47, 129 So. 714; State v. Wheelock, 216 Iowa, 1428, 250 N.W. 617; Smith v. State, 159 Tenn. 674, 21 S.W. 400; Jones v. State, 89 Tex. Cr. 355, 231 S.W. 122; 5th Amendment to the United States Constitution; Constitution of 1890, Sec. 22.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
The evidence shows that the appellant fired one shot from a shotgun and that the prosecuting witness, Margaret Bradley, and Annie Bradley, her sister, were both injured or hit by the same shot, Annie Bradley losing the sight of her left eye as a result of being shot; that the prosecuting witness, Margaret Bradley, was shot in the face and lost the hearing in one ear.
The record reveals that the appellant had previously been tried on an indictment charging him with assault and battery with intent to kill and murder Annie Bradley and that he was acquitted. The appellant contended that, since both parties were injured as a result of one shot being fired by the appellant, the act constituted but one offense and in short that the court erred in permitting him to be tried for the assault upon Margaret Bradley.
The authorities are conflicting as to whether a person may be tried a second time when two are injured as a result of a single shot.
26 Am. Jur. 277, Sec. 179.
Our court has held that where two or more persons were robbed at the same time, separate offenses are committed and an acquittal in one case is not a bar to a prosecution in another.
Johns v. State, 130 Miss. 803, 95 So. 84.
The appellant evidently attempted to raise the question of former jeopardy by requesting an instruction for a directed verdict. Our court has held that in order for one to avail himself of the plea of former jeopardy it must be pleaded. No plea of former jeopardy was filed in this case.
Bufkin v. State, 134 Miss. 116, 98 So. 455.
Argued orally by Caruthers Gholson, for appellant, and by R.O. Arrington, for appellee.
Appellant was convicted upon an indictment charging him with assault and battery with intent to murder one Margaret Bradley. On the merits, the case is simply one of conflicting testimony, and we are unable to say that the verdict is manifestly against the great weight of the evidence. Nor do we find any reversible error in the matter of the instructions.
The offense was committed by the use of a shotgun. Only one shot was fired, but the scattering missiles also struck and seriously wounded Annie Bradley, a sister of Margaret, the two girls being near each other at the time. A similar indictment was returned for the offense against Annie, and upon the trial of that charge appellant was acquitted. The point is now made that the previous acquittal bars a prosecution on the indictment now before us.
There is a conflict of authority as to whether there may be more than one prosecution where different persons are killed or wounded by a single shot or blow or by the same act. The leading cases and annotations are cited in 26 Am. Jur., p. 277 and 22 C.J.S., Criminal Law, section 298, p. 452. We believe that the view that each injury is to be regarded as constituting a separate or distinct offense is sustained by the weight of authority and by the better reason. This view has been supported by many illustrations found in the reported opinions, and we venture to add one of our own.
If, for instance, knowing that a person is alone in a house and is so ill as to be unable to move, an accused sets fire to the house in order thereby to burn to death the disabled person, and such is the result, there would be but one act, the setting of the fire, but there would be two offenses, arson and murder, one against the person and the other against the property. If, then, there were two disabled persons in the house, like reason would produce the result that three offenses were committed. To pursue the illustration further: Had one of the inmates succeeded, although severely burned, in crawling from the fire, and thereby survived, it would hardly be contended that the conviction or acquittal of the accused for the attempt upon the life of the survivor would bar a prosecution for the murder of the other. Thus, in point of law, the offenses are distinct, although the product of a single act.
Affirmed.