Section 22 of the state Constitution adopted in 1890 provides:
"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."
And section 1416, Code of 1906, Hemingway's Code, section 1166, provides that — "when a defendant is acquitted on the merits of his case, . . . such acquittal shall be a bar to any subsequent accusation for the same offense," etc. *Page 74
In order, therefore, to determine whether or not the appellant's conviction of manslaughter on an indictment charging him with murder is a bar to his subsequent prosecution for the crime of murder charged in that indictment, two questions must be decided:
(1) When an indictment includes two or more offenses of varying degrees, is a general verdict of conviction of one of the lesser offenses an acquittal of the higher offenses charged in the indictment?
And, should this question be answered in the affirmative —
(2) In such case, when the verdict of conviction of the lesser offense is set aside on application of the defendant, is the acquittal of the defendant of the higher offenses charged in the indictment also thereby set aside and annulled?
I take it for granted that my associates do not intend by the decision here rendered to overrule the long line of cases by which this court has answered the first of these questions in the affirmative, and will proceed at once to the discussion of the second.
The courts are divided on what should be the answer to this question, but the majority of them which have dealt therewith answer it in the negative. 16 C.J. 261; 8 R.C.L. 161; and Clark's Criminal Procedure, 392. It would serve no good purpose to set forth the reasons on which these two conflicting views rest, nor to cite cases from other courts bearing thereon, for in 1853 this court's predecessor, the High Court of Errors and Appeals, inHurt v. State, 25 Miss. 378, 59 Am. Dec. 225, aligned itself with those courts which answer this question in the negative in an opinion which evidences that the court gave the question the most thorough consideration, and which has been followed by this court without deviation therefrom until to-day. In that case the court said:
"A verdict of a jury finding a party put upon his trial for murder, guilty of manslaughter in the third degree, must of necessity operate as an acquittal of every crime *Page 75 of a higher grade, of which he might have been convicted under the indictment upon which the issue was made; otherwise the party, after undergoing the sentence for manslaughter, might be put upon his trial for the charge of murder, which would thus be only postponed, and not decided by the verdict of manslaughter.
"The jury in such case, in contemplation of law, render two verdicts; one acquitting the accused of the higher crime charged in the indictment; the other finding him guilty of an inferior crime. They must first determine his guilt or innocence upon the charge made by the indictment, before proceeding to consider whether he is guilty of an inferior crime. The verdict of manslaughter is as much an acquittal of the charge of murder, as a verdict pronouncing his entire innocence would be; for the effect of both is to exempt him from the penalty of the law for such crime.
"But it is said, that such verdict only operates as an acquittal while it is permitted to stand as part of the action of the court below; and as it has been set aside by this court, upon the prisoner's own application, the cause must be treated in all respects as if no trial had taken place."
The court then proceeded to show the fallacy of this contention and, among other things, said:
"It may be true, that no formal judgment of acquittal was entered; but we hold that the sentence of the court upon the verdict of manslaughter, was of itself a complete acquittal of all higher crimes of which the party might have been convicted under the indictment. It will not do to say, that the reversal of the sentence against the party, also destroys the verdict and judgment by operation of law in his favor. The former being against the party, could be made the subject of revision upon a writ of error to this court. The latter being in the party's favor, was final, conclusive, and irreversible. Neither he nor the state could ask a revision of such judgment, upon a writ of error to this court; and having no *Page 76 power to revise it, we have no authority to reverse or annul it. It still stands, therefore, wholly unaffected by our action upon the writ of error."
But it is said that that case was decided under the Constitution of 1832, and that the rule there announced has been changed by the Constitution of 1890. The provision of the Constitution of 1832 (article 1, section 13), is that, "No person shall, for the same offense, be twice put in jeopardy of life or limb," and the only material change which the Constitution of 1890 makes therein is the addition thereto of the words, "but there must be an actual acquittal or conviction on the merits to bar another prosecution." This language simply defines the word "jeopardy;" or, to be more accurate, it simply fixes the time at which jeopardy attaches and can be pleaded in bar of a subsequent prosecution. It does not deal in any way with the rights of a defendant who has obtained the setting aside of a verdict of guilty rendered against him; nor does it define the phrase "actual conviction or acquittal on the merits." Both of these questions are left by it for determination under the same rules by which they had been theretofore determined. If the convention intended to change the rule theretofore in force for determining either of these questions, it would have been very easy for it to have done so in language that could not mislead.
But it is said that under this language only an actual and not an implied acquittal will bar a subsequent prosecution. The word "implied" is evidently here used in the sense of "constructive," for the latter is the word ordinarily used in law as contrasted with "actual." 1 Bouvier's Law Dictionary (3d Ed.) 130. And the word "actual" is the one ordinarily used in law as contrasted with "express." 2 Bouvier's Law Dictionary (3d Ed.) 1510. I, of course, agree that under this language of the Constitution a constructive acquittal will not bar a subsequent prosecution for the same offense, for that is exactly what, in my judgment, the language was intended *Page 77 to accomplish, and what this court held in Roberts v. State,72 Miss. 728, 18 So. 481, it does accomplish.
The word "actual" means "real" and (to repeat) is used in opposition to "constructive." Bouvier's Law Dictionary (3d Ed.) 130. The word "acquittal" is "verbum equivocum, and may in ordinary language be used to express either the verdict of a jury or the formal judgment of the court that the prisoner go thereof without day." The acquittal which results from the verdict of a jury is actual, but the acquittal which results from a formal order of a court that the defendant go thereof without day, based on something other than the verdict of a jury, is not an actual acquittal, but is merely the equivalent thereof, or in other words is only a constructive acquittal. The question that then arises is: Was the appellant acquitted of the crime of murder on his former trial by the verdict of a jury? That he was so acquitted is not open to question, for it was expressly so held by the High Court of Errors and Appeals in the Hurt case,supra, wherein, as hereinbefore stated, the court said:
"The jury in such case, in contemplation of law, render two verdicts; one acquitting the accused of the higher crime charged in the indictment; the other finding him guilty of an inferior crime. They must first determine his guilt or innocence upon the charge made by the indictment, before proceeding to consider whether he is guilty of an inferior crime. The verdict of manslaughter is as much an acquittal of the charge of murder, as a verdict pronouncing his entire innocence would be; for the effect of both is to exempt him from the penalty of the law for such crime."
If the jury in such a case actually returns two verdicts, as it has the right to do, one acquitting the defendant of the higher offense and one convicting him of the lesser, the court must receive and render judgment on each of them; and in that event the state would have no right to have the verdict of acquittal set aside although there *Page 78 might be error therein. State v. Anderson, 3 Smedes M. 751. And as the two verdicts and judgments are separable, in fact are separate and distinct, the defendant would have the right to appeal from the judgment convicting him, and the court would be without power in setting it aside to disturb the verdict and judgment by which he was acquitted of the higher offense.
It will not be necessary for us to wander far afield in order to ascertain why this language was added to the former jeopardy provision of the prior Constitution, and what the members of the convention that adopted it thought they had accomplished thereby. The two sources, to which only it will be necessary for us to go for this information, are the decisions of this court and its predecessors rendered prior to the adoption of the present Constitution, and the journal of the convention which adopted that Constitution.
There is a conflict in the authorities as to when jeopardy attaches, some courts holding that it attaches only after verdict; but the majority thereof hold:
"That a party is placed in jeopardy whenever, upon a valid indictment in a court of competent jurisdiction and before a legally constituted jury, his trial has been fairly entered upon; and that if thereafter the jury is illegally, improperly and unnecessarily discharged by the court, it operates as an acquittal, so that he can never thereafter be arraigned for the same offense." Teat v. State, 53 Miss. 439, 24 Am. Rep. 708; 16 C.J. 236; 8 R.C.L. 138.
In 1823 the original supreme court of this state, the predecessor of the High Court of Errors and Appeals, in State v. Moor, Walk. 134, 12 Am. Dec. 541, felt called on to construe that clause of the Fifth Amendment to the National Constitution which provides that "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," and held that under it jeopardy does not attach until after verdict. In 1858 the High Court of Errors and Appeals, in Price v. State, *Page 79 36 Miss. 531, 72 Am. Dec. 195, in construing the former jeopardy clause of the Constitution of 1832, used the following language:
"As to the objection, that the party is protected by the Constitution from being twice put in jeopardy, it appears to be clear that the sense of the Constitution is, that no man shall be a second time put upon trial for the same offense, after having been once tried, and either convicted or acquitted of the same offense."
This case has never been expressly overruled, but in several cases, among which are Whitten v. State, 61 Miss. 717, andHelm v. State, 66 Miss. 537, 6 So. 322, pleas of former jeopardy based on the discharge of the jury without its having reached a verdict were allowed to prevail. The language hereinbefore quoted from the Price case was disposed of in the Helm case by the statement that it was "broader than warranted by the facts of the case." The Whitten case was decided in 1884, and the Helm case in 1889, the first six and the latter less than one year before the convening of the convention which adopted the Constitution of 1890. Whitten's counsel, Judge EDWARD MAYES, was a member of that convention, and was the chairman of its Committee on Bill of Rights and General Provisions, Journal of the Mississippi Constitution Convention of 1890, p. 22. For brevity this journal will be hereinafter referred to as "Journal." The language in which the former jeopardy section of the proposed Constitution was reported to the convention by its committee on Bill of Rights and General Provisions was as follows:
"That no person, after being once finally convicted or acquitted of a criminal charge on merits, shall be again, for the same offense, put in jeopardy of life or liberty; and if any jury to which a criminal case has been submitted or offered shall fail to render a verdict, the court may in its discretion, discharge the jury and commit or bail the prisoner for trial at the next term of court, or at the same term." Journal, pp. 165 and 342. *Page 80
When the report of this committee came on for consideration by the convention and when section 20 thereof was reached, Mr. HUDSON (of Yazoo county in which the case of Helm v. State,supra, had been tried only a few months before) submitted a substitute for section 20, as follows:
"No person's life or liberty shall be twice placed in jeopardy for the same offense, but there must be an actual final acquittal or conviction on the merits to bar another prosecution, and when there is a conviction for manslaughter under a charge of murder, and a new trial is granted, this shall not operate as a bar to the conviction of murder on a subsequent trial under such charge.
"Mr. Chrisman moved to lay the substitute of Mr. Hudson on the table, and the ayes and noes being called, said substitute was laid on the table. . . .
"Mr. Hudson moved to amend section 20 by adding thereto, `and this action of the jury or court shall not be considered in a plea of former jeopardy,' which amendment was, on motion, laid on the table, and on further motion section twenty (20) was adopted.
"Mr. Palmer moved a reconsideration of the vote by which the substitute of Mr. Hudson, for section 20, was rejected, and the section was adopted. Journal, pp. 507, 508.
"Mr. Palmer called up his motion to reconsider the vote whereby the substitute offered by Mr. Hudson for section 20 of the report of the committee on Bill of Rights was rejected, and the said section as reported by the committee, adopted, and on motion said vote was reconsidered.
"Mr. Dean in the Chair.
"Mr. Taylor moved to amend substitute of Mr. Hudson by striking out all after the word `prosecution' in said substitute, and the ayes and nays being called, said amendment was adopted. . . . *Page 81
"Mr. Dabney moved to further amend said substitute by striking out the word `final,' which was adopted, and on further motion said substitute was adopted as amended, as section 20 of said report." Journal, p. 514.
The section then read 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 section was then referred to the committee on revision and was incorporated by it in its final draft of the Constitution as section 22 thereof. Journal, pp. 583, 638 and 641.
It is clear from these excerpts from its Journal that what the convention which adopted the Constitution of 1890 intended to accomplish, by its revision of the former jeopardy provision of the Constitution of 1869, was to repudiate the construction placed on the word "jeopardy" by the High Court of Errors and Appeals in the Teat case, and thereby withdraw the protection of that section of the Constitution from persons who have been only constructively and not actually acquitted of crime. This court so held, as I have hereinbefore said, in Roberts v. State,72 Miss. 728, 18 So. 481, wherein it said:
"The last clause of this section changes, fundamentally, the old rule, and wisely puts an end to the unmeritorious escape of persons charged with crime, who had been only technically, not really, once tried. It was put into the Constitution in the interest of due and proper administration of the criminal law, is too plain for construction, [and] means exactly what it says."
In the light of that case and these excerpts from the Journal of the convention which adopted the Constitution of 1890, I am at a loss to understand how it can be said:
"That the learned members of the Constitutional convention made up as it was of great lawyers, desired to get away from the rule announced . . . in the Hurt case." *Page 82
In other words, that they intended to provide that — "When there is a conviction for manslaughter on a charge of murder, and a new trial is granted, this shall not operate as a bar to the conviction of murder on a subsequent trial under such charge."
Judge HUDSON attempted, as hereinbefore set forth, to add that language to the section, but the convention expressly refused to permit him so to do.
Since the Constitution of 1890 was adopted, this court has reaffirmed the rule announced in the Hurt case, and again held that a conviction of the lesser of several offenses charged in an indictment is an acquittal of the higher offenses; and that the setting aside of the conviction of the lesser offense does not set aside or nullify the acquittal of the higher offenses.Powers v. State, 83 Miss. 691, 36 So. 6; Walker v. State,123 Miss. 517, 86 So. 337.
But it is said that the Powers case "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." In that case the court not only "used language carrying the idea that a conviction of manslaughter on an indictment charging the defendant with murder is an acquittal of murder," but it expressly so held, and also that such acquittal is not set aside and annulled when the conviction of manslaughter is set aside. The holding of the Powers case that a conviction of manslaughter on an indictment for murder is an acquittal of murder is here not in dispute, but the question that is here in dispute is whether or not the acquittal of murder in such case is set aside and annulled by the setting aside of the verdict of manslaughter.
The response to that question in the Powers case was clear and was called for by the question there presented to the court for decision. In that case the appellant was *Page 83 tried on an indictment for murder and convicted of manslaughter. This conviction was set aside on an appeal to this court (74 Miss. 777, 21 So. 657), and on the return of the case to the court below the defendant was tried for manslaughter on the original indictment, which charged him with murder, and from a conviction of manslaughter he again appealed to this court. One of the assignments of error was that the court below erred in placing him "on trial for manslaughter on the indictment charging him with murder, and upon which he had previously been acquitted of murder." Powers v. State, 83 Miss. at page 697, 36 So. 6. The argument in support of this assignment of error was:
"That it works a hardship upon the parties accused of crime to be forced to stand trial on an indictment charging a crime graver than the one for which they can then rightfully be convicted."
The ground on which the court overruled this assignment of error, as clearly appears from the language there used, was that the appellant was not prejudiced by being placed on trial for manslaughter on an indictment charging him with murder of which he had been previously acquitted, because he was not thereby, and could not be again, placed on trial for murder, but only for manslaughter; "the reason being that he has a constitutional guaranty that he shall not be twice placed in jeopardy for the same offense." It is also said that after the decision of the Walker case, this question was again presented to this court for decision 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. The question on which the court was evenly divided in that case was whether, under the Rester case, Beauchamp's conviction of manslaughter should be reversed on the ground that the evidence disclosed that he was guilty of murder or nothing. Because of this division the court was unable to reverse Beauchamp's *Page 84 conviction of manslaughter on that ground, and therefore did not reach, and could not have considered, the question here under consideration.
Of the Walker case it is also said:
"That it was founded on the Rester case and was necessarily overruled by the court in the line-up of the cases before it, as were all of the cases founded upon and following its pronouncement upon the effect of a conviction being an acquittal of murder."
I presume that the reference here intended to be made is to the line-up of cases in the opinion rendered in Calicoat v.State, 131 Miss. 169, 95 So. 318. Walker was convicted of manslaughter on an indictment charging him with murder. The evidence contained no element of manslaughter, but disclosed that he was either guilty of murder or was innocent. He was tried twice, the verdict in the first trial being for manslaughter, which was set aside; on the second trial he was again convicted of manslaughter, and appealed to this court. The court below had charged the jury on the law of manslaughter, and on the appeal two questions were presented to this court for decision: (1) In a trial on an indictment for murder wherein the evidence disclosed that the defendant was either guilty of murder or of nothing, was the granting by the trial court to the state of a manslaughter instruction error? (2) In such a case does the verdict of guilty of manslaughter operate as an acquittal of the charge of murder? Both of these questions were answered by the court in the affirmative.
The Calicoat case was also one wherein the conviction was for manslaughter on an indictment for murder, and the evidence disclosed that the defendant was guilty of murder or of nothing. The briefs of counsel presented to the court for decision the same questions that were presented in the Walker case (131 Miss. pages 170 and 173, 95 So. 318). The court in responding to the first of these questions, to which it expressly limited its decision (see pages 188 and 190 of 131 Miss. [95 So. 318]), overruled *Page 85 its holding on that question in the Rester and Walker cases, and returned to its former contrary holding thereon in Huston v.State, 105 Miss. 413, 62 So. 421, and held that the appellant could not complain of his conviction of manslaughter though the evidence disclosed that he was guilty of murder or of nothing. This rendered it wholly unnecessary for the court to discuss the second question presented in the briefs of counsel, and any opinion that it might have expressed thereon would have been meredicta. The right of the court to decide that question could have arisen only after the court had reversed the conviction for manslaughter, and the court expressly so held, for in concluding its opinion it said:
"Since our views lead to an affirmance of the case, we are not here presented with other questions argued by counsel."
It is clear, therefore, that the court there neither overruled the Walker case in so far as it decided the question here under consideration, nor reserved that question for further consideration. It is true that in dissenting from the affirmance in that case Judges ETHRIDGE and ANDERSON stated what in their opinion should be the answer to the second of these questions, but it will hardly be contended that the court is in any way bound thereby.
The Powers and Walker cases stand unaffected by any decision of this court rendered subsequent thereto until to-day, and, in my judgment, should not now be departed from or overruled.
In the Hurt case the High Court of Errors and Appeals could have aligned itself with those courts which hold that when a verdict of conviction of a lesser offense is set aside, the verdict of acquittal of the higher offense charged in the indictment is also set aside and annulled, and I cheerfully admit that such a holding would have met with my approval. Nevertheless this court should not now overrule that case and depart from the rule there laid down, for no case should be overruled unless it is manifestly wrong and is mischievous in its results, *Page 86 and it can hardly be said that a rule which is in accord with the weight of authority, and has been consistently enforced by this court for more than seventy years, is manifestly wrong.
Moreover, the Constitution of 1890 has been in effect for more than thirty-five years, and the rule announced in the Hurt case has been uniformly applied thereto, and when this appellant decided to ask that his conviction of manslaughter be set aside, he had the assurance of this court, on which he had the right to rely, that in so doing he would run no risk of being thereafter tried for murder. The decision now rendered subjects him to a punishment to which he was not subject under the law as interpreted by this court when he applied for and obtained the setting aside of his conviction of manslaughter, and with deference I submit brings the case within the rule announced inState v. Longino, 109 Miss. 125, 67 So. 902, Ann. Cas. 1916E, 371, wherein this court held that to permit punishment to be inflicted under analogous circumstances violates that provision of the Constitution which prohibits cruel and unusual punishment and also the spirit, though not the letter, of that provision thereof which prohibits the enactment of ex post facto laws. If the rule here under consideration was merely one of procedure, no constitutional right of the appellant would here be violated; but his right not to be now punished for murder does not depend on a rule of procedure, but on a rule of substantive law.
The ground on which the Longino case is said not to here apply is because in the Calicoat case, which was decided before the offense for which the appellant was here tried was committed, "the court expressly reserved the decision of that point" (whether a defendant convicted of manslaughter on an indictment for murder can be again tried for murder after his conviction of manslaughter has been set aside) "until it should properly arise." As I have hereinbefore pointed out, no such reservation was made by this court in the opinion rendered *Page 87 by it in that case, but if it had the appellant's rights thereunder as announced in the Longino case could not have been thereby affected.