Summary
In State v. Day, 5 Penn. 101, 58 A. 946, the defendant was indicted for pointing a pistol, and filed a plea in bar setting forth a conviction before a Justice of the Peace for assault and battery.
Summary of this case from State v. NorrisOpinion
09-30-1904
STATE v. DAY.
Herbert H. Ward and Edward G. Bradford, Jr., for the State. Walter H. Hayes, for defendant.
Albert Day was indicted for pointing a gun or pistol at prosecutor, and pleaded not guilty and also former conviction on trial of plea of former conviction. Verdict for defendant.
The defendant pleaded not guilty, and also filed a plea in bar setting forth a conviction before a justice of the peace of assault and battery, which charge he claimed included that of pointing the pistol, being a part of the same transaction, all the facts concerning which were before the justice at the time. The state filed a replication, denying that it was the same assault, or was included in it, and the defendant filed a similiter. The question submitted to the jury was whether the pointing of the pistol was a necessary part of the assault and battery for which the defendant bad been tried and convicted.
Argued before LORE, C. J., and PENNEWILL and BOYCE, JJ.
Herbert H. Ward and Edward G. Bradford, Jr., for the State.
Walter H. Hayes, for defendant.
The record of the justice was admitted in evidence on the part of the defendant, and the defendant testified that the only assault and battery committed upon the prosecuting witness, J. H. Mahaffey, Jr., was the one shown by the record of the justice. The defendant was then asked by his counsel the following question: Q. Without giving any facts, answer this question "Yes" or "No." You are charged here in an indictment with pointing a pistol at Mr. Mahaffey on the 10th of July, 1904. Did you have any other altercation of any kind with Mahaffey on that day, or on any other day, except the one in the charge of assault and battery testified to that day before Esquire Hollis? (Objected to by the Attorney General, on the ground that it was calling for the opinion of the witness and for a conclusion of fact Objection overruled.) A. No, sir; nothing else.
By agreement of counsel the stenographic report of the evidence taken before the justice was admitted in evidence and read by defendant's counsel to the jury.
The defendant then rested, and the Attorney General called the justice of the peace, George H. Hollis, and asked him the following questions: Q. Will you look at this bond which I had you, and state whether or not that is the bond which was given by the defendant, Day, upon this record, which you have stated was the record of the charge for pointing a pistol. (Objected to by counsel for defendant as irrelevant. Objection overruled.) A. Yes, sir.
The above bond was then offered in evidence by the state; the Attorney General stating that the bond was for the appearance of the defendant at the present term, and that the state desired to follow up the record of the justice and connect the bond with the case now before the court (Objected to by defendant's counsel, and admitted by the court.)
LORE, C. J. We think it is admissible.
Mr. Ward. I offer in evidence the record of the justice of the peace of the pointing of the pistol. (Objected to by counsel for defendant as irrelevant.)
LORE, C. J. We think it is admissible.
A second bond given by the defendant was offered in evidence by the state and admitted over the objection of defendant's counsel.
Defendant's Prayers.
The defendant prayed the court to instruct the jury:
(1) That they find for the defendant, because the charge contained in the indictment is necessarily included in and constitutes a part of the charge for assault and battery, for which he was tried and fined by a court of competent jurisdiction on the 24th of August. Clark on Criminal Procedure, 402; State v. Townsend, 2 Har. 277; State v. Cooper, 13 N. J. Law, 361, 372-375, 25 Am. Dec. 400; People v. Defoor, 100 Cal. 150, 34 Pac. 642.
(2) That if the jury have a reasonable doubt as to the above proposition, this being a criminal case, the defendant is entitled to the benefit of it.
LORE, C. J. This is not a question of guilty or not guilty, but whether the assault and battery includes or was the same transaction as the pointing of the pistol; whether the pointing of the pistol was a part of the same transaction for which the defendant was tried and fined in the court below.
Prayers for the State.
Counsel for the state prayed the court to instruct the jury that the pointing of the pistol and the assault and battery were two distinct and separate transactions, entirely independent of each other; that the facts that go to make up the one form no part in the completion of the other. Clark on Criminal Procedure, 404; State v. Inness, 53 Me. 530; Boswell v. State, 20 Fla. 869; State v. Hodgkins, 42 N. H. 474; Carter v. McClaughry, 183 U. S. 365, 22 Sup. Ct. 181, 46 L. Ed. 236.
LORE, C. J. (charging jury). Albert Day, the defendant, is indicted for pointing a pistol at one J. H. Mahaffey, Jr. He has interposed as a plea in bar to that indictment that he was heretofore convicted of the offense with which he is now charged in a trial that was had before a justice of the peace, George H. Hollis, for an assault and battery, and that, having been so convicted, lie is not liable to be convicted in this case; nor may he be a second time put in peril or punished for the same offense. In order to avail himself of that plea, we will state to you what the law requires, as laid down in the case of State v. Townsend, 2 Har. 277. "To plead autrefois convict with effect, the crime must be the same in fact for which the defendant was before convicted, or must be necessarily included in the former." The defendant claims that it was included in the former, that in the trial for assault and battery before Justice Hollis this whole matter was gone into, and that this offense was included.
If you find as a matter of fact, from the evidence which has been adduced in this case, that the pointing of this pistol was included and was a necessary part of the assault then alleged to have been made by Albert Day upon J. H. Mahaffey, Jr., then the defense of former conviction would avail, and your verdict should be for the defendant; otherwise, your verdict should be for the state. You are only impaneled in this case to ascertain whether or not, from the facts and the law as laid down to you by the court, the defendant has been convicted of the same offense before, or of an offense including this, and, if he has, your verdict should be for him. If he has not, as the facts are disclosed before you and upon the law as we have stated it to you, then your verdict should be that he has not been so convicted.
Verdict for defendant.