dissenting. The defenses of double jeopardy and res judicata áre to some extent overlapping and might both be applicable in this case. Freedom from double jeopardy, however is a basic constitutional right. For that reason I prefer to emphasize that defense in disagreeing with the majority opinion.
Upon the stipulated facts there is no question about the relationship between the two offenses with which Turner has been charged. He was first accused of having murdered Larry Wayne Yates in the perpetration of robbery. That trial resulted in an acquittal. Turner is now charged with precisely the same act of robbery that was involved in the first case. He pleads the former acquittal as a bar to the present prosecution.
The problem is whether a second trial would put Turner in jeopardy of being convicted for an offense of which he has already been found not guilty. We have no precedent especially close to the point at issue, but it does seem to me that the reasoning adopted in our earlier decisions sustains Turner’s contention in the case at hand.
When the two offenses are so diverse as to have no element in common, of course there is no double jeopardy even though they arise from the same transaction. In State v. Hall, 50 Ark. 28, 6 S. W. 20 (1887), we found that condition to be true of (a) murder and (b) the carrying of a pistol as a weapon. In Campbell v. State, 215 Ark. 785, 223 S. W. 2d 505 (1949), we reached the same conclusion with respect to (a) drunken driving and (b) involuntary manslaughter that occurred during the drunken driving.
The issue becomes closer when the two offenses have some element in common, but each contains a necessary element not involved in the other. That was the situation in Whitted v. State, 187 Ark. 285, 59 S. W. 2d 597 (1933), where the offenses were (a) robbery and (b) burglary in the form of a felonious breaking and entering with intent to rob. We there said that a single act may be an offense against two statutes, if each statute requires proof of an additional fact which the other does not. There we found no double jeopardy, because the accused could have robbed the bank in question without having broken into it or could have broken into it with intent to rob without having consummated that intent. Hence an acquittal upon the charge of robbery did not bar a prosecution for burglary.
Here we have a third, but related, situation. The charge of murder in the perpetration of robbery embraces every element in the crime of robbery, plus the element of a causally-connected homicide. Robbery, on the other hand, contains no additional element not essential to the crime of murder in the perpetration of robbery. What, then, should be the rule in this situation?
Our decision in Sparks v. State, 88 Ark. 520, 114 S. W. 1183 (1908), dealt with an analogous situation, with the vital difference that the two prosecutions were not brought in the same order as in the case at bar. There Sparks first pleaded guilty to a charge of gaming and was subjected to a fine of ten dollars. He was then charged with the offense of gaming with a minor, “based upon the same game for which he had been previously convicted of gaming.” We held that there was no double jeopardy, upon this reasoning: “The first indictment was for gaming. That fact was confessed by the plea of guilty. But the confession of this crime does not constitute the crime of gaming with a minor. There is an added element to the latter offense. To sustain a conviction for it, there must also be proof that one of the players was a minor.”
The Sparks case would be applicable here if the appellant had first pleaded guilty to a charge of robbery. That plea would not have shielded him against a further charge of murder in the perpetration of robbery, for, as we said in Sparks, “There is an added element to the latter offense.” Such a situation does arise when the victim of the robbery dies after the first conviction. See Casenote, 13 Ark. L. Rev. 382 (1959). There is then no double jeopardy.
On the other hand, if Sparks had first been acquitted of gaming, he would have had a valid plea of double jeopardy to the charge of having gamed with a minor in the same transaction. That is, he would already have been acquitted of an essential element in the latter offense. Such a situation was presented in Fox v. State, 50 Ark. 528, 8 S. W. 836 (1888). There we held that an acquittal of robbery was a bar to a charge of false imprisonment in the same transaction, because the offense of simple assault was necessarily included in both charges. “The verdict of not guilty on the trial ... for robbery was an acquittal of all the minor offenses charged in the indictment. It was therefore an acquittal of the simple assault.”
We are now confronted with still a third situation. Turner was first tried upon the more complex charge —that of murder in the perpetration of robbery. He was acquitted. To me the pivotal question is this: What effect should be given to that acquittal? Turner, on the one hand, argues that it should be treated as a finding of not guilty upon the lesser essential offense of robbery. The State, on the other hand, argues that the acquittal may have been due to the prosecution’s failure to prove some fact, such as the death of the alleged victim, that was not an essential element in the crime of robbery. Hence, says the State, a second prosecution should be permissible.
It seems to me that in simple fairness the appellant’s position is the sounder of the two. The plea of double jeopardy is a favored plea, Harp v. State, 59 Ark. 133, 26 S. W. 714 (1894), doubtless because, as we have said, “It is contrary to principles of natural jxastice and humanity, and against the policy of the law to multiply or carve different crimes out of only one criminal act.” Champion v. State, 110 Ark. 44, 160 S. W. 878 (1913).
It is possible, as the State argues, that Turner was acquitted at the first trial because the jury found that no homicide occurred in the course of a robbery that in itself was proved to the jury’s satisfaction. In that case there is nothing unfair in requiring Turner to submit to a second trial, upon the charge of robbery. But it is equally possible, as Turner argues, that he was acquitted because the jury found that he was not engaged in the crime of robbery when he caused Yates’s death without felonious intent. In that case a retrial would unquestionably violate Turner’s constitutional freedom from double jeopardy, for the State would be able to marshal stronger proof of the very offense that it failed to establish to the jury’s satisfaction at the first trial.
It is obviously impossible to answer the question left open by the result of the earlier trial; for it is a question of fact. A second jury cannot be empaneled to hear the same evidence anew and determine upon what basis the first jury arrived at its verdict of not guilty. Yet the situation is wholly of the State’s making. It was the State which chose to prosecute Turner upon the more serious of the two available charges. Turner had absolutely no choice except to defend the charge as best he could. When he prevailed, for a reason that can never be determined in a court of law, he is entitled to invoke the constitutional protection against being tried a second time for the same offense. I would reverse and dismiss.