* Corpus Juris-Cyc References: Constitutional Law, 12CJ, p. 1204, n. 80. Criminal Law, 16CJ, p. 261, n. 12. Former jeopardy in retrial on higher charge after setting aside verdict for lower charge, see notes in 5 L.R.A. (N.S.) 571; 22 L.R.A. (N.S.) 959; 8 R.C.L., p. 161; 2 R.C.L. Supp. 566; 4 R.C.L. Supp., p. 532; 5 R.C.L. Supp., p. 448. The appellant, Ethel Jones, was tried at the October term, 1925, of the circuit court of Yazoo county on an indictment charging him with murder. His cause was submitted to the jury under instructions, one of which instructions defined the verdicts that could be returned which included the three forms of verdicts for murder, a verdict of manslaughter, and a verdict of not guilty. The jury returned a verdict of manslaughter. An application was made by the defendant for a new trial. The verdict of the jury was set aside and a new trial granted, and at the April term, 1926, the state placed the defendant on trial again for murder. The defendant filed a plea of autrefoisacquit setting up the fact of his former trial and conviction of manslaughter and his acquittal by the jury on said indictment of the charge of murder. The state demurred to this plea and the demurrer was sustained, and the appellant was again placed on trial on the same indictment for the crime of murder and was convicted of murder and given a life sentence. Among the instructions requested was one directing the jury that they could not find the defendant guilty of murder in this case. This instruction was refused. The defendant was sentenced to the penitentiary for his natural life, and appeals.
The sole question presented by this appeal is whether or not in such case a defendant can on a second trial be tried for murder.
Section 22 of the state Constitution of 1890 reads as follows:
"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 provision of the state Constitutions prior to 1890 reads as follows: *Page 61
"No person's life or liberty shall be twice placed in jeopardy for the same offense."
We have had this question before the court heretofore in the case of Calicoat Strickland v. State, 131 Miss. 169, 95 So. 318, but the opinion in that case specially reserved the decision of this question; the case being affirmed, and it not being necessary to decide then what the law would be in event the case was reversed and remanded. In Hurt v. State, 25 Miss. 378, 59 Am. Dec. 225, under the Constitution of 1832 (article 1, section 13) which provided that, "No person shall, for the same offense, be twice put in jeopardy of life or limb," it was held that a conviction of manslaughter on an indictment for murder was an acquittal of murder; and that on a retrial the person so convicted of manslaughter could only be tried for the offense of manslaughter. To the same effect is the case of Rolls v.State, 52 Miss. 391, decided under the Constitution of 1869. InTeat v. State, 53 Miss. 439, 24 Am. Rep. 708, also originating and tried under the Constitution of 1869, it was held that where a person was placed on trial on an indictment charging murder, and evidence taken and the jury discharged without the defendant's consent and without legal necessity, the defendant could not thereafter be placed on trial for the same offense under the "double jeopardy" provision of the Constitution. These authorities would, of course, be binding but for the fact of the change in the Constitution made in 1890 as above set out.
It is urged by the appellant that these authorities from Mississippi, above cited, were followed in Powers v. State,83 Miss. 691, 36 So. 6, and Walker v. State, 123 Miss. 517, 86 So. 337. Subsequent to the Walker case, the court had the question before it in the case of Beauchamp v. State,128 Miss. 523, 91 So. 202, and the court was evenly divided upon the question as to whether the case was one for the application of the rule announced in the Walker case, and reversed and remanded the case for a new trial without deciding the point. The court *Page 62 remained divided on the question until the Calicoat v. State case came before it wherein the doctrine announced in the Restercase, 110 Miss. 689, 70 So. 881, and in other cases following, was overruled and the doctrine announced in Huston v. State,105 Miss. 413, 62 So. 421, and other cases in line with that case, was adopted. As stated above, the conclusion reached in that case made it unnecessary to decide the question we are now called upon to deal with, and it was expressly reserved. We are now squarely presented with the question, and the construction of the concluding clause of section 22 above set out.
It will be noted from the provisions referred to that the acquittal or conviction must be "actual." What do the words "actual conviction" and "actual acquittal" mean? We are of opinion that the word "actual" is used in the constitutional provision in contradistinction from "implied" or "constructive" acquittals or convictions. And we are also of the opinion that the provision was put in the Constitution for the purpose of changing the rule announced in the Hurt case, supra, and in theRolls case, supra. Without these words in their Constitutions, other states have been divided upon the question as to whether a conviction of manslaughter on a charge of murder was such an acquittal of murder as would preclude a retrial of the defendant for murder in case a new trial was granted. A majority of the states passing upon the question have held, in accordance with the Hurt case and the Rolls case, that a conviction of murder was an acquittal of manslaughter; but a minority of the courts with strong reasons have held to the contrary — have held that where a defendant procured a reversal of the verdict of manslaughter the whole trial was nullified and the cause stood for trial de novo precisely as though no trial had been had. The reasoning of these opinions so holding is so strong that we are impressed with the idea that the learned members of the constitutional convention, made up as it was of great lawyers, desired to get away *Page 63 from the rule announced in the Rolls case, in the Teat case, and in the Hurt case, above referred to.
In 8 R.C.L. at page 161, par. 153, entitled Criminal Law, this reasoning is stated in the following language:
"153. Conviction of Lower Degree of Crime as Acquittal ofHigher Degrees. — A question that has given rise to two well defined rules is whether a conviction of a lower degree of a crime is a complete acquittal of the higher degrees in the sense of the `twice in jeopardy' rule so that, if a new trial is granted it must be limited to the lower degree of which the defendant was previously convicted. One line of authorities answers this question in the negative and holds that on the new trial the defendant may be tried again for the crime as charged in the indictment, and that he may be convicted of any degree of such crime just as if there had been no previous trial. The reasons given for this rule are that the defendant cannot voluntarily set aside the verdict and also hold to it. A verdict cannot at the same time be of force and not of force. The verdict of guilty is single. The defendant cannot divide it into that which pleases him and that which does not. The positive fact is the verdict of guilty of one offense; and the negative implication from that finding is not guilty of the other offense. It is not easy to see how the positive finding which furnishes the sole basis for the negative implication can be destroyed and set aside by the voluntary action of the accused, and yet leave the implication to stand alone without a basis. To sustain a plea of former acquittal, there must be a sustaining record of an acquittal; and if a verdict of guilty of a lesser offense operates as a record of acquittal of the greater, when it is set aside at the instance of the accused, it is certainly no longer a subsisting record of conviction. The courts holding this view do not agree that the defendant has the right to limit his waiver as to jeopardy when he appeals from a judgment against him. As the judgment stands before he appeals, it is a complete bar to any further prosecution *Page 64 for the offense set forth in the indictment, or for any lesser degree thereof. No power can wrest from him the right so to use that judgment, but if he chooses to appeal from it and to ask for its reversal he thereby waives, if successful, his right to avail himself of the former acquittal of the greater offense, contained in the judgment which he has himself procured to be reversed."
The same principle is announced in Story on Constitution (4th Ed.), vol. 2, par. 1787, as follows:
"The meaning of it is, that a party shall not be tried a second time for the same offense after he has once been convicted or acquitted of the offense charged by the verdict of a jury, and judgment has passed thereon for or against him. But it does not mean that he shall not be tried for the offense a second time if the jury have been discharged without giving any verdict; or, if, having given a verdict, judgment has been arrested upon it, or anew trial has been granted in his favor; for in such a case his life or limb cannot judicially be said to have been put in jeopardy."
In 12 C.J., at page 1204, par. 973, it is said:
"But a defendant who has been indicted for a particular offense and convicted of a lesser offense, may on a new trial obtainedon his own motion, be again tried for the greater offense."
In Trono v. U.S., 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292, 4 Ann. Cas. 773, the supreme court of the United States was called upon to construe the "double jeopardy" provision contained in the Federal Constitution, and reached the conclusion that where the conviction was set aside upon the motion of the defendant a trial de novo on the original indictment was the proper procedure. In the course of the opinion the court said:
"In our opinion the better doctrine is that which does not limit the court or jury, upon a new trial, to a consideration of the question of guilt of the lower offense of which the accused was convicted on the first trial, but that the reversal of the judgment of conviction opens up *Page 65 the whole controversy, and acts upon the original judgment as if it had never been. The accused, by his own action, has obtained a reversal of the whole judgment, and we see no reason why he should not, upon a new trial, be proceeded against as if no trial had previously taken place. We do not agree to the view that the accused has the right to limit his waiver as to jeopardy, when he appeals from a judgment against him. As the judgment stands before he appeals, it is a complete bar to any further prosecution for the offense set forth in the indictment, or of any lesser degree thereof. No power can wrest from him the right to so use that judgment, but if he chooses to appeal from it, and to ask for its reversal, he thereby waives, if successful, his right to avail himself of the former acquittal of the greater offense, contained in the judgment which he has himself procured to be reversed. . . .
"When the first trial is entered upon he is then put in jeopardy within the meaning of the phrase, and yet it has been held, as late as United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300, 303 (and nobody now doubts it), that if the judgment of conviction be reversed on his own appeal, he cannot avail himself of the once in jeopardy provision as a bar to a new trial of the offense of which he was convicted. And this is generally put upon the ground that by appeal he waives his right to the plea, and asks the court to award him a new trial, although its effect will be, if granted, that he will be again tried for the offense of which he has been once convicted. This holding shows that there can be a waiver of the defense by reason of the action of the accused. As there is, therefore, a waiver in any event, and the question is as to its extent (that is, how far the accused by his own action may be deemed to have waived his right), it seems much more rational and in better accord with the proper administration of the criminal law to hold that, by appealing, the accused waives the right to thereafter plead once in jeopardy, when he has obtained *Page 66 a reversal of the judgment, even as to that part of it which acquitted him of the higher while convicting him of the lower offense. When, at his own request, he has obtained a new trial, he must take the burden with the benefit, and go back for a new trial of the whole case. It does not appear to us to be a practice founded on solid reason to permit such a limited waiver by an accused party while himself asking for a reversal of the judgment."
In State v. Ash, 68 Wn. 194, 122 P. 995, 39 L.R.A. (N.S.) 611, the supreme court of the state of Washington overruled its former decisions and aligned itself with the United States supreme court. After quoting with approval from the Trono case,supra, that court said:
"This reasoning is to our minds so cogent that we do not deem it profitable to further extend this opinion by enlarging upon it other than to say it preserves all the constitutional and other rights of both parties to a criminal trial, the state and the accused. The announcement of this rule may disturb the guilty who seek, through the intricate mazes of technical and refined subtleties to escape punishment for their evil deeds, as in this case, where to take the contrary view would mean that a murderer who admits his crime and whose only regret is that he was apprehended before his lust for killing was fully satisfied, as he sought a second victim, would be left free to pursue his criminal intent until he had added other victims to his score. Courts should give to all persons accused of crime the benefit of all the law that wisdom has created to shield the innocent from false accusation, but they only bring themselves into ridicule when they seek, through meaningless technicalities and hairsplitting distinctions, to build up a protecting wall behind which the guilty may avoid the penalty of their misdeeds. It is to be deplored that juries will sometimes so forget their sworn duty as to refuse to hold up violators of the law to the full measure of their misdeeds. Courts should not aid in this miscarriage of justice by creating technical *Page 67 and subtle distinctions in the law, and thus enable the guilty to altogether escape. We cannot control the verdicts of juries intheir failure to make true deliverance between the state and thecriminal, but we can refuse to extend the farce so as to make itoperate as an absolute discharge. Believing that a new trial to one found guilty of a lesser offense should, on his appeal, be held a new trial upon all offenses included within the charge that find sustaining facts in the evidence, we so hold, and adopt such rule for our future guidance. It may not be supported by the greater number of adjudicated cases, but it appeals to us as based upon the best reasoning and soundest judgment. It follows that State v. Murphy [13 Wn. 229, 43 P. 44], and other cases expressing contrary views, are hereby overruled."
In State v. Bradley, 67 Vt. 465, 32 A. 238, the court, after discussing other authorities, said:
"But in other states the contrary is held. They say that the necessary result of reversing the judgment and granting a new trial is to set aside the whole verdict, and that having been done at the instance of the accused, it can neither operate as an acquittal nor a bar to the further prosecution of any part of the crime charged; that the verdict being set aside, it leaves at issue and undetermined the question of the homicide and also the question of whether the accused committed it if one was committed; that on the retrial on a plea of not guilty, the legal presumption of innocence prevails, and that the state is bound to prove every essential fact; that the only effect, therefore, that can be given to the part of the verdict that acquitted the accused of murder in the first degree after the rest of it has been set aside is, to regard it as finding the quality of an act, the existence of which is undetermined, which would be a verdict to the effect that if the accused committed the homicide it was not such a killing as made it murder in the first degree, which would be untenable, as there can be no legal determination of the character of the malice of the accused in respect *Page 68 to a homicide that he is not found to have committed, or rather, of which, under his plea, he is presumed to be innocent. A verdict of murder in the second degree is only an implied acquittal of murder in the first degree; and if the verdict from which the inference is drawn is set aside, nothing remains to sustain the inference, and the verdict and its incidents fall together, and the indictment is left to stand as to the crime of which the accused was convicted as though there had been no trial. This view is sustained by Bailey v. State, 26 Ga. 579;State v. Behimer, 20 Ohio St. 572; United States v.Harding, [Fed. Cas. No. 15,301], 1 Wall. Jr. 147 [127] and other cases. We understand this to be the view that has obtained and been practiced upon in this state, certainly when the result of the former trial was not, in effect, as it was not here, an acquittal of another crime charged, but only a failure to find the requisites to aggravate the crime found to a higher grade.State v. Kittle, 2 Tyler, 471, is not to the contrary.
"Nor does this view contravene the principle that one cannot be twice put in jeopardy for the same offense, for that means, without his consent, and the matter of taking exceptions is a privilege accorded to the accused but not to the state, and he can avail himself of it or not as he pleases. If he does avail himself of it, he thereby asks for a new trial or a discharge altogether, as the case may be, and in asking for a new trial, he is deemed to waive his right to immunity from further jeopardy in case a new trial is granted. People v. Palmer, 109 N.Y. 413, 420 [17 N.E. 213, 4 Am. St. Rep. 477]. The authorities on both sides of this question are referred to in a note toCommonwealth v. Arnold (Ky.), 4 Am. St. Rep. 117."
In State v. Behimer, 20 Ohio St. 572, the court speaking through Mr. Justice WHITE stated the rule as follows:
"But the effect of setting aside the verdict finding the defendant guilty, was to leave at issue and undetermined the fact of the homicide; also the fact whether the defendant committed it, if one was committed. The legal presumption on his plea of not guilty, was of his innocence; *Page 69 and the burden was on the state to prove every essential fact. The only effect, therefore, that could be given to so much of the verdict as acquitted the defendant of murder in the first degree, after the rest of it had been set aside, would be to regard it as finding the qualities of an act while the fact of the existence of the act was undetermined. This would be a verdict, to the effect, that if the defendant committed the homicide, he did it without `deliberate and premeditated malice.'"
The supreme court of Nevada, in the case In re Somers,31 Nev. 531, 103 P. 1073, 24 L.R.A. (N.S.) 504, 135 Am. St. Rep. 700, after quoting with approval the Behimer case, supra, and the Trono case, supra, and other leading cases, used the following language:
"Counsel for the petitioner in the present case, because of the fact that the petitioner was indicted for murder and convicted of involuntary manslaughter, contends that involuntary manslaughter, which does not contain all the elements of murder, acquits the defendant of murder in the first or second degrees and voluntary manslaughter, and is privileged to interpose a plea of former acquittal and of being once in jeopardy as to these crimes, and that on a retrial he cannot be tried for either murder or any other crime under the indictment. While we are duly impressed with the fact that involuntary manslaughter does not contain the same heinous ingredients necessary to make up the crime of murder in the first or second degree, or of voluntary manslaughter, yet we are clearly of the opinion that, if being an unlawful transgression of the law against homicide, it may properly be considered a lesser degree of homicide, and that a jury, under an indictment for murder, may properly return in proper cases a verdict of involuntary manslaughter. Being of the opinion, asabove expressed, that where a defendant is indicted for murder,and upon his demand the cause reversed and remanded for a newtrial, the accused must be tried under the original indictment asthough he had never been on trial before, if said indictment *Page 70 is not impaired by the judgment of the supreme court, and that involuntary manslaughter, being of the same species of crime, though of a much lesser degree of homicide than murder, we fail to see the merits of the contention of petitioner in his plea of former acquittal or of being once in jeopardy interposed to any greater offense under the indictment than that for which he was convicted.
"We are not unmindful in so holding, nor do we any the less fail to recognize, the merit and sacredness of the great constitutional right secured for us by the blood of our forefathers, now incorporated in the principle which has descended to us from Magna Charta, and now found imbedded in our Federal and state Constitutions, wherein it is guaranteed that `no person shall be subject to be twice put in jeopardy for the same offense' (section 8, article 1, Const. Nevada), and the additional safeguard extended and thrown around this principle by our legislature that `no person shall be subject to a second prosecution for a public offense for which he has been prosecuted and duly convicted or acquitted' (section 3996, Comp. Laws); but we are of the opinion, and we believe the law is well settled, that where a defendant is convicted, and he asks for a second trial to relieve himself of the jeopardy in which he finds himself by reason of the conviction and judgment, and his prayer is granted, he is estopped from asserting a formal acquittal on his second trial, and waives his constitutional right of pleading being once in jeopardy, or that this right has been in any way infringed, because by his own voluntary consent, act, and petition he has been relieved of the bar which prevents him interposing this plea."
In Young v. People, 54 Colo. 293, 130 P. 1011, the supreme court of that state said:
"This provision of the Constitution needs no construction; it is as plain and clear as language can make it. It means: First, if the jury disagree, that the accused may be tried again upon the charge as if no trial had been *Page 71 had; second, if the judgment be arrested after the verdict, for any reason, that the defendant shall be deemed not to have been in jeopardy, and may be again tried as originally; and, third, if the judgment be reversed for error in law, that then the defendant shall be deemed not to have been in jeopardy, and may be again tried under the information, upon every charge contained in it. If the defendant in this case had not been in jeopardy, and such is declared to be the fact upon the record, by this provision of the Constitution, the former judgment having been reversed for error in law, then he could be lawfully tried for and convicted of the highest degree of crime contained in the charge. Upon a reversal of a conviction for error of law, under this provision, one accused of murder stands as though there never had been a former trial; his second trial is de novo. The same presumption of his innocence of any degree of unlawful homicide, although he has been convicted of one degree thereof, prevails as upon the first trial. The accused stands upon a second trial as though the former trial had never taken place, and the state stands in precisely the same position. This is the evident purpose and intent of the framers of our Constitution.Unless it be assumed that the criminal laws are designed tofacilitate the escape from just punishment of those charged withoffenses, instead of for the protection of society throughpunishment of those who violate its laws, the aboveinterpretation must be accepted, as correct."
See, also, State v. Gillis, 73 S.C. 318, 53 S.E. 487, 5 L.R.A. (N.S.) 571, 114 Am. St. Rep. 95, 6 Ann. Cas. 993; State v. Kessler, 15 Utah, 142, 49 P. 293, 62 Am. St. Rep. 911;People v. Palmer, 109 N.Y. 413, 17 N.E. 213, 4 Am. St. Rep. 477; Brantley v. State, 132 Ga. 573, 64 S.E. 676, 22 L.R.A. (N.S.) 959, 131 Am. St. Rep. 218, 16 Ann. Cas. 1203; affirmed in217 U.S. 284, 30 S.Ct. 514, 54 L.Ed. 768; State v. Billings, 140 Mo. 193, 41 S.W. 778; State v. Ash, 68 Wn. 194, 122 P. 995, 39 L.R.A. (N.S.) 611; State v. Matthews, 142 N.C. 621,
*Page 72 58 S.E. 342; Briggs v. Commonwealth, 82 Va. 554; Bohanan v.State, 18 Neb. 57, 24 N.W. 390, 53 Am. Rep. 791; State v.Morrison, 67 Kan. 144, 72 P. 554.
If a verdict of manslaughter impliedly acquits the defendant of murder, it also impliedly adjudges that he is not innocent. One implication flows as necessarily and readily from a conviction of manslaughter as the other. To hold that an appellant can appeal and set aside a judgment of conviction of manslaughter and annul the verdict upon which it is entered, and upon which no other judgment could be entered, is to leave the shadow without the substance; to leave the implied and remove the actual thing upon which the implication is based. If the verdict convicting of manslaughter is destroyed, it is difficult for the reasoning mind to see how any implied verdict or judgment can exist.
The case of Powers v. State, 83 Miss. 691, 36 So. 6, does not decide the question we are here dealing with, and although the court used language carrying the idea that a conviction of manslaughter was an acquittal of murder, it was unnecessary for it to so say, because the appellant in that case had only been tried for manslaughter when the case was remanded. He was indicted for murder and tried and convicted of manslaughter and appealed, and the case was reversed by this court (74 Miss. 777, 21 So. 657). Upon remand of the cause to the court below, he was then tried for manslaughter and not murder, and again convicted of manslaughter, and appealed a second time to the supreme court. The constitutional provision which we are now considering was not referred to in briefs in that case nor in the opinion of the court, and the question was not then before the court; but as the case has probably misled the bar and the courts, we will overrule it to the extent that it deals with this question, but not otherwise.
The Walker case, 123 Miss. 517, 86 So. 337, relied on by the appellant, was founded upon the Rester case and was necessarily overruled by the court in the line-up of *Page 73 the cases before it, as were all of the cases founded upon and following, in its pronouncement upon the effect of a conviction being an acquittal of murder. Where the judgment of conviction is not reversed on appeal by the defendant, the defendant has a right to stand upon the verdict and judgment if he desires to do so, but if he does not choose to abide by the verdict and conviction and causes it to be set aside, he must then stand trial upon the original indictment.
The principle announced in State v. Longino, 109 Miss. 125, 67 So. 902, Ann. Cas. 1916E, 371, and Odom v. State,132 Miss. 3, 95 So. 253, does not arise here as far as it applies to the right of the defendant to be governed by the existing decisions at the time of his trial, because the Calicoat case,131 Miss. 169, 95 So. 318, was decided prior to the commission of his offense and prior to his making a motion for a new trial, and the court expressly reserved the decision of this point until it should properly arise. Consequently the defendant knew the question was an open question for future decision in this court, and cannot avail himself of the chance he then took for procuring a new trial. The judgment of the court below will therefore be affirmed.
Affirmed.