Calicoat v. State

Concurring and Dissenting Opinion in Calicoat and Strickland cases.

Ethridge, J.

These cases were heard and decided as companion cases, and the reporter is requested to report them as companion cases. I desire to concur in the result reached in the case of Calicoat v. State, No. 22290, for the reason that in my opinion the jury on the evidence in the record could not rightfully acquit the defendant if they are, as required by law to be, persons of good intelligence, sound judgment, and fair character, because the circumstances even as detailed by the defendant do- not malte a case of self-defense, and the doctrine announced in Huston v. State, 105 Miss. 413, 62 So. 421, rightfully applies to the facts in this case. In the other case of Strickland v. State, No. 22824, I think on the evidence of the defendant her rights were prejudiced by the injection of the manslaughter issue. I cannot say with confidence that the jury would not have acquitted had the issue been limited, as it ought to have been, to murder •or self-defense.

I briefed the case for the state in Huston v. State, 105 Miss. 413, 62 So. 421, and think that case is rightly decided on its facts. The facts are not set forth in the report, and very imperfectly in the abstract .of the brief, but I think there could be no doubt that Huston was the guilty agent in bringing about the death of the deceased, and that the *193facts in the record will demonstrate that he alone ivas the perpetrator of the deed. There had been some colloquy between the deceased and the defendant about some one stealing a hat. The question has been elaborately argued before us in the present case, and ably briefed as to what result should follow a conviction of manslaughter in a case where the evidence ‘either showed murder or self-defense, and as to whether such judgment should be affirmed on the ground of harmless error, or whether it should be reversed and the cause tried anew on the original indictment. After a very elaborate and thoughtful consideration of the case, and a review of the authorities, I think the safer and better rule will be to hold that a judgment should be reversed and a new trial awarded on the original indictment where the court is not able to say with confidence that the jury would not have acquitted the defendant had the issues been properly limited and the instruction for manslaughter not given.

I base my reasons for departing from the rule announced in the case of Rolls v. State, 52 Miss. 391, and the case of Hurt v. State, 25 Miss. 378, 59 Am. Dec. 225, and other cases following those cases, upon the ground that section 22 of the present Constitution, providing, as it does, “but there must be an actual acquittal or conviction on the merits to bar another prosecution,” was intended to remedy the situation brought about by previous decisions construing the Constitutions of 1817, 1832, and 1869, which in substance merely provided, “No person’s life or liberty shall be twice placed in jeopardy for the same offense.” It will be noted from the Constitution that the acquittal or conviction must be “actual,” and the word “actual” in my opinion is used in contradistinction from “implied” or “constructive.” It will also be noted that the provision is for “actual acquittal” or “actual conviction” and is different in substance from a mere trial on the merits. In the Hurt case, supra, and in other cases following it, the acquittal of murder on the conviction of manslaughter was one implied from the verdict. The verdict in a conviction of manslaughter impliedly acquitted the defendant of mur*194rler. It "also impliedly held that he was not innocent, or, in other words, was not acquitted. The implication of noninnocence flows just as logically and effectively from a verdict of conviction of manslaughter as does the acquittal of murder by such implication. 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, and the use of the word “actual” in the Constitution of 1890 necessarily .negatives any verdict by implication or any judgment by implication from such verdict. The word “actuah,’ deals with the real, the substance of things, and meant a real, sure-enough acquittal, or a real, sure-enough conviction on the merits of the case. In such case implied or constructive acquittals afford no protection.

These decisions under the former Constitutions should not be considered as authorities under the present Constitution, and this is the first time that this question has been fairly presented to the court for decision. In nearly all of the states the constitutional provision is either identical or similar in its language to our constitutional provision against double jeopardy before the Constitution ■ of 1890, and almost identical with the provision against double jeopardy in the United States Constitution. It seems to me that it is too clear for argument that a defendant should not be privileged to set aside a judgment and verdict on the part which goes against him, and annul a trial and conviction, and escape being retried on the original charge when the verdict and judgment upon which he was convicted was annulled at his instance, he has not been in jeopardy because such judgment and trial have been declared illegal. The true rule, as I believe, is stated in *1958 Ruling Case Law, p. 161, par. 153, under the heading of “Criminal Law,” which reads as follows:

“153. Conviction of Lower Degree of Crime as Acquittal of Higher 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 ‘twice in jeopardy’ rule, so that, if a new’ trial is granted, it must be limited to the lower degree of w’hich the defendant was previously convicted. One line of axithorities 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 sxxch 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 w’hich 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 hoxv the positive finding which furnishes the sole basis for the negative implication can be destroyed and set aside by the voluntary action of the accxxsed, and yet leave the implication to stand alone withoxxt 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, wrhen 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 W’aiver as to jeopai’dy w-hen 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 for any lesser degree thereof. No pow-er can w’rest from him the right so to use that judgment, but, if he chooses to appeal from it, and to *196ask 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 Avhich he has himself procured to be reversed.”

The principle is also well stated by Justice Story 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 ver-, diet of a jury, and judgment has pássed 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 a new trial has been granted in his favor; for in such case his life or limb cannot judicially be said to have been put in jeopardy.” ‘

A terse and unconditional statement of the general rule is laid down in 12 Corpus Juris, p. 1204, par. 973, as follows:

“But a defendant who has been indicted for a particular offense and convicted of a lesser offense may, on a new trial obtained on his own motion, be again tried for the greater offense.”

Among the cases holding that, if the defendant appeals from a conviction of the lower crime, he thereby waives the implied acquittal on the higher crime, and that, if reversed, his position is as if no trial had been had, are: Trono v. U. S., 199 U. S. 521, 26 Sup. Ct. 121, 50 L. Ed. 292, 4 Ann. Cas. 773; U. S. v. Gonzales (D. C.), 206 Fed. 239; 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; Id. 217 U. S. 284, 30 Sup. Ct. 514, 54 L. Ed. 768; Perdue v. State, 134 Ga. 300, 67 S. E. 810; State v. Matthews, 142 N. C. 621, 58 S. E. 342, which expressly overrules former holdings and follows Trono v. U. S., supra; State v. Billings, 140 Mo. 193, 41 S. W. 778; State v. Ash, 68 Wash. 194, 122 *197Pac. 995, 39 L. R. A. (N. S.) 611; State v. Bradley, 67 Vt. 465, 32 Atl. 238; Briggs v. Commonwealth, 82 Va. 554; Bohanan v. State, 18 Neb. 57, 24 N. W. 390, 53 Am. Rep. 791; State v. Beheimer, 20 Ohio St. 572; 4 Ann. Cas. 773; 14 Am. Rep. 752; Gibson v. Somers, 31 Nev. 531, 103 Pac. 1073, 24 L. R. A. (N. S.) 504, 135 Am. St. Rep. 700; State v. Morrison, 67 Kan. 144, 72 Pac. 554; Young v. People, 54 Colo. 293, 130 Pac. 1011; 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; Veatch v. State, 60 Ind. 291; State v. Kessler, 15 Utah, 142, 49 Pac. 293, 62 Am. St. Rep. 911; Turner v. Territory, 15 Okl. 557, 82 Pac. 650; People v. Palmer, 109 N. Y. 413, 17 N. E. 213, 4 Am. St. Rep. 477; State v. Arnold, 83 Ky. 1, 4 Am. St. Rep. 114.

In the case of Trono v. U. S., 199 U. S. 521, 26 Sup. Ct. 121, 50 L. Ed. 292, we find the rule clearly and forcibly stated through Justice Peckham in the following language :

“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 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 thei*eof. 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 *198the greater offense, contained in the judgment which he has himself procured to he 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, 41 L. Ed. 300, 303, 16 Sup. Ct. Rep. 1192 (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 ivas 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 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.”

Likewise, in the case of State v. Ash, 68 Wash. 194, 122 Pac. 995, 39 L. R. A. (N. S.) 611, it was held that the reversal for a new trial upon the defendant’s appeal from a conviction of manslaughter upon a trial of murder subjects him to a retrial on the original accusation. After quoting with approval from the Trono Case, supra, the court used in part the following language:

*199“This reasoning is to onr minds so cog’ent 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. The court 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 hair-splitting 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 and subtle distinctions in the law, and thus enable the guilty to altogether escape. We cannot control the verdicts of juries in their failure to malee true deliverance between the state and the criminal, but we can refuse to extend the farce so as to make it operate 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, . . . and other cases expressing contrary views, are hereby overruled.”

*200The above cases cited have been analyzed and quoted from at length in the masterly brief of the assistant attorney-general in the Strickland case. I regret that I am not able to set out in full these several quotations.

The Reporter is requested to abstract this brief of the assistant attorney-general on point 4 and 5, as well as on the proposition dealt with in the majority opinion.

I invite the careful consideration of the cases herein referred to because I cannot see how we will avoid dealing ivith the matter subsequently in view of the fact that the court has changed its position a number of times and in vieAV of the fact that the case of Virgil v State, 63 Miss. 317, is left unaffected by the majority opinion. In my opinion we are Avarranted by the section of the Constitution above quoted in accepting the doctrine of the United States supreme court announced in Trono v. United States, 199 U. S. 521, 26 Sup. Ct. 121, 50 L. Ed. 292, which seems to me to be thoroughly sound on its reasoning, and is from the highest judicial court of the country, and as such entitled to great respect. Besides, some states since this decision by the United States supreme court have changed their position, and adopted that decision for their future decision. See specially with reference to this case the case of State v. Ash, 68 Wash. 194, 122 Pac. 995, 39 L. R. A. (N. S.) 611.

I can see hoAV the rights of a party on trial may be prejudiced by injecting the issue of manslaughter, inviting a middle ground for the jury betAveen the contentions of the respective parties by which juries may be induced to compromise their opinions and convictions, to the hurt of the defendant.

I am authorized to say that Judge Anderson concurs in my construction of section 22 of the Constitution of Mississippi of 1890, and that thereunder, Avhen a conviction of manslaughter is reversed, the new trial should be on the original charge in the indictment.-