concurring. I concur fully in the majority opinion on the question of double jeopardy. I would add that State v. Leibowitz, 22 N. J. 102, 123 A. 2d 526 (1956); Harris v. State, 193 Ga. 109, 17 S. E. 2d 573 (1941); and Duvall v. State, 111 Ohio 657, 146 N. E. 90 (1924), are other cases rejecting the plea of double jeopardy in these circumstances.
Even so, I feel that certain comments on statements contained in the dissenting opinion of Mr. Justice Smith are appropriate. I cannot agree with an apparently essential premise of that opinion. Acquittal of the murder cannot, in my opinion, support the argument that the jury might have found that Turner caused Yates’ death without felonious intent and without being engaged in the crime of robbery at the time. In that event the jury would have found Turner guilty of involuntary manslaughter, a degree of homicide which requires no criminal intent or design. Ringer v. State, 74 Ark. 262, 85 S. W. 410, See Ark. Stat. Ann. § 43-2150 (Repl. 1964); Arnold v. State, 179 Ark. 1066, 20 S. W. 2d 189; Allen v. State, 37 Ark. 433.
I do not agree that fundamental fairness requires that the state be barred on the basis of double jeopardy, under existing law. This view would be more acceptable to me if the robbery charged could have been joined with the murder charge or could have been submitted to the jury as an included offense. Fairness is a two-way street. Victims of crime and the people of the state at large are also entitled to fairness in law enforcement. The result reached by the dissent would penalize these interested parties by a decision of a prosecuting attorney to seek to obtain a conviction of the more serious offense where he was not certain that he could produce proof of that offense beyond a reasonable doubt, but felt certain that he could produce the required degree of proof of the less serious offense. An inference may be drawn from the dissenting opinion that the state could properly try the robbery charge first and, if a conviction were had, still prosecute the murder charge, but that an acquittal would bar the murder prosecution. It seems consistent with that theory that conviction of robbery would then be conclusive of that issue in an ensuing murder trial. Be that as it may, it seems much fairer and more logical to me that the state be permitted to try the more serious charge first without the risks involved if double jeopardy were held applicable.
I also agree with the result on the plea of res judicata, the essentials necessary to sustain the plea, and the extent of the bar of the former judgment as stated in the majority opinion. Yet, I respectfully submit that consideration of the plea of res judicata is premature. The question cannot really be determined on the record before us. Furthermore, the prior acquittal of murder is not necessarily res judicata or collateral estoppel on the robbery charge.
In considering the propriety of the circuit court action on appellant’s motion to dismiss, it must be kept in mind that the charge of murder on which appellant was tried was described as having been committed in the perpetration of a robbery or as a wilful, premeditated and deliberated homicide committed with malice aforethought. It is also significant that the only record before us consists of the robbery indictment, the warrant issued thereon, appellant’s motion to dismiss, and a stipulation. There is nothing to show the form or content of the jury verdict or to indicate what evidence was before the jury.
The stipulation adds nothing to the record not hereinabove set out, except statements that the murder charge and the robbery charge arose out of the same set of facts and circumstances and on the same occasion and that the same testimony as was adduced by the state on the former trial will necessarily be introduced in the robbery trial.
While we have previously held that denial of a motion to dismiss upon the grounds of double jeopardy is appealable, the same rule should not apply to pleas of res judicata and collateral estoppel.
In criminal cases, as in civil, an appeal can only be taken from a final order, i. e., one which dismisses the parties from the court, discharges them from the action or concludes their rights to the subject matter in controversy. State v. Langstaff, 231 Ark. 736, 332 S. W. 2d 614. The basis for allowance of appeals from denial of motions to dismiss for failure of the state to bring a defendant to trial before the end of the second term after indictment or upon a plea of double jeopardy is that the absolute right of the defendant to discharge has been denied and no subsequent order or judgment of the courts could place him in the position or give him the rights to which he was entitled at the time of the order denying his motion to dismiss. Jones v. State, 230 Ark. 18, 320 S. W. 2d 645; Ware v. State, 159 Ark. 540, 252 S. W. 934.
The same situation does not apply to a motion to dismiss on the ground of res judicata. Former jeopardy and a failure to provide a speedy trial are bars to prosecution. Jeopardy attaches upon the swearing of a jury to try the case. Jones v. State, supra. Failure to bring one to trial within prescribed time limits entitles him to discharge. Ark. Stat. Ann. §§ 43-1708, 1709 (Repl. 1964). Res judicata and collateral estoppel are defenses. Denial of appellant’s motion would not necessarily be a final determination of this defense. The plea of res judicata cannot be raised by a motion to dismiss unless the facts and nature of the former adjudication appear upon the face of the complaint. It is an affirmative defense. Southern Farmers Association, Inc. v. Wyatt, 234 Ark. 649, 353 S. W. 2d 531. In the cited case an attempt to dispose of the case upon its merits by separating this one issue raised by motion to dismiss was held error. The necessity for this approach to this defense arises from the requirement that before the prior judgment can be held to conclude the matter, it must appear on the face of the record or be shown by extrinsic evidence that the precise question at issue was raised and determined in the former suit. If several distinct matters may have been litigated, upon one or more of which the judgment may have passed, the extrinsic evidence must show that the particular question at issue in the subsequent proceeding was involved and determined. Carrigan v. Carrigan, 218 Ark. 398, 236 S. W. 2d 579.
In Meyer v. Eichenbaum, 202 Ark. 438, 150 S. W. 2d 958, we adopted the following as one of the two main rules of the doctrine of res judicata:
# # ^) Any right, fact, or matter in issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose, or subject-matter of the two suits is the same or not.”
Although we have not made clear distinctions in our cases, we recognize that there is more than one aspect to appellant’s plea of res judicata. Collateral estoppel has been described as “ ‘that aspect of res judicata concerned with the effect of a final judgment on subsequent litigation of a different cause of action involving some of the same issues determined in the initial action.’ ” People v. Roderman, 34 Misc. 2d 497, 229 N. Y. S. 2d 209 (1962).1 The most important distinction between collateral estoppel and the parent doctrine is that “ ‘estoppel is limited * * * to the point actually determined’ ” while res judicata extends the binding effect of the prior adjudication to matters litigated or which might have been litigated. People v. Roderman, supra; People v. Cornier, 42 Misc. 2d 963, 249 N. Y. S. 2d 521 (1964).2 On the record before us, it is really the doctrine of collateral estoppel, not res judicata, that should be considered.
In order to apply the doctrine of collateral estoppel, a court must determine what questions were determined in the prior proceeding. In the present proceeding, if the grounds on which the acquittal was based cannot be definitely determined, the doctrine of collateral estoppel is not applicable. People v. Cornier, supra; People v. Roderman, supra; State v. Hoag, 21 N. J. 496, 122 A. 2d 628 (1956), aff’d 356 U. S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1958); State v. Leibowitz, 22 N. J. 102, 123 A. 2d 526 (1956); Annot., 9 A. L. R. 3d 203 (1966). Appellant urges that the prior acquittal necessarily determined his innocence of robbery. The record before us does not reflect that this is necessarily true or false. There is nothing to show that the jury did not acquit on some other ground, such as that appellant did not kill the deceased or because of a general insufficiency in the state’s proof on the issue of death; hence collateral estoppel is not a defense available, to the appellant in this case.
It will be seen that in order to sustain a defense of res judicata or collateral estoppel, it must appear that the subsequent action involves subject matter which was, or could have been determined in the prior action, or that the question of fact was decided, or might have been, but was not, presented in the former action, or that the fact or matter in issue was directly adjudicated or necessarily involved in the determination made in the first action. On the record before us neither bar exists. It cannot be said, with any assurance, that the guilt of appellant of robbery was determined in the prior prosecution. It could not have been directly adjudicated, nor could it have been presented. We can only presume that the jury verdict was one of acquittal of murder in the first degree. For example, so far as the record discloses, the jury might have found that the victim did not die as a result of any act connected with a robbery. The verdict of not guilty could not be any indication of the finding of the jury that Turner did or did not participate in the perpetration of a robbery. It might well have believed that he did, but that the victim died from natural causes or from some other cause wholly unrelated to the alleged robbery. It might also have found that death did not ensue within a year and a day, as required by Ark. Stat. Ann. § 41-2210 (Repl. 1964).
If the murder charge had been joined with the robbery charge, or the two charges consolidated for trial, or if the question of appellant’s guilt or innocence of the robbery could have been submitted to the jury separately from the question of guilt of murder, the situation would be different. Permissible joinder of offenses is covered by Ark. Stat. Ann. § 43-1010 (Repl. 1964). It would not permit either joinder or consolidation, the latter being governed by the joinder statute. Bailey v. State, 227 Ark. 889, 302 S. W. 2d 796, cert. denied, 355 U. S. 851, 78 S. Ct. 77, 2 L. Ed. 2d 59 (1957). Our statutes on included offenses would not permit the jury in the first case to have found appellant guilty of robbery. Ark. Stat. Ann. §§ 43-2149, 2150 (Repl. 1964).
The area of my disagreement with Mr. Justice Holt is rather limited. Not only can I not accept his position that the denial of the plea of res judicata was appealable, I do not agree that the issue is res judicata, rather than collateral estoppel or that the record now before us sustains a plea of either defense. I do not agree that State v. Greeley, 30 N. J. Super. 180, 103 A. 2d 639 (1954), or Harris v. State, 193 Ga. 109, 17 S. E. 2d 573 (1941), supports his position.
The case of State v. Greely, supra, is a decision by the Judge of the Law Division of the Hudson County Court granting a motion to dismiss both on the grounds of double jeopardy and res judicata. The weakness of this authority is demonstrated by the action of the Supreme Court of New Jersey in State v. Hoag, 21 N. J. 496, 122 A. 2d 628 (1956), wherein it applied the opinion of the Supreme Court of Washington in State v. Barton, 5 Wash. 2d 234, 105 P. 2d 63 (1940), in which it was held that acquittal of first degree murder alleged to have been committed during the course of a robbery was not res judicata in a subsequent prosecution for the robbery. The New Jersey Supreme Court followed the Hoag decision in State v. Leibowitz, 22 N. J. 102, 123 A. 2d 526 (1956), in denying a plea of double jeopardy and an anticipated defense of collateral estoppel in a case in which there was nothing to show upon which of several questions the previous jury’s verdict turned.
While Harris v. State, supra, is a decision by a court of last resort, that court, after rejecting the double jeopardy theory, held that the judgment of acquittal of murder in the perpetration of the robbery was conclusive only as to those matters which were in fact in issue and actually or necessarily adjudicated. It indicated that the plea of former acquittal could be sustained only by showing that the defendant could not have been guilty of the crime with which he was subsequently charged without also being guilty of that of which he had been acquitted. The opinion makes it quite clear that the single question involved on the former trial was whether the defendant participated in the murder and robbery of the deceased. It was emphasized that this was the sole issue that was tried and determined on the first trial. Upon that record, the court properly held this issue to have been adjudicated. It recognized the perplexing question posed by application of the doctrine of res judicata when it reserved the question whether a conviction of murder would have been conclusive of the guilt of robbery in a subsequent trial. There were two dissents from that court’s holding on the estoppel.
The better solution of the entire problem might lie in laws which permitted the charge of both felony-murder and of the felony involved to be tried simultaneously and submitted to the same jury. Of course, statutory action would be necessary to accomplish this.
2For a discussion of these principles see Annot., 9 A. L. R. 3d 203 (1966).