Mitchell v. State , 16 Ala. App. 635 ( 1918 )

In order to sustain a plea of former jeopardy against an appropriate demurrer, it must appear with certainty to a common intent from the averments of the plea that the offense or some grade or degree thereof charged in the second indictment was embraced in the first indictment.

"This is ascertained by applying the established test whether the facts alleged in the indictment for the latter offense, if proved to be true, would warrant a conviction on the first indictment." Foster v. State, 39 Ala. 233; Harrison v. State,36 Ala. 248; Henry v. State, 33 Ala. 389; Gordon v. State,71 Ala. 315; Sanders v. State, 55 Ala. 42; Foster v. State,88 Ala. 182, 7 So. 185.

And it must further appear that there was a verdict of the jury on the issues presented or an unauthorized withdrawal of the case from the jury.

When this test is applied, the defendants are concluded by the very judgment set up in their plea showing that the first indictment upon which they were put to trial charged them with the offense denounced by the first clause of the statute, wantonly or maliciously injuring a railroad, while the proof offered showed that they were guilty of the offense denounced by the second clause of the statute, wantonly or maliciously placing an obstruction upon the track of a railroad in such manner as to render an engine or car running thereon to diverge or be thrown from the track — the offense charged in the second indictment. It is well settled that, however closely connected in point of fact the offenses may be, if in contemplation of law they are distinctly different, the indictment and trial for one is not a bar to an indictment and trial for the other. Gordon v. State, supra.

The case presented by the defendants' plea is not that of one act constituting a violation of two or more statutes and an election by the prosecution of one of these offenses by indictment, trial and conviction, or acquittal, as in Hurst v. State, 86 Ala. 604, 6 So. 120, 11 Am. St. Rep. 79, or the case of entering upon a trial under a valid indictment for some grade of the same offense as charged in the second indictment, and a suspension of that trial and the discharge of the jury at the instance of the prosecution, as in Turk v. State, 140 Ala. 110,37 So. 234. But the case here presented is where the defendants are charged in the indictment with one offense, and the evidence offered shows that they were guilty of another offense, and, in order to prevent their conviction, the defendants, by motion to exclude the evidence on the ground of a variance between the averments and proof, invoked a ruling in their favor, and the solicitor, as authorized by the statute (Code, §§ 7155, 7156), dismisses the prosecution and obtains an order of the court that the defendants be held to answer a proper indictment. This, under all the adjudicated cases, is not former jeopardy. McClellan v. State, 121 Ala. 20, 25 So. 725; White v. State, 49 Ala. 344; Weston v. State, 63 Ala. 155; Martha's Case, 26 Ala. 72; Johnson v. State, 134 Ala. 54,32 So. 724; Page v. State, 61 Ala. 16; McClerkin v. State,105 Ala. 107, 17 So. 123.

The defendants, by their motion to exclude the evidence on the theory of a variance between the averments and proof and by securing the favorable action of the court thereon, estopped themselves to plead that trial and judgment as former jeopardy. State v. McFarland, 121 Ala. 45, 25 So. 625; Kendall v. State, 65 Ala. 492; Morrisette v. State, 77 Ala. 71; Gunter v. State, 83 Ala. 96, 3 So. 600; 1 Mayf. Dig. 490, § 12.

"Our Constitution, following the parallel principle of the common law, provides that 'no person shall, for the same offense, be twice put in jeopardy of life or limb' — a safeguard of liberty which, under our Anglo-American system of jurisprudence, has always been regarded by our courts with a sanctity scarcely second to that accorded to the right of trial by jury. The purpose of the courts should be so to apply this constitutional guaranty as to protect the citizen from vexatious criminal prosecutions, and at the same time not to defeat the chief design of our penal laws, which, apart from their reformatory aspect, have in view the double aim of protecting society and preventing crime." Hurst v. State,86 Ala. 606, 6 So. 120, 11 Am. St. Rep. 79.

The ruling of the court on the demurrers to the plea was free from error.