Lovern v. State , 140 Miss. 635 ( 1925 )

^* Headnotes 1. Criminal Law, 16 C.J., Section 1110; 2. Criminal Law, 16 C.J., Section 411; 3. Criminal Law, 16 C.J., Section 769. This is an appeal from a conviction for having intoxicating liquor in possession. The evidence was obtained by means of a search of certain premises by an officer who stated that he had a warrant therefor, but it was not introduced in evidence, and was not called to the attention of the appellant until after he was arrested.

One of the assignments of error complains of the introduction of this testimony, but no question arising thereout can be here considered, for it does not appear from the evidence that the property searched belonged to or was in possession of the appellant.

The appellant pleaded former jeopardy, and in support thereof introduced in evidence the following judgment rendered by a justice of the peace:

"This case came on to be heard before J.T. Harmon, justice of the peace for Fifth district of Itawamba county. Said case was called, and, it appearing that there was insufficient evidence to convict the defendant, the case was dismissed and the defendant discharged."

It does not appear from this judgment against whom it was rendered or what the charge against the defendant therein was, but the district attorney agreed that it was rendered in a prosecution against the defendant for the crime for which he was then being tried in the circuit court.

In order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial "on the merits" of the crime for which he is again sought to be convicted. Constitution, section 22.

The judgment here relied on recites neither an acquittal nor conviction "on the merits," but that "the case was dismissed and the defendant discharged." If the judgment contained this recital only, it would exclude any idea that the defendant was adjudged either guilty or not guilty, but a doubt relative thereto arises because of the further recital that "there was insufficient evidence to convict the defendant." It does not appear from this recital whether the insufficiency of the evidence was ascertained by the justice after the witnesses had been sworn and testified, or whether the information was obtained before the trial was begun. Whether the dismissal of the defendant was pursuant to an acquittal on the merits is left in doubt, which doubt parol evidence is admissible to remove. Robinson v. Lane, 14 Smedes M. (Miss.) 161; 34 C.J., section 1515.

The evidence in explanation of this judgment was introduced by the appellant himself, from which it appears that the case was not tried on its merits, but was dismissed at the request of the county attorney after a conference with the witnesses. The judgment therefore constitutes no foundation for a plea of former jeopardy.

Affirmed.